ELRC814-19/20WC
ELRC814-19/20WC
Award Date:
31 January 2021
Case Number: ELRC814-19/20WC
Province: Western Cape
Applicant: Gino Carl Collin Rhoda
Respondent: Department of Education Western Cape
Issue: Unfair Dismissal - Misconduct
Award Date: 31 January 2021
Arbitrator: Bella Goldman
Case No ELRC814-19/20WC
In the matter between
Gino Carl Collin Rhoda Educator
And
Department of Education Western Cape Respondent
ARBITRATOR: Bella Goldman
HEARD: 24 November 2020
CLOSING ARGUMENT: 1 December 2020
DELIVERED: 31 January 2021
INQUIRY AWARD
Details of the hearing, representation and background
1. The matter was scheduled for an inquiry hearing at Sanlam Building, Golden Acre in Cape Town on the 24 November 2020. The educator presented his own case. Ms Candice Hanekom, labour relations officer represented the department. It was agreed that closing argument would be submitted by the parties by no later than 1 December 2020. The proceedings were digitally recorded. Ms Jennifer Biko acted as interpreter.
2. The matter is heard in terms of Collective Agreement 3 of 2018. Clause 3 of the Agreement provides that in all matter in which an employer wants to take disciplinary action against an educator for alleged sexual misconduct committed towards any learner, an inquiry by an arbitrator also known as a disciplinary hearing, as intended in section 188A of the Labour Relations Act 1995 as amended (LRA) and clause 32 of the dispute resolution procedure for the ELRC, shall be mandatory.
3. The department submitted a bundle of documents in evidence numbered 1 to 11. The documents were agreed as being what they purported to be.
4. The department called two witnesses: Desmoline Lucretia Weavers, social worker and Loretta Loggenberg, principal. The educator gave evidence in support of his case.
Issue to be decided
5. I have to decide whether or not the employee is guilty as charged. If so the appropriate sanction to impose in terms of the Labour Relations Act 66 of 1995 as amended (LRA) and the Employment Educators Act 76 of 1998 as amended (EEA).
Background to the issue
6. The educator is employed as an educator, post level one at Attie Van Wyk Primary School in Durbanville and has been since 2019.
7. Following a complaint received by the principal the educator was charged with.
Misconduct; It is alleged that you are guilty of statutory misconduct in terms of section 18 (1) (d) of the Employment Educators Act 76 of 1998 as amended (EEA) and section 19 of the Sexual Offences Act in that during February 2019 in that you displayed a photo of your private parts via WhatsApp to a former learner at Attie Van Wyk Primary School
8. The educator pleaded guilty; he requested that the sanction of dismissal not be imposed on the basis that he acknowledged that he has a problem for which he is willing to be treated.
Survey of the evidence and argument
9. I have considered all the evidence and argument, but because the LRA (section 138(7)) requires an award to be issued with brief reasons for the findings, I have only referred to the evidence and argument that I regard as necessary to substantiate my findings and the determination of the dispute.
10. Given that the Educator pleaded guilty the department opted not to call the learner as a witness so as not to cause him further trauma.
The department’s evidence
11. The testimony of Ms Desmoline Lucretia Weavers, social worker was that the learner’s mother (given that the learner is a minor his name will not be disclosed) reported the sexual misconduct allegation to the principal. Her role as social worker was to support the learner when he was questioned by the department.
12. The learner was in grade 7 at the time of the incident. The educator started grooming the learner from when the learner was in grade 6. Grooming is defined as, ‘building an emotional connection with a child to gain their trust for the purpose of sexual abuse sexual exploitation trafficking, The learner lived with his mother, his biological father was absent and the learner was looking for father figure, the educator took advantage of this situation He showed an interest in the learner and his mother. He befriended the learner’s mother on social media so as to and gain her trust. The educator noted that the learner showed an aptitude for rugby and had leadership abilities. He financially assisted the learner and his family in order to enable him to become a rugby player. He paid for the educator to attend a gym, he bought gym tackies for the learner, and he bought him food and encouraged him to be part of the school council.
13. The educator had been in communication with the learner through WhatsApp for some time. In about February 2019 the educator sent the learner pictures of his behind and genitals and asked the learner to send him similar photos of himself. The learner did not respond to the request, despite the educator asking him to on several occasions. The educator denied sending him pictures of his genitals; he said that it was only of his buttocks. The educator thereafter asked the leaner to visit him at his home; the learner told the educator that transport would a problem, the educator offered to assist him with transport; however the learner did not visit the educator.
