Commissioner: Jacques Buitendag
Case No.: PSES1002-19/20WC
Date of Award: 29 March 2021
In the Arbitration between:
DEPARTMENT OF EDUCATION – WESTERN CAPE
Union / Applicant’s representative: Mr Nshimirimana
Telephone: 021 824 2111
Email: firstname.lastname@example.org / email@example.com
Respondent’s representative: Mr. Mbotolozi
Telephone: 021 467 2850
PARTICULARS OF PROCEEDINGS AND REPRESENTATION
1. The arbitration hearing under the auspices of the Education Labour Relations Council (ELRC) took place on 5 March 2021 at the premises of the Department of Education - Western Cape District Office in Cape Town. The proceedings were digitally recorded.
2. The Applicant Mr. Maswana, was represented by Mr. Nshinirinana, a shop Steward of NAPTOSA. Mr Mbotoloshi represented the Respondent being the Department of Education – Western Cape.
3. After conclusion of the proceedings the parties requested to submit written closing arguments. I have received the arguments on behalf of the Respondent and Applicant on 16 March 2021.
THE ISSUE IN DISPUTE
4. I must determine whether the Respondent’s conduct constitutes an unfair labour practice in relation to disciplinary action short of dismissal.
BACKGROUND TO THE ISSUE
5. The Applicant is employed as a Deputy Principal at Dr Nelson Mandela High School and is currently the acting Principal. On or about 9 November 2018, the Applicant was informed to attend a disciplinary enquiry and answer to the following two allegations of misconduct:
“Charge 1 – It is alleged that you are guilty of misconduct in terms of Section 18(1)(ee) of the Employment of Educators Act, number 76 of 1998, (hereinafter referred to as “the Act”) in that during the third term of school in 2018 you committed an act of dishonesty by informing Ms. Yolanda Cyster, social worker, that Ms. Ntseke requested you to consult with the alleged perpetrator due to rumours but she never informed you of any specific details of sexual harassment allegations lodged against learner A, a learner at Dr Nelson Mandela High School against Mr. Nzimakwe.
Charge 2 – It is alleged that you are guilty of misconduct in terms of Section 18(1)(a) of the Act in that between the first and second school term of 2018 you failed to comply with Section 54 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, Act 32 of 2007, and paragraph 3.2(a) and (i) of the Abuse No More Protocol 2014 of the Western Cape Education Department by failing to immediately report to the relevant authorities the allegations of sexual harassment made by learner A, a learner at Dr Nelson Mandela High School against Mr Nzimakwe, educator at the school.”
The Applicant was found guilty of these allegations. In terms of charge 1, a fine of R7 000,00 as well as suspension without pay for a period of three months, suspended for twelve months on condition that he is not found guilty of similar misconduct was imposed. In respect of charge 2 the Applicant was issued with a final written warning and a fine of R3 000,00 which was suspended for a period of twelve months on condition that he is not found guilty of similar misconduct.
6. The Applicant lodged an appeal against the findings, which was dismissed on 3 February 2020. The Applicant then referred a unfair labour practice dispute to this bargaining council. The Applicant claims that the disciplinary action short of dismissal was unfair and as relief he seeks for the sanction to be expunged from his record; and to be compensated with R7 000,00 which amount equals the amount deducted from his salary in respect of charge 1. The Respondent claims that the disciplinary action was fair.
SUMMARY OF EVIDENCE AND ARGUMENT
7. I have considered all the evidence and argument. Because section 138(7) of the Labour Relations Act, 66 of 1995, as amended (LRA) requires an award to be issued with brief reasons for the findings; I shall briefly summarize the evidence that I regard as necessary to substantiate my findings in the determination of the dispute. If I do not refer to particular evidence and argument, it does mean that I did not consider it.
The Applicant’s case
8. In respect of charge 2, the Applicant testified that he has never heard of the Abuse No More Protocol of the Western Cape Education Department prior to being informed thereof by Ms Yolanda Cyster, after she investigated the complaint of sexual harassment. The Applicant stated that he cannot be found guilty of this allegation as he was not aware of the said protocol during the first or second term of 2018.
