PSES893-18/19EC

Award  Date:

09 February 2021

IN THE EDUCATION LABOUR RELATIONS COUNCIL INQUIRY BY ARBITRATOR HEARING HELD AT WHITTLESEA AND KOMANI
CASE NUMBER PSES893-18/19EC

In the section 188A Inquiry by Arbitrator hearing between

HOD, Department of Education, Eastern Cape
APPLICANT / EMPLOYER
AND

J Leisa RESPONDENT / EMPLOYEE


SECTION 188A RULING ON SANCTION


Details of hearing and representation
1. This matter was conducted in terms of Section 188A of the Labour Relations Act, 66 of 1995 in terms of Collective Agreement 3 of 2018.
2. The Employer was represented by Mr. L Mvangeli, accompanied by Mr. L Ndzongo from the Department of Education. The Employee, Mr. Leisa, was represented by Mr. A Mhlonto initially, an employee at the Department of Education, and thereafter by Mr. T Bashe from Bashe Mhlonto & Co. Incorporated Attorneys.
3. The intermediary was Mrs. T Oyo, and Mrs. C Songelwa on the final date, and the interpreter was Mr. M Ndabambi and thereafter Ms. A Mababa.
4. The matter was held at the Whittlesea Magistrate’s Court on 3 April 2019, 23 August 2019, 25 October 2019 (postponed) and 17 September 2020, and at 1 Waterbok Street, Komani on the 26th and 27th November 2019. The proceedings were all digitally recorded by the Panellist, as well as recorded by the Court Stenographer for the proceedings that ran in the Whittlesea Magistrate’s Court.
5. The parties submitted their closing arguments on 2 October 2020 and the Respondent submitted a reply on the 9th October 2020. These arguments relate to the findings as to whether Mr. Leisa is guilty of the allegations or not. An extension for the submission of the Ruling relating to the Verdict was granted.

Ruling - verdict
6. A Ruling that the Educator had been found guilty of all allegations levelled against him was made and conveyed to the parties on Wednesday 9th December 2020.
7. Mr. Leisa was found guilty of all the allegations made against him, as follows:

Charge 1:
You contravened Section 17(1)(b) of the Employment of Educators Act, 76 of 1998 in that you had committed an act of Sexual Assault to a learner where it is said that:
• On or about 09th March 2018 in your school, as a school Principal you sexually assaulted a girl child, Learner I.N. , age 12, who was accompanied by Learner A.N., age 14, in your office when they approached you to remind about their school uniform. You sent Learner A.N. to go and call Learner M.N. who was at home while you watched Learner A.N. as she was leaving the school premises by the window, you hold Learner I.N. from her back while you were standing behind her, started to touch her breast, buttocks and turned her around and kissed her.
• On or about 23rd March 2018, you further continued to sexually assault Learner I.N. who was accompanied by Learner A.N. in your Office when they approached you to remind about their school uniform and you sent Learner A.N. in the computer room to go and fetch glass for drinks while you hold Learner I.N. from her back as you were holding her from behind, kissing her, touching her breast, buttocks and trying to undress her.
 
Charge 2:
You contravened Section 18(1)(f) of terms of Employment Educator’s Act, 76 of 1998 as amended as you unjustifiable prejudiced the Administration, Discipline and Efficiency of the Department of Education, Office of the State or School, further Education and Training institution or Adult Learning Centre:
• Where you compromised the integrity of the teaching profession when you perform an act of sexual assault on Learner I.N., a learner at Empumelelweni Primary School.
• Not only your conduct has shamed the Department of Education but you have also put the name of the school, Empumelelweni into disrepute by shaming the profession of Educators, destroying the relationship of trust between yourself and employer, parents and learners of your school.

Request for written submissions to be made by the parties by 17th December 2020
8. The Ruling was emailed to the Parties on Wednesday 9th December 2020 and they were directed to make written submissions, on or before close of business on Thursday 17th December 2020, emailed to the ELRC, Lebohang Mogotsi, on MosheM@elrc.org.za in respect of the following:

“Sanction – mitigation and aggravation
8.1 The Applicant should submit arguments regarding the appropriate sanction/s, with reference, where applicable / relevant, to legislative provisions, aggravating factors, Employer policies / practices and / or any relevant factors;
8.2 The Respondent should submit factors / argument that should be considered in mitigation of sanction. These could include personal factors, length of service, disciplinary record, or any factors that would lessen the sanction.

