PSES428 – 18/19MP
PSES428 – 18/19MP
Award Date:
20 January 2021
Case Number: PSES428 – 18/19MP
Province: Mpumalanga
Applicant: SADTU obo JJ MAHLANGU
Respondent: Department of Education Mpumalanga
Issue: Unfair Dismissal - Misconduct
Venue: ELRC offices in Centurion
Award Date: 20 January 2021
Arbitrator: COEN HAVENGA
SADTU obo JJ MAHLANGU “the Applicant”
and
DEPARTMENT OF EDUCATION – MPUMALANGA PROVINCE “the Respondent”
ARBITRATION AWARD
Case Number: PSES428 – 18/19MP
Last date of arbitration: 16 November 2020
Final closing arguments submitted in writing on: 1 December 2020
Date of award: 20 January 2021 (extension granted)
COEN HAVENGA
ELRC Arbitrator
Education Labour Relations Council
ELRC Building
261 West Avenue
Centurion
Tel: 012 663 0452
Fax: 012 643 1601
E-mail: gen.sec@elrc.co.za
Website: www.elrc.org.za
1 DETAILS OF HEARING AND REPRESENTATION
1.1 The last day of the hearing of the arbitration took place on 16 November 2020 at the Council’s offices in Centurion. The last of the written closing arguments were received on 1 December 2020 and will form part of the record. The finalization of the matter was delayed by the intermittent unavailability of a CCTV facility and the national lockdown due to the Covid-19 pandemic. The Applicant is SADTU on behalf of Mr. JJ Mahlangu, represented by Mr. T Shiyinduku, a union official. The Respondent is the Mpumalanga Department of Education, represented by Mr. S Khoza. Ms. M Padi acted as intermediary and Mr. S Khuzwayo as interpreter.
2 TERMS OF REFERENCE AND ISSUES TO BE DECIDED
2.1 The arbitration takes place in terms of the referral of the dispute by the Applicant.
2.2 The parties conducted a pre-arbitration meeting, and the minutes thereof appears on page 10 of Bundle A. The parties agreed that the following facts are common cause, and are accepted as proven:
2.2.1 The Applicant was employed by the Respondent as deputy principal of Kusasalethu Comprehensive School (“the School”).
2.2.2 The Applicant earned R30 000,00 per month at the time of his dismissal.
2.2.3 The Applicant had been employed since 1 January 1992.
2.2.4 The Applicant was found guilty of 2 counts of misconduct of contravening section 18(1)(q) of the Employment of Educators Act, no. 76 of 1998, in that he conducted himself in an improper, disgraceful and unacceptable manner by forcefully kissing Complainant no. 1 in his office, and secondly by requesting the phone number of Complainant no. 2 in exchange for calculators that were borrowed by learners.
2.2.5 He was dismissed on 1 August 2018, following a disciplinary hearing and unsuccessful appeal.
2.3 The following issues were placed in dispute:
SUBSTANTIVE FAIRNESS:
2.3.1 The Applicant disputes that he committed the misconduct that he had been found guilty of. During his opening statement, the Applicant’s representative stated that the chairperson’s report was biased, dramatic and that it is disputed. The allegations in respect of the 1st charge are a fabrication by the principal to get rid of the Applicant. The Applicant was charged with 5 counts initially, but only found guilty of these two remaining charges.
PROCEDURAL FAIRNESS:
2.3.2 The Applicant does not dispute the procedural fairness of his dismissal, as reflected in clause 5.4 of the pre-arbitration minute.
2.4 It is important to note that this dispute relates only to the two charges upon which the Applicant was found guilty at the internal disciplinary hearing, and which resulted in him being issued with a sanction of dismissal. No findings can and will be made in respect of the merits or substance of allegations in terms of which the Applicant was found not guilty at the internal disciplinary hearing.
2.5 The relief the Applicant seeks from this arbitration hearing is to be reinstated retrospectively without loss of income or benefits.
2.6 The Respondent submitted the documents contained in Bundle A. The Applicant did not submit any documents.
3 PRELIMINARY ISSUES
3.1 The matter relates to allegations of improper, disgraceful or unacceptable conduct of a sexual nature towards learners who were minors at the time of the alleged incident. In accordance with the protection of the rights of minors afforded them in the Constitution of the Republic of South Africa, the identity of the learners will not be disclosed. I will refer to the minors as the Complainants in this award. The Complainants testified by making use of an intermediary and the ELRC’s CCTV system.
4 SUMMARY OF EVIDENCE
4.1 The proceedings have been recorded digitally, and a summary of the Respondent’s and Applicant’s witnesses’ evidence follows below. What follows is only a summary of evidence adduced at the arbitration hearing and does not purport to be a verbatim transcription of all the testimony given. The record of the proceedings will reflect the complete testimony of the witnesses.
Respondent’s case
4.2 PATUWE XABA (“Xaba”) testified under oath that she is an educator at the School. During the exams in 2017 she went to fetch her lunch box in the car and saw some grade 8 girl learners arguing. She confronted them and they told her that there was an educator who was abusing them. They said he was doing funny stuff. They told her it was the deputy principal. One of the learners looked like she wanted to cry. She said she will see them in class the next day. Xaba was so shocked she could not even take her usual nap when she got home. The next day at school she told a colleague what the learners told her.
4.3 Complainant no. 1 then told Xaba what happened to her. She said she was in the administration area where she met the Applicant. He gave her books to take to his office. She took the books to his office. As she was about to leave, the Applicant came in and locked the door. He grabbed her and kissed her. She tried to free herself. He told her that her lips were juicy. She struggled to get free. The Applicant told her not to be afraid, he would not hurt her. He let go of her when a female educator, Ms. Makgwale, walked past the office. She then managed to escape. Xaba reported the matter to the principal.
4.4 During cross-examination Xaba testified that the learners told her about the Applicant in 2017. She did approach the principal. She never confronted the Applicant.
4.5 MVULA MAZIBUKO (“Mazibuko”) testified under oath that he is an HOD at the School. One day after school the Applicant called him and told him that there were rumours that four learners alleged that the Applicant abused them. Mazibuko told the Applicant that he was not aware of the rumours. The Applicant asked him to accompany him to the principal, to find out why the principal did not call him in. The principal confirmed the allegations. The principal told the Applicant that the learners first went to Xaba, and then came to him. He told the Applicant that the leaners said he grabbed them. The principal asked the Applicant whether he did it, and the Applicant denied it. He said he did not know the learners. The Applicant however later confirmed that he did know the learners, but that he did not touch them. The Applicant cried.
