ELRC79-21/22 EC
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Award Date:
18 August 2021
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Case Number: ELRC79-21/22 EC
Panelists: Malusi Mbuli
Date of Award: 18-08-2021
In the ARBITRATION between
XOLILE WILLEM
(Applicant / Employee)
And
DEPARTMENT OF EDUCATION – EASTERN CAPE
(Respondent / Employer)
DETAILS OF HEARING AND REPRESENTATION
1. The enquiry by arbitrator was held under the auspices of the ELRC in terms of section 188 (A) of the Labour Relations Act 66 of 1995 as amended in 2015. The hearing took place on the 28th, 29th and 30th of July 2021 at 09:00 at the Cathcart Magistrates Offices in Cathcart.
2. The employee Mr. Xolile Willem attended the hearing and represented himself. The employer also attended the hearing and was represented by Mr. Thando Makina an official of the employer.
3. The enquiry by arbitrator proceeded on the on the 28th, 29th and 30th of July 2021 as indicated above in the presence of both parties. The parties further requested to file closing arguments on this matter not later than the 06th of August 2021 and the employer representative filled such arguments with the ELRC and the employee did not file such closing argument.
4. The employee therefore waved his right to present mitigating circumstances and closing arguments in this matter. The notice to attend the enquiry by arbitrator was properly drafted and served on the employee and the employee attended the hearing on the 2nd day of the hearing.
ISSUE TO BE DECIDED
5. I am required to determine whether or not the employee Mr. Xolile Willem is guilty of the charges levelled against him by the employer and if so whether a sanction of a dismissal is appropriate to be imposed on him in the circumstances.
BACKGROUND TO THE ISSUE
6. The employee is employed by the employer as an educator and is now charged by the employer in respect of the incidents appearing here under outlined in the charges. The parties agreed that the matter should instead of being set for a disciplinary hearing be enrolled straight at the ELRC as an enquiry by arbitrator in terms of section 188 (A) of the Act accordance with the ELRC Collective Agreement 3 of 2018.
7. This therefore means that the status of the outcome of this process will be an award that is final and binding on the employer and employee. The charges against the employee are as follows.
- It is alleged that the employee is guilty of misconduct in terms section 17 (1) (b)of the Employment of Educators Act 76 of 1998 (as amended), which inter alia reads as follows:
- “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 or other employee” In that on or about the period September 2019 at Fundani Secondary School the employee had sexual relationship with the learner from the same school.
- In that the employee had an inappropriate sexual relationship with AG who was a grade 9 learner at his school in September 2019.
8. The employee Mr. Xolile Willem denies these allegations and pleaded not guilty to the said allegations hence the matter was set down for section 188 (A) inquiry as directed by ELRC Collective Agreement 3 of 2018.
SURVEY OF EVIDENCE
9. The employer representative called their 1st witness AG (a minor child) who testified with the assistance of the intermediary Mrs. Noluthando Nxala – appointed by the ELRC. She testified that in 2019 she was a learner at Fundani Secondary School and she had a relationship with the employee Educator – Mr. Xolile Willem which started in June 2019.
10. The witness, learner stated that this relationship started when Mr. Willem asked for her number at school pretending to be Mr. Tomson and at that time when she was called by the employee she was with Iviwe and she gave the employee her number. She stated that the employee Mr. Willem was not her class teacher and she didn’t necessary know him and indeed the employee called her later and asked her to save his number as Mr. Tomson.
11. He then asked when they can meet and at first she was reluctant to meet him but eventually they met when he came to her home / house where she stayed and stood outside the house. She got out of the house to meet him and he asked him to accompany him to the garage where he bought her yoghurt and chocolate.
12. When they were at the garage it started to rain and the employee organized transport and she thought that the transport was going to take her home because he had promised to take her home but it drove down town to where the employee stays and they were about 5 in the car and the car was grey.
13. When the car got to the employee’s place, the employee asked her to get out and they were the only 2 who got out and went inside the room and house where the employee stays. The employee then put heater on and he kissed her and later had sex with her. After they had sex he told her that she must not tell anyone about what they did and that what happened should remain between the 2 of them.
14. He said it is too late to go home and she slept over there the whole night and in the morning she walked home and it was about 25 minutes’ walk and that she can point the house where Mr. Willem stayed. All along she thought that he was Mr. Tomson until she was told by a friend at school whilst they were standing outside that he was Mr. Willem, a teacher at their school.
15. She testified that the employee came again to her place driving a car maybe after 2 weeks to see her then later at school. He asked her bring his food and when she brought the food the employee tried to kiss her and sleep with her in his office. Whilst he was attempting to do that Mr. Matoni entered the office and he pretended as if he was sending her somewhere and gave her some papers.
