ELRC 274-20/21 GP
Award Date:
06 September 2021
Text
Case Number: ELRC 274-20/21 GP
Commissioner: M.A. HAWYES
Date of Award: 06 September 2021
In the ARBITRATION between
Gauteng Department of Education
(Employer)
And
Mr. P. Phiri
(Employee)
Union/Applicant’s representative: Mr. M.J Makaleng-SADTU
Union/Applicant’s address:
Telephone: 076 284 0614
Telefax:
E-mail:
Respondent’s representative: Mr. T. Moloto
Respondent’s address:
Telephone: 082 925 4241
Telefax:
E-mail:
DETAILS OF HEARING AND REPRESENTATION
1. The case was scheduled for arbitration and effectively sat on the 7th June, the 13th July and the 18th August 2021. At the end of the arbitration both parties requested the opportunity to submit written closing arguments by the 25th August 2021. The heads of argument were timeously received and my award now follows.
2. Mr. T. Moloto, a labour relations official, represented the employer.
3. Mr. M.J Makaleng, a union official from the South African Democratic Teachers Union (SADTU) represented the employee.
4. The proceedings were digitally recorded and detailed long hand notes were also kept.
5. The employer made use of a bundle of documents which bundle was supplemented during the course of the inquiry.
ISSUE IN DISPUTE
6. The employer leveled two charges of sexual misconduct against the employee i.t.o section 17 (1) © and 18 (1) (q) respectively of the Employment of Educators Act, no 76 of 1998 (as amended) (EEA). The first charge alleged that during January 2020 the employee was involved in a sexual relationship with Mosa Moshito, who is a learner at Amandsig Secondary School (the school), where the employee was employed as an educator.
7. The second charge stated that during January 2020, the employee conducted himself in an improper, disgraceful and unacceptable manner, in that he had an intimate relationship with the same Mosa Moshito
8. The employee pleaded not guilty to both charges.
9. All learners that testified at the hearing were over the age of 18 at the time they testified before this hearing and they did so voluntarily, without any assistance from the intermediary. Thus their names will be mentioned in full during the course of this award.
BACKGROUND TO THE ISSUE IN DISPUTE
10. The Respondent employed the employee as a PL1 educator at the Amandsig Primary School at the time of the alleged misconduct. The employee had been so employed from the 11th May 2016.
SURVEY OF THE EMPLOYER’S EVIDENCE AND ARGUMENT
11. The Respondent firstly led the evidence of the principal of the school (Mrs. Sanet Jakobz) and then two former learners namely Ms. Makhosazana Matshidza and Ms. Rethabile Mafora.
12. The survey of the evidence will not follow the order in which the witnesses testified.
13. Matshidza testified, inter alia, that she was a grade 12 learner in 2020 at the school and attended class with Mosa Moshito. Moshito approached her at one point and accused her of being in a relationship with the employee. Moshito adopted a threatening stance and Matshidza testified that she felt intimidated. She decided to approach the principal because she feared for her safety and it was, in fact, Moshito that was having a sexual relationship with the employee. She also testified that she was afraid of Moshito because she was a violent person at school. She went to the principal with one Rethabile Mafora.
14. Moshito used to brag to them about being in a relationship with the employee and even posted pictures on her Whats App status of being with the employee at certain locations in Ga-Rankuwa. She also got pictures from Moshito’s phone showing Moshito and the employee in a sexual posture. She had forwarded the pictures to the principal.
15. Matshidza also testified that she and the employee had a good learner and teacher relationship.
16. The principal had asked her to write a statement about what had happened and she did so.
17. Mafora testified that she joined Matshidza another learner at the principal’s office since she was aware of the allegations/threats that Moshito had made towards Matshidza concerning the employee.
18. She too was aware of and had seen the posts that Moshito had made on Whats App regarding her sexual relationship with the employee.
