Case Number: ELRC 1021-19/20 GP
Commissioner: M.A. HAWYES
Date of Award: 16TH March 2021
In the HEARING between
Gauteng Department of Education
Mr N.J Taaso (Taso)
Employer representative: Ms. K.E Mamosadi
Telephone: 079 594 1745
Respondent’s representative: Mr. H. Van Wyk (Attorney)
Telephone: 016- 420-2600
Telefax: 086 508 5114
DETAILS OF HEARING AND REPRESENTATION
1. The case was scheduled for an inquiry for arbitrator i.t.o section 188A of the Labour Relations Act no. 66 of 1995 (as amended) (LRA) at the Sedibeng TVET College. The arbitration was dealt with and finalized over three days namely the 8th and 12th February 2021 and the 23rd February 2021.
2. The parties requested and were granted the opportunity to submit written closing arguments by the 2nd March 2021. Both sets of written arguments were timeously received and my award now follows.
3. Mr. H. Van Wyk, an attorney from Meise Nkaiseng Inc. Attorneys, represented the employee.
4. Ms. K.E Mamosadi, a Labour Relations official, represented the employer.
ISSUE IN DISPUTE
5. Whether the employee is guilty of the charges preferred against him by the employer.
BACKGROUND TO THE ISSUE IN DISPUTE AND COMMON CAUSE FACTS
6. The employer employed the employee as a PL 1 educator at Bophelong Secondary School in 2018 teaching History and Sesotho.
7. The employer brought charges against the employee which involved two learners who were, for all intents and purposes, minors at the time of the alleged incidents’. As such the learners will only be referred to by their initials throughout this award.
8. Two allegations were leveled against the employee. Both allegations were brought i.t.o section 18 (1) (q) of the Employment of Educators Act, no 76 of 1998 (as amended) (EEA).
9. The first allegation is that the employee conducted himself in an improper, disgraceful and unacceptable manner, in that he proposed love to a grade 10 learner (TS) by holding her hand and trying to kiss her, whilst he knew or ought to have known that it was wrong to do so. It was alleged that the incident (s) took place on or around the 16th August 2019.
10. The second allegation is that during the third term of 2018 the employee conducted himself in an improper, disgraceful and unacceptable manner in that he caressed the body of a female learner (NN) and kissed her, whilst he knew or ought to have known that it was wrong to do so.
11. The employee pleaded not guilty to both charges.
12. The Respondent utilized a bundle marked ‘A’. The pre-hearing meeting minutes which took place on the 17th November 2020 was marked ‘B’.
SURVEY OF THE EMPLOYER EVIDENCE AND ARGUMENT
13. The Respondent lead the evidence of five witnesses namely learner TS, learner NN, TS father Mr. Skosana; TS mother Mrs. Skosana and deputy principal, Ms. Evodia Mawela.
14. It is common cause that the employee taught NN Grade 10 history at the time of the alleged incident in 2018 and the employee taught TS Sesotho during 2019. The following facts are common cause:
15. Both TS and NN had failed their respective grades during the years under consideration.
16. TS learned Sesotho as a subject in 2019 for the first time upon her arrival at Bophelong Secondary School from Vaal High (model C town school and it was clear that she struggled to get to grips with the subject.
17. The employee had requested TS cellphone number and she had eventually given the number to him.
18. The employee had visited TS home three times together with two other educators and his brother and had spoken to TS parents concerning the allegations against him.
19. The employee had called TS on her cellphone. An audio clip of one of the whats app conversations was played during the course of the arbitration hearing. TS had sent the audio clip to Mawela.
20. The office, which is the alleged place of the two incidents, is situated at a quiet place at the library.
21. The employee had been on a precautionary transfer since the 28th October 2019 reporting at the District Office.
22. The employee had contacted TS father to meet with him which resulted in the three visits to TS home.
23. The employee recommended someone to TS who would assist her with Sesotho.
24. On a certain day the employee encountered TS near a car wash. The employee was in the company of colleague, Malefane. The employee admitted to praising the girls and in particular TS as being ‘beautiful’.
25. I now deal with a survey of the employer’s evidence against the employee.
26. TS testified that the employee made fun of her inability to master the Sesotho language. She mentioned that he made continual requests of her to bring him fruit and food. If she did not do so, he would chase her from the classroom. After discovering that TS father was a paramedic he wanted her to ask her father for medicine.
27. During the course of term 2 the employee would continually ask her for her cellphone number. She initially ignored him. She later consulted her elder sister about the employee’s requests for her number and the sister advised that she should give it to him but keep a record of all messages and telephone conversations so that she would have evidence of what had happened.
28. TS testified further that on a certain day the employee approached her and declared that she had little prospect of passing Sesotho. He recommended a certain male friend from Sharpville to help her with extra classes. He mentioned that the friend did not want money but that she should ‘give it to him but not too much’. TS puzzled over what the employee meant with these words.
