Case Number: ELRC891 19/20 KZN
Applicant: PV Nkwanyana
Respondent: Department of Education KwaZulu-Natal
Issue: Unfair Dismissal - Misconduct
Venue: Employer’s premises in Ulundi.
Award Date: 27 January 2021
Arbitrator: Vuyiso Ngcengeni
Case : ELRC891 19/20 KZN
Date of Award: 27 January 2021
Panelist : Vuyiso Ngcengeni
Province : KwaZulu Natal
Employee : PV Nkwanyana
Employer : Department of Education – KwaZulu Natal
Issue : Enquiry by Arbitrator
Venue : Ulundi
Employee representative: Mr Jabulani Nxumalo from SADTU
Telephone : 082 611 7047
Employer representative: Ms Jabu Dumisa
Telephone : 033 846 5170
DETAILS OF THE HEARING AND REPRESENTATION
1. This is the award following an Enquiry by Arbitrator that was held on the 11th of December 2020 at the Employer’s premises in Ulundi.
2. In this award, I record briefly the evidence and the submissions made by the parties to me in order to make a finding and if a guilty finding is made, pronounce on the appropriate sanction.
3. The matter was held under the auspices of the Education Labour Relations Council (the Council) in terms of s188A of the Labour Relations Act of 1996 as amended (LRA) in conjunction with Collective Agreement 3 of 2018 which allows for such cases to be held accordingly.
4. The Employee was present and he was represented by Mr Jabulani Nxumalo whilst the Employer was represented by Ms Jabu Dumisa.
5. Since the matter involves an underage child, there was also an intermediary, and that was Ms Hazel Mabaso.
6. The hearing was conducted in English, there was an Isizulu interpreter. It was also electronically recorded.
7. A scanned bundle was sent to me by email and it includes the suspension letter of the Employee, the referral documents to the Council, statements by parties involved and an investigation report by the Employer.
8. I have not revealed the name of the learner and I shall refer to her as the Learner in terms of clause 5.3.1 of Resolution 3 of 2018. I have also referred to her elder sister as MB.
9. I received only the aggravating factors from the Employer on the 26th of January 2020.
ISSUE TO BE DETERMINED
10. I am required to determine whether the Employee is guilty of the charge stated below: -
10.1 During the period October 2019 at Ekhombe High School, you are alleged to have committed an act of sexual misconduct against a learner NN. Thereby contravened Section 17(1) (b) of the Act.
11. The date was clarified in the hearing that it is the 28th of October 2019, and the Act referred to in 9.1 is Employment of Educators Act no. 76 of 1998 as amended (the Act).
12. The Employee denies the charge.
BACKGROUND TO THE DISPUTE
13. The Employee is employed at Ekhombe High School as an Educator. The learner is also based at the same school. The school is within the Zululand district.
14. The incident allegedly took place on the 28th of October 2019. The Employee was then put on precautionary leave (Suspended) with effect from the 18th of November 2019.
15. The Employer referred this matter to the Council for an Enquiry by Arbitrator on the 18th of November 2019. The matter was therefore set-down accordingly on the 11th of December 2020.
16. At the time of the hearing, the Employee was still on suspension.
SURVEY OF EVIDENCE AND SUBMISSIONS
The Employer’s case
The Learner testified under oath as follows:-
17. On the 28th of October 2019, after school, the Employee asked her to come to his room at 22h00.
18. Whilst at home in the evening, and when they were about to go and sleep, she went outside like someone who had a running stomach going to the toilet. Then she remembered that the Employee had requested her to be with him.
19. She then went to the Employee’s room and upon arrival, he asked her why she did not greet him, she kept quiet.
20. They stayed together during the evening until at about 03h00 when she left and went home.
21. Having arrived at home, her mother asked her where was she coming from and she told her that she had a running stomach. Her mother disputed that and said she did not sleep at home.
22. Her mother and Ms MB (her elder sister) beat her. She however refused to reveal the name of the Employee as he had told her that he would lose his job.
23. She then told them that she was with Mbuso Buthelezi from Mbombini Primary school (nearby).
24. She took a bath and went to school.
25. She stayed for a little while and then went home. They called her to come back to school and she found the Principal, and the chairman of the School Governing Body (SGB) who told her that they have asked Mbuso and he denied that she was with him, whilst she insisted that she was with him.
26. She then told them that she had been with the Employee as he had called her and that they were in love. The Employee denied that she was with him and also that they were in love.
27. In the following day, she went to the school with her parents and they asked her if she would like him to be arrested because he was denying what she said, and she agreed to have him arrested. They then went to the police station.