19. Moshito was an aggressive learner and she too feared that Moshito could do some harm to Matshidza.
20. Mafora also testified that she had a good teacher/student relationship with the employee.
21. The principal Jakobz testified that made the statement at page ‘D’ of the bundle. She was approached by Matshidza (Kgosi) and another learner by the name of Lehlogonolo who reported that Moshito and the employee were having an affair. She asked them to send the photos to her which they did. They also made her aware that Moshito was posting about her relationship with the employee on her Whats App status.
22. Moloto advised that Moshito had refused to testify on behalf of the employer at the inquiry by arbitrator.
SURVEY OF THE EMPLOYEE’S EVIDENCE AND ARGUMENT
23. The first witness to testify under oath for the employee was Moshito and the employee thereafter also testified under oath.
24. Moshito testified that she had no sexual relationship or intimate relationship with the employee and had not been influenced by either the employee or the union representative to say what she was about to say. The relationship with the employee was one of a normal teacher/learner relationship. It was later argued that the two charges amounted to an unwarranted splitting of charges since there was, essentially, no difference in the substance of the two charges leveled against the employee.
25. Moshito testified further that the employer representative (Moloto) had approached her to make a statement against the employee. He had conducted the interview without her parents being notified or giving their consent to the interview.
26. Moloto attempted to force her to write a statement agreeing to the alleged relationship between her and the employee which she refused to write because it was not true.
27. Moloto mentioned pictures saying it was her in the pictures but no photographs were shown to her.
28. Moloto brought pressure to bear on her as to what she should write but she resisted his efforts. At one point Moloto threatened her that if she did not implicate the employee she would be prevented from writing grade 12.
29. During the course of the interview she felt uncomfortable, traumatized and terrified and had, to date, received no counseling for the traumatic events that she had to endure when interviewed by Moloto.
30. Moshito testified further that she became the laughing stock of the school as the teachers were making a mockery of her. She admitted to being angry with the principal and accusing her of ruining her life.
31. Shortly after the interview with Moloto Moshito drafted a long letter to the employee which letter was handed in as evidence and marked page ‘P’. Moshito admitted to hand delivering the letter to the employee shortly after drafting it. The letter, inter alia, discussed the details of her interview with Moloto.
32. The employee denied that he had a sexual or intimate relationship with Moshito and deposed that his relationship with Moshito was that of a teacher and learner.
33. Moshito demanded an apology from Moloto and the National Department of Education for the way she had been treated.
34. The employee testified that that he had a strained relationship with the principal of Amandsig Secondary School which started in May 2016.
35. The employee testified that he did not sign for the notice of the disciplinary hearing because what he was asked to sign for was different to what was in the ELRC handbook and he wanted to consult with his union first.
36. It was argued on behalf of the employee that his testimony was consistent, truthful and reliable and was corroborated by the testimony of Moshito. It was basically argued that principal Jacobz engineered the alleged events against the employee because of the strained relationship between them.
37. It was also argued that the conduct of employer representative (Moloto) amounted to an abuse of power and union official Makaleng reiterated the employee and Moshito’s call for their conduct to be investigated by the Department.
ANALYSIS OF EVIDENCE AND ARGUMENT
38. The onus rests on the employer to prove the allegations against the employee on a balance of probabilities.
39. One of the main allegations made by the employee is that the principal was responsible for orchestrating trumped up charges of sexual misconduct against the employee because of their previous strained relationship.
40. It is clear from the employer testimony that the approach to the principal was initiated by Matshidza accompanied by her friends. As per established procedure all matters involving alleged sexual misconduct must be referred to the district office and that is what Jacobz did. I find no evidence that Jacobz interfered in the process or elicited the learner witnesses to make statements and testify against the employee. Any clashes that Jacobz may have had with the employee in the past clearly did not provide the genesis for these charges.