16. After Mr. Matoni had left he asked her again if their relationship was still a secret and stated that he does not want to loose his job because he is a father of the child studying at Cathcart Secondary School and is the only parent of that child since the mother of that child had passed on. He further stated that he will kill her if she shares the details about their relationship with anyone.
17. One day at school when it was a sports day between their school and another one in Queenstown he called her and when she ignored him and he came to her and asked her why she did not come to him. He then slapped her with an open hand without people seeing him saying that he was not her age and after that she ran away from school and did not write her examinations.
18. She confirmed that she knew D.J. Pamza which the employee alleges that she visited and was protecting and conceded that she had a relationship with him but were just talking on the phone and has never visited him for a sleep over and have never spent time with him.
19. The 2nd witness of the employer was “SG” who testified that he is a cousin to “AG”, they were staying together at his home and he is also a learner at Fundani Secondary School. He stated that he is aware of the allegations that are levelled against the employee and testified that around June 2019 he was at home with AG and B and it was in the evening around 6 - 7.
20. He stated that AG was at the kitchen / dinning room and he saw her phone ringing and the caller was Mr. Tomson and he told B about that because Mr. Tomson was their Geography teacher. He testified that it was on a Friday / Saturday and they heard a noise of the running engine and the light of the car and when they checked again AG was not with them at the house.
21. He averred that they had heard the bang on the door when she left the house and AG said she went to visit her class mate B and when he asked B he did not know about AG’s visit and AG came back at about 6 in the morning the following day. He stated that AG was called again by Tomson the following Monday and this did not sit well with him and was bothered him because he felt that AG future was being destroyed.
22. He together with O decided to approach Mr. Tomson because they have also recorded conversations with Bongekile who said that AG has a love relationship with Mr. Tomson and they ultimately met Mr. Tomson in his car. Mr. Tomson did not know AG and did not know about the relationship that they were talking about and he referred them to the Principal.
23. The stories were narrated, recordings played and the investigation was conducted and it was found that the number which AG had was not Mr. Tomsons number but belonged to the employee Mr. Xolile Willem and when this was discovered the employee Mr. Xolile Willem switched of his phone that he has been using.
24. AG did not want to disclose her relationship and the parents asked him to accompany them to where the employee stayed and when they got there they found the parents of the employee who promised to try and resolve the matter. His mother then went to school and the police station but does not know what happened with those institutions.
25. He told the hearing that AG dropped school and heard that he has been seen in East London and later went to Cape Town where she was seen by a community member who was the taxi driver. He stated that AG told him that she left Cathcart because she was threatened by the employee, that he will kill her if she discloses what happened or what was happening between them. He was then asked to testify in the hearing and he is doing exactly that.
26. The 3rd witness of the employer was Mr. Mhlangovuyo Tomson who testified that he works for the employer as an educator at Fundani Secondary School since 2018 and he does not know anything about the sexual assault charges laid against the employee Mr. Xolile Willem.
27. He averred that he was approached by a learner by the name of SG who accused him of sleeping with or having an affair with a learner by the name of AG and when he narrated the story, he checked and discovered that it was not his number that was calling the learner but maybe it was saved by his surname.
28. When he listened to the recordings, he can understand that B and others thought that it was him who was sleeping or having an affair with the learner. He picked up that the allegations were serious and suggested that they must go and report the matter to parents and the school. He stated that he was later called by the principal and he met the parents who apologized for damaging his name. He said the person who saved his number using his name maybe wanted to conceal his identity.
29. The 4th witness of the employer was Mr. Nolulamo Gxaba who testified that she is the mother of SG and AG is her sister’s daughters and works as an Educator at Coverside School in Cathcart. He stated that he did not know the employee Mr. Willem before the incident in 2019. She picked up that Mr. Willem was AG’s boyfriend from the face book account.
30. At the opening of schools in June 2019 S her son report that there is something that happened at school between AG and Mr. Tomson. She confronted Mr. Tomson and asked if he knew anything about that and he denied that the number that was calling AG was his and denied even knowing AG.
31. When she checked the number closely she established that the number was not Tomsons number and later established that it was the number for Mr. Willem and she wanted him to face the consequences of his actions. She stated that AG then told her that she was told to save his number as Tomson and she saved it.
32. When she asked AG she narrated the story and stated that after she had saved the number the person asked to see her and came to pick her up to the garage where they bought yoghurt and chocolate. It then rained whilst they were still at the garage and this man organized transport for them and said it was taking them home. The car or transport went straight to the employee’s place where they together got out kissed and had sex.
33. She then told her that she slept there overnight and came back in the morning and Mr. Willem did not go to school for about three days. When he came back to school he asked AG and B to fetch some food for him and AG was left behind. As he left the employee attempted to kiss and have sex with her until Mr. Monati came in and he pretended that he was sending her somewhere.
