Case Number: ELRC 217-20/21 KZN
Applicant: Sbonelo Frederick Mkhize
Respondent: Department of Education KwaZulu-Natal
Issue: Unfair Dismissal - Misconduct
Award Date: 11 February 2021
Arbitrator: J.D. Vedan
Arbitrator: J.D. Vedan
Case Reference No.: ELRC 217-20/21 KZN
Date of Award: 11 February 2021
In the arbitration between:
Sbonelo Frederick Mkhize Applicant/Employee party
Education Department of KwaZulu-Natal Respondent/Employer party
Respondent’s representative: Mr I. Makhooe
DETAILS OF HEARING AND REPRESENTATION:
1. This arbitration was held via Zoom on 19 November 2020, 7 December 2020 and concluded on 26 January 2021.
2. The Applicant, Sbonelo Frederick Mkhize, appeared in person.
3. The Respondent, Education Department of KwaZulu-Natal, was represented by Mr I. Makhooe, its representative.
BACKGROUND TO THE DISPUTE:
4. In a notice dated 15 August 2019, the Applicant was given notice of his suspension pending a disciplinary hearing over an alleged misconduct.
5. At the time of the alleged offences, the Applicant was employed as an Educator at Ingqungqulu High School, and had been employed there since 2017.
6. The disciplinary hearing took place at Durban Teacher’s Centre on 18 July 2020. The Applicant confirmed that he received and understood the notice of the hearing on 10 July 2020. The Applicant was found guilty of count 2 of the charges brought against him. Count 2 reads as follows:
“You flirted and indecently proposed love relationship to Ms Andiswa Nene, a minor female learner enrolled at the above-mentioned school, and invited her to your private residence7. At the disciplinary hearing the sanction for the Applicant was dismissal.
8. The Respondent stated that it had proved its case against the Applicant, whereas the Applicant stated that he is innocent, and that he has documents to prove his innocence. He further stated that the Chairperson of the disciplinary hearing, Ms Nontobeko Magoso, was biased against him, and further that the witnesses were contradicting each other.
9. The Applicant was dismissed on 20 August 2020.
ISSUE TO BE DECIDED:
10.1. Whether the Respondent conducted an unfair labour practice against the Applicant in regards to his suspension?
10.2. Whether the dismissal of the Applicant was procedurally and substantively unfair?
11. The first witness for the Respondent was Andiswa Nene, who is currently sixteen years old. When the incident happened she was about fifteen years old. She alleged that the Applicant proposed a love relationship with her, and invited her to his private residence. She stated she attends Ingqungqulu Secondary School as a grade ten learner. She further stated that she knows the Applicant, as an Educator at the said school
12. According to Nene, the Applicant touched her, and other learners, in his classroom while he was marking. When she asked him what he was doing, he told her that he was just rubbing chalk on her buttocks. Nene stated that the Applicant touched her on more than one occasion, and said “silly things” to her. On these occasions, she would threaten to report him to her father, and he would state that he was not afraid of her father.
13. She further stated that when she would meet the Applicant outside school, he would ask her to visit his home to clean, and he would promise her “nice things”. He told her that he loved her and that she is his favourite. She further stated that she recorded the Applicant due to him saying dirty things to her.
14. Nene’s father was the Chairperson of the School Governing Body at the relevant time.
15. She stated that she lives in the same neighbourhood as the Applicant, which is five minutes away from the school.
16. Nene further stated that when she passed the Applicant, he would touch her buttocks, breast and thighs under the guise of rubbing chalk. She added that he touched her private parts.
17. According to Nene, her father reported the Applicant to the Principal. Thereafter the Principal asked her if it was true. The Principal did not encourage her to say anything, and only told her to tell the truth. The Chairperson of the School Governing Body, her father at the time, also did not ask her to make any statements.
18. She added that she lost the phone on which she recorded the Applicant, but confirmed that her father had heard the recording.
19. Nene denied having coerced another learner, Noluthando Ndlovu, to make allegations against the Applicant, and stated that she had only asked Ndlovu why she did not want to report the matter. Ndlovu advised Nene that her mother refused to let her report it after the Applicant had gone to her house to speak to her father.
20. The second witness for the Respondent, Sbongiseni E. Zuma, testified that he is the Principal of Ingqungqulu Secondary School since 2016. He stated that the Applicant is an Educator at said school.
21. He stated that he received a report from Mr Nene, Andiswa Nene’s father, that the Applicant was sexually harassing learners by touching their private parts. He further stated that he was disappointed and shocked by the Applicant’s misconduct.
22. According to Zuma, Mr Nene brought a phone to him, and they listened to the recording. Zuma stated that he wrote down what was contained in that recording, and confirmed that it was the voice of the Applicant inviting the learner to his place of residence. Zuma added that he heard the learner refuse, citing the fact that the Applicant was her teacher, and that he was older.