41. Moloto, as per his job description, was appointed to investigate the matter and recommend disciplinary action against the employer. Moshito alleged that Moloto abused her by, inter alia; interviewing her without the consent of her parents and threatened that he would prevent her from writing her matric exams if she did not implicate the employee. It is necessary to examine Moshito’s testimony in context. Moloto introduced an unchallenged affidavit from the Moshito’s parents (marked page ‘M’) wherein they attested to the rude and vile manner in which the Moshito responded to teachers and other learners at school. The parents consented to any necessary disciplinary measures available and mentioned that they were aware of her attitude as it is also experienced at home. It is common cause that Moshito’s mother is an admitted attorney.
42. I wish to place on record that I observed Moshito as having an arrogant, high handed manner and much of her testimony consisted of making extreme demands to the extent of trying to push the Commissioner into a corner to accept her assertions and call for apologies. The employee had a similar arrogant, demeaning and supercilious manner to Moshito.
43. It is highly improbable that Moloto approached Moshito without the consent of her parents. The parents’ affidavit acknowledged that the employer had reached out to them prior to the interview and further acknowledged that Moshito displayed unacceptable conduct towards educators and learners alike. I find that the fact that no parental or other complaint was ever lodged against Moloto for the way in which he dealt with Moshito is sufficient proof that he dealt with her in a normal and acceptable manner. It is common cause that Moshito left school out of her own accord shortly after the report to the principal and thus did not make herself available to write the matric exams in 2020. Her allegations that Moloto stated that he would prevent her from writing her matric exams are thus false and disingenuous in the extreme and are rejected. During the course of her testimony Moshito mentioned that she had returned to the same school in 2021 to complete her matric.
44. I also find no procedural issue with the way in which the disciplinary charge sheet was served on the employee. The employee presented no supporting testimony on how the manner in which the charge sheet was served differed from the ELRC handbook. I find that this is a clear case of the employee raising imaginary procedural unfairness contentions in a desperate attempt to strengthen his case.
45. My findings in paragraphs 42 and 43 provide support for the testimonies of Matshidza and Mafora on the substantive merits of this case. The learner witnesses impressed me with their demeanor and candor. I find that the interactions with and the words of Moshito disturbed Matshidza to the extent that she felt the need to report the incident to the principal. I find that the only motivation for Matshidza reporting Moshito was a legitimate fear for her safety. Both witnesses had accurately observed Moshito’s Whats App posts and furthermore had no problems with the employee and thus no motive to give false testimony against him. I find that both Matshidza and Mafora had normal teacher/student relationships with the employee.
46. The way Moshito approached Matshidza has all the hallmarks of a jealous girlfriend. It is not the conduct of a learner that has a normal teacher/learner relationship with the employee. So too, the long letter hand delivered to the employee after her interview with Moloto is not indicative of a normal teacher/learner relationship but rather an intimate relationship where one communicates and shares detailed and sensitive information with one another.
47. The testimony of Matshidza and to a lesser extent Mafora provides circumstantial evidence and a chain of events that provide clear evidence that the employee and Moshito were in an intimate relationship. Moshito was immature, arrogant and foolish enough to post details of her relationship with the employee on Whats App where it was visible to Matshidza and others, as more than friendship and the employee was arrogant and over confident to allow her to post on the basis that there was insufficient evidence for the employer to connect all the dots. In that regard he is mistaken. The photographs mentioned by all the witnesses were handed in by the employer prior to the commencement of Moshito’s testimony. Moloto had not done so earlier because he had not expected Moshito to testify. Yes it is true that the employee and Moshito are not clearly identified in the pictures but there is no evidence breaking the chain of events testified to by Jacobz, Matshidza and Mafora that lead to the photos being observed, downloaded from Moshito’s Whats App status, transferred to Jacobz and then to Moloto where they were printed out and later handed in as evidence. Thus by an unbroken chain of events the photographs’ are linked to the employee and Moshito.
48. The photos and the other circumstantial evidence prove beyond all doubt that Moshito and the employee were in an intimate relationship. It is probable that persons who are in an intimate relationship, to the extent that the evidence indicates that the employee and Moshito were, would probably include sexual intercourse and other sexual acts as part of that intimacy.