28. She had a sexual relationship with Employee and they had sex by consent.
29. Under cross examination- The Employee is her class teacher and he taught her isiZulu on grade 11. She knows him very well. The Employee has not been overly friendly with her. Their relationship started in March 2019 and no one else knew about it. Her home is not very far from where the Employee resides. It is not true that she did not have sex with the Employee on that night.
30. Responding to my question, she said that it was after school on the 28th of October, when the Employee asked her to come to him at night, and that the Employee sent her an SMS.
Mrs Gloria Phethiwe Buthelezi (Gloria) testified on behalf of the Employer as follows
31. She is the mother of the Learner and she is employed at Ombimbini Primary School. She stays with the Learner.
32. On the 28th of October 2019 at night, whilst she was asleep in her room, as the Learner sleeps with grandmother in a separate room with other kids, one of the kids called her and told her that the Learner was not in the room.
33. They then looked for her even outdoors in the toilet and they could not find her.
34. She saw her in the morning at about 05h00 and she asked her where did she come from. The Learner first said she has been in the house and she (Mother) told her that she was lying. She went with her to her eldest child, MB, and they beat the Learner. The Learner then said she came from Mbuso Buthelezi (Mbuso).
35. She called Mbuso and his mother. Mbuso denied that the Learner had slept with him. The Learner said they slept in a rondavel and Mbuso disputed that and said he sleeps in a flat. She then saw that Mbuso was correct and the Learner was quiet at that stage.
36. She then went to work. Whilst at work, she called Ms Thembi Buthelezi who is a Health care worker and asked her to ask the Learner as to where did she sleep.
37. Thembi then called her back and told her that after she had asked the Learner whether she was not from the Employee’s room, the Learner consented and said she did not want to mention his name because he would lose his job.
38. She then went to the school and reported the matter, at that time, she was with the Chairman of the SGB, Mr Thokozani Maphisa (Thokozani).
39. The Principal of the school, Mr S Maphisa, Thokozani and the Employee’s Head of Department went outside and then came back, saying the Employee says he was wrongly accused of the matter.
40. The Learner said they were communicating by phone, unfortunately that phone was broken. But when they opened the phone, they discovered that the two had been communicating on Facebook.
41. The Learner said it was not the first time she had been to the Employee’s room. During that time, the Employee kept quiet, except that he denied that and said he was being implicated in a matter that had nothing to do with him.
42. Her child is very intelligent, as she managed to keep the promise not to reveal the name of the Employee, but as things turned out, it became clear that the Employee is the one who had a relationship with the Learner.
43. Under cross examination – She did not know at what stage was the case that they opened against the Employee but thinks the matter was ongoing as she did not see the Employee at school for a few days after the case was opened, and then saw him back again. She and the Learner were never called to go and attend to the case in court. When asked whether did she make any means to follow up on the matter, she said she did, and that the Police came and apologized, saying the Learner said she had a relationship with the Employee and given her age, there was no case against him.
The Employer representative submitted the aggravating factors below -
44. There is no reason why Ms Thembi who is health Councillor decided to lie about Mr Nkwanyana except the fact that this child has been in his place for a number to times and the Community has become aware of their relationship.
45. The Employee failed to give direct response and most of his evidence was not put to the Employer witnesses. Clearly it was manufactured and there is no reason to put weight in it.
46. It is trite that sexual offences in the workplace are viewed in a serious light because of its very nature; that from an inherent perspective dents the trust relationship between Employer and Employee. In this case section 17 of the EEA, as well as SACE code of Conduct discourages sexual relationship between Educators and learners, irrespective of age.
47. Should it be found that Mr Nkwanyana had the sexual relationship with the learner, the weight of the said offence would be aggravated by the fact that he was in a position of trust i.e. an educator and the complainant was in the vulnerable position of being a learner. Of course the allegation do fit section 17(1) of the Employment Of Educator‘s Act as the learner was from the same school.
48. In aggravation Mr Nkwanyana is an educator, he has the responsibility to protect and look after the welfare of any Learner in school. He has abused his position of trust, as he took advantage of the vulnerable and impressionable learner and have sexual intercourse with her.
49. Mr Nkwanyana was supposed to assume the responsibility of being a parent to this child and give guidance to her instead he acted ultra vires.
50. In De Beers Consolidated Mines ltd v Commission for Conciliation, Mediation and Arbitration and others (2000) 21 ILJ 1051 (LAC) at par. 22 a similar approach was 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 supermarkets 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 requirement of the employer’s enterprise”.
51. His conduct cannot be condoned and the employment relationship is broken irreparable.
52. The Employer prays that Mr Nkwanyana be found guilty of committing an act of sexual misconduct against the Learner, who was the leaner in his school.