4.6 During cross-examination Mazibuko testified that he was not sure whether the Applicant committed the offence or not.
4.7 COMPLAINANT NO. 1, now 18 years old, testified under affirmation that the incident happened in 2016 when she was 13 years old. It happened such a long time ago that she cannot remember the exact day. Ms. Nkomo sent her to the office, where she came across the Applicant. He said she must follow him to his office. He went into his office first and told her to close the door and he locked it. He then held her and kissed her. When she refused, he said that he was not old and that he would not hurt her. Ms. Makgwale then laughed outside the office as she was walking past. The Applicant opened the door and gave Makgwale some papers. Complainant no. 1 then got a chance to leave and she left the Applicant there in his office. She went back to class. Ms Nkomo was not there, and she left the papers at the window. Complainant no. 1 stayed in class and cried. She did not tell her mother about it when she went home, as she was afraid of how her mother would have reacted. She would have gone to the School furious. She did tell her friend what happened.
4.8 The Applicant touched and kissed Complainant no. 1. He kissed her on the mouth. It stopped when she said: “Haibo sir”. He touched her on her waist when he pulled her towards him. He said he would not hurt her because he was not old. The Applicant came to her home in 2019 after he had been dismissed. He wanted her to write an affidavit and change her testimony. Her mother dealt with the situation and asked what would then happen to Complainant no.1 at school.
4.9 During cross-examination Complainant no. 1 testified that she was in fact 14 when the incident took place. Makgwale was laughing with other educators. She was not laughing at what was happening in the office, the door was closed. The Applicant did not teach her, she knew him form the School. Ms. Nkomo was her English teacher, not her class teacher. She did send her to the office. It was to call Ms. Mabunda. The incident happened a very long time ago, that is why she cannot remember all the detail. She is telling the truth about what the Applicant did to her in the office. She did not find Mabunda but met the Applicant on the stairs when he said they must go to his office. She followed him because she thought he might have wanted to send her on an errand. She was going down the stairs and the Applicant was going up the stairs. The Applicant’s office is upstairs.
4.10 He went into his office first and told her to go in. He locked the door. He then held her and wanted to kiss her. He forcefully kissed her on her mouth. She pulled away but he held her tight. She told her friend, Mpumi, after school. She did not tell her mother. Her friend told the principal, and the principal called them in. After the Applicant told her he was not old, he gave her the papers. She cannot remember the exact time it happened due to the time lapse. She agreed it was during the year-end exam, after her memory was refreshed. The Applicant came to her home in 2019 with a black car. She and her mother talked to him inside his car. He told her to change her story and implicate three lady educators at school as the ones who influenced her to fabricate the incident. Complainant no. 1 was not influenced by anyone, and the principal did not offer her money. There never was a meeting where he offered her R5000,00. The only person who came to her house and wanted to influence her was the Applicant.
4.11 COMPLAINANT NO. 2 testified under oath that she is 18 years old. There was an incident in 2017 involving the Applicant. They were writing mathematics exams. They went to the office to borrow calculators and came across the Applicant. He fetched the calculators from his office. He told them to purchase batteries, as the calculators were not working. Complainant no. 2 was with two friends. The Applicant asked one of the friends for Complainant no. 2’s phone number. He said he wanted it as a form of payment as nothing is for free. They then left. She did not understand what he meant by a form of payment. She felt offended that a teacher could ask for a learner’s number. It was wrong for him to do that. It was improper because he was not her friend.
4.12 During cross-examination Complainant no. 2 testified that the Applicant addressed her directly when he said that there was nothing for mahala. She does not know why he would then not ask her directly for her number. The Applicant did tell them to go and buy batteries. She was surprised that the calculators did not have batteries. She was upset about it. She did not expect to pay for the batteries. She did not smash the calculator on the ground, she just put it down. She was not promised anything to lie about the Applicant asking for her phone number.
Applicant’s case
4.13 JABULANI JULIUS MAHLANGU, the Applicant, testified under oath that he was the deputy principal of the School. Complainant no. 1 never came to his office. He never met her on the steps. She was coached into coming up with that fabricated story.
4.14 He did meet Complainant no. 2 on the steps. She was very disrespectful and demanded batteries for the calculators. The parents are responsible for buying batteries. She became furious and said that she would smash the calculator if he did not give her batteries. She then smashed the calculator on the ground. He did say nothing is for mahala. He referred to the fact that he could not give her batteries for mahala. He does not know where the issue of the phone number came from. He never asked for her number and would never have done it. She is lying. If he wanted her number, he would have asked her for it, not her friends. She was right there.
4.15 The relationship between the Applicant and the principal was never a good one. The principal instigated this whole thing, he wanted him out. The principal was investigated for financial embezzlement, and he was not happy that the Applicant wanted to put financial control measures in place. The Applicant has a B Com degree. The Applicant even resigned from the finance committee. The Applicant was becoming too popular for the principal’s liking. The principal was running a tuck shop for his own benefit. The educators were complaining about the principal, and he thought the Applicant was behind it. The principal was ignoring him and would have done anything to get rid of him. He even said in a staff meeting that he would rather work alone that work with a deputy that was more popular than him. Nkomo, Mabunda and Makgwale all refused to come and testify. The Applicant was emotional because he was angry at the way the principal treated him.
4.16 During cross-examination the Applicant testified that he did not know why Complainant no. 1 would fabricate evidence against him. He never touched or kissed her. He never visited her at home. He did not act against Complainant no. 2 for smashing the calculator, because they had surplus. Although it is a no-fee school, not everything is for free. The parents are responsible for supplying batteries.
5 SUMMARY OF ARGUMENT
5.1 Both parties submitted extensive written closing arguments which form part of the record and will not be repeated here. I have considered all the arguments, legal principles and case law referred to by the parties, together with the other evidence, oral and documentary, presented by the parties during the arbitration hearing, as reflected in the recording of the arbitration.
6 ANALYSIS OF EVIDENCE AND ARGUMENT
6.1 SUBSTANTIVE FAIRNESS OF THE DISMISSAL
In considering the substantive fairness of the dismissal of Mr. Mahlangu for misconduct, the principles contained in Schedule 2: Disciplinary Code and Procedures for Educators, promulgated in terms of the Employment of Educators Act, no. 76 of 1998, as well as the Code of Good Practice for Dismissals in Schedule 8 of the Labour Relations Act, no. 66 of 1995, provide the following guidelines:
a) Whether or not the accused employee contravened a rule or standard regulating conduct in, or of relevance to, the workplace; and
b) If the rule or standard was contravened, whether or not –
i. The rule was a valid or reasonable rule or standard;
ii. The accused employee was aware, or could reasonably be expected to have been aware, of the rule or standard;
iii. The employer has consistently applied the rule or standard.
iv. Dismissal was an appropriate sanction for the contravention of the rule or standard.