49. The employee argued that the two charges amount to an unwarranted splitting of charges. I disagree. The employer was concerned that it would not have sufficient evidence to prove a sexual relationship between the employee and Moshito and thus it charged the employee with the second lesser charge of having an intimate relationship with Moshito. The evidence to prove the one charge is not necessarily the same as is required to prove the other and the test for splitting is avoided. As it turns out the available evidence has indeed proven both charges on a balance of probabilities.
50. In closing Jacobz and Moloto have not conducted themselves in any manner which justifies further investigation by the employer or the issue of an apology.
51. The parties were given 48 hours from the date of receipt of my finding of guilt to make submissions in mitigation and aggravation of sanction. As at the 6th September 2021 I had received submissions from both parties and my decision on sanction now follows.
52. Mr T.M Moloto argued, inter alia, that the charges were serious and that the employer has a zero tolerance to abuse of learners by their teachers. He submitted further that employee committed a serious violation of the oath of his office as an educator and that the employer could not trust him any further. Moloto submitted that the employee was not fit to work with children and that an order to that effect should be made in addition to the sanction of dismissal.
53. Mr M.J Makaleng, for the employee, argued, inter alia, that the employee was active in going the extra mile for learners and provided a good teaching environment for them. It was also submitted that whilst teaching accounting in 2016 his grade 12 learners had achieved a pass rate of 85%. It was also mentioned that the employee was a family man raising a son and two daughters, whose future would be greatly affected by the sanction determined by the Commissioner.
54. In determining an appropriate sanction I have considered the personal circumstances of the employee and balanced them against the seriousness of the misconduct. I also take into account that the relationship between the employee and Moshito was consensual but brazen and entered into with full knowledge that it was contrary to the provisions of the EEA and number of other education policies. It seems probable that the relationship between the two of them is ongoing and Moshito is back at school, completing her matric and the employee continues to teach there.
55. This is an undesirable situation and provides a poor example of appropriate conduct to other learners. In fact it might create the impression that relationships between educators and pupils at school are the norm and should be accepted.
56. . The employee and Moshito ganged up against Moloto and tried to paint him as the perpetrator of misdeeds, when in fact he was only doing his job. This is a seriously aggravating factor.
57. The employee was convicted of having sexual relations with Moshito in breach of section 17 of the EEA which carries with it an immediate sanction of dismissal. I find that the only appropriate sanction is indeed dismissal.
58. The employee is completely unrepentant and it is almost certain that he would be willing to continue the relationship with Moshito or other learners’ at other schools, should he be given the opportunity to do so.
AWARD
59. This confirms that that the employee has been found guilty on both charges of misconduct.
60. The employee is dismissed with immediate effect.
61. I hereby direct that the employee is declared unfit to work with children i.t.o section 120 (1) (c) of the Children’s Act no 38 of 2005.
______________
MARK HAWYES
ARBITRATOR
Commissioner: M.A. HAWYES
Date of Award: 06 September 2021
In the ARBITRATION between
Gauteng Department of Education
(Employer)
And
Mr. P. Phiri
(Employee)
Union/Applicant’s representative: Mr. M.J Makaleng-SADTU
Union/Applicant’s address:
Telephone: 076 284 0614
Telefax:
E-mail:
Respondent’s representative: Mr. T. Moloto
Respondent’s address:
Telephone: 082 925 4241
Telefax:
E-mail:
DETAILS OF HEARING AND REPRESENTATION
1. The case was scheduled for arbitration and effectively sat on the 7th June, the 13th July and the 18th August 2021. At the end of the arbitration both parties requested the opportunity to submit written closing arguments by the 25th August 2021. The heads of argument were timeously received and my award now follows.
2. Mr. T. Moloto, a labour relations official, represented the employer.
3. Mr. M.J Makaleng, a union official from the South African Democratic Teachers Union (SADTU) represented the employee.
4. The proceedings were digitally recorded and detailed long hand notes were also kept.
5. The employer made use of a bundle of documents which bundle was supplemented during the course of the inquiry.
ISSUE IN DISPUTE
6. The employer leveled two charges of sexual misconduct against the employee i.t.o section 17 (1) © and 18 (1) (q) respectively of the Employment of Educators Act, no 76 of 1998 (as amended) (EEA). The first charge alleged that during January 2020 the employee was involved in a sexual relationship with Mosa Moshito, who is a learner at Amandsig Secondary School (the school), where the employee was employed as an educator.