23. Zuma stated that he advised Mr Nene that nothing could be done until it was reported formally. The next day, he called the Applicant and alerted him to the allegations against him in an effort to obtain the Applicant’s side of the story. The Applicant denied everything.
24. Zuma advised the Applicant that further steps could only be taken once the parent formally reported the matter.
25. Zuma called the Applicant and informed him that he needed to be protected, as the matter needed to be hidden from the other educators, especially the female educators. This was due to Zuma being aware of the pain the Applicant would face if he lost his job. He stated that Mr Nene then reported the matter, but was delayed in doing so as he was angry.
26. After the matter was officially reported, Zuma called in the main staff in order to inform them of the issue. He stated that he advised his staff that they would have to protect one another as brothers. He even suggested that the Applicant get a cross-transfer in order to evade the allegations, and the Applicant agreed to this on several occasions.
27. According to Zuma, the Applicant telephonically admitted to the allegations several times. When the Applicant saw Mr Nene at the school on one occasion, he approached Mr Nene and said that he would do anything to apologise.
28. Zuma stated that he reported the case to the Circuit Manager, and was advised to consult with Social Workers. Once all the relevant reports were collected, he handed all the documents to the Circuit Manager, Mr Makhanya, who then took further steps.
29. Zuma further stated that the Applicant was the first teacher he collected from Truro House, and they share a good relationship. He has nothing against the Applicant and trusted him. He further added that he would be happy if the Applicant got his job back.
30. When he asked the Applicant, on one occasion, to lend him the amount of three thousand rand, the Applicant agreed. However the Applicant reconsidered once he had been paid, and advised him that he would not be able to lend him the money. Zuma stated that he accepted this, and later advised the Applicant that he had been sorted out with regard to the money.
31. He added that Mrs Ndaba did arrive at the school with a suspicious letter, but maintained that he had nothing to do with that. He stated that Mrs Ndaba was a post level 2 Educator, and therefore would not interfere with any post level 1 Educator. The Applicant’s claim that Mrs Ndaba’s arrival put his own post in jeopardy was unfounded, according to Zuma. He further added that most of the Applicant’s claims and allegations did not occur in his presence.
32. Zuma stated that the Applicant continuously apologised to him via text messages, and these messages were taken to the SMT, and can be produced. He added that he went out of his way as Principal and broke many rules, including delaying the reporting the matter to the circuit.
33. According to Zuma, the meeting referred to by the Applicant was a committee meeting. The Applicant contacted Zuma and asked about a meeting. Zuma advised the Applicant that his matter would be discussed at the meeting, and therefore the Applicant should not be present. He further told the Applicant that it may be dangerous for him, as the committee’s children are involved in the matter.
34. He stated that Noluthando Ndlovu and Andiswa Nene wrote essays, and in those essays complained about a teacher.
35. According to Zuma, the Applicant approached Mr Nene without informing him and apologised. That is when the Applicant went to Mr Nene’s home to negotiate.
36. The third witness for the Respondent, Ms Nontobeko Magoso, stated that she has been working at the Department of Education since 2000, and is the Labour Relations Officer. She is currently employed as the Assistant Manager. Her work entails conducting investigations, representing the Department in arbitrations and conciliations, and representing the employer in disciplinary hearings. She added that she has been involved in disciplinary hearings since 2011.
37. She stated that she was the Chairperson of the Applicant’s disciplinary hearing, and added that he had been represented by Ms D Khombela from SADTU.
38. She added that she did not consider the evidence of the recording in her findings, as no recording was put before her.
39. Magoso stated that she read the notice to the Applicant, and informed him of his rights. He confirmed receiving the notice, and stated that he understood the notice. According to Magoso, Ms Khombela was allowed to represent the Applicant, and she did attempt to cross-examine witnesses.
40. She added that the Applicant stated that he was ready to proceed with the hearing, as he had been on suspension for almost a year.
41. Magoso stated that as the Assistant Manager in the disciplinary section, she is aware of cases done by the ELRC, and cases done by the employer. She added that she does not know the merits of the cases, and only knows them by schedule.
42. According to Magoso, Andiswa Nene’s allegations were listed as Count 2. Count 1 involved Noluthando Ndlovu, and there was no mention of Ndlovu in her findings, except to note that the Applicant had visited the homes of the learners. Ndlovu did not turn up at the hearing, and therefore that charge was dropped.
43. She further added that she noted that the Applicant had visited the learners who made allegations against him.
44. Magoso stated that her findings are based on the allegations of Nene, as that evidence was before her. The Applicant was found guilty based on the evidence of Nene. She further stated that she considered the corroborations when the learner stated that the Educator toucher her inappropriately and the Principal confirmed this.