The dismissal of Mr. Mahlangu is not in dispute, and the Respondent is therefore required to prove that the dismissal was substantively fair. The Applicant does not dispute the procedural fairness of his dismissal. The standard of proof that is applicable in hearings of this nature is identical to the civil standard – “the employer must prove the case against the employee on the balance of probabilities and not beyond reasonable doubt” – Meadow Feeds (Pietermaritzburg) vs. Sweet Food and Allied Workers Union (1998) Arb1.2.1.
6.1.1 WAS A RULE OR STANDARD REGULATING CONDUCT IN, OR OF RELEVANCE TO, THE WORKPLACE CONTRAVENED?
6.1.1.1 As stated above, the standard of proof that is applicable is identical to the civil standard – “the employer must prove the case against the employee on the balance of probabilities and not beyond reasonable doubt”.
6.1.1.2 Arbitration hearings are not merely reviews of the employer’s decision to dismiss employees, or the propriety of the procedures followed by the employer (John Grogan Dismissal 320 (2002)). An arbitration hearing constitutes a full rehearing on the merits plus an investigation of the fairness of the procedure followed by the employer. (See Gibb v Nedcor Ltd 1998 19 ILJ 364 (LC)). Arbitration amounts to a hearing de novo. The decision of the arbitrator is not reached with reference to the evidential material that was before the employer at the time of its enquiry, but on the evidential material placed before the arbitrator during the arbitration hearing. This means that all relevant evidence must be placed before the arbitrator in proper form, even if it has been fully canvassed at the employee’s disciplinary hearing. (See Sidumo & another v Rustenburg Platinum Mines Ltd & others [2007] JOL 20811 (CC), where the Court approved the LAC dictum in County Fair Foods (Pty) Ltd v CCMA & Others [1999] 11 BLLR 1117 (LAC)). The arbitrator must hear all the evidence relating to the issue and decide afresh on the facts found proved whether the employee committed the misconduct for which he was dismissed or not. If not, the arbitrator is bound to find that the dismissal was substantively unfair, even though the employer acted reasonably based on information available to it at the time of the dismissal (John Grogan Dismissal 93 (2002)).
6.1.1.3 Mr. Mahlangu disputed the substantive fairness of the dismissal, and the Respondent has the duty to prove the fairness thereof.
6.1.1.4 It is not disputed by the Applicant that the actions he had been charged with constitute misconduct. The Applicant merely denied committing such misconduct, i.e., that he conducted himself in an improper, disgraceful and unacceptable manner by forcefully kissing Complainant no. 1 in his office, and secondly by requesting the phone number of Complainant no. 2 in exchange for calculators that were borrowed by learners.
6.1.1.5 I am mindful of the fact that although the Applicant was charged with improper, disgraceful and unacceptable conduct, that the action of forcefully kissing Complainant no. 1 could have a clear and obvious sexual misconduct connotation. It is a natural response in matters relating to the sexual harassment, assault or abuse of children that the reasonable person might view such conduct with disgust and revulsion. This is even more applicable where a trust relationship is abused. As arbitrator one should however be conscious of the need to not to prejudge but to objectively consider the facts of the matter on a balance of probabilities and credibility of the evidence adduced.
6.1.1.6 In respect of the allegations of forcefully kissing Complainant no. 1 and requesting the phone number of Complainant no. 2, the Applicant disputes the version of the witnesses, and denies any wrongdoing, and I must decide on a balance of probabilities which version to accept.
6.1.1.7 The Applicant’s defense in respect of the alleged kissing of Complainant no. 1 is a blanket denial of any wrongdoing. He submits that it is all a fabrication of lies as a result of the principal wanting to get rid of him.
6.1.1.8 I find the Applicant’s version improbable. The Applicant failed to present any substantial evidence that would prove a conspiracy led by the principal. He merely made unsupported allegations in that respect. I find it highly improbable that a child of 14 years would be able to act as a pawn for the principal, and fabricate such an elaborate, detailed version of events.
6.1.1.9 The Applicant never submitted any grievance against the principal for the alleged victimization. One could reasonably have expected of him to follow that route if the principal really made his life so difficult. He testified that he was more popular amongst the other educators than what the principal was, but despite that alleged popularity none of the other educators were prepared to come and testify on his behalf, also despite being subpoenaed by the Applicant. The fact that the Applicant elected not to apply for enforcement of the subpoenas, also favours the probability that he was not convinced that they would indeed substantiate his claims. He also cannot explain why educators, who supposedly liked him, would corroborate the evidence of Complainant no. 1.
6.1.1.10 I find Complainant no. 1 to be a credible witness. The minor memory lapses were to be expected considering the fact that the incident took place at least three years ago. She never contradicted herself in any material aspect of her testimony. The fact that she would concede to certain dates or events once her memory had been refreshed, and not try to justify her incorrect recollection, also supports the finding of credibility of her testimony as a whole.
6.1.1.11 I find no probable reason why the witnesses Xaba and Mazibuko, as well as the others accused of the conspiracy, would fabricate evidence against the Applicant. I find it highly improbable that they would have been convinced to become involved in such an elaborate scheme to falsely implicate the Applicant. The Applicant could not provide any substantial evidence that the alleged conspirators had anything to gain by falsely implicating the Applicant.
6.1.1.12 I also find it improbable that Complainant no. 1 would fabricate the version she testified to. One would expect a fabricated version to be much more dramatic in respect of where the Applicant touched her, for maximum effect. If it was all planned, why was the witnesses reluctant to complain at first. If it were part of a scheme, one would have expected her to shout her feigned indignation from the rooftops as soon as possible.
6.1.1.13 The minor memory lapses in the testimony of Complainant no. 1 do not impact on her credibility to the extent that her testimony in respect of the alleged inappropriate kissing should be discarded. Her evidence is substantially satisfactorily in relation to material issues. Where there are two conflicting versions of the facts the arbitrator should weigh up each version considering all relevant factors. I must consider the evidence of the witnesses to determine which version is more probable in the circumstances and should be accepted as a true reflection of the events that preceded the dismissal of the Applicant.
6.1.1.14 The risk of false incrimination in sexual cases is addressed in Hoffman and Zeffert, The South African Law of Evidence, 4th Edition, Butterworths, 1992, as follows:
“Corroboration is the most satisfactory indication that the Complainant is truthful, but false evidence by the accused or his failure to testify may also be taken into account, as may any other feature of the case which shows that the Complainant’s evidence is reliable and that of the accused false.”. The Respondent’s witnesses’ version has been materially the same throughout the disciplinary and arbitration process. I find it improbable that they would make up such a detailed version of events without any reason. The Applicant’s version that is a fabrication is not plausible.
6.1.1.15 I can find no substance in the allegation that the Respondent’s version is a fabrication and a lie. I can find no probable motive for the witnesses to fabricate evidence and lie at the arbitration hearing. The Applicant could not provide any probable evidence that would support such notion. I find no substance in the Applicant’s version that a dislike by the principal is behind the attack on him. I therefore find the evidence of the Respondent’s witnesses given at the arbitration hearing in respect of the conduct of the Applicant in respect of Complainant no. 1 to be credible and probable. I find that it was proven on balance of probabilities that the Applicant conducted himself in an improper, disgraceful and unacceptable manner by forcefully kissing Complainant no. 1 in his office.