9. In respect of charge 1, the Applicant testified that Ms Ntseke, who is an educator at the school, informed him that there are rumours at the school about the educator who wants to have sexual relationships with a learner. It was during the third term of 2018 that Ms Ntseke asked the Applicant whether Equal Education has sent him a letter with regards to an educator harassing a learner. Ms Ntseke informed him that he must ignore this letter if he receives same as she has already spoken to the learner and the learner has agreed to drop all charges. Ms Ntseke then requested the Applicant to just warn the educator. The Applicant informed Ms Ntseke that once he receives the letter, he will immediately forward it to the relevant authorities. The Applicant alleged that Ms Ntseke has never informed him who the alleged perpetrator was.
10. The Applicant testified that after the meeting with Ms Ntseke, he did not receive a letter from Equal Education. On 6 August 2018, the said learner and her parent came to his office where the educator Mr Nzimakwe, was accused of sexual harassment. He then immediately forwarded it to Circuit Manager, Mr Aubrey de Wet. After he reported that incident Ms Cyster visited the school and met with the learner. Ms Cyster also met with him and requested to see an attendance register. Ms Mnotoza, who also is an educator at the school, presented the attendance register to Ms Cyster.
11. The Applicant avers that Ms Mnotoza testified against him during the disciplinary enquiry and he believes that she has a grudge against him because he testified against her husband, who was the former Principal at the school.
12. The Applicant conceded that he is aware that an educator must at all times act in the best interest of a learner. He is further aware that a Principal must immediately report allegations of sexual misconduct by an educator to the relevant authorities which will include the Police and/or the Circuit Manager. It was put to the Applicant that this is in fact what is provided in the Abuse No More Protocol which it is alleged that he has contravened.
13. The Applicant denied that Ms Ntseke gave him details about the alleged sexual harassment of the learner during the first- or second term of 2018. The Applicant claims that Ms Ntseke and Ms Mnotoza are fabricating their version.
14. The Applicant further testified that he is still of the view that the learner who reported the alleged sexual harassment, is not telling the truth about the allegations against Mr. Nzimakwe, despite Mr. Nzimakwe being found guilty of the allegations.
15. Ms. Y. Ndindwa is the secretary at the school. Ms Ndindwa testified that if anyone wants to see the Principal, they must first report to her whereafter she will inform the Principal of the person(s) who wish to meet with him.
16. Mr. L. Cagwe is an educator at the school and testified that during the third term of 2018, Ms Ntseke informed him that there is a problem at the school. She asked him to tell Mr. Nzimakwe to leave the female learners alone. She also informed him that she has told the Applicant during the first term about the allegations against Mr. Nzimakwe but that she received no report back from him. Mr Cagwe further testified that he approached the Applicant in this regard, upon which he (Applicant) informed him that he immediately reported the allegation when it came to his attention. The Applicant told him that he did not know why Ms Ntseke stated that she informed him (Applicant) of the alleged allegations in the first term of 2018.
17. Mr. Nshinirinana argued that the Applicant has proven that he is not guilty of the allegations and that Learner A’s testimony confirms that Ms Ntseke is not truthful. Ms. Mnotoza’s testimony was only to revenge that the Applicant testified against her husband and her testimony is also not truthful.
The Respondent’s case
18. Learner A (the identity of the learner is protected) was a learner at the school during 2018 and is now 21-years of age. She testified that before she informed Ms Ntseke of the allegations, she informed the Equal Education Student Organisation of the sexual harassment. She can’t recall precisely when, but it was either during the first term or early during the second term of 2018. She testified that it was also during either the first or second term of 2018 when she informed Ms Ntseke that she is being sexually harassed by Mr. Nzimakwe. At the time when she made the report, Ms Ntseke informed her that she will report it to the Applicant and then left the room to go to the Applicant’s office. Ms Ntseke later returned and informed her (Learner A) that the Applicant does not want to be aware of the allegations. Learner A testified that the sexual harassment continued and that she, accompanied by her parent, met with the Applicant, and reported the allegation to him personally. She could not precisely recall in which term she reported the allegations to the Applicant.