14. During the interview with the department’s representative, the learner displayed symptoms of stress and anxiety. Ms Weavers referred him for therapy. After the incident the learner began abusing drugs and alcohol in order to deal with the trauma of what had taken place. He attempted to commit suicide for which he was admitted to Karl Bremer Hospital. It was at this point that he told him mother of what had taken place and said that was the reason for his attempted suicide.
15. Even if the educator would go for therapy to assist him with his self-admitted problem, in her opinion this would not rehabilitee the educator to the extent that he would be able to fulfill his role as a an educator.
16. The testimony of Ms Loretta Loggenberg, the principal, was that the educator was a trusted educator and trusted member of the SGB. Educators and are regularly reminded of the ‘No More Abuse Policy’. This policy relates to the prohibition of sexual harassment of learners by educators. The educator was clearly aware that his conduct was in breach of this policy and what is expected of an educator. Whilst at school the educator is in loco parentis of leaners; he / she is responsible to ensure that learners are safe and feel safe. The educator clearly did not do this.
17. Should the educator remain at the school she would not be able to trust him, as she has no control over the relationships he may with the learners and the contact he has with them in and out of school hours. Should the educator not be dismissed she cannot be held accountable should he repeat the misconduct.
Educator’s Evidence
18. The educator apologised for the trauma he had put the learner through. He said that he knows that this is no excuse but at the time in question he as suffering from depression He denied send sending photos of his genitals, he said the photos were of his buttocks, he could not recall how many of photos he sent. He could not recall if he asked the learner for photos of himself but if the learner said he did then he probably did.
19. The educator said that he was sure that it was not him but the learner who asked if he could visit the educator. It was put to him that the learner said that the educator asked the learner to visit him. He then admitted that he had asked the learner on one occasion to visit him at home, the leaner said he would ask his aunt to assist with transport. The visit did not take place.
20. The educator said his actions were as a result of something traumatic that had happened to him when he was young. The educator undertook to go for therapy should he not be dismissed. The educator said that he had consulted with psychologist on one occasion to help him deal with his problem. That psychologist referred him to a psychologist who specialized in such matters. He attended a session with her once.
21. It was put to the educator that parents send their children to school where they expect that the learner will be safe, he agreed. He was asked if he was a parent would he entrust his child to an educator who had behaved as he had, his response was ‘not at this stage’. The parties were given the opportunity to submit closing argument in writing in support of their respective cases. Only the department submitted closing argument. I will refer to this where necessary in my analysis.
Analysis of the evidence and argument
22. In a case where unfair dismissal is alleged it is for the department to prove on a balance of probabilities that the dismissal was fair.
23. If an employee is dismissed for misconduct, Schedule 8 of the LRA requires the dismissal to be substantively and procedurally fair. In order for the dismissal to be procedurally fair the employer should prior to dismissing the employee, conduct an investigation to determine if there are grounds for dismissal. In terms of this investigation the employer is required to do the following: notify the employee of the charges against him / her; give the employee reasonable time to prepare a response the charges against him / her allow the employee to be assisted by a fellow employee or a trade union representative and after the investigation the employer should communicate the decision taken and should preferable notify the employee in writing of the reasons for the decision.
24. In order for the dismissal to be substantively fair the employer must prove that: there was a rule the rule was reasonable; the rule was known to the employee or should have been known; the rule was broken by the employee; the rule was applied consistently and dismissal was the appropriate sanction for the breach of the rule.
25. The department followed the prescripts referred to in Schedule 8 of the LRA referred to above and those prescribed in the disciplinary code of the department. In terms of substantive fairness, the educator did not dispute that he was aware of the rule and that he had breached it. The only issue I must make a determination on is sanction. The educator requested that he not be dismissed on the basis that he would go to therapy to address his problem.
26. The educator stated that he sent photos of his buttocks and not of his genitals. Whether the photos were of his genitals or his buttocks or both are immaterial they both are of a sexual nature.
27. I have taken into account that the educator was truly remorseful and that he offered to go for therapy. I noted that the educator had previously sought psychological help but had only attended one session. This type of therapy is not a ‘quick fix’ and the educator himself stated that he would not entrust his child to an educator who behaved like he did.
28. The educator was charged in terms of section 18 of the EEA which does not as section 17; prescribe the mandatory imposition of the sanction of dismissal, should the educator be found guilty. However given the position the educator occupies and the damage that was done and that can be done should he repeat such behaviour, the only sanction which can be applied is dismissal.
Ruling
29. I find that Gino Carlo Rhoda guilty as charged and that the sanction should be summarily dismissal. Should he wish to challenge his dismissal he may refer a dispute to the Labour Court with 30 days of the date of his dismissal.