34. She stated that AG told her that she was threatened by Mr. Willem and he told her that she will kill her if she shared what they have had with anyone. She told her husband and they went to Mr. Willems home and later to school and the police to report the matter. She stated that they also apologized to Mr. Tomson.
35. The employer representative then closed their case and the applicant Mr. Xolile Willem took the witness stand and testified that he works for the employer as an educator. He disputed that he had any relationship with AG.
36. He confirmed that he knows her and stated that he does not stay in town but in the location. He stated that AG had a relationship with a certain D.J. Pamza and maybe he is the one who she was staying with but AG was trying to protect him by pointing at him.
37. He could not explain to the hearing why AG would use him to protect D.J. Pamza and stated that he totally disputes all what has been said by AG. He further could not explain why Simiso would be concerned and report the matter on his own.
38. He agreed that there is no reason for S to implicate him unreasonably and confirmed that S’s intention was just to probe the relationship not to probe him as a person and that this came about as a matter between Mr. Tomson and AG at first and that he was not implicated at all.
39. He further stated that it is AG who confessed and confirmed that he has a child at Cathcart Secondary School and that he does not know how she AG get to know about his child who is studying at Cathcart Secondary School.
40. He did indicate that he and AG’s parents belong to the same political organization and there was political conspiracy against him but he could not substantiate how this conspiracy came about and could not further explain why the parents would use their child in the manner this happened.
FINDINGS ON THE CHARGES, ANALYSIS OF EVIDENCE & ARGUMENT
41. In respect of this charge set out in paragraph 7 above, the evidence the employer representative led evidence of 4 witnesses including the victim, a learner who is the subject of the said sexual assault AG.
42. The evidence of these witnesses is detailed above in the topic that deals with survey of evidence at paragraph 9 – 40 of this award. These witnesses led clear, coherent and corroborative evidence to the effect that:
- The learner AG – who was a learner at Fundani Secondary School had an affair with the employee Mr. Xolile Willem - who is a teacher or educator at the same school, Fundani Secondary School. The employee asked for the cellular number of the employee at school and he asked her to save it as Mr. Tomson who is also a teacher in the same school and he did not disclose to this learner that he was Mr. Willem.
- This was done for the reasons that are not known to the witnesses except what they think that employee wanted to divert the focus of parents and relatives so that he cannot be traced because he knew that what he was doing was wrong.
- One evening in June 2019 the employee went to visit AG the learner at her home around Cathcart where AG stays with her cousin and an Aunt who is disabled. The employee took away AG from her home to the garage when the employee bought yoghurt and chocolate for the learner.
- From there the employee arranged a car / a lift for them because it was raining, that lift went straight to the employee’s place of residence where the employee and the learner kissed, touched each other and later had sex. The learner went back home in the morning the following day and the employee did not go to school for about 3 days the following week.
- The learner’s cousin SG noticed this and also picked up that there was a man saved as Tomson on AG”s phone and this the person who went away with AG one day and AG did not come back.
- He reported the matter to the parents and teachers at school because he was concerned about the future of AG and the cousin SG also confronted their teacher at school Mr. Tomson who indicated that he does not know AG and that he does not have a relationship with AG.
- The matter was then escalated to parents and the school and investigated and this is when it was found out that the person who was saved as Mr. Tomson in AG’s phone and who apparently has a relationship with AG was the employee Mr. Willem. This was found when the number was verified and it appeared that this number belonged to Mr. Willem.
- The matter was also reported to the police and the employee was subjected to internal disciplinary hearing which led to the hearing that the ELRC is attending now in terms of ELRC Collective Agreement 3 of 2018.
- All the evidence summarized hear above was not disputed by the employee on materiel facts except for a bare denial from the employee to say that the learner AG had an affair with a certain D.J. Pamza and she possible visited him when she did not sleep at home on that day in June 2019.
- There is nothing that is offered by the employee in his defense to this charge except this bare denial and the evidence of the employee is not corroborated by any witness. It is important to note that AG wanted to conceal this act because according to her, she was threatened with death by the employee if she share their act with anyone.
- This was reported by SG her cousin who was concerned about the learner’s life – his cousin and when he stood up and deal – reported the matter to the school and parents he did not know that it was the employee who had an affair with Anathi but Mr. Tomson until this was verified. It then follows on a balance of probabilities that Simiso had nothing against the employee but wanted to help his sister / cousin.
- The other defense or issue raised by the employee is that he is charged because he has a problem with the learner parents because they belong to the same political organization and that there is political conspiracy against him. He however could not explain why he was saying that and how the alleged conspiracy is coming from and most importantly could not explain why the parents would use their child like that in order to fight their battles.
43. For this reason, this is highly improbably and the testimony of the employee cannot be believed, his version for the reasons listed above is rejected. The only conclusion to be drawn from that is that the employee is guilty of the charges levelled against him.
