Award  Date:

15 August 2021

IN THE EDUCATION LABOUR RELATIONS COUNCIL
HELD AT LADYSMITH
IN THE ARBITRATION
BETWEEN
MVELASE LS APPLICANT
AND
DEPARTMENT OF EDUCATION – KZN RESPONDENT

ARBITRATION AWARD

CASE NO ELRC74-20/21KZN
DATE/S OF HEARING 23/11/2020 – 10/07/2021
DATE AWARD SUBMITTED 15 AUGUST 2021
NAME OF PANELIST SIZIWE GCAYI

DETAILS OF THE HEARING AND REPRESENTATION

1. The matter was set down for arbitration in terms of s191(5) of the Labour Relations Act 66 of 1995 (LRA) at the Department of Education offices in Ladysmith on 23 November 2020. The arbitration hearing continued on the following dates: 08-09 February 2021 and 10 July 2021. Mr M Ntshangase an official from SADTU represented the Applicant, Ms N Magoso an official, represented the Respondent, (Department of Education Kwa Zulu Natal). Ms Mkhize and Ms Khanyile were the intermediaries during the arbitration hearing. The parties were given until 26 July 2021 to submit their closing arguments to the Council, and these were submitted on time. The proceedings were mechanically recorded and hand written notes were taken.

ISSUES TO BE DECIDED

2. I am required to determine whether the dismissal of the Applicant by the Respondent was fair. Further, depending on my finding, l am required to determine the appropriate relief.

BACKGROUND OF THE DISPUTE
3. The Applicant was employed as an educator since 01 February 1994 by the Respondent. On 16 March 2020, the services of the Applicant were terminated by the Respondent. He was dismissed for misconduct. At the time of his dismissal he was the HOD at Inkanyezi special school. The Applicant seeks reinstatement.

SURVEY OF EVIDENCE AND ARGUMENT
Respondent’s case
4. The Respondent called five witnesses. Their evidence is summarised as follows.
5. Ms Linda Brenda Banda [‘Banda’] testified as follows: She was a teacher and psychometrics, working with learners and people with distress. In 2017 She received a message from Mrs NC Sithole about a case of sexual harassment at Inkanyezi special school. She informed Mrs Mchunu about the message. On 15 February 2017 they visited the school. The purpose of the visit was to verify the incident and provide counselling to the affected learners. There were five students that were offered counselling. The reported incident was that of touching breasts, strangling, touching hips and use of inappropriate language by the Applicant. She further mentioned that she interviewed two learners, SR and AA. Shade informed her that the Applicant strangled her and dropped her down and also commented about her breasts that they were too small. A mentioned that the Applicant pulled her crop top, and commented about her breasts that they were too small and he wanted someone with bigger breasts. With regard to other learners, they were interviewed by Ms Thoko. She mentioned that the Applicant was known to her. They meet when she visited the school. The Applicant was part of the school management team [SMT].
6. [‘AA’] testified as follows: She was 19 years old, born in 2002. She was schooling at Inkanyezi special school. The Applicant was known to her. On 14 February 2017, it was Valentine’s Day. There was a boy troubling her. She went to the Applicant’s classroom and reported the matter. The Applicant requested her to get closer to him. He peaked at her breasts and said they were small, he wanted bigger breasts. She left the classroom very confused. She further mentioned that there were other learners who witnessed the incident. Thobeka was one of those learners. She peeped through the door. Initially she did not report the matter. Thobeka first reported her incident. She was summoned to the principal’s office. At the principal’s office, she narrated her story.
7. [TN] testified as follows. She was schooling at Inkanyezi special school. The Applicant was known to her. He taught her life skills, mathematics, and English. She mentioned that on 14 February 2017, the Applicant touched her breasts. There were other learners in the classroom when the incident occurred. She reported the matter to the school principal. The Applicant was summoned to the principal’s office. The principal had a discussion with the Applicant. Two people from the department of education interviewed her with other learners.
8. [SR] testified as follows: She was schooling at Inkanyezi special school. The Applicant was known to her. He taught her but cannot recall the subjects he taught her. On 14 February 2017, she was absent at school, when she returned the Applicant grabbed her, pulled her by neck and dropped her down. She reported the matter to her mother and the deputy principal. She also mentioned that Brenda from the dept of education interviewed her about the incident. Thobeka witnessed the incident.
9. Busisiwe Mbuyisa [‘Mbuyisa’] testified as follows: She was the principal at Inkanyezi special school. Applicant was known to her. They were colleagues. She was aware of the allegations levelled against the Applicant. There were reports made by the following learners: AA, TN, SR and BD. AA reported that the Applicant lifted her top and touched her breasts. TN reported that the Applicant touched her breasts and figure. They were sore. SR reported that the Applicant once touched her breasts and said they were small. BD reported that the Applicant normally sends her to the kitchen to dish for him. She also mentioned that when these reports were made by the learners, she was in the company of Mr Gumede, Mrs Klenton and Mrs Mazibuko. Mrs Klenton took the notes. The learners were released. The Applicant was invited and informed of the reports made by the learners. Applicant denied touching the breasts of TN. Applicant did not respond on the allegations by AA. The Applicant was informed that the matter was to be escalated. A request was made that the parents of the learners and chairperson of the school governing body [SGB] be informed.
10. She also mentioned the categories of the learners at Inkanyezi special school. They were disabled in the following manner: [a] severe intellectually disabled [b] moderately intellectually disabled [c] slow learners from main stream. [d] Autistic children [e] physically disabled, blind and partially sighted. AA was a slow learner and moderately intellectually disabled. She had difficulties with mainstream. TN was moderately intellectually disabled and cerebral palsy. Half of her body was affected. SR was moderately intellectually disabled. The above diagnosis was made by the school. There were no medical reports from medical practitioners.