6.1.1.16 In respect of the second charge, i.e., that the Applicant conducted himself in an improper, disgraceful and unacceptable manner by requesting the phone number of Complainant no. 2 in exchange for calculators that were borrowed by learners, I cannot on a balance of probabilities find that the Applicant committed the alleged offence. It is not in dispute that there was an argument between Complainant no. 2 and the Applicant about the fact that the Applicant would not provide them with batteries for the calculators. She admitted that it upset her. I find it improbable that the Applicant would have requested her phone number, knowing that she was furious with him. I also find it improbable that he would have asked her friends for her number, while she was right there, engaging him in the quarrel about the batteries.
6.1.1.17 Therefore, with consideration of all the relevant cautionary rules I find that the Respondent provided evidence that proves on a balance of probabilities that Mr. Mahlangu in respect of the first charge, committed the alleged misconduct he was found guilty of, i.e., that he forcefully kissed Complainant no. 1, thereby contravening section 18(1)(q) of the Employment of Educators Act, no. 76 of 1998. There is therefore evidence before me that proves that Mr. Mahlangu contravened a rule or standard regulating conduct in, or of relevance to, the workplace.
6.1.2 WAS THE RULE A VALID OR REASONABLE RULE?
Considering the nature of the employer’s business, the circumstances in which it operates, the type of work performed by the employee and the environment in which the work is performed, it is accepted that the rules are valid, i.e., lawful and reasonable. It is reasonable to expect educators to refrain from disgraceful and improper conduct towards learners. It has also been specifically prohibited by legislation. There is no evidence that the rules had been abrogated by disuse because the employer had not relied on it for some time. The Applicant did in any event not place this issue in dispute.
6.1.3 WAS THE ACCUSED EMPLOYEE AWARE, OR COULD HE REASONABLY BE EXPECTED TO HAVE BEEN AWARE, OF THE RULE?
What is required by the provisions of paragraph 7 of Schedule 8 for a dismissal for misconduct to be fair is that “the employee was aware or could be reasonably expected to have been aware of the rule or standard”. The offence the employee has been charged with appears in the Employment of Educators Act, no. 76 of 1998. The Applicant did not place knowledge of the rule in dispute.
6.1.4 HAS THE RULE BEEN CONSISTENTLY APPLIED BY THE EMPLOYER?
There is no evidence of inconsistent and arbitrary action on the part of the employer in this matter. There is no evidence that the employer has habitually or frequently condoned similar offences in the past. There is also no evidence that the employer’s standards differ materially from those applied by other employers.
6.1.5 WAS DISMISSAL AN APPROPRIATE SANCTION FOR THE CONTRAVENTION OF THE RULE?
6.1.5.1 In considering an appropriate sanction, I am required to exercise my discretion reasonably, honestly and with due regard to the general principles of fairness.
6.1.5.2 The Respondent has argued that dismissal is appropriate considering the nature of the transgression. I must consider whether dismissal would be an appropriate sanction, and whether a lesser sanction would serve the desired purpose. In considering an appropriate sanction, I am required to exercise my discretion reasonably, honestly and with due regard to the general principles of fairness. The case of Sidumo v Rustenburg Platinum Mines Ltd [2007] 28 ILJ 2405 (CC) dealt with the scope of commissioners’ powers when deciding whether the sanction of dismissal for proven misconduct is fair. The final decision whether the sanction of dismissal for proven misconduct is appropriate rests with the commissioner. I must therefore as impartial adjudicator consider all relevant circumstances in deciding whether the dismissal of the Applicant was the appropriate sanction initially.
6.1.5.3 The Code of Good Conduct: Dismissal, states that one of the requirements of a fair dismissal for misconduct is that the dismissal must be an “appropriate” remedy, in the light of the facts of the case.
6.1.5.4 In an earlier dictum of Conradie JA a similar approach was also followed when the court pronounced that -:
“A dismissal is not an expression of moral outrage; much less is it an act of vengeance. It is, or should be, a sensible operational response to risk management in the particular enterprise. That is why supermarket shelf packers who steal small items are routinely dismissed. Their dismissal has little to do with society’s moral opprobrium of a minor theft; it has everything to do with the operational requirements of the employer’s enterprise.”. The courts have accepted that the ultimate justification for employers’ power to impose discipline flows from their right to manage their business effectively. (See De Beers Consolidated Mines Ltd v CCMA & Others (2000) 21 ILJ 1051 (LAC)).
6.1.5.5 It is well established that the relationship between employer and employee is in essence one of trust and confidence and that, at common law, conduct clearly inconsistent therewith entitles the “innocent” party to cancel the agreement (See Angehrn and Piel v Federal Cold Storage Co Ltd 1908 TS 761 at 777–778.)
6.1.5.6 I am mindful of the fact that although the Applicant was charged with and found guilty at the disciplinary hearing of improper, disgraceful and unacceptable conduct, that the action of forcefully kissing a learner has a clear and obvious sexual misconduct connotation. The Applicant as educator engaged in conduct which is in direct contravention of the values and obligations prescribed by The Code of Professional Ethics of Educators. He failed to act in a proper and becoming way so that his behavior does not bring the teaching profession into disrepute. The Code places emphasis on educators refraining from any form of improper, disgraceful, unacceptable or sexual assault on or harassment of learners at a school, and not abusing the position he holds for personal gain. Section 28(2) of the Constitution of the Republic of South Africa, no. 108 of 1996 provides that a child’s best interests are of paramount importance in every matter concerning the child. This is a factor that I keep in mind as surely it was not in the best interest of the female learners to be treated in that manner by an educator.
6.1.5.7 Having considered all the facts before me, including but not limited to, the gravity of the offence, the senior position of trust the Applicant was employed in, and the years of service of the Applicant I find that the sanction of dismissal is fair and appropriate in the circumstances. The Applicant’s years of service cannot outweigh the gravity and seriousness of his offence. The Labour Appeal Court has held that long service cannot in itself provide a basis for rendering a dismissal unfair. See De Beers Consolidated Mines Ltd v CCMA & Others (2000) 21 ILJ 1051 (LAC).
6.2 PR0CEDURAL FAIRNESS OF THE DISMISSAL
6.2.1 The Applicant did not dispute the procedural fairness of his dismissal, and I find his dismissal procedurally fair.
7 AWARD
7.1 I find that the dismissal of Mr. Mahlangu was for a fair reason related to his conduct, and that the dismissal was effected in accordance with a fair procedure.