The Employee’s case
The Employee testified under oath as follows-
53. He has been in the school since 2015.
54. He denies that he had a relationship with the Learner, and also that the learner on the 28th of October 2019 spent the night with him.
55. He knows the Learner as a learner and he was her class teacher on grade 11. He had a normal relationship with her and has never treated her in any special way.
56. He thinks that for her to say that she had a sexual relationship with him is because Thembi had asked her whether she did not sleep with him on the 28th of October.
57. Before being accused of this allegation, he learned about the incident in the morning of the 29th of October after they were called into a meeting by the Principal, Mr S Maphisa and were told that there was a child who said she had slept with Mbuso, but her parent insisted that she had slept with a teacher.
58. Maphisa then asked him and two of his colleagues whom were all male teachers, if they knew anything about the said incident. Each one of them denied having knowledge of the incident.
59. Maphisa, together with Thokozani again called him and told him that the child had been beaten and told to tell the truth, and she has said that she was with him.
60. He disputed that the Learner had slept with him and told them that he was being implicated in a matter that he knows nothing about. He asked them as to why did the Learner’s parent insist that she had slept with a teacher in the first place, to which they said they did not know.
61. There were six male teachers at the school, and only three of them were called and asked about this.
62. When Maphisa asked him to talk to him about the matter, he told him that he had not slept with the Learner.
63. The Principal, the SGB Chairman, the HOD, Mr Biyela and the Learner’s mother called him to a meeting. At that meeting, the aforementioned people talked one by one, begging him to admit to the allegations and that if he did not, the matter could go far. The Learner in that meeting was the last one to speak before him.
64. The Learner said she had told them that she was from Mbuso, then they beat her and asked her if she was from him and she said yes. Maphisa said it seemed as though the Learner did not know where she had slept.
65. He refused to admit to the allegation and told them that it is not possible for him to admit to something that he knows nothing about, and that he was wrongly implicated.
66. They again asked him to admit if he knows anything about the allegations, and he told them he knows nothing about such.
67. Then Gloria said they were going to open a case if he did not admit. He told them that he was not going to do what she wanted him to do, he was only going to do the right thing. He had no problem with the police if she wanted to call them as he knew that he had done nothing wrong.
68. They then released him to go.
69. What they said in the meeting at the school was that they (Learner’s parent) called Mbuso’s mother, swore at her for her child to have slept with her son. Not what Gloria stated now in this hearing.
70. He called his father and his father advised him to go and report the incident in the police station, as the community may put his life in danger.
71. He did not sleep with the Learner. On the 28th of October 2019, he slept alone in his room. He has never had a sexual relationship with the Learner.
72. The allegations similar to these being labelled against him are a norm at the school. They want him to leave the school so that they can employ someone else in his post. The Principal is from the local area.
73. Under cross examination – He did not know Thembi, except that he knew her as a Health Worker in the area. The Learner has never set her feet in his room. When the Learner was asked at school, she said Thembi asked her if she did not sleep in his room, and she said yes, also Gloria said so. He is one of the few teachers in the area that are not from the same area by birth, so a lot of people would know him, even if he does not know them. He was aware that the Learner would open a case, but because he knew that he was innocent, he had no problem with that. He never thought of opening a case against her. He suspected that the person who suspected that the Learner had slept with a teacher was Gloria. He thinks that there are people in the school who want him to leave and it would be to their benefit if he left the school. One of them is the principal because in 2017, he on one Saturday, took kids to a trip in Ulundi and upon their arrival, the area which they were visiting was closed and that was a misunderstanding. On the following Monday, the Principal called him and told him that next time when they visit the area again, the costs would be borne by him. Gloria is an SGB member at the school and has a close relationship with the Principal. Also in 2018, one learner came to him and asked him if he was friends with the Principal, he asked the learner why did she ask that, and the learner said the principal has promised to give her a cell phone and money if she said she was in love with him (Employee). Another teacher, Mr Dlamini also came to him and asked about the same incident and also said it had happened to him (Dlamini). So this issue of framing others was common at the school. It is a lie to say he has ever had sex with the Learner.
74. Answering from me, he said he never had the Learner’s cell phone numbers and has never communicated with her outside school hours.
ANALYSIS OF EVIDENCE AND ARGUMENTS
75. In Stellenbosch Farmers’ Winery Group LTD and another v Marshall et Cie and others  (1) SA 11 (SCA) the Court held that where a Commissioner is faced with two conflicting versions before him, the Commissioner must make a finding on probabilities of the two versions to determine where the truth lies. The question to be answered is whether the probabilities favour the party that bears the onus of proof. The Court further held that the credibility of a witness is in an extricable manner bound to the consideration of the probabilities of the case, the arbitrator should therefore resort to credibility where probability fail to point which version embraces the truth more.