19. Ms. Y. Cyster is a Social Worker with twenty years’ experience, employed by the Western Cape Department of Education. She testified that when the allegations of sexual harassment came to her attention, she visited the school on 20 August 2018. The Applicant informed her that after the learner was absent from school for approximately two weeks, she and her parent visited the school and reported the allegations of sexual harassment. Ms Cyster then spoke to Ms Mnotoza to find the attendance register and during that conversation, Ms Mnotoza informed her that Ms Ntseke has previously reported the allegations of sexual harassment to the Applicant. When she confronted the Applicant, he was vague about when the allegations were first reported to him. Ms Cyster testified that the learner said she reported the allegations of sexual harassment to Ms Ntseke first.
20. Ms Ntseke, an Educator at the school since 2017 testified that it was in about March/April 2018 that learner A reported to her that she is being sexually harassed by Mr Nzimakwe. After this report by the learner, Ms Ntseke asked the learner to wait as she wished to inform the Applicant about the allegations. Ms. Ntseke testified that she then went to the Applicant’s office without the learner and informed him of the sexual harassment allegations levelled against Mr Nzimakwe. She also informed him that the learner had already reported the allegations to Equal Education. Ms Ntseke further testified that the Applicant then informed her to tell the learner to go to Equal Education whereafter Equal Education must present him with a report on the matter, after which he will then take action. She also testified that the Applicant informed her that she must keep quiet about the allegations in the meantime. Ms Ntseke confirmed that she asked the Applicant to speak to Mr Nzimakwe. She also confirmed that she presented the Applicant with all the details pertaining to the sexual harassment which the learner has conveyed to her. After the learner and her parent reported the allegations to the Applicant, Ms Ntseke was informed that it was the first time the allegation was reported to the Applicant.
21. Ms Ntseke testified that Ms Mnotoza told her that the learner and her mother have approached the Applicant and that the learner said that she had told her (Ms Ntseke) long ago about the sexual harassment allegations against Mr Nzimakwe. Ms Ntseke testified that she and Ms Mnotoza approached the Applicant and asked him to tell the truth about her reporting the allegations to him between March and April 2018, to which he did not answer.
22. Ms Ntseke denied the Applicant’s version that she asked him in the third term for a letter from Equal Education and reiterated that the Applicant told her when she reported the sexual harassment allegations to him, that the learner must report the matter to Equal Education and that he will await the report from them. Ms Ntseke denied that she informed the Applicant that she has spoken to the learner and that the learner will drop the allegations against Mr Nzimakwe. She also denied that she informed the Applicant that the school will lose a good teacher in Mr Nzimakwe.
23. Ms. Mnotoza, an Educator at the school since 2009 testified that on or about 6 August 2018, the Applicant summonsed her to the offices and informed her that the Learner and her parent is at the school and that the Learner said that she is afraid of Mr Nzimakwe. The Learner informed her that Mr Nzimakwe said that she is beautiful and wanted to kiss her and buy her lunch. Ms Mnotoza testified that she immediately reported it to the Applicant upon which he informed her that Ms Ntseke has previously informed him of these allegations and that he told Ms Ntseke that he does not deal in rumours. She further testified that she then phoned Ms Ntseke and asked her as to whether she indeed had informed the Applicant of the said allegations against Mr Nzimakwe, to which Ms Ntseke confirmed the Applicant’s awareness of the allegations as far back as the first term of 2018.
Mr Mbotoloshi argued that the Respondent’s witnesses were consistent and that their version is the more probable version and that the Applicant’s guilty finding and sanction should be upheld on both charges levelled against him. ANALYSIS OF EVIDENCE AND ARGUMENTS
24. In terms of section 186(2)(b) of the LRA, unfair disciplinary action short of dismissal in respect on an employee falls within the meaning of an “unfair labour practice”. The onus is on the Applicant to prove, on a balance of probabilities, an unfair act or omission on the part of the respondent that gives rise to an unfair labour practise.