7.2 The Applicant is not entitled to any relief.
COEN HAVENGA
ARBITRATOR
20 January 2021
Province: Mpumalanga
Applicant: SADTU obo JJ MAHLANGU
Respondent: Department of Education Mpumalanga
Issue: Unfair Dismissal - Misconduct
Venue: ELRC offices in Centurion
Award Date: 20 January 2021
Arbitrator: COEN HAVENGA
SADTU obo JJ MAHLANGU “the Applicant”
and
DEPARTMENT OF EDUCATION – MPUMALANGA PROVINCE “the Respondent”
ARBITRATION AWARD
Case Number: PSES428 – 18/19MP
Last date of arbitration: 16 November 2020
Final closing arguments submitted in writing on: 1 December 2020
Date of award: 20 January 2021 (extension granted)
COEN HAVENGA
ELRC Arbitrator
Education Labour Relations Council
ELRC Building
261 West Avenue
Centurion
Tel: 012 663 0452
Fax: 012 643 1601
E-mail: gen.sec@elrc.co.za
Website: www.elrc.org.za
1 DETAILS OF HEARING AND REPRESENTATION
1.1 The last day of the hearing of the arbitration took place on 16 November 2020 at the Council’s offices in Centurion. The last of the written closing arguments were received on 1 December 2020 and will form part of the record. The finalization of the matter was delayed by the intermittent unavailability of a CCTV facility and the national lockdown due to the Covid-19 pandemic. The Applicant is SADTU on behalf of Mr. JJ Mahlangu, represented by Mr. T Shiyinduku, a union official. The Respondent is the Mpumalanga Department of Education, represented by Mr. S Khoza. Ms. M Padi acted as intermediary and Mr. S Khuzwayo as interpreter.
2 TERMS OF REFERENCE AND ISSUES TO BE DECIDED
2.1 The arbitration takes place in terms of the referral of the dispute by the Applicant.
2.2 The parties conducted a pre-arbitration meeting, and the minutes thereof appears on page 10 of Bundle A. The parties agreed that the following facts are common cause, and are accepted as proven:
2.2.1 The Applicant was employed by the Respondent as deputy principal of Kusasalethu Comprehensive School (“the School”).
2.2.2 The Applicant earned R30 000,00 per month at the time of his dismissal.
2.2.3 The Applicant had been employed since 1 January 1992.
2.2.4 The Applicant was found guilty of 2 counts of misconduct of contravening section 18(1)(q) of the Employment of Educators Act, no. 76 of 1998, in that he conducted himself in an improper, disgraceful and unacceptable manner by forcefully kissing Complainant no. 1 in his office, and secondly by requesting the phone number of Complainant no. 2 in exchange for calculators that were borrowed by learners.
2.2.5 He was dismissed on 1 August 2018, following a disciplinary hearing and unsuccessful appeal.
2.3 The following issues were placed in dispute:
SUBSTANTIVE FAIRNESS:
2.3.1 The Applicant disputes that he committed the misconduct that he had been found guilty of. During his opening statement, the Applicant’s representative stated that the chairperson’s report was biased, dramatic and that it is disputed. The allegations in respect of the 1st charge are a fabrication by the principal to get rid of the Applicant. The Applicant was charged with 5 counts initially, but only found guilty of these two remaining charges.
PROCEDURAL FAIRNESS:
2.3.2 The Applicant does not dispute the procedural fairness of his dismissal, as reflected in clause 5.4 of the pre-arbitration minute.
2.4 It is important to note that this dispute relates only to the two charges upon which the Applicant was found guilty at the internal disciplinary hearing, and which resulted in him being issued with a sanction of dismissal. No findings can and will be made in respect of the merits or substance of allegations in terms of which the Applicant was found not guilty at the internal disciplinary hearing.
2.5 The relief the Applicant seeks from this arbitration hearing is to be reinstated retrospectively without loss of income or benefits.
2.6 The Respondent submitted the documents contained in Bundle A. The Applicant did not submit any documents.
3 PRELIMINARY ISSUES
3.1 The matter relates to allegations of improper, disgraceful or unacceptable conduct of a sexual nature towards learners who were minors at the time of the alleged incident. In accordance with the protection of the rights of minors afforded them in the Constitution of the Republic of South Africa, the identity of the learners will not be disclosed. I will refer to the minors as the Complainants in this award. The Complainants testified by making use of an intermediary and the ELRC’s CCTV system.
4 SUMMARY OF EVIDENCE
4.1 The proceedings have been recorded digitally, and a summary of the Respondent’s and Applicant’s witnesses’ evidence follows below. What follows is only a summary of evidence adduced at the arbitration hearing and does not purport to be a verbatim transcription of all the testimony given. The record of the proceedings will reflect the complete testimony of the witnesses.
Respondent’s case
4.2 PATUWE XABA (“Xaba”) testified under oath that she is an educator at the School. During the exams in 2017 she went to fetch her lunch box in the car and saw some grade 8 girl learners arguing. She confronted them and they told her that there was an educator who was abusing them. They said he was doing funny stuff. They told her it was the deputy principal. One of the learners looked like she wanted to cry. She said she will see them in class the next day. Xaba was so shocked she could not even take her usual nap when she got home. The next day at school she told a colleague what the learners told her.
4.3 Complainant no. 1 then told Xaba what happened to her. She said she was in the administration area where she met the Applicant. He gave her books to take to his office. She took the books to his office. As she was about to leave, the Applicant came in and locked the door. He grabbed her and kissed her. She tried to free herself. He told her that her lips were juicy. She struggled to get free. The Applicant told her not to be afraid, he would not hurt her. He let go of her when a female educator, Ms. Makgwale, walked past the office. She then managed to escape. Xaba reported the matter to the principal.
4.4 During cross-examination Xaba testified that the learners told her about the Applicant in 2017. She did approach the principal. She never confronted the Applicant.
4.5 MVULA MAZIBUKO (“Mazibuko”) testified under oath that he is an HOD at the School. One day after school the Applicant called him and told him that there were rumours that four learners alleged that the Applicant abused them. Mazibuko told the Applicant that he was not aware of the rumours. The Applicant asked him to accompany him to the principal, to find out why the principal did not call him in. The principal confirmed the allegations. The principal told the Applicant that the learners first went to Xaba, and then came to him. He told the Applicant that the leaners said he grabbed them. The principal asked the Applicant whether he did it, and the Applicant denied it. He said he did not know the learners. The Applicant however later confirmed that he did know the learners, but that he did not touch them. The Applicant cried.