44. Section 185 (a) of the Labour Relations Act 66 of 1995 as amended provides that:
- Every employee has a right not to be unfairly dismissed.
45. The Act recognizes 3 reasons for the termination of the employee’s services by the employer and these are the conduct of the employee, incapacity of the employee and the employer’s operational requirements. In this matter the employee is charged because of his conduct and the employer has to prove that the employee has committed misconduct on a balance of probabilities. The employer has the onus to prove the existence of any one of these grounds as a reason to dismiss the employee.
46. The employer’s evidence was not challenged by the employee on materiel aspects as can be seen in the analysis above. I do not have any reason to doubt and reject the employer’s evidence. In the circumstances, I will accept the employer’s testimony that there is a valid reason for the dismissal of the employee. The question that I have to answer in this award is whether the conduct of the employee constitutes a serious act of misconduct and whether the sanction of a dismissal is appropriate in the circumstances.
47. In response to that I find that the applicant has committed serious acts of misconduct and these transgressions are expressly prohibited by the respondent and punishable by a dismissal for the first offence in terms of the employer’s disciplinary code and policies.
48. The Constitutional Court in Sidumo & another v/s Rustenburg Platinum Mines Ltd and other (2007) 12 BLLR 1097 held that in deciding whether dismissal is an appropriate sanction for an act of serious misconduct, the test is whether the misconduct renders the continued employment relationship intolerable.
49. The acts of misconduct committed by the employee in the context of his employment renders the employment relationship between the parties intolerable. This type of misconduct is also expressly prohibited by the employer in their disciplinary code and the employer is expected to apply discipline in a consistent manner.
50. On the appropriateness of the sanction the LAC court in its decision in Nampak Corrugated Wadesville v/s Khoza (1999) 20 ILJ 585 (LAC) Ngcobo J.A. held that the determination of the appropriate sanction is a matter which is largely within the discretion of the employer, however that discretion must be exercised fairly. It would be fair and reasonable to impose a sanction of a dismissal for these transgressions.
51. In De Beers Consolidated Mines Ltd v/s CCMA & others (2000) 21 ILJ 1051 (LAC) the court accepted that the ultimate justification for the employer’s powers to impose discipline flows from the right to manage their business effectively. The court held further that “dismissal is not an expression of moral outrage, much less it is an act of vengeance. It is or should be sensible operational response to risk management in the particular enterprise”.
52. In Standard Bank of South Africa Ltd v/s CCMA and others (1998) LC 7 the court stated that it is trite principle that breach by the employee of the duty of good faith to the employer is destructive to the employment relationship. The employee has breached this duty of good faith to the employer.
53. I am satisfied that the rationale that I have used in coming to this conclusion is one that qualifies when we talk about reasonableness and weighing the interests of both parties as directed in the Constitutional Court in its decision in NEHAWU v/s University of Cape Town (2003) (CC) where the Constitutional Court held that the arbitrator is expected to have regard to the interest of both parties in coming to a conclusion whether the conduct of the employer to dismiss the employee was fair or not.
54. In this matter the interests of the employer far outweigh those of the employee. The employee did not come forward and admit his wrongdoing instead throughout the processes he denied having committed any transgression and this can only be regarded as an aggravating factor. All the charges summarized above constitute a serious act of misconduct and even though discipline has to be applied in a corrective and progressive manner, this is so serious that when proved as has happened calls for a sanction of a dismissal.
55. From his transgression that has been proved he cannot be trusted. The employer and learners will suffer severe consequences if this wrong doing can be condoned and that discipline has to be applied consistently. The employer’s version in so far as it relates to the reason for dismissal of the employee is accepted. This means that the employer has managed to discharge its onus in terms of section 192 (2) of the Act.
56. I have found the employee guilty of Section 17(1)(b) of the Employment of Educators Act 76 of 1998 transgression and in terms of subsection an educator must be dismissed if he or she is found guilty of such a transgression.
57. Section 120 (2) of the Children’s Act no 38 of 2005 provides that a finding that a person is unsuitable to work with children may be made by such 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 representative who acts for the Department of Education (employer) would accordingly have the right to make such an application. The arbitrator may however also make the finding on his own accord.
58. In the circumstances I hereby make the following award.
AWARD
59. The employee Mr. Xolile Willem be dismissed from the employ of the employer, Department of Education - Eastern Cape.
60. The employer Department of Education – Eastern Cape is directed to issue a dismissal letter to the employee Mr. Xolile Willem within 15 working days from the date of receipt of this award.
61. The employee Mr. Collie Willem is further found to be unsuitable to work with children in terms of the section 120 (2) of the Children’s Act no 38 of 2005.
62. Should the employee be unhappy with the outcome of this hearing i.e. this award, he can refer it to the Labour Court for review as it cannot be arbitrated again because it has a status of an award and in fact an award.