Signed: ELRC panellist: Bella Goldman
Province: Western Cape
Applicant: Gino Carl Collin Rhoda
Respondent: Department of Education Western Cape
Issue: Unfair Dismissal - Misconduct
Award Date: 31 January 2021
Arbitrator: Bella Goldman
Case No ELRC814-19/20WC
In the matter between
Gino Carl Collin Rhoda Educator
And
Department of Education Western Cape Respondent
ARBITRATOR: Bella Goldman
HEARD: 24 November 2020
CLOSING ARGUMENT: 1 December 2020
DELIVERED: 31 January 2021
INQUIRY AWARD
Details of the hearing, representation and background
1. The matter was scheduled for an inquiry hearing at Sanlam Building, Golden Acre in Cape Town on the 24 November 2020. The educator presented his own case. Ms Candice Hanekom, labour relations officer represented the department. It was agreed that closing argument would be submitted by the parties by no later than 1 December 2020. The proceedings were digitally recorded. Ms Jennifer Biko acted as interpreter.
2. The matter is heard in terms of Collective Agreement 3 of 2018. Clause 3 of the Agreement provides that in all matter in which an employer wants to take disciplinary action against an educator for alleged sexual misconduct committed towards any learner, an inquiry by an arbitrator also known as a disciplinary hearing, as intended in section 188A of the Labour Relations Act 1995 as amended (LRA) and clause 32 of the dispute resolution procedure for the ELRC, shall be mandatory.
3. The department submitted a bundle of documents in evidence numbered 1 to 11. The documents were agreed as being what they purported to be.
4. The department called two witnesses: Desmoline Lucretia Weavers, social worker and Loretta Loggenberg, principal. The educator gave evidence in support of his case.
Issue to be decided
5. I have to decide whether or not the employee is guilty as charged. If so the appropriate sanction to impose in terms of the Labour Relations Act 66 of 1995 as amended (LRA) and the Employment Educators Act 76 of 1998 as amended (EEA).
Background to the issue
6. The educator is employed as an educator, post level one at Attie Van Wyk Primary School in Durbanville and has been since 2019.
7. Following a complaint received by the principal the educator was charged with.
Misconduct; It is alleged that you are guilty of statutory misconduct in terms of section 18 (1) (d) of the Employment Educators Act 76 of 1998 as amended (EEA) and section 19 of the Sexual Offences Act in that during February 2019 in that you displayed a photo of your private parts via WhatsApp to a former learner at Attie Van Wyk Primary School
8. The educator pleaded guilty; he requested that the sanction of dismissal not be imposed on the basis that he acknowledged that he has a problem for which he is willing to be treated.
Survey of the evidence and argument
9. I have considered all the evidence and argument, but because the LRA (section 138(7)) requires an award to be issued with brief reasons for the findings, I have only referred to the evidence and argument that I regard as necessary to substantiate my findings and the determination of the dispute.
10. Given that the Educator pleaded guilty the department opted not to call the learner as a witness so as not to cause him further trauma.
The department’s evidence
11. The testimony of Ms Desmoline Lucretia Weavers, social worker was that the learner’s mother (given that the learner is a minor his name will not be disclosed) reported the sexual misconduct allegation to the principal. Her role as social worker was to support the learner when he was questioned by the department.
12. The learner was in grade 7 at the time of the incident. The educator started grooming the learner from when the learner was in grade 6. Grooming is defined as, ‘building an emotional connection with a child to gain their trust for the purpose of sexual abuse sexual exploitation trafficking, The learner lived with his mother, his biological father was absent and the learner was looking for father figure, the educator took advantage of this situation He showed an interest in the learner and his mother. He befriended the learner’s mother on social media so as to and gain her trust. The educator noted that the learner showed an aptitude for rugby and had leadership abilities. He financially assisted the learner and his family in order to enable him to become a rugby player. He paid for the educator to attend a gym, he bought gym tackies for the learner, and he bought him food and encouraged him to be part of the school council.
13. The educator had been in communication with the learner through WhatsApp for some time. In about February 2019 the educator sent the learner pictures of his behind and genitals and asked the learner to send him similar photos of himself. The learner did not respond to the request, despite the educator asking him to on several occasions. The educator denied sending him pictures of his genitals; he said that it was only of his buttocks. The educator thereafter asked the leaner to visit him at his home; the learner told the educator that transport would a problem, the educator offered to assist him with transport; however the learner did not visit the educator.