76. It is not in dispute that after the Learner had come home in the morning of 28th October 2019, the Learner was beaten in the process of being told to tell the truth.
77. It is also not in dispute that the name of the Employee was suggested to the Learner and that she only confirmed it.
78. It is apparent that I am faced with mutually destructive versions as the Employee denies having committed the alleged misconduct, whilst the Learner claims that she slept with him. To this end, I will thus be guided by the Stellenbosch case above.
79. The Learner submitted that she was with the Employee on the 28th of October 2019, but she told Gloria that she had been with Mbuso because she did not want to reveal the Employee’s name for the fear that he would lose his job. She also said that the Employee denied that they had been together.
80. The Employee denied that he had a sexual relationship with the Learner and also denied that the Learner slept with him on the 28th of October 2019. He mentioned that his name only came about after being suggested to the Learner by Thembi and he thought it originally came from Gloria.
81. It was apparent from the time that the allegations were first made that the Employee disputed that such allegations are true. Even on the statements submitted by the parties, the Employee denied the allegations as he also did during the hearing.
82. I would therefore have expected the Learner to substantiate the allegations further than just relying on what she said, which for all intense and purposes, was already being disputed.
83. The Employee narrated his version in a manner that is not much different from that of the other witnesses in terms of the chronology of events, the meetings they held and the discussions that ensued. He also mentioned that his name only came about after it was suggested to the Learner, and this was also mentioned by Gloria. He maintained his stance even during cross examination.
84. The reasons for the Employee’s name to be suggested to the Learner are unknown. The Employee said he suspected that Gloria actually gave his name to Thembi, who then suggested such to the Learner.
85. The suspicion of the Employee is credible in my view, particularly when seen at the back of the fact that the Learner had already said that she was with Mbuso, and that notwithstanding, she was still subjected to beating and instructed time and again to tell the truth. Which begs the question as to who could have known the truth better than the Learner herself.
86. What I find curious is why did Gloria insist that the Learner was not speaking the truth when she said she was with Mbuso. After all, the fact that Mbuso denied having been with the Learner is not strange, given the fact that such a conduct would normally be scorned upon by parents.
87. Feeling under immense pressure and the pain of being beaten, when a name of the Employee was suggested to the Learner, she understandably grabbed an opportunity to free herself from such agony, and that name happened to be that of the Employee.
88. It was well known that the Employee was the class teacher of the Learner, since Gloria is also an SGB member at the school.
89. Other than the name being suggested to the Learner by Thembi, there is nothing else that links the Learner to the Employee, particularly as the Learner herself did not come up with the Employee’s name and merely responded affirmatively to a proposition.
90. Gloria’s testimony only corroborates the Learner’s to the extent that she came back in the morning of 28th of October 2019, which is not material as it does not indicate where she had slept.
91. It is intriguing that Gloria was quick to say that they discovered that the Learner had been communicating with the Employee through Facebook, but unfortunately the cell phone had broken, and thus could not be relied on as any form of such communication. She did not mention that she saw the SMS, which the Learner said he used to ask her to come to his room. Also, if the chat was on Facebook, such information is normally available even when one logs onto a different phone and it does not depend on a specific phone.
92. It is common cause that in the meeting held between the Employee and the rest of the aforementioned people including his HOD, they started by persuading him to agree to having committed the misconduct, which he blatantly refused to do. That was followed by threats that if he kept on denying the allegation the matter could go far. Again, that was followed by another threat, to call the police. With all this pressure notwithstanding, the Employee denied the allegations.
93. Despite the immense pressure put onto the Employee, firstly by the Principal, Gloria and Thokozani, he maintained his position and chose to rather trust that the processes such as this Enquiry by the Arbitrator would exonerate him.
94. There is nothing else that attached the Employee to the incident, despite the Learner’s testimony, which is not corroborated by any evidence whatsoever.
95. The standard of proof that an employee committed misconduct is that of a balance of probabilities, as stated by the Labour Court in Avril Elizabeth Homes v CCMA & Others  9 BLLR 833 (LC).
96. In light of the evidence in its totality, it is my respectful view that on the balance of probabilities, the Employer has failed to prove that the Employee committed the said misconduct.
97. In the analysis, I find that the Employee is not guilty of the charge.
98. The Employee is not guilty of the charge.
99. The Employer is ordered to lift the suspension / precautionary leave of the Employee and allow him to report back to the work.
100. The Employee should report back to the school within three days after getting this award.
Panelist / Commissioner