4.6 During cross-examination Mazibuko testified that he was not sure whether the Applicant committed the offence or not.
4.7 COMPLAINANT NO. 1, now 18 years old, testified under affirmation that the incident happened in 2016 when she was 13 years old. It happened such a long time ago that she cannot remember the exact day. Ms. Nkomo sent her to the office, where she came across the Applicant. He said she must follow him to his office. He went into his office first and told her to close the door and he locked it. He then held her and kissed her. When she refused, he said that he was not old and that he would not hurt her. Ms. Makgwale then laughed outside the office as she was walking past. The Applicant opened the door and gave Makgwale some papers. Complainant no. 1 then got a chance to leave and she left the Applicant there in his office. She went back to class. Ms Nkomo was not there, and she left the papers at the window. Complainant no. 1 stayed in class and cried. She did not tell her mother about it when she went home, as she was afraid of how her mother would have reacted. She would have gone to the School furious. She did tell her friend what happened.
4.8 The Applicant touched and kissed Complainant no. 1. He kissed her on the mouth. It stopped when she said: “Haibo sir”. He touched her on her waist when he pulled her towards him. He said he would not hurt her because he was not old. The Applicant came to her home in 2019 after he had been dismissed. He wanted her to write an affidavit and change her testimony. Her mother dealt with the situation and asked what would then happen to Complainant no.1 at school.
4.9 During cross-examination Complainant no. 1 testified that she was in fact 14 when the incident took place. Makgwale was laughing with other educators. She was not laughing at what was happening in the office, the door was closed. The Applicant did not teach her, she knew him form the School. Ms. Nkomo was her English teacher, not her class teacher. She did send her to the office. It was to call Ms. Mabunda. The incident happened a very long time ago, that is why she cannot remember all the detail. She is telling the truth about what the Applicant did to her in the office. She did not find Mabunda but met the Applicant on the stairs when he said they must go to his office. She followed him because she thought he might have wanted to send her on an errand. She was going down the stairs and the Applicant was going up the stairs. The Applicant’s office is upstairs.
4.10 He went into his office first and told her to go in. He locked the door. He then held her and wanted to kiss her. He forcefully kissed her on her mouth. She pulled away but he held her tight. She told her friend, Mpumi, after school. She did not tell her mother. Her friend told the principal, and the principal called them in. After the Applicant told her he was not old, he gave her the papers. She cannot remember the exact time it happened due to the time lapse. She agreed it was during the year-end exam, after her memory was refreshed. The Applicant came to her home in 2019 with a black car. She and her mother talked to him inside his car. He told her to change her story and implicate three lady educators at school as the ones who influenced her to fabricate the incident. Complainant no. 1 was not influenced by anyone, and the principal did not offer her money. There never was a meeting where he offered her R5000,00. The only person who came to her house and wanted to influence her was the Applicant.
4.11 COMPLAINANT NO. 2 testified under oath that she is 18 years old. There was an incident in 2017 involving the Applicant. They were writing mathematics exams. They went to the office to borrow calculators and came across the Applicant. He fetched the calculators from his office. He told them to purchase batteries, as the calculators were not working. Complainant no. 2 was with two friends. The Applicant asked one of the friends for Complainant no. 2’s phone number. He said he wanted it as a form of payment as nothing is for free. They then left. She did not understand what he meant by a form of payment. She felt offended that a teacher could ask for a learner’s number. It was wrong for him to do that. It was improper because he was not her friend.
4.12 During cross-examination Complainant no. 2 testified that the Applicant addressed her directly when he said that there was nothing for mahala. She does not know why he would then not ask her directly for her number. The Applicant did tell them to go and buy batteries. She was surprised that the calculators did not have batteries. She was upset about it. She did not expect to pay for the batteries. She did not smash the calculator on the ground, she just put it down. She was not promised anything to lie about the Applicant asking for her phone number.
Applicant’s case
4.13 JABULANI JULIUS MAHLANGU, the Applicant, testified under oath that he was the deputy principal of the School. Complainant no. 1 never came to his office. He never met her on the steps. She was coached into coming up with that fabricated story.
4.14 He did meet Complainant no. 2 on the steps. She was very disrespectful and demanded batteries for the calculators. The parents are responsible for buying batteries. She became furious and said that she would smash the calculator if he did not give her batteries. She then smashed the calculator on the ground. He did say nothing is for mahala. He referred to the fact that he could not give her batteries for mahala. He does not know where the issue of the phone number came from. He never asked for her number and would never have done it. She is lying. If he wanted her number, he would have asked her for it, not her friends. She was right there.
4.15 The relationship between the Applicant and the principal was never a good one. The principal instigated this whole thing, he wanted him out. The principal was investigated for financial embezzlement, and he was not happy that the Applicant wanted to put financial control measures in place. The Applicant has a B Com degree. The Applicant even resigned from the finance committee. The Applicant was becoming too popular for the principal’s liking. The principal was running a tuck shop for his own benefit. The educators were complaining about the principal, and he thought the Applicant was behind it. The principal was ignoring him and would have done anything to get rid of him. He even said in a staff meeting that he would rather work alone that work with a deputy that was more popular than him. Nkomo, Mabunda and Makgwale all refused to come and testify. The Applicant was emotional because he was angry at the way the principal treated him.
4.16 During cross-examination the Applicant testified that he did not know why Complainant no. 1 would fabricate evidence against him. He never touched or kissed her. He never visited her at home. He did not act against Complainant no. 2 for smashing the calculator, because they had surplus. Although it is a no-fee school, not everything is for free. The parents are responsible for supplying batteries.
5 SUMMARY OF ARGUMENT
5.1 Both parties submitted extensive written closing arguments which form part of the record and will not be repeated here. I have considered all the arguments, legal principles and case law referred to by the parties, together with the other evidence, oral and documentary, presented by the parties during the arbitration hearing, as reflected in the recording of the arbitration.
6 ANALYSIS OF EVIDENCE AND ARGUMENT
6.1 SUBSTANTIVE FAIRNESS OF THE DISMISSAL
In considering the substantive fairness of the dismissal of Mr. Mahlangu for misconduct, the principles contained in Schedule 2: Disciplinary Code and Procedures for Educators, promulgated in terms of the Employment of Educators Act, no. 76 of 1998, as well as the Code of Good Practice for Dismissals in Schedule 8 of the Labour Relations Act, no. 66 of 1995, provide the following guidelines:
a) Whether or not the accused employee contravened a rule or standard regulating conduct in, or of relevance to, the workplace; and
b) If the rule or standard was contravened, whether or not –
i. The rule was a valid or reasonable rule or standard;
ii. The accused employee was aware, or could reasonably be expected to have been aware, of the rule or standard;
iii. The employer has consistently applied the rule or standard.
iv. Dismissal was an appropriate sanction for the contravention of the rule or standard.
The dismissal of Mr. Mahlangu is not in dispute, and the Respondent is therefore required to prove that the dismissal was substantively fair. The Applicant does not dispute the procedural fairness of his dismissal. The standard of proof that is applicable in hearings of this nature is identical to the civil standard – “the employer must prove the case against the employee on the balance of probabilities and not beyond reasonable doubt” – Meadow Feeds (Pietermaritzburg) vs. Sweet Food and Allied Workers Union (1998) Arb1.2.1.