45. She added that she did not fabricate that Nene was afraid to tell the truth, as this was confirmed by a certain Ms Gwala. Further she added that Ms Phoswa is an Educator and was incorrectly referred to as a community member.
46. The Applicant testified that he was employed at Ingqungqulu High School in 2017.
47. He stated that he shared a good relationship with the Principal, and that he was the only Educator who respected him. He further added that he had never been absent from school.
48. The Applicant stated that the school is small, and employed ten female teachers and five male teachers. He added that he was a responsible teacher.
49. He added that people advised him that even if he was guilty, he should be protected as a friend.
50. According to the Applicant, his inability to lend the Principal money may have had some bearing on the matter. Further he was the only teacher who refused to join a stokvel run by the Principal.
51. He stated that there was a lady employed at the school in January 2019, and that she was brought in to replace him. According to the Applicant, he was supposed to cross-transfer with a lady who is presently at the school.
52. The Applicant stated that the initiator, Mr Makhooe, who is now the representative of the Respondent in this case, was now his friend, and had stated at the hearing that the Principal was not professional. The Principal had called in the Social Workers himself when this was meant to be done by the Department. The Applicant added that Mr Makhooe agreed that there was no procedural fairness in the matter.
53. The Applicant stated that his Union was not representing him at this arbitration. He added that he was previously represented by his Shop Steward, who was not meant to represent him. The Union told him to get a Doctor’s certificate in order to avoid the hearing. Due to him attending the hearing alone, they advised him that they would not represent him. He added that Ms Gwala was witness to this. However Ms Gwala was not present at the arbitration, as she was tired.
54. He stated that he was not presented with the voice note when he requested it, and was told that it would be presented at the hearing. He was thereafter advised that the learner had lost the phone on which the recording was stored. He claimed that Mr Makhooe advised him that recordings are inadmissible.
55. The Applicant claimed that Mr Makhooe withheld evidence of innocence, including a letter that the Applicant had written to the Department when the matter began. This letter had not been presented to the Presiding Officer. The Applicant stated that the Social Worker’s report had been sent to Mr Makhooe. He claimed that Mr Makhooe submitted documents selectively.
56. He added that he had been given notice of the hearing on 10 June 2020. When he spoke to Mr Makhooe about certain documents, Mr Makhooe stated that he knows what documents are required. He added that Mr Makhooe objected too often during the disciplinary hearing.
57. He claimed that Mr Makhooe spoke to him at a colleague’s funeral, and stated that the Applicant would be the first person he lost to in a hearing.
58. The Applicant stated that he visited the home of the minor child who did not come to the hearing. He stated that the mother advised him that the child would not come to the hearing. He added that he was not a stranger to the parent, and did not want to be called a stranger by Mr Makhooe, who stated that the parent listened to a stranger over their own child.
59. He further claimed that his suspension was excessively long.
60. According to the Applicant, there were contradictions at the hearing. He does not understand how the Department made a finding of dismissal.
61. He added that a member of the community, Ms Gwala, confronted the minor child in the street, and was advised by the minor child that the Applicant was innocent. According to the Applicant, Mr Makhooe advised him that this evidence amounts to nothing, as the learner was confronted in the street.
62. He conceded that he did state that he was ready to proceed with the hearing, and that he chose the Shop Steward as his representative. He claimed that his lack of Union representation is the fault of the Department, as he was only given four days to prepare for the hearing. The Union advised him that it was too short notice.
63. The Applicant stated that he had resigned from Thandaza High School in 2014. He was unemployed in 2015, and attended college in 2016 to obtain further qualifications. He was thereafter employed at Ingunqulu Secondary School in 2017.
64 He denied that his resignation from Thandaza High School was due to an investigation of sexual misconduct. He claimed that this allegation was untrue and malicious. He added that he had resigned due to financial problems and owing money to the University of KwaZulu-Natal. He went to Edu College and completed his professional certificate full-time.
65. The Applicant further claimed that the Chairperson of the disciplinary hearing referred to count 1 in her finding despite the charge being dropped.
66. He stated that he visited the parents of the minor children in an attempt to sort out the issue. When he visited Noluthando Ndlovu’s mother, she stated that her child had not informed her of the issue, and therefore will not attend the hearing.
67. The Applicant confirmed that “private parts” refers to “the buttocks, breast and vagina”. He added that the Principal stated that he had touched the minor child’s private parts, and when asked to clarify, referred to the vagina.
ANALYSIS OF EVIDENCE AND ARGUMENTS:
68. The onus rested on the Respondent to prove that the dismissal for misconduct is substantively fair on a balance of probabilities.
69. With regards to the unfair labour practice alleged against the Respondent, the general rule is that he/she who alleges a fact must prove it on a balance of probabilities. The overall onus always rests on the employee to show the existence of an unfair labour practice. The Applicant has to prove the unfair labour practice in regard to his suspension on a balance of probabilities.