29. TS described an incident at the office library when she was with Tshepo. The employee sent Tshepo to check if they were selling cake at the kiosk. TS had set her phone to record. TS mentioned that she was wearing brown lipstick. The employee asked if he could kiss her and remove the lipstick from her lips. He then placed her on the table but did not kiss her. Instead he touched her on the breasts and hips (curves). A short while later Tshepo arrived and she ran out of the class. Tshepo regarded the incident in a light manner when TS told him what had happened.
30. After discussing the incident with her sister latter advised her to report it to her parents immediately. Despite feeling scared and frightened TS eventually did as her sister recommended.
31. TS gave detailed testimony of the employee sending her a whats app whilst she was with a sibling at the doctor. She took a screenshot of the message. The employee asked her, amongst other things when they were going to meet. This incident gave her the courage that she needed to report the events to her parents.
32. Both TS and her mother described the reporting to the parents in detail. TS’s father also confirmed that TS had reported the incident to them but gave less detail.
33. TS testified further that her parents reported the matter to the school the next day. Mawela asked her why she had waited so long to report the matter and she explained that she was scared that she would fail.
34. TS mentioned that the employee had taken advantage of the situation with her battling with the Sesotho language at a new school.
35. TS detailed the employee’s three visits to her parents. On the first visit the employee asked her for an apology. On the second visit, the next day the employee came with his colleague Malefane and asked her father to go to the school and report that it was a ‘misunderstanding’. Her father was unwilling to do that.
36. On the third occasion the employee came with other people. Her father told her that they were beginning to annoy him.
37. TS father (Mr. Skosana), confirmed by his wife in more detail, testified that on the first visit the employee tendered his apologies for what had happened. He also testified that the employee admitted having a problem controlling his feelings. It was clear that the employee did not want the matter to be taken further at school. Mr. Skosana testified that he was unhappy to interfere with the processes at the District office. On the third visit the employee brought his brother along.
38. Mawela testified and confirmed that the parents of TS had reported that their daughter had been harassed by the employee. The learner was called in and had mentioned that TS had tried to kiss her and she had refused. The employee had touched her on the hips (curves) and breast before being interrupted by another learner.
39. It is common cause that TS parents’ reported the incident to the police station, a short while after reporting the matter to the school, but it is probable that the public prosecutor declined to prosecute.
40. NN (the second learner) testified that the employee arrived in the third term of 2018 at the school and taught her history.
41. NN described early conversations that the employee initiated with her. He had wanted to know where she stayed and at one point had asked her what teachers’ she likes.
42. On a certain day the employee approached her and asked her to go to his office and fetch his lunch box and instructed her that thereafter she should warm it in another office. She went to the employee’s office and found it locked. She returned to the employee who gave her the office key. The employee followed her and rapidly slipped in with her after she had opened the door.
43. The employee quickly kissed her on the mouth and grabbed her by the arm. She got scared and ran out of the office. After the incident the employee changed towards her and made fun of her in front of the class making negative insinuations about her appearance and financial status.
44. During exam time for the third term the employee approached her again and asked what she likes to drink and what places does she like to visit afterhours. The names of taverns were mentioned. The employee also asked her repeatedly for her cellphone number which she refused to give him.
45. NN testified that she had reported the various incidents, involving the employee, to her mother who did not take her seriously. This caused her to doubt whether the educators at school would take her seriously and for that reason she did not report the matter at school.
46. When she eventually heard that TS had made allegations against the employee in 2019 she decided to come forward and report her similar experiences with him at school.
SURVEY OF APPLICANT’S EVIDENCE AND ARGUMENT
47. The employee testified under oath and called no additional witnesses.
48. The employee denied the allegations of sexual impropriety leveled against him by both learners. It was argued that TS’s testimony was inconsistent with the allegations contained in the charge sheet. It was argued further that the charge sheet made no mention of the employee touching her on the hips (curves) and breasts.
49. It was suggested that TS has invited the employee to kiss the brown lipstick off her lips but he had declined the invitation.
50. The employee admitted visiting the parents of TS three times. He denied apologizing in the way that TS and her parents had indicated he had. He also denied mentioning to TS’s parents that he could not control his emotions.
51. It was put to TS that she had fabricated the version against the employee so that she could pass her grade. TS denied this. When I posed the question to the employee during cross examination, why two learners had falsely fabricated charges against him, he could not give any reason why they had done so.
52. On the question of procedure it was argued that the employer had not commenced disciplinary action against the employee within a reasonable period of time, in breach of the various provisions of Schedule 2 of the EEA. On this basis alone the case should be dismissed.
ANALYSIS OF EVIDENCE AND ARGUMENT
53. Let me deal with the procedural issue first. I made a tentative ruling over-ruling the procedural point in limine at the commencement of the arbitration and required evidence to be lead on the substantive merits.