14. During the interview with the department’s representative, the learner displayed symptoms of stress and anxiety. Ms Weavers referred him for therapy. After the incident the learner began abusing drugs and alcohol in order to deal with the trauma of what had taken place. He attempted to commit suicide for which he was admitted to Karl Bremer Hospital. It was at this point that he told him mother of what had taken place and said that was the reason for his attempted suicide.
15. Even if the educator would go for therapy to assist him with his self-admitted problem, in her opinion this would not rehabilitee the educator to the extent that he would be able to fulfill his role as a an educator.
16. The testimony of Ms Loretta Loggenberg, the principal, was that the educator was a trusted educator and trusted member of the SGB. Educators and are regularly reminded of the ‘No More Abuse Policy’. This policy relates to the prohibition of sexual harassment of learners by educators. The educator was clearly aware that his conduct was in breach of this policy and what is expected of an educator. Whilst at school the educator is in loco parentis of leaners; he / she is responsible to ensure that learners are safe and feel safe. The educator clearly did not do this.
17. Should the educator remain at the school she would not be able to trust him, as she has no control over the relationships he may with the learners and the contact he has with them in and out of school hours. Should the educator not be dismissed she cannot be held accountable should he repeat the misconduct.
Educator’s Evidence
18. The educator apologised for the trauma he had put the learner through. He said that he knows that this is no excuse but at the time in question he as suffering from depression He denied send sending photos of his genitals, he said the photos were of his buttocks, he could not recall how many of photos he sent. He could not recall if he asked the learner for photos of himself but if the learner said he did then he probably did.
19. The educator said that he was sure that it was not him but the learner who asked if he could visit the educator. It was put to him that the learner said that the educator asked the learner to visit him. He then admitted that he had asked the learner on one occasion to visit him at home, the leaner said he would ask his aunt to assist with transport. The visit did not take place.
20. The educator said his actions were as a result of something traumatic that had happened to him when he was young. The educator undertook to go for therapy should he not be dismissed. The educator said that he had consulted with psychologist on one occasion to help him deal with his problem. That psychologist referred him to a psychologist who specialized in such matters. He attended a session with her once.
21. It was put to the educator that parents send their children to school where they expect that the learner will be safe, he agreed. He was asked if he was a parent would he entrust his child to an educator who had behaved as he had, his response was ‘not at this stage’. The parties were given the opportunity to submit closing argument in writing in support of their respective cases. Only the department submitted closing argument. I will refer to this where necessary in my analysis.
Analysis of the evidence and argument
22. In a case where unfair dismissal is alleged it is for the department to prove on a balance of probabilities that the dismissal was fair.
23. If an employee is dismissed for misconduct, Schedule 8 of the LRA requires the dismissal to be substantively and procedurally fair. In order for the dismissal to be procedurally fair the employer should prior to dismissing the employee, conduct an investigation to determine if there are grounds for dismissal. In terms of this investigation the employer is required to do the following: notify the employee of the charges against him / her; give the employee reasonable time to prepare a response the charges against him / her allow the employee to be assisted by a fellow employee or a trade union representative and after the investigation the employer should communicate the decision taken and should preferable notify the employee in writing of the reasons for the decision.
24. In order for the dismissal to be substantively fair the employer must prove that: there was a rule the rule was reasonable; the rule was known to the employee or should have been known; the rule was broken by the employee; the rule was applied consistently and dismissal was the appropriate sanction for the breach of the rule.
25. The department followed the prescripts referred to in Schedule 8 of the LRA referred to above and those prescribed in the disciplinary code of the department. In terms of substantive fairness, the educator did not dispute that he was aware of the rule and that he had breached it. The only issue I must make a determination on is sanction. The educator requested that he not be dismissed on the basis that he would go to therapy to address his problem.
26. The educator stated that he sent photos of his buttocks and not of his genitals. Whether the photos were of his genitals or his buttocks or both are immaterial they both are of a sexual nature.
27. I have taken into account that the educator was truly remorseful and that he offered to go for therapy. I noted that the educator had previously sought psychological help but had only attended one session. This type of therapy is not a ‘quick fix’ and the educator himself stated that he would not entrust his child to an educator who behaved like he did.
28. The educator was charged in terms of section 18 of the EEA which does not as section 17; prescribe the mandatory imposition of the sanction of dismissal, should the educator be found guilty. However given the position the educator occupies and the damage that was done and that can be done should he repeat such behaviour, the only sanction which can be applied is dismissal.
Ruling
29. I find that Gino Carlo Rhoda guilty as charged and that the sanction should be summarily dismissal. Should he wish to challenge his dismissal he may refer a dispute to the Labour Court with 30 days of the date of his dismissal.
Signed: ELRC panellist: Bella Goldman