Factors relating to the Respondent’s suitability to work with children
8.3 Section 120(1)(c) of the Children’s Act 38 of 2005 (“the Act”) provides that a finding that a person is unsuitable to work with children may be made by “any forum established or recognized by law in any disciplinary proceedings concerning the conduct of that person relating to a child”. Section 120(2) of the Act provides that a finding that a person is unsuitable to work with children may be made by such a forum on its own volition or on application by an organ of state or any other person having sufficient interest in the protection of children. The arbitrator may also make the finding on his/her own accord.
8.4 If Mr. Leisa is found by this Forum to be unsuitable to work with children, this finding will be reported to the Director General of the Department of Social Development Services, who will then be required to enter Mr. Leisa’s name in Part B of the National Child Protection Register. The effect of this would mean that Mr. Leisa would not be permitted to be employed in any position where he would work with or have access to children.
8.5 The Respondent must include, in his written submission, reasons why he believes that Mr. Leisa should not be found unsuitable to work with children, given the findings of this Forum that Mr. Leisa has committed misconduct of a sexual nature against a child / learner in his care. The Respondent should particularly address the fact that he has, as the Principal entrusted with a primary school, been found guilty of the acts of misconduct relating to a child / learner he was entrusted with, knowing (or should be known) that an educator’s in loco parentis role creates a particular legal and moral duty of care, in which all educators, without exception, must act as a parent or a guardian would towards a learner.
8.6 These submissions should be clearly set out by the Respondent, apart from his submissions in mitigation of sanction.”

Detail on submissions received
9. The Respondent’s attorney replied as follows to the indication that written submissions were due by 17th December 2020:

“From: thandikhaya bashe
Sent: Wednesday, 09 December 2020 12:34
To: Lebohang Mogotsi
Subject: RE: Ruling - Leisa PSES893-18/19EC

Good day

Receipt of the e-mail to which the ruling is attached is hereby acknowledged. Be advised that it is practically impossible for our Mr Bashe to be able to consult with client and have adequate opportunity to make proper submissions by the 17th December 2020 for the following reasons:

1. The ruling is voluminous and was only sent through to us today the 9th day of December 2020 @ 10:33
2. Our Mr Bashe is scheduled to conduct a regional court trial at Regional Court, Ngcobo on the 11th December 2020.
3. For the week of the 14th to the 18th December 2020 he has already compromised and agreed to be scheduled to conduct a disciplinary hearing in Mthatha, after which he already has scheduled personal commitments as the office officially closes on the 15th December 2020 until the 8th January 2021.
4. The earliest date during which he could sacrifice his vacation and attend to this matter is the 6th January 2021. Thank you.

Regards
………..”

10. Council responded, on the same day, as follows:

“From: Lebohang Mogotsi
Sent: Wednesday, 09 December 2020 1:03 PM
To: thandikhaya bashe
Subject: FW: Ruling - Leisa PSES893-18/19EC

Good day

Kindly note that the date of the 17th applies, it is reasonable and is applicable.

Kind regards,
Mr
…………”

11. The Applicant was afforded an opportunity to respond to Mr. Bashe’s request for more time to make submissions on behalf of Mr. Leisa, however they did not avail themselves of the opportunity to do so.
12. Submissions were accordingly due by 17th December 2020.
13. However, Council’s offices closed on the 15th December 2020, and the parties’ submissions were only directed to the Panellist from Council on the 15th January 2021.
14. No submission was received from the Respondent, other than a further email on the 6th January 2021 (the date upon which the Respondent had indicated that they would be able to make their written submissions) saying the following:

“From: thandikhaya bashe
Sent: Wednesday, 06 January 2021 10:08
To: Lebohang Mogotsi
Subject: RE: PSES893-19/19EC - DOE / Leisa - date of submissions from the parties to be made by 17th December 2020

Good Morning Sir / Madam

Pertaining to this matter, we wish to indicate that our Mr Bashe, who is handling the matter had requested an extension until today the 6th day of January 2021 to enable him to attend to submissions regarding (i) mitigation / aggravation; plus (ii) arguments relating to the suitability to work with children in the future and although the first subsequent e-mail reads “Your response is acknowledged and same has been forwarded to the arbitrator for consideration.
I will revert back as soon as I receive a response from her”; the second subsequent e-mail reads “ Kindly note that the date of the 17th applies, it is reasonable and is applicable”; the third subsequent e-mail reads “In terms of the process, the commissioner requires all parties to adhere to the submission timeframes however the ECDOE representatives should be given an opportunity to respond to the employee representative’s request” and this was followed by the e-mail appearing hereinunder which reads “Please be reminded that your submissions regarding (i) mitigation / aggravation; plus (ii) arguments relating to the suitability to work with children in the future, are due in to me by close of business on Thursday 17th December 2020”.