Signature:
ELRC Arbitrator / Commissioner: Malusi Mbuli
Panelists: Malusi Mbuli
Date of Award: 18-08-2021
In the ARBITRATION between
XOLILE WILLEM
(Applicant / Employee)
And
DEPARTMENT OF EDUCATION – EASTERN CAPE
(Respondent / Employer)
DETAILS OF HEARING AND REPRESENTATION
1. The enquiry by arbitrator was held under the auspices of the ELRC in terms of section 188 (A) of the Labour Relations Act 66 of 1995 as amended in 2015. The hearing took place on the 28th, 29th and 30th of July 2021 at 09:00 at the Cathcart Magistrates Offices in Cathcart.
2. The employee Mr. Xolile Willem attended the hearing and represented himself. The employer also attended the hearing and was represented by Mr. Thando Makina an official of the employer.
3. The enquiry by arbitrator proceeded on the on the 28th, 29th and 30th of July 2021 as indicated above in the presence of both parties. The parties further requested to file closing arguments on this matter not later than the 06th of August 2021 and the employer representative filled such arguments with the ELRC and the employee did not file such closing argument.
4. The employee therefore waved his right to present mitigating circumstances and closing arguments in this matter. The notice to attend the enquiry by arbitrator was properly drafted and served on the employee and the employee attended the hearing on the 2nd day of the hearing.
ISSUE TO BE DECIDED
5. I am required to determine whether or not the employee Mr. Xolile Willem is guilty of the charges levelled against him by the employer and if so whether a sanction of a dismissal is appropriate to be imposed on him in the circumstances.
BACKGROUND TO THE ISSUE
6. The employee is employed by the employer as an educator and is now charged by the employer in respect of the incidents appearing here under outlined in the charges. The parties agreed that the matter should instead of being set for a disciplinary hearing be enrolled straight at the ELRC as an enquiry by arbitrator in terms of section 188 (A) of the Act accordance with the ELRC Collective Agreement 3 of 2018.
7. This therefore means that the status of the outcome of this process will be an award that is final and binding on the employer and employee. The charges against the employee are as follows.
- It is alleged that the employee is guilty of misconduct in terms section 17 (1) (b)of the Employment of Educators Act 76 of 1998 (as amended), which inter alia reads as follows:
- “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 or other employee” In that on or about the period September 2019 at Fundani Secondary School the employee had sexual relationship with the learner from the same school.
- In that the employee had an inappropriate sexual relationship with AG who was a grade 9 learner at his school in September 2019.
8. The employee Mr. Xolile Willem denies these allegations and pleaded not guilty to the said allegations hence the matter was set down for section 188 (A) inquiry as directed by ELRC Collective Agreement 3 of 2018.
SURVEY OF EVIDENCE
9. The employer representative called their 1st witness AG (a minor child) who testified with the assistance of the intermediary Mrs. Noluthando Nxala – appointed by the ELRC. She testified that in 2019 she was a learner at Fundani Secondary School and she had a relationship with the employee Educator – Mr. Xolile Willem which started in June 2019.
10. The witness, learner stated that this relationship started when Mr. Willem asked for her number at school pretending to be Mr. Tomson and at that time when she was called by the employee she was with Iviwe and she gave the employee her number. She stated that the employee Mr. Willem was not her class teacher and she didn’t necessary know him and indeed the employee called her later and asked her to save his number as Mr. Tomson.
11. He then asked when they can meet and at first she was reluctant to meet him but eventually they met when he came to her home / house where she stayed and stood outside the house. She got out of the house to meet him and he asked him to accompany him to the garage where he bought her yoghurt and chocolate.
12. When they were at the garage it started to rain and the employee organized transport and she thought that the transport was going to take her home because he had promised to take her home but it drove down town to where the employee stays and they were about 5 in the car and the car was grey.
13. When the car got to the employee’s place, the employee asked her to get out and they were the only 2 who got out and went inside the room and house where the employee stays. The employee then put heater on and he kissed her and later had sex with her. After they had sex he told her that she must not tell anyone about what they did and that what happened should remain between the 2 of them.
14. He said it is too late to go home and she slept over there the whole night and in the morning she walked home and it was about 25 minutes’ walk and that she can point the house where Mr. Willem stayed. All along she thought that he was Mr. Tomson until she was told by a friend at school whilst they were standing outside that he was Mr. Willem, a teacher at their school.
15. She testified that the employee came again to her place driving a car maybe after 2 weeks to see her then later at school. He asked her bring his food and when she brought the food the employee tried to kiss her and sleep with her in his office. Whilst he was attempting to do that Mr. Matoni entered the office and he pretended as if he was sending her somewhere and gave her some papers.
16. After Mr. Matoni had left he asked her again if their relationship was still a secret and stated that he does not want to loose his job because he is a father of the child studying at Cathcart Secondary School and is the only parent of that child since the mother of that child had passed on. He further stated that he will kill her if she shares the details about their relationship with anyone.