Applicant’s Case
11. The Applicant called two witnesses in support of his case. He testified as follows: He has been in the employment of Respondent since 04 February 1994, as an educator. In 2006 he joined Inkanyezi special school as post level 2 educator, HOD. The principal of the school was Ms B.S Mbuyisa. In relation to the charges of misconduct he testified as follows; AA- on 14 February 2017, it was valentine’s day, students were wearing casual clothes. AA reported to him that there was a boy who touched her breasts, and complained that her breasts were exposed by her outfit. It was during break time when the report was made. He informed her to wait until break was over to attend to her complainant when all students were back from the break. At no stage did he touch her breasts and/or pass remarks that they were small and that he preferred bigger breasts. TN- He did not touch her; the only issue between them was that of the cell phone. T approached her and requested to be moved to SR classroom. He refused, TN threatened to dispossess him of his cell phone, if she was not moved to SR’s classroom. They struggled over the phone preventing TN from throwing it to other students. SR-They do not punish students. He never pulled her by the neck. She was no longer in her class but at room 6, Ms Zwane’s class.
12. With regard to the meeting at the principal’s office, he mentioned that, it was after break, he was summoned to the principal’s office. At the meeting there was Ms TO Mazibuko, Ms Klenton and Ms Pilile. The principal informed him of the allegations against him. He was shocked. Students AA and TN were called, they narrated their story. He asked AA to tell the truth, she then changed the story and said it was the boy that touched her breasts. TN also changed her story when he confronted her. She mentioned that the issue was about the cell phone.
13. The incident of sexual assault March 2009. He mentioned that he was arrested for rape. It was alleged that the incident took place on 26 March 2009. The date of the alleged incident was the same date he attended interviews for the post of principal. He was detained for 18 days. He was granted bail. The state did not proceed further with the case due to insufficient evidence. The dept of education also charged him. He was found not guilty. The principal was the one who reported the matter to the police.
14. The Relationship with the school principal: He mentioned that their relationship was imaginary. What gave birth to that relationship was that, he was an active SADTU member. He applied for a post where the principal’s husband also applied. They were both candidates. He requested the principal to recuse herself on the panel as she had an interest on the candidates. Her husband. Mr. Mdakane joined their school. She later retired. The post was then advertised. He applied and requested the principal to recuse herself. The husband of the principal was scored very high. The grievance was lodged. The post was re-advertised. Ms Pilile was appointed as the deputy principal. Towards the end of 2016, there was a departmental function, the principal made the following remarks ‘there were rumours that her husband was uneducated, but she will deal with those people”. In 2017, he then started having problems.
15. Abscondment: He did not abscond; he was in custody during that period. The school was aware of his incarceration. He learnt about the issue of absconding when his salary was cut. An amount of R54 000-00 was deducted from his salary. The reason for the salary cut was due to the letters that were written by the principal to Respondent.
16. Mr Boseman Ngozo [‘Ngozo’] testified as follows: He was employed by the Respondent at Thukela district. Ms. Banda was reporting to him. In the matter involving the Applicant, it was reported to him. He despatched Ms Mchunu the social worker to attend to the matter. Ms Banda was not a social worker. Ms Mchunu saw the learners, they reported that they were touched inappropriate by the Applicant. Learners were not traumatised. They were coping. They reported the matter to child protection unit.
17. Ms Hlengiwe Mabele [‘Mabele’] testified as follows: She was an educator at Inkanyezi school as post level one educator for the past 14 years. She was aware of the charges against the Applicant. The learners involved were Alicia, Shade and Thobeka, they were known to her. On 14/02/2017, she was at school. It was a valentine’s day. They received the communication from the kitchen that food would be ready after break. She went to the Applicant’s classroom. She found him with Thobeka Ndlovu and other students. A request was made to look for the books in the store room. Whilst looking for the books, she had AA reporting to the Applicant that a boy touched her breasts and made remarks about her outfit. She did not witness the Applicant peeping through the crop top of AA and commenting about her breasts. TN had an argument with the Applicant about the phone. She was in clear view to see and hear what they spoke about. She did not witness the Applicant touching the breasts of TN and passing remarks that he preferred big breasts. She also mentioned that TN was a very aggressive child towards other children. SR was a problematic child; she did not take responsibility for her actions. AA was a good child.