70. With regards to procedural fairness, the Applicant was duly presented with the charges, and he was given four days to present himself at the hearing. The norms and rules require at least forty eight hours notice be given, so the Respondent was well in time with notifying him of the disciplinary hearing.
71. Further he chose his representative at the disciplinary hearing, being his Shop Steward, and did not object to the disciplinary hearing proceeding, and in fact stated he was ready to proceed.
72. As far as the allegations of biasness is concerned, the disciplinary hearing Chairperson, Nontobeko Magoso, gave her evidence clearly and concisely, and there were no contradictions in her evidence. She has long served with the Department of Education, and is experienced in conducting disciplinary hearings.
73. She did not take the recording into account, but only considered the evidence placed before her. She had read out all the rights the Applicant is entitled to. She detailed the evidence given by Andiswa Nene in her report, as well as the Applicant. She as well found the Applicant not guilty of count 1.
74. She did make an error in that she stated that Mrs Phoswa was a community member, and she admitted to the error.
75. All in all I am convinced that she was not biased in reaching her findings.
76. Andiswa Nene, the complainant, is a very young girl, and there was no motive that was proved by the Applicant, as a basis for her to lie. She related quite intimate things, and referred to intimate parts of the female anatomy, which would not be easily related to by a female. She described in detail the advances that the Applicant made towards her.
77. In the Social Worker’s report there may have been a few very minor inconsistencies. However it is clear that the word which is difficult to decipher is actually “touch”. There is also a statement in the Applicant’s bundle, dated 11 July 2019, in which Nene confirms the testimony that she gave before the Council, that the Applicant was relating inappropriate remarks to her.
78. As far as the Principal, Sboniseni E. Zuma is concerned, he was not a direct witness to the inappropriate occurrences, and in his testimony displayed that he in fact tried to protect the Applicant, and that he himself appeared to be operating outside the ambit of the rules and regulations of the Department in seeking to cover up the actions of the Applicant. Instead of having the matter reported, and decided by the Department, he strove to arrange a cross-transfer.
79. The Applicant’s defence in the matter is that the Principal was setting him up, and Zuma’s motive was that at first he had wanted to borrow three thousand rand from the Applicant, and the Applicant could not lend him the money. Secondly the Applicant could not participate in a stokvel that was organised by Zuma.
80. However the Principal’s explanation to the above was acceptable, and one cannot fathom that even given that Zuma did not consider him in a high light, because of his reluctance to enter into a financial arrangement, that Zuma would concoct a plot to have him dismissed in such a fashion, and would rope in Nene and others to present evidence.
81. Furthermore from Zuma’s statements he freely admits that he tried to protect the Applicant from consequences by suggesting a cross-transfer. He even indicated to his fellow teachers that the Applicant should be protected. Furthermore evidence was led that the Applicant had at various times apologised for his actions.
82. Doubt was even cast as to why the Applicant resigned from his previous school before he joined Ingqungqulu High School. His explanation was implausible that he wanted to study further. The Respondent indicated that the Applicant had faced a similar situation at the previous school, and thus had resigned.
83. The Applicant was in a position of trust as an Educator. Educators are akin to parents in a school when it comes to the protection and well-being of children. The overtures and the suggestions that the Applicant made to the minor child was reprehensible to say the least.
84. The Social Worker also came into the school, and reported on the events that had taken place therein.
85. It could not be proven that the disciplinary hearing Chairperson was biased. As far as the initiator goes it is the initiator’s duty to prosecute the case fiercely, and in that sense he is an adversary to the Applicant, and therefore the initiator cannot be said to be biased.
86. The Applicant was found not guilty on the first count as the learner did not go forward, because the Applicant had visited that learner’s home.
87. With regards to the period of the suspension, the Respondent had to have time to investigate the case, and the Applicant was fully paid up to his dismissal, so he did not suffer any adverse consequences with regards to finance.
88. These types of cases also depend upon witnesses and the evidence that has to be procured, and it is understandable that in some cases the period of suspension can be what is regarded a lengthy period.
89. I therefore conclude that the Applicant was rightfully found guilty of unfair conduct in respect of count 2, and the misconduct was of such a gross nature that the sanction of dismissal is an appropriate sanction, and further that the Respondent did not commit any unfair conduct as regards the suspension of the Applicant.
90. The Respondent has not committed any unfair labour practice against the Applicant with regards to his suspension.
91. The Respondent has discharged the onus of proving on a balance of probabilities that the Applicant is guilty on the charge for which he was dismissed. The sanction of dismissal considering the serious transgression committed by the Applicant is appropriate under the circumstances.
92. The dismissal of the Applicant, Sbonelo Frederick Mkhize, was both procedurally and substantively fair.
93. The Applicant is not entitled to any relief.