ELRC 294-20/21GP
Award Date:
30 August 2021
Text
Case Number: ELRC 294-20/21GP
Commissioner: M.A. HAWYES
Date of Award: 30TH August 2021
In the ARBITRATION between
V. Mahima
(Union/ Employee)
And
Gauteng Department of Education
( Employer)
Union/Applicant’s representative: Mr. Chris Nomandindi-SADTU
Union/Applicant’s address:
Telephone: 082 075 9214
Telefax:
E-mail:
Respondent’s representative: Mr. T.M Mampane
Respondent’s address:
Telephone: 082 387 9159
Telefax:
E-mail:
DETAILS OF HEARING AND REPRESENTATION
1. The case was scheduled for arbitration and effectively sat on the 1st June, the 7th July and the 17th August 2021. Other dates were allocated but not utilized for reasons that will soon become apparent.
2. Mr. T.M Mampane, a labour relations official, represented the employer.
3. Mr. C. Nomandindi, a union official from the South African Democratic Teachers Union (SADTU) represented the employee.
4. The proceedings were digitally recorded and long hand notes were also kept.
5. The employer made use of a small bundle marked Bundle ‘A’.
ISSUE IN DISPUTE
6. The employer leveled two charges of sexual misconduct against the employee. The charges involved DS, an erstwhile learner at the Vezulwazi Primary School.
7. The employee pleaded not guilty to both charges.
BACKGROUND TO THE ISSUE IN DISPUTE
8. The Respondent employed the employee as a PL1 educator for many years at the Vezulwazi Primary School.
SURVEY OF THE EMPLOYER’S EVIDENCE AND ARGUMENT
9. The Respondent led the evidence of the principal and deputy principal of Vezulwazi Primary School.
10. Both witnesses gave hearsay evidence of a report made by a number of friends and fellow pupils of DS of an alleged event involving the employee and DS. DS was at no stage involved in the reporting of the incident.
11. The matter was adjourned on two occasions to secure the attendance of the minor witnesses at the inquiry. It became apparent that DS was no longer a pupil at Vezulwazi Primary School and in fact had been re-located to Zimbabwe. The father of DS had expressed reluctance, in a letter which was handed in, to allow DS to testify due to fears of him being ostracized by the community.
12. The parents of the other learner witnesses had likewise refused that the learners be permitted to testify. It was suggested to the employer that they should make use of subpoenas’ to secure the attendance of parents and witnesses at the hearing. No attempt was made.
13. At the hearing on the 17th August 2021 the Respondent brought an application that I rely purely upon the written statements tendered by DS and the other learner witnesses. Mr Nomandindi objected to the application. I refused the application and declared that it would be highly prejudicial to the employee to admit hearsay in this form, since it would be impossible to cross-examine a piece of paper to establish the veracity of the allegations.
14. At this juncture the employer closed their case.
SURVEY OF THE EMPLOYEE’S EVIDENCE AND ARGUMENT
15. The employee led no evidence and closed his case.
ANALYSIS OF EVIDENCE AND ARGUMENT
16. The onus rests on the employer to prove the allegations against the employee on a balance of probabilities.
17. The entire case of the employer rests on hearsay evidence. It is trite that hearsay evidence may be unreliable and should only be admitted and accepted if there is other direct or circumstantial evidence to back it up. In this case there is no other such reliable evidence.
18. The employer has failed to discharge the onus of proving sexual misconduct against the employee.
AWARD
19. The employee is found not guilty on both charges of misconduct.
MARK HAWYES
ARBITRATOR
Commissioner: M.A. HAWYES
Date of Award: 30TH August 2021
In the ARBITRATION between
V. Mahima
(Union/ Employee)
And
Gauteng Department of Education
( Employer)
Union/Applicant’s representative: Mr. Chris Nomandindi-SADTU
Union/Applicant’s address:
Telephone: 082 075 9214
Telefax:
E-mail:
Respondent’s representative: Mr. T.M Mampane
Respondent’s address:
Telephone: 082 387 9159
Telefax:
E-mail:
DETAILS OF HEARING AND REPRESENTATION
1. The case was scheduled for arbitration and effectively sat on the 1st June, the 7th July and the 17th August 2021. Other dates were allocated but not utilized for reasons that will soon become apparent.
2. Mr. T.M Mampane, a labour relations official, represented the employer.
3. Mr. C. Nomandindi, a union official from the South African Democratic Teachers Union (SADTU) represented the employee.
4. The proceedings were digitally recorded and long hand notes were also kept.
5. The employer made use of a small bundle marked Bundle ‘A’.
ISSUE IN DISPUTE
6. The employer leveled two charges of sexual misconduct against the employee. The charges involved DS, an erstwhile learner at the Vezulwazi Primary School.
7. The employee pleaded not guilty to both charges.
BACKGROUND TO THE ISSUE IN DISPUTE
8. The Respondent employed the employee as a PL1 educator for many years at the Vezulwazi Primary School.
SURVEY OF THE EMPLOYER’S EVIDENCE AND ARGUMENT
9. The Respondent led the evidence of the principal and deputy principal of Vezulwazi Primary School.
10. Both witnesses gave hearsay evidence of a report made by a number of friends and fellow pupils of DS of an alleged event involving the employee and DS. DS was at no stage involved in the reporting of the incident.
11. The matter was adjourned on two occasions to secure the attendance of the minor witnesses at the inquiry. It became apparent that DS was no longer a pupil at Vezulwazi Primary School and in fact had been re-located to Zimbabwe. The father of DS had expressed reluctance, in a letter which was handed in, to allow DS to testify due to fears of him being ostracized by the community.
12. The parents of the other learner witnesses had likewise refused that the learners be permitted to testify. It was suggested to the employer that they should make use of subpoenas’ to secure the attendance of parents and witnesses at the hearing. No attempt was made.
13. At the hearing on the 17th August 2021 the Respondent brought an application that I rely purely upon the written statements tendered by DS and the other learner witnesses. Mr Nomandindi objected to the application. I refused the application and declared that it would be highly prejudicial to the employee to admit hearsay in this form, since it would be impossible to cross-examine a piece of paper to establish the veracity of the allegations.
14. At this juncture the employer closed their case.
SURVEY OF THE EMPLOYEE’S EVIDENCE AND ARGUMENT
15. The employee led no evidence and closed his case.
ANALYSIS OF EVIDENCE AND ARGUMENT
16. The onus rests on the employer to prove the allegations against the employee on a balance of probabilities.
17. The entire case of the employer rests on hearsay evidence. It is trite that hearsay evidence may be unreliable and should only be admitted and accepted if there is other direct or circumstantial evidence to back it up. In this case there is no other such reliable evidence.
18. The employer has failed to discharge the onus of proving sexual misconduct against the employee.
AWARD
19. The employee is found not guilty on both charges of misconduct.
MARK HAWYES
ARBITRATOR
ELRC 302 -20 /21 NW
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