17. One day at school when it was a sports day between their school and another one in Queenstown he called her and when she ignored him and he came to her and asked her why she did not come to him. He then slapped her with an open hand without people seeing him saying that he was not her age and after that she ran away from school and did not write her examinations.
18. She confirmed that she knew D.J. Pamza which the employee alleges that she visited and was protecting and conceded that she had a relationship with him but were just talking on the phone and has never visited him for a sleep over and have never spent time with him.
19. The 2nd witness of the employer was “SG” who testified that he is a cousin to “AG”, they were staying together at his home and he is also a learner at Fundani Secondary School. He stated that he is aware of the allegations that are levelled against the employee and testified that around June 2019 he was at home with AG and B and it was in the evening around 6 - 7.
20. He stated that AG was at the kitchen / dinning room and he saw her phone ringing and the caller was Mr. Tomson and he told B about that because Mr. Tomson was their Geography teacher. He testified that it was on a Friday / Saturday and they heard a noise of the running engine and the light of the car and when they checked again AG was not with them at the house.
21. He averred that they had heard the bang on the door when she left the house and AG said she went to visit her class mate B and when he asked B he did not know about AG’s visit and AG came back at about 6 in the morning the following day. He stated that AG was called again by Tomson the following Monday and this did not sit well with him and was bothered him because he felt that AG future was being destroyed.
22. He together with O decided to approach Mr. Tomson because they have also recorded conversations with Bongekile who said that AG has a love relationship with Mr. Tomson and they ultimately met Mr. Tomson in his car. Mr. Tomson did not know AG and did not know about the relationship that they were talking about and he referred them to the Principal.
23. The stories were narrated, recordings played and the investigation was conducted and it was found that the number which AG had was not Mr. Tomsons number but belonged to the employee Mr. Xolile Willem and when this was discovered the employee Mr. Xolile Willem switched of his phone that he has been using.
24. AG did not want to disclose her relationship and the parents asked him to accompany them to where the employee stayed and when they got there they found the parents of the employee who promised to try and resolve the matter. His mother then went to school and the police station but does not know what happened with those institutions.
25. He told the hearing that AG dropped school and heard that he has been seen in East London and later went to Cape Town where she was seen by a community member who was the taxi driver. He stated that AG told him that she left Cathcart because she was threatened by the employee, that he will kill her if she discloses what happened or what was happening between them. He was then asked to testify in the hearing and he is doing exactly that.
26. The 3rd witness of the employer was Mr. Mhlangovuyo Tomson who testified that he works for the employer as an educator at Fundani Secondary School since 2018 and he does not know anything about the sexual assault charges laid against the employee Mr. Xolile Willem.
27. He averred that he was approached by a learner by the name of SG who accused him of sleeping with or having an affair with a learner by the name of AG and when he narrated the story, he checked and discovered that it was not his number that was calling the learner but maybe it was saved by his surname.
28. When he listened to the recordings, he can understand that B and others thought that it was him who was sleeping or having an affair with the learner. He picked up that the allegations were serious and suggested that they must go and report the matter to parents and the school. He stated that he was later called by the principal and he met the parents who apologized for damaging his name. He said the person who saved his number using his name maybe wanted to conceal his identity.
29. The 4th witness of the employer was Mr. Nolulamo Gxaba who testified that she is the mother of SG and AG is her sister’s daughters and works as an Educator at Coverside School in Cathcart. He stated that he did not know the employee Mr. Willem before the incident in 2019. She picked up that Mr. Willem was AG’s boyfriend from the face book account.
30. At the opening of schools in June 2019 S her son report that there is something that happened at school between AG and Mr. Tomson. She confronted Mr. Tomson and asked if he knew anything about that and he denied that the number that was calling AG was his and denied even knowing AG.
31. When she checked the number closely she established that the number was not Tomsons number and later established that it was the number for Mr. Willem and she wanted him to face the consequences of his actions. She stated that AG then told her that she was told to save his number as Tomson and she saved it.
32. When she asked AG she narrated the story and stated that after she had saved the number the person asked to see her and came to pick her up to the garage where they bought yoghurt and chocolate. It then rained whilst they were still at the garage and this man organized transport for them and said it was taking them home. The car or transport went straight to the employee’s place where they together got out kissed and had sex.
33. She then told her that she slept there overnight and came back in the morning and Mr. Willem did not go to school for about three days. When he came back to school he asked AG and B to fetch some food for him and AG was left behind. As he left the employee attempted to kiss and have sex with her until Mr. Monati came in and he pretended that he was sending her somewhere.
34. She stated that AG told her that she was threatened by Mr. Willem and he told her that she will kill her if she shared what they have had with anyone. She told her husband and they went to Mr. Willems home and later to school and the police to report the matter. She stated that they also apologized to Mr. Tomson.