In the light of the above kindly advise us as to what is the position that is currently obtaining regarding the request for the extension for the submissions regarding (i) mitigation / aggravation; plus (ii) arguments relating to the suitability to work with children in the future.

Be advised further that we are in no position to do anything without the requested advises and the time when we shall receive the advice(s) will be the deciding factor in terms of our ability to forward the submissions today. Thank you.

Regards
……….”

15. The request for an extension for submissions was conveyed to the Respondent on the same day it was submitted, being the 9th December 2020, and the request was denied.
16. It is disingenuous of the Respondent to, on the 6th January 2021, indicate that it was waiting to hear about the application for extension to make the submissions on the 6th January 2021.
17. No written submissions were received from the Respondent by 31st January 2021, and no attempts were made to enquire further about whether these submissions could still be made.
 
Submissions - Applicant
18. The Applicant made the following submissions on Tuesday 15th December 2020:
18.1 Mr Leisa has pleaded not guilty on both charges and by implication showed no remorse whatsoever for the allegations brought before him. Instead, what he did was to make sure that he prolongs the proceedings of his disciplinary hearing to a point where he could possibly take them.
18.2 The implications as set out in section 17(1)(b) of the Employment of Educators Act 76 of 1998, as per charge 1, was referred to - “an educator must be dismissed if he or she is found guilty of committing an act of sexual assault on a learner, student or other employee”
18.3 One of the fundamentals of the employment relationship is trust, Mr Leisa has breached the trust relationship between him and his employer by sexually assaulting young girl learners who have been entrusted in him as loco parentis, the department of education can never trust Mr Leisa ever again to work with children and/or other employees.
18.4 Trust is one of the fundamentals that goes to the heart of the employment relationship and Mr Leisa has proven to be destructive of it and he is a high risk to work with children, and the risk that he poses to children should be managed very carefully.
18.5 Mr Leisa was also charged and found guilty of contravening section 18(1)(f) of the Employment of Educators Act 76 of 1998 in that his conduct of committing an act of sexual assault on a learner at Empumelelweni Primary School has compromised the integrity of the teaching profession; not only his conduct has shamed the department of education but he has also put the name of the school, Empumelelweni into disrepute by shaming the profession of educators, destroying the relationship of trust between himself, employer, parents and learners of Empumelelweni Primary School.
18.6 In De Beers Consolidated Mines Ltd v CCMA & others [2000] 9 BLLR 995 (LAC) para 22, the court, per Conradie JA, held the following regarding risk management:
'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.’
18.7 In SAPPI Novoboard (Pty) Ltd v Bolleurs (1998) 19 ILJ 784 (LAC) at para 7, the Court held as follows:
“It is an implied term of the contract of employment that the employee will act with good faith towards his employer and that he will serve his employer honestly and faithfully.… The relationship between employer and employee has been described as a confidential one. The duty which an employee owes his employer is a fiduciary one ‘which involves an obligation not to work against his master’s interests’... If an employee does ‘anything incompatible with the due or faithful discharge of his duty to his master, the latter has a right to dismiss him’
18.8 Item 3(4) of Schedule 8 (Code of Good Practice: Dismissal) of the Labour Relations Act, 66 of 1995 provides that it is generally inappropriate to dismiss an employee for a first offence, except if the misconduct is serious and of such gravity that it makes a continued employment relationship intolerable.
18.9 The Applicant argued that dismissal is the appropriate sanction.