ANALYSIS OF EVIDENCE AND ARGUMENT
18. The identity of the victims mentioned in the charge will be protected in this award. They are minors and the charge is of sexual nature. This is done as per established practice of the ELRC.
19. In considering the cautionary rule about child witnesses, I am mindful of the fact that two of the children were minors and the law requires me to treat their evidence with caution and such has been done.
20. It is common cause that the Applicant was dismissed for misconduct. It is also common cause that the Applicant was an educator at Inkanyezi special school.

21. The fairness of dismissal is in dispute. For a dismissal to be fair, it has to comply with the requirements of section 188(1) of the Labour Relations Act 66 of 1995 (LRA) as amended.

22. Section 192(1) of the LRA places an onus on the Employee to establish the existence of dismissal. In this matter the existence of dismissal is not in dispute. The onus now shifts to the Employer in terms of section 192(2) of the LRA to prove on the balance of probabilities the substantive and procedural fairness of the dismissal.

It is worth mentioning that the standard of proof that is used in these proceedings is on the balance of probabilities. It is different from the one that is used at criminal court which is beyond reasonable doubt.

23. Procedural Fairness: At the commencement of the proceedings, the Applicant representative placed on record that they were challenging both the procedure and the substance. In determining dismissal, the law requires me to consider the Code of Good practice: Dismissal schedule 8, item 4 deals with Fair Procedure and also consider the principle laid down in Avril Elizabeth Home for the Mentally Handicapped v CCMA and others [2006] 27 ILJ 1644 [LC], [2006] 9 BLLR 833 [LC] “It was held that employer was merely required to conduct the investigation, give the employee or his representative an opportunity to respond to the allegations after a reasonable period and thereafter to take a decision and give the employee notice thereof.” I have also to consider the Employment of Educators Act 76 of 1998 [“EEA”] as amended.
24. The Applicant challenged the procedural fairness on the basis that the Respondent had no right to appeal the sanction of the chairperson of the disciplinary hearing. Bundle A pg 6 para 3 reads as follows; “the appropriate sanction communicated to you is three months’ suspension without pay and a final written warning. Be advised that the sanction is short of dismissal”. With all the witnesses of the Respondent, none was questioned about the procedural unfairness. Section 25[2] of the EEA provides that “An educator or an employer has a right to appeal to the minister or member of executive council as the case maybe, against the finding by the presiding officer of a disciplinary hearing and against the sanction imposed in terms of section 18[3] [e]-[i]. Based on the above section it is clear that both the Applicant and the Respondent enjoy equal rights to appeal the outcome of a disciplinary hearing. Therefore, I find no procedural improprieties and conclude that a fair procedure was followed in terminating the services of the Applicant.

25. Substantive Fairness: In determining fairness of the dismissal, the LRA requires me to consider the Code of Good Practice: Dismissal, Schedule 8 of the LRA as amended. Item 7 of the Code of Good Practice provide guidelines in cases of dismissal for misconduct. Any person who is determining whether a dismissal for misconduct is unfair should consider: (a) Whether or not the employee contravened a rule or standard regulating conduct in or of relevance to the workplace. (b) If a rule or standard was contravened, whether or not the (i) the rule was a valid or reasonable rule or standard, (ii) the employee was aware, or could reasonably be expected to have been aware, of the rule or standard. (iii) the rule has been consistently applied by the employer and (vi) dismissal was an appropriate sanction for the dismissal.