35. The employer representative then closed their case and the applicant Mr. Xolile Willem took the witness stand and testified that he works for the employer as an educator. He disputed that he had any relationship with AG.
36. He confirmed that he knows her and stated that he does not stay in town but in the location. He stated that AG had a relationship with a certain D.J. Pamza and maybe he is the one who she was staying with but AG was trying to protect him by pointing at him.
37. He could not explain to the hearing why AG would use him to protect D.J. Pamza and stated that he totally disputes all what has been said by AG. He further could not explain why Simiso would be concerned and report the matter on his own.
38. He agreed that there is no reason for S to implicate him unreasonably and confirmed that S’s intention was just to probe the relationship not to probe him as a person and that this came about as a matter between Mr. Tomson and AG at first and that he was not implicated at all.
39. He further stated that it is AG who confessed and confirmed that he has a child at Cathcart Secondary School and that he does not know how she AG get to know about his child who is studying at Cathcart Secondary School.
40. He did indicate that he and AG’s parents belong to the same political organization and there was political conspiracy against him but he could not substantiate how this conspiracy came about and could not further explain why the parents would use their child in the manner this happened.
FINDINGS ON THE CHARGES, ANALYSIS OF EVIDENCE & ARGUMENT
41. In respect of this charge set out in paragraph 7 above, the evidence the employer representative led evidence of 4 witnesses including the victim, a learner who is the subject of the said sexual assault AG.
42. The evidence of these witnesses is detailed above in the topic that deals with survey of evidence at paragraph 9 – 40 of this award. These witnesses led clear, coherent and corroborative evidence to the effect that:
- The learner AG – who was a learner at Fundani Secondary School had an affair with the employee Mr. Xolile Willem - who is a teacher or educator at the same school, Fundani Secondary School. The employee asked for the cellular number of the employee at school and he asked her to save it as Mr. Tomson who is also a teacher in the same school and he did not disclose to this learner that he was Mr. Willem.
- This was done for the reasons that are not known to the witnesses except what they think that employee wanted to divert the focus of parents and relatives so that he cannot be traced because he knew that what he was doing was wrong.
- One evening in June 2019 the employee went to visit AG the learner at her home around Cathcart where AG stays with her cousin and an Aunt who is disabled. The employee took away AG from her home to the garage when the employee bought yoghurt and chocolate for the learner.
- From there the employee arranged a car / a lift for them because it was raining, that lift went straight to the employee’s place of residence where the employee and the learner kissed, touched each other and later had sex. The learner went back home in the morning the following day and the employee did not go to school for about 3 days the following week.
- The learner’s cousin SG noticed this and also picked up that there was a man saved as Tomson on AG”s phone and this the person who went away with AG one day and AG did not come back.
- He reported the matter to the parents and teachers at school because he was concerned about the future of AG and the cousin SG also confronted their teacher at school Mr. Tomson who indicated that he does not know AG and that he does not have a relationship with AG.
- The matter was then escalated to parents and the school and investigated and this is when it was found out that the person who was saved as Mr. Tomson in AG’s phone and who apparently has a relationship with AG was the employee Mr. Willem. This was found when the number was verified and it appeared that this number belonged to Mr. Willem.
- The matter was also reported to the police and the employee was subjected to internal disciplinary hearing which led to the hearing that the ELRC is attending now in terms of ELRC Collective Agreement 3 of 2018.
- All the evidence summarized hear above was not disputed by the employee on materiel facts except for a bare denial from the employee to say that the learner AG had an affair with a certain D.J. Pamza and she possible visited him when she did not sleep at home on that day in June 2019.
- There is nothing that is offered by the employee in his defense to this charge except this bare denial and the evidence of the employee is not corroborated by any witness. It is important to note that AG wanted to conceal this act because according to her, she was threatened with death by the employee if she share their act with anyone.
- This was reported by SG her cousin who was concerned about the learner’s life – his cousin and when he stood up and deal – reported the matter to the school and parents he did not know that it was the employee who had an affair with Anathi but Mr. Tomson until this was verified. It then follows on a balance of probabilities that Simiso had nothing against the employee but wanted to help his sister / cousin.
- The other defense or issue raised by the employee is that he is charged because he has a problem with the learner parents because they belong to the same political organization and that there is political conspiracy against him. He however could not explain why he was saying that and how the alleged conspiracy is coming from and most importantly could not explain why the parents would use their child like that in order to fight their battles.
43. For this reason, this is highly improbably and the testimony of the employee cannot be believed, his version for the reasons listed above is rejected. The only conclusion to be drawn from that is that the employee is guilty of the charges levelled against him.
44. Section 185 (a) of the Labour Relations Act 66 of 1995 as amended provides that:
- Every employee has a right not to be unfairly dismissed.