6.1.1 WAS A RULE OR STANDARD REGULATING CONDUCT IN, OR OF RELEVANCE TO, THE WORKPLACE CONTRAVENED?
6.1.1.1 As stated above, the standard of proof that is applicable is identical to the civil standard – “the employer must prove the case against the employee on the balance of probabilities and not beyond reasonable doubt”.
6.1.1.2 Arbitration hearings are not merely reviews of the employer’s decision to dismiss employees, or the propriety of the procedures followed by the employer (John Grogan Dismissal 320 (2002)). An arbitration hearing constitutes a full rehearing on the merits plus an investigation of the fairness of the procedure followed by the employer. (See Gibb v Nedcor Ltd 1998 19 ILJ 364 (LC)). Arbitration amounts to a hearing de novo. The decision of the arbitrator is not reached with reference to the evidential material that was before the employer at the time of its enquiry, but on the evidential material placed before the arbitrator during the arbitration hearing. This means that all relevant evidence must be placed before the arbitrator in proper form, even if it has been fully canvassed at the employee’s disciplinary hearing. (See Sidumo & another v Rustenburg Platinum Mines Ltd & others [2007] JOL 20811 (CC), where the Court approved the LAC dictum in County Fair Foods (Pty) Ltd v CCMA & Others [1999] 11 BLLR 1117 (LAC)). The arbitrator must hear all the evidence relating to the issue and decide afresh on the facts found proved whether the employee committed the misconduct for which he was dismissed or not. If not, the arbitrator is bound to find that the dismissal was substantively unfair, even though the employer acted reasonably based on information available to it at the time of the dismissal (John Grogan Dismissal 93 (2002)).
6.1.1.3 Mr. Mahlangu disputed the substantive fairness of the dismissal, and the Respondent has the duty to prove the fairness thereof.
6.1.1.4 It is not disputed by the Applicant that the actions he had been charged with constitute misconduct. The Applicant merely denied committing such misconduct, i.e., that he conducted himself in an improper, disgraceful and unacceptable manner by forcefully kissing Complainant no. 1 in his office, and secondly by requesting the phone number of Complainant no. 2 in exchange for calculators that were borrowed by learners.
6.1.1.5 I am mindful of the fact that although the Applicant was charged with improper, disgraceful and unacceptable conduct, that the action of forcefully kissing Complainant no. 1 could have a clear and obvious sexual misconduct connotation. It is a natural response in matters relating to the sexual harassment, assault or abuse of children that the reasonable person might view such conduct with disgust and revulsion. This is even more applicable where a trust relationship is abused. As arbitrator one should however be conscious of the need to not to prejudge but to objectively consider the facts of the matter on a balance of probabilities and credibility of the evidence adduced.
6.1.1.6 In respect of the allegations of forcefully kissing Complainant no. 1 and requesting the phone number of Complainant no. 2, the Applicant disputes the version of the witnesses, and denies any wrongdoing, and I must decide on a balance of probabilities which version to accept.
6.1.1.7 The Applicant’s defense in respect of the alleged kissing of Complainant no. 1 is a blanket denial of any wrongdoing. He submits that it is all a fabrication of lies as a result of the principal wanting to get rid of him.
6.1.1.8 I find the Applicant’s version improbable. The Applicant failed to present any substantial evidence that would prove a conspiracy led by the principal. He merely made unsupported allegations in that respect. I find it highly improbable that a child of 14 years would be able to act as a pawn for the principal, and fabricate such an elaborate, detailed version of events.
6.1.1.9 The Applicant never submitted any grievance against the principal for the alleged victimization. One could reasonably have expected of him to follow that route if the principal really made his life so difficult. He testified that he was more popular amongst the other educators than what the principal was, but despite that alleged popularity none of the other educators were prepared to come and testify on his behalf, also despite being subpoenaed by the Applicant. The fact that the Applicant elected not to apply for enforcement of the subpoenas, also favours the probability that he was not convinced that they would indeed substantiate his claims. He also cannot explain why educators, who supposedly liked him, would corroborate the evidence of Complainant no. 1.
6.1.1.10 I find Complainant no. 1 to be a credible witness. The minor memory lapses were to be expected considering the fact that the incident took place at least three years ago. She never contradicted herself in any material aspect of her testimony. The fact that she would concede to certain dates or events once her memory had been refreshed, and not try to justify her incorrect recollection, also supports the finding of credibility of her testimony as a whole.
6.1.1.11 I find no probable reason why the witnesses Xaba and Mazibuko, as well as the others accused of the conspiracy, would fabricate evidence against the Applicant. I find it highly improbable that they would have been convinced to become involved in such an elaborate scheme to falsely implicate the Applicant. The Applicant could not provide any substantial evidence that the alleged conspirators had anything to gain by falsely implicating the Applicant.
6.1.1.12 I also find it improbable that Complainant no. 1 would fabricate the version she testified to. One would expect a fabricated version to be much more dramatic in respect of where the Applicant touched her, for maximum effect. If it was all planned, why was the witnesses reluctant to complain at first. If it were part of a scheme, one would have expected her to shout her feigned indignation from the rooftops as soon as possible.
6.1.1.13 The minor memory lapses in the testimony of Complainant no. 1 do not impact on her credibility to the extent that her testimony in respect of the alleged inappropriate kissing should be discarded. Her evidence is substantially satisfactorily in relation to material issues. Where there are two conflicting versions of the facts the arbitrator should weigh up each version considering all relevant factors. I must consider the evidence of the witnesses to determine which version is more probable in the circumstances and should be accepted as a true reflection of the events that preceded the dismissal of the Applicant.
6.1.1.14 The risk of false incrimination in sexual cases is addressed in Hoffman and Zeffert, The South African Law of Evidence, 4th Edition, Butterworths, 1992, as follows:
“Corroboration is the most satisfactory indication that the Complainant is truthful, but false evidence by the accused or his failure to testify may also be taken into account, as may any other feature of the case which shows that the Complainant’s evidence is reliable and that of the accused false.”. The Respondent’s witnesses’ version has been materially the same throughout the disciplinary and arbitration process. I find it improbable that they would make up such a detailed version of events without any reason. The Applicant’s version that is a fabrication is not plausible.
6.1.1.15 I can find no substance in the allegation that the Respondent’s version is a fabrication and a lie. I can find no probable motive for the witnesses to fabricate evidence and lie at the arbitration hearing. The Applicant could not provide any probable evidence that would support such notion. I find no substance in the Applicant’s version that a dislike by the principal is behind the attack on him. I therefore find the evidence of the Respondent’s witnesses given at the arbitration hearing in respect of the conduct of the Applicant in respect of Complainant no. 1 to be credible and probable. I find that it was proven on balance of probabilities that the Applicant conducted himself in an improper, disgraceful and unacceptable manner by forcefully kissing Complainant no. 1 in his office.