25. Whilst the Applicant has questioned the credibility of the Respondent’s witnesses, I did not find them evasive or that they were being untruthful. Leaner A was not sure in which term she reported the sexual harassment to Ms Ntseke, but what is evident from her testimony is that she did indeed report the sexual harassment allegations to Ms. Ntseke well before she reported it to the Applicant. Her version on this score has not changed and she told both Ms. Cyster and Ms. Mnotoza that Ms. Ntseke was aware of the allegations. Leaner A and Ms. Ntseke’s evidence are also consistent on the fact that Ms Ntseke asked Leaner A to wait for her as she wanted to report it to the Applicant. The Applicant avers that Ms. Ntseke did not divulge the name of the educator accused of sexual harassment to him during the first of second term of 2018. I find this improbable. Why would Ms. Ntseke make the effort to leave Leaner A and go to report it to the Applicant, then only not to mention who the educator is that is being accused of sexual harassment and being vague about the extent of the allegations? Leaner A also confirmed Ms. Ntseke’s version that she told her that the Applicant did not want to entertain the allegations and that he will await a report from Equal Education. On the probabilities I find that the Applicant was indeed aware of the sexual harassment allegations against Mr. Nzimakwe during either the 1st or 2nd term of 2018. The balance of probabilities is in favour of the Respondent’s version that the Applicant is guilty of charge 1.
26. In as far as charge 2 is concerned, the Applicant claims that he only became aware of the Abuse No More Protocol 2014 of the Western Cape Education Department after Ms. Cyster inform him about it. I accept his version on this score. However, the Applicant was aware that he had a duty to immediately report to the relevant authorities the allegations of sexual harassment. The crux of charge 2 is the Applicant’s failure to act on the information conveyed to him in either the 1st of 2nd term of 2018 by Ms. Ntseke that an educator at the school is accused by a leaner of sexual harassment and his failure to report it immediately to the relevant authorities, even if it was, on his version, just rumours. Instead, the Applicant waited until Leaner A and her parent met with him before he reported the sexual harassment allegations to the District Office. The finding of the Applicant as guilty on charge 2 is fair and reasonable.
27. An arbitrator is not vested with discretion to decide or impose an appropriate sanction short of dismissal in cases of workplace incapacity or misconduct. The arbitrator’s primary duty in disputes such as these is to determine whether the employer’s sanction is fair. The determination of an appropriate sanction is a matter which is largely within the discretion of the employer and a decision-maker should embark upon the reasoning process of assessing a sanction by recognising that, within limits, the employer is entitled to set its own standards of conduct in the workplace having regard to the exigencies of its business subject to the requirement that the sanction imposed by the employer must be fair. The decision-maker should appreciate that the question of sanction for misconduct is one on which reasonable people can readily differ. There is a range of possible sanctions on which one person might take a different view from another without either of them being castigated as unreasonable. The test to be applied is whether the sanction was reasonable. If the sanction falls within a range of reasonable options, the decision-maker should generally uphold the sanction, even if the sanction is not one that the decision-maker himself would have imposed. Only if there is a striking disparity between the employer sanction and the one which the decision-maker would have imposed should the decision-maker interfere. The Applicant was, in respect of charge 1, issued with a fine of R7 000,00 as well as suspension without pay for a period of three months, suspended for twelve months on condition that he is not found guilty of similar misconduct was imposed. In respect of charge 2 the Applicant was issued with a final written warning and a fine of R3 000,00 which was suspended for a period of twelve months on condition that he is not found guilty of similar misconduct. Considering the seriousness of the charges, I find the sanctions imposed to have been fair.
29 The applicant, P Maswana, has failed to discharge the onus of proving that the respondent, Department of Education Western Cape, committed an unfair labour practice.
30 The application is dismissed.
ELRC Panellist: Jacques Buitendag