45. The Act recognizes 3 reasons for the termination of the employee’s services by the employer and these are the conduct of the employee, incapacity of the employee and the employer’s operational requirements. In this matter the employee is charged because of his conduct and the employer has to prove that the employee has committed misconduct on a balance of probabilities. The employer has the onus to prove the existence of any one of these grounds as a reason to dismiss the employee.
46. The employer’s evidence was not challenged by the employee on materiel aspects as can be seen in the analysis above. I do not have any reason to doubt and reject the employer’s evidence. In the circumstances, I will accept the employer’s testimony that there is a valid reason for the dismissal of the employee. The question that I have to answer in this award is whether the conduct of the employee constitutes a serious act of misconduct and whether the sanction of a dismissal is appropriate in the circumstances.
47. In response to that I find that the applicant has committed serious acts of misconduct and these transgressions are expressly prohibited by the respondent and punishable by a dismissal for the first offence in terms of the employer’s disciplinary code and policies.
48. The Constitutional Court in Sidumo & another v/s Rustenburg Platinum Mines Ltd and other (2007) 12 BLLR 1097 held that in deciding whether dismissal is an appropriate sanction for an act of serious misconduct, the test is whether the misconduct renders the continued employment relationship intolerable.
49. The acts of misconduct committed by the employee in the context of his employment renders the employment relationship between the parties intolerable. This type of misconduct is also expressly prohibited by the employer in their disciplinary code and the employer is expected to apply discipline in a consistent manner.
50. On the appropriateness of the sanction the LAC court in its decision in Nampak Corrugated Wadesville v/s Khoza (1999) 20 ILJ 585 (LAC) Ngcobo J.A. held that the determination of the appropriate sanction is a matter which is largely within the discretion of the employer, however that discretion must be exercised fairly. It would be fair and reasonable to impose a sanction of a dismissal for these transgressions.
51. In De Beers Consolidated Mines Ltd v/s CCMA & others (2000) 21 ILJ 1051 (LAC) the court accepted that the ultimate justification for the employer’s powers to impose discipline flows from the right to manage their business effectively. The court held further that “dismissal is not an expression of moral outrage, much less it is an act of vengeance. It is or should be sensible operational response to risk management in the particular enterprise”.
52. In Standard Bank of South Africa Ltd v/s CCMA and others (1998) LC 7 the court stated that it is trite principle that breach by the employee of the duty of good faith to the employer is destructive to the employment relationship. The employee has breached this duty of good faith to the employer.
53. I am satisfied that the rationale that I have used in coming to this conclusion is one that qualifies when we talk about reasonableness and weighing the interests of both parties as directed in the Constitutional Court in its decision in NEHAWU v/s University of Cape Town (2003) (CC) where the Constitutional Court held that the arbitrator is expected to have regard to the interest of both parties in coming to a conclusion whether the conduct of the employer to dismiss the employee was fair or not.
54. In this matter the interests of the employer far outweigh those of the employee. The employee did not come forward and admit his wrongdoing instead throughout the processes he denied having committed any transgression and this can only be regarded as an aggravating factor. All the charges summarized above constitute a serious act of misconduct and even though discipline has to be applied in a corrective and progressive manner, this is so serious that when proved as has happened calls for a sanction of a dismissal.
55. From his transgression that has been proved he cannot be trusted. The employer and learners will suffer severe consequences if this wrong doing can be condoned and that discipline has to be applied consistently. The employer’s version in so far as it relates to the reason for dismissal of the employee is accepted. This means that the employer has managed to discharge its onus in terms of section 192 (2) of the Act.
56. I have found the employee guilty of Section 17(1)(b) of the Employment of Educators Act 76 of 1998 transgression and in terms of subsection an educator must be dismissed if he or she is found guilty of such a transgression.
57. Section 120 (2) of the Children’s Act no 38 of 2005 provides that a finding that a person is unsuitable to work with children may be made by such 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 representative who acts for the Department of Education (employer) would accordingly have the right to make such an application. The arbitrator may however also make the finding on his own accord.
58. In the circumstances I hereby make the following award.
AWARD
59. The employee Mr. Xolile Willem be dismissed from the employ of the employer, Department of Education - Eastern Cape.
60. The employer Department of Education – Eastern Cape is directed to issue a dismissal letter to the employee Mr. Xolile Willem within 15 working days from the date of receipt of this award.
61. The employee Mr. Collie Willem is further found to be unsuitable to work with children in terms of the section 120 (2) of the Children’s Act no 38 of 2005.
62. Should the employee be unhappy with the outcome of this hearing i.e. this award, he can refer it to the Labour Court for review as it cannot be arbitrated again because it has a status of an award and in fact an award.
Signature:
ELRC Arbitrator / Commissioner: Malusi Mbuli
ELRC 302 -20 /21 NW
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