6.1.1.16 In respect of the second charge, i.e., that the Applicant conducted himself in an improper, disgraceful and unacceptable manner by requesting the phone number of Complainant no. 2 in exchange for calculators that were borrowed by learners, I cannot on a balance of probabilities find that the Applicant committed the alleged offence. It is not in dispute that there was an argument between Complainant no. 2 and the Applicant about the fact that the Applicant would not provide them with batteries for the calculators. She admitted that it upset her. I find it improbable that the Applicant would have requested her phone number, knowing that she was furious with him. I also find it improbable that he would have asked her friends for her number, while she was right there, engaging him in the quarrel about the batteries.
6.1.1.17 Therefore, with consideration of all the relevant cautionary rules I find that the Respondent provided evidence that proves on a balance of probabilities that Mr. Mahlangu in respect of the first charge, committed the alleged misconduct he was found guilty of, i.e., that he forcefully kissed Complainant no. 1, thereby contravening section 18(1)(q) of the Employment of Educators Act, no. 76 of 1998. There is therefore evidence before me that proves that Mr. Mahlangu contravened a rule or standard regulating conduct in, or of relevance to, the workplace.
6.1.2 WAS THE RULE A VALID OR REASONABLE RULE?
Considering the nature of the employer’s business, the circumstances in which it operates, the type of work performed by the employee and the environment in which the work is performed, it is accepted that the rules are valid, i.e., lawful and reasonable. It is reasonable to expect educators to refrain from disgraceful and improper conduct towards learners. It has also been specifically prohibited by legislation. There is no evidence that the rules had been abrogated by disuse because the employer had not relied on it for some time. The Applicant did in any event not place this issue in dispute.
6.1.3 WAS THE ACCUSED EMPLOYEE AWARE, OR COULD HE REASONABLY BE EXPECTED TO HAVE BEEN AWARE, OF THE RULE?
What is required by the provisions of paragraph 7 of Schedule 8 for a dismissal for misconduct to be fair is that “the employee was aware or could be reasonably expected to have been aware of the rule or standard”. The offence the employee has been charged with appears in the Employment of Educators Act, no. 76 of 1998. The Applicant did not place knowledge of the rule in dispute.
6.1.4 HAS THE RULE BEEN CONSISTENTLY APPLIED BY THE EMPLOYER?
There is no evidence of inconsistent and arbitrary action on the part of the employer in this matter. There is no evidence that the employer has habitually or frequently condoned similar offences in the past. There is also no evidence that the employer’s standards differ materially from those applied by other employers.
6.1.5 WAS DISMISSAL AN APPROPRIATE SANCTION FOR THE CONTRAVENTION OF THE RULE?
6.1.5.1 In considering an appropriate sanction, I am required to exercise my discretion reasonably, honestly and with due regard to the general principles of fairness.
6.1.5.2 The Respondent has argued that dismissal is appropriate considering the nature of the transgression. I must consider whether dismissal would be an appropriate sanction, and whether a lesser sanction would serve the desired purpose. In considering an appropriate sanction, I am required to exercise my discretion reasonably, honestly and with due regard to the general principles of fairness. The case of Sidumo v Rustenburg Platinum Mines Ltd [2007] 28 ILJ 2405 (CC) dealt with the scope of commissioners’ powers when deciding whether the sanction of dismissal for proven misconduct is fair. The final decision whether the sanction of dismissal for proven misconduct is appropriate rests with the commissioner. I must therefore as impartial adjudicator consider all relevant circumstances in deciding whether the dismissal of the Applicant was the appropriate sanction initially.
6.1.5.3 The Code of Good Conduct: Dismissal, states that one of the requirements of a fair dismissal for misconduct is that the dismissal must be an “appropriate” remedy, in the light of the facts of the case.
6.1.5.4 In an earlier dictum of Conradie JA a similar approach was also followed when the court pronounced that -:
“A dismissal is not an expression of moral outrage; much less is it an act of vengeance. It is, or should be, a sensible operational response to risk management in the particular enterprise. That is why supermarket shelf packers who steal small items are routinely dismissed. Their dismissal has little to do with society’s moral opprobrium of a minor theft; it has everything to do with the operational requirements of the employer’s enterprise.”. The courts have accepted that the ultimate justification for employers’ power to impose discipline flows from their right to manage their business effectively. (See De Beers Consolidated Mines Ltd v CCMA & Others (2000) 21 ILJ 1051 (LAC)).
6.1.5.5 It is well established that the relationship between employer and employee is in essence one of trust and confidence and that, at common law, conduct clearly inconsistent therewith entitles the “innocent” party to cancel the agreement (See Angehrn and Piel v Federal Cold Storage Co Ltd 1908 TS 761 at 777–778.)
6.1.5.6 I am mindful of the fact that although the Applicant was charged with and found guilty at the disciplinary hearing of improper, disgraceful and unacceptable conduct, that the action of forcefully kissing a learner has a clear and obvious sexual misconduct connotation. The Applicant as educator engaged in conduct which is in direct contravention of the values and obligations prescribed by The Code of Professional Ethics of Educators. He failed to act in a proper and becoming way so that his behavior does not bring the teaching profession into disrepute. The Code places emphasis on educators refraining from any form of improper, disgraceful, unacceptable or sexual assault on or harassment of learners at a school, and not abusing the position he holds for personal gain. Section 28(2) of the Constitution of the Republic of South Africa, no. 108 of 1996 provides that a child’s best interests are of paramount importance in every matter concerning the child. This is a factor that I keep in mind as surely it was not in the best interest of the female learners to be treated in that manner by an educator.
6.1.5.7 Having considered all the facts before me, including but not limited to, the gravity of the offence, the senior position of trust the Applicant was employed in, and the years of service of the Applicant I find that the sanction of dismissal is fair and appropriate in the circumstances. The Applicant’s years of service cannot outweigh the gravity and seriousness of his offence. The Labour Appeal Court has held that long service cannot in itself provide a basis for rendering a dismissal unfair. See De Beers Consolidated Mines Ltd v CCMA & Others (2000) 21 ILJ 1051 (LAC).
6.2 PR0CEDURAL FAIRNESS OF THE DISMISSAL
6.2.1 The Applicant did not dispute the procedural fairness of his dismissal, and I find his dismissal procedurally fair.
7 AWARD
7.1 I find that the dismissal of Mr. Mahlangu was for a fair reason related to his conduct, and that the dismissal was effected in accordance with a fair procedure.
7.2 The Applicant is not entitled to any relief.
COEN HAVENGA
ARBITRATOR
20 January 2021