54. I now confirm that decision on procedure and buttress it with the following reasons:
54.1 If most disputes that emanate from the employer were put through the strict time limits imposed by Item 3 (a) of Schedule 2 to the EEA then it is unlikely that the substantive merits of the vast majority of misconduct cases would ever see the light of day.
54.2 Notwithstanding that, I find that the provisions of Item 3 (a) of Schedule 2 never contemplated regulating disciplinary enquiries dealt with i.t.o section 188A of the LRA. At the time Schedule 2 of the EEA was enacted and amended (2004) section 188A of the LRA had not been added to the LRA. Section 188A was only added to the LRA with effect from the 1st January 2015.
54.3 I find that the section 188A inquiry by arbitrator proceedings were commenced within a reasonable period of time taking into account the delays occasioned by the Co-Vid 19 pandemic. Furthermore, the charges against the employee are serious and the question of procedure should not unduly prevent the employer from leading evidence on the substantive merits.
55. I return now to the substantive merits themselves.
56. The witnesses lead by the employer impressed me with their candor, demeanor and the content of their testimony.
57. Both learners TS and NN gave evidence which revealed a certain consistent pattern of conduct and modus operandi on the part of the employee in dealing with the learners that caught his fancy. The Applicant utilized psychology, seduction tactics and grooming to weaken the learners resolve to resist his advances and obtain their cell phone numbers.
58. The evidence of TS’s parents amply supported the testimony of their daughter. Mawela’s testimony also supported the testimony of TS and NN. NN gave an adequate and probable explanation why she waited so long to come forward with the allegations against the employee.
59. I recorded TS’s testimony on the brown lipstick and kissing to be that the employee asked TS if he could kiss her lipstick off. Given the general tenor of TS’s testimony that she resisted the employee’s advances at all times I find it improbable that TS would have encouraged the employee to kiss her.
60. I find that the fact that allegation 1 does not specifically refer to the employee touching TS breasts and her curves is not because it never happened but probably due to inaccurate drafting of the disciplinary charge sheet. TS’s mother and Mawela both corroborate TS’s version about the touching of her breasts and hips.
61. I reject the employee’s early assertion that TS fabricated evidence against him because she wanted to force him to pass her for Sesotho. This is inconsistent with the employee’s later testimony that he did not know why TS and NN had fabricated evidence against him.
62. The employee’s testimony against NN effectively amounts to a bare denial. This is not enough to tarnish the evidence of NN or TS for that matter.
63. I find that the TS’s parents accurately heard the employee apologize for his behavior and admit that he could not control his emotions. The employee was hoping to persuade TS’s parents to stop the investigation that was in its infancy at the District Office and that was the sole reason for his three visits to the TS parental home. His appeal to the parents to approach the school and withdraw the complaint as a ’misunderstanding’ was a blatant act of self-interest and an unwarranted interference in an ongoing departmental investigation.
FINDING AND SANCTION
64. I find the employee guilty of both allegations of sexual misconduct leveled against him.
65. The parties were given 48 hours from the date of receipt of the finding to make submissions in mitigation and aggravation of sanction. I was reliably informed by the Council that my finding had been served on both parties during the course of Wednesday, the 10th March 2021. I write my reasons and decision on sanction on Sunday the 14th March 2021. At the time of writing I had only received the employee’s submissions on mitigation.
66. I have noted the employee’s personal circumstances as they are detailed in paragraph 2 of the submissions.
67. It was argued on behalf of the employee that dismissal should be reserved for cases of serious misconduct or repeated offences. It was argued that the Applicant was essentially a first offender.
68. It was also mentioned that the Applicant had been charged i.t.o section 18 of the EEA and not section 17 of the EEA. Section 17 is generally reserved for the most serious types of misconduct and the sanction of dismissal is mandatory. Section 18 affords presiding officers discretion to grant sanctions ranging from counseling, suspension without pay but likewise includes dismissal in appropriate circumstances.
69. I do not wish to get into a debate about why the employee was not charged for misconduct i.t.o section 17 of the EEA. In my view he should have been. I can only deduce that the failure to charge him i.t.o section 17 may be an oversight on the part of the persons responsible for drafting the charges.
70. The misconduct committed by the employee is serious and prevalent. The employee did not only foist his unwanted sexual attentions on one learner but two. This in itself shows a consistent pattern of conduct over a period of time. Had it not been for the TS’s brave revelations and the actions of her parents to bring the matter to the attention of the school it is probable that NN’s complaint may never have seen the light of day.
71. The Applicant demonstrated dishonest and seriously inappropriate conduct in dealing with the two learners and the parents of TS.
72. I find that the merits of the case outweigh the personal circumstances of the employee. The only appropriate sanction for the commission of this type of misconduct is dismissal. The employee is dismissed with effect from the date of this sanction ruling being the 16th March 2021.