Assessment
19. Mr. Leisa is the Principal of a school and is fully aware of his responsibilities towards the minor learners in his care – which is an “in loco parentis role”. This role creates a particular legal and moral duty of care, in which all educators, without exception, must act as a parent or a guardian would towards a learner.
20. Mr. Leisa has been found guilty of one charge in terms of Section 17(1)(b), involving two different acts of sexual assault against a minor learner at the school that he is employed.
21. Mr. Leisa’s conduct throughout the Inquiry process showed no consideration or concern for the wellbeing of the learners who had been in his care, who were required to give evidence in this matter. In many instances they were made to wait for hours while the Respondent raised meritless procedural matters. He was dismissive of their versions and he was arrogant.
22. He abused his position of power to take advantage of a young female learner, and he breached his fundamental duty as an educator.
23. I accept the Applicant’s argument that: “Mr. Leisa breached the trust relationship between him and his employer by sexually assaulting a young girl learner who was entrusted in him as loco parentis, the department of education can never trust Mr Leisa ever again to work with children and/or other employees.”
24. I accept the authorities referred to by the Applicant, and that Mr. Leisa’s conduct clearly goes to the heart of the employment relationship – which renders it intolerable. I further accept that he poses a great risk to minor learners, and his willingness to mislead the Forum to try to exonerate himself points towards a level of dishonesty that is incompatible with the high degree of integrity required when working with children.
25. Mr. Leisa cannot be trusted to continue to work as an educator, with children, aside from the fact that section 17 has a mandatory sanction of dismissal.
26. Mr. Leisa did not make any submissions regarding mitigation, despite being provided with the opportunity to do so.
27. I have applied my mind to whether mitigating factors exist. Mr. Leisa has long service with the Department, however, this is not compelling when considering the conduct which he has been found guilty of. There were no mitigating factors that were evident during the Inquiry.
28. There is no evidence of any prior warnings, and the assumption is that he has a clean disciplinary record, this is irrelevant when weighed up against the extremely serious nature of the transgressions that he was found guilty.
29. Mr. Leisa’s conduct is in direct contravention of the values and obligations prescribed by South African Council for Educators (SACE) “Code of Professional Ethics of Educators” (amended), which stipulates:

“Conduct: The Educator and the Learner
1. An Educator:
……..
6. refrains from improper physical contact with learners;
7. promotes gender equality;
8. refrains from courting learners from any school;
9. refrains from any form of sexual harassment (physical or otherwise) of learners;
10. refrains from any form of sexual relationship with learners from any school;
………”

30. Mr. Leisa failed to uphold the Code of Professional Ethics to which he is bound. His conduct has brought the teaching profession into disrepute.
31. Section 28(2) of the Constitution of the Republic of South Africa, 1996 provides that a child’s best interests are of paramount importance in every matter concerning the child. The best interests of the child in this instance would be served only by the removal of this person from a position whereby he is able to commit further transgressions such as those he has already committed, against the children in his care.
32. Section 17 of the Employment of Educators Act applies to Charges 1 and 2 (my underlining):
“17. (1) An educator must be dismissed if he or she is found guilty of –
(b) committing an act of sexual assault on a learner, student or other employee;
(c) having a sexual relationship with a learner of the school where he or she is employed;
……..”

33. Section 18 of the Employment of Educators Act applies to Charge 2:

“18. (1) Misconduct refers to a breakdown in the employment relationship and an educator commits misconduct if he or she –

(f) unjustifiably prejudices the administration, discipline or efficiency of the Department of Education, an office of the State or a school, further education and training institution or adult learning centre;
………”
34. Taking into account the gravity of the transgressions, the legal provisions, the aggravating factors, and the breakdown in the trust relationship that the Applicant has highlighted in their written submissions, a dismissal with immediate effect is the only appropriate sanction, for each charge separately.
35. Mr. Leisa was provided with an opportunity to submit reasons why he should not be found to be unsuitable to work with children, and he did not avail himself of this opportunity.
36. Mr. Leisa’s conduct, specifically sexual misconduct against a child, the gravity of the conduct together with his abuse of his position of trust and power, his lack of accountability or remorse for this conduct, as well as the danger that he poses to children, warrant my finding that he is unsuitable to work with children.


Ruling
37. The sanction for each of the Charges 1 and 2 is dismissal with immediate effect. The Department of Education should inform Mr. Leisa of his dismissal.
38. Mr Leisa is found unsuitable to work with children in terms of Section 120(4) of the Children's Act.
39. The General Secretary of the ELRC should therefore, in terms of Section 122(1) of the Children's Act, notify the Director General: Department of Social Development in writing of the findings of this Forum made in terms of Section 120(4) of the Children's Act, that Mr Leisa is unsuitable to work with children, and the Director General of Social Development should enter his name as contemplated in section 120 in part B of the National Child Protection Register (NCPR).
40. The ELRC is further directed to send a copy of the Ruling regarding the Verdict as well as this Ruling regarding the Sanction to the South African Council for Educators (SACE) for the revoking of Mr. Leisa’s SACE certificate.



SIGNED AT MAKHANDA ON THIS 09 February 2021.



____________________________
M HUBER
PANELLIST