26. The Respondent, in trying to prove its case, led evidence of five witnesses. Their evidence has been summarised above, it will not be repeated. I will highlight a few things about their evidence. I was not impressed with the learner witnesses; they did not appear to be a credible and reliable witness. Their evidence was not consistent with the probabilities. There were material contradictions on their evidence. According to AA TN was in the classroom all the time. TN witnessed the incident. During cross-examination she mentioned that TN peeped though the door also that TN was sitting on the table. For someone who never left the classroom, how does she peep through the door? The evidence of TN on the other hand was that she left the classroom when AA entered with Lebo and waited outside. AA was left with Lebo and the Applicant. Whilst AA maintained Lebo was not there, she left for her friends. TN conceded this in cross-examination: She took the cell phone of the Applicant because she wanted to be moved to another classroom. The following was put to her: ’’Mvelase will testify that you and your friends collaborated and fabricated the story because Mvelase refused to allow you to join your friends Shade’’ to which she replied’’ Yes that is true’’.
27. SR conceded this in cross-examination, she hated the Applicant. She confirmed the version of the Applicant as far as the stealing of the music disc at home. The Applicant found her standing next to KFC. The following was put to her” you are here to fabricate the story as you hate him.” To which she replied” I agree”. As I have highlighted above these witnesses were not reliable and their evidence was not clear and satisfactory.
28. Ms Mbuyisa the principal of the school, most of her answers under cross-examination were: I do not remember, I do not recall, I do not know. On simple questions where she was expected to give clear answers, she would do the opposite.eg it was put to her “In 2016-year end function, you said you were aware of the people that were talking about your husband that he did not have the qualifications to be a deputy principal”. To which she responded “I do not remember.” ” You said you will deal with those people” To which he responded “I do not know that”. For someone who did not make such a statement what was difficult in distancing herself from it. Why did she choose to provide vague answers when she was expected to provide clear answers, particularly on those questions that were placing her on the scene of the plot to remove the Applicant from the school?
29. The Applicant, on the other side, appeared to be a credible and reliable witness. His evidence was clear and satisfactory. His version was confirmed by Mabele. The evidence of the Applicant was not challenged, in relation to what transpired in the principal s office. In South African Law Butterworth’s 1997, Pretorious had this to say on cross-examination.” It is unjust and unfair not to challenge the witnesses account, if offered the opportunity then later argue when it is no longer possible for the witness to defend him or offer an explanation, that his evidence should not be accepted.”
30. In making the determination as to which version is the more probable and acceptable one, I am guided by the dictum in Masilela v Leonard Dingler [Pty] Ltd [2004] 25 ILJ 544 [LC] Francis J held at para 29 “This court is faced with two mutually destructive versions only one of which is correct. In deciding which version to accept and which one to reject. I am obliged to consider inter alia the issue on the balance of probabilities. The onus is on the Respondent to prove on a balance of probabilities that its version is the truth. The onus is discharged if the Respondent can show by credible evidence that its version is more probable and an acceptable version. The credibility of the witnesses and the probability and impartiality of what they say should not be regarded as separate enquiries to be considered piecemeal. They are part of single investigation into the acceptability or otherwise of the Respondents version, an investigation where demeanour and impressions are measured against the contents of a witness evidence, where the importance of any discrepancies or contradictions is assessed and where a particular story is tested against facts that cannot be disputed and against the inherent probabilities, so that at the end of the day, one can say with conviction that one version is more probable and should be accepted, and that therefore the other version is false and may be rejected with safety.”
31. The evidence of the three learners was not satisfactory at all. As indicated earlier, during cross-examination they did not maintain their version. Instead they confirmed that they fabricated against the Applicant. As indicated in these proceedings, the onus rests on the Respondent. I find that the Respondent failed to discharge the onus placed on it in terms of section 192[2] of the LRA to prove that the dismissal of the Applicant was substantively fair. I find that the dismissal of the Applicant was substantively unfair. No evidence was submitted before me that the trust relationship between the parties has been broken. The Respondent did not present any evidence as to why reinstatement would not be appropriate.
32. The Applicant sought reinstatement, I cannot find any reason why this should not be granted particularly as this is the primary remedy envisaged in terms of section 193[1] LRA. I am ordering reinstatement with back pay. The Applicant is reinstated effective from the date of dismissal on the terms and conditions no less favourable to which he enjoyed prior his dismissal. It is common cause that at the time of his dismissal, he was earning R34 651-60. Back pay of eight months will be just and equitable. The total amount of back pay is therefore [R34 651-60 x 8 = R277 212-80] The Applicant must report for on duty on 23 August 2021.
AWARD
33. The dismissal of the Applicant was procedurally fair and substantively unfair.
34. The Respondent is ordered to reinstate the Applicant, SL Mvelase, on terms and conditions of employment no less favourable to that which he enjoyed prior to his dismissal. The reinstatement is effective from the date of dismissal and Applicant must report to work on 23 August 2021.
35. The Respondent is directed and ordered to pay the Applicant back pay in the amount of R277 212-80, to be paid within 30 days of receiving this award.

Signature:

Commissioner: Siziwe Gcayi
Sector: Basic Education

ELRC 302 -20 /21 NW