7. The second charge stated that during January 2020, the employee conducted himself in an improper, disgraceful and unacceptable manner, in that he had an intimate relationship with the same Mosa Moshito
8. The employee pleaded not guilty to both charges.
9. All learners that testified at the hearing were over the age of 18 at the time they testified before this hearing and they did so voluntarily, without any assistance from the intermediary. Thus their names will be mentioned in full during the course of this award.
BACKGROUND TO THE ISSUE IN DISPUTE
10. The Respondent employed the employee as a PL1 educator at the Amandsig Primary School at the time of the alleged misconduct. The employee had been so employed from the 11th May 2016.
SURVEY OF THE EMPLOYER’S EVIDENCE AND ARGUMENT
11. The Respondent firstly led the evidence of the principal of the school (Mrs. Sanet Jakobz) and then two former learners namely Ms. Makhosazana Matshidza and Ms. Rethabile Mafora.
12. The survey of the evidence will not follow the order in which the witnesses testified.
13. Matshidza testified, inter alia, that she was a grade 12 learner in 2020 at the school and attended class with Mosa Moshito. Moshito approached her at one point and accused her of being in a relationship with the employee. Moshito adopted a threatening stance and Matshidza testified that she felt intimidated. She decided to approach the principal because she feared for her safety and it was, in fact, Moshito that was having a sexual relationship with the employee. She also testified that she was afraid of Moshito because she was a violent person at school. She went to the principal with one Rethabile Mafora.
14. Moshito used to brag to them about being in a relationship with the employee and even posted pictures on her Whats App status of being with the employee at certain locations in Ga-Rankuwa. She also got pictures from Moshito’s phone showing Moshito and the employee in a sexual posture. She had forwarded the pictures to the principal.
15. Matshidza also testified that she and the employee had a good learner and teacher relationship.
16. The principal had asked her to write a statement about what had happened and she did so.
17. Mafora testified that she joined Matshidza another learner at the principal’s office since she was aware of the allegations/threats that Moshito had made towards Matshidza concerning the employee.
18. She too was aware of and had seen the posts that Moshito had made on Whats App regarding her sexual relationship with the employee.
19. Moshito was an aggressive learner and she too feared that Moshito could do some harm to Matshidza.
20. Mafora also testified that she had a good teacher/student relationship with the employee.
21. The principal Jakobz testified that made the statement at page ‘D’ of the bundle. She was approached by Matshidza (Kgosi) and another learner by the name of Lehlogonolo who reported that Moshito and the employee were having an affair. She asked them to send the photos to her which they did. They also made her aware that Moshito was posting about her relationship with the employee on her Whats App status.
22. Moloto advised that Moshito had refused to testify on behalf of the employer at the inquiry by arbitrator.
SURVEY OF THE EMPLOYEE’S EVIDENCE AND ARGUMENT
23. The first witness to testify under oath for the employee was Moshito and the employee thereafter also testified under oath.
24. Moshito testified that she had no sexual relationship or intimate relationship with the employee and had not been influenced by either the employee or the union representative to say what she was about to say. The relationship with the employee was one of a normal teacher/learner relationship. It was later argued that the two charges amounted to an unwarranted splitting of charges since there was, essentially, no difference in the substance of the two charges leveled against the employee.
25. Moshito testified further that the employer representative (Moloto) had approached her to make a statement against the employee. He had conducted the interview without her parents being notified or giving their consent to the interview.
26. Moloto attempted to force her to write a statement agreeing to the alleged relationship between her and the employee which she refused to write because it was not true.
27. Moloto mentioned pictures saying it was her in the pictures but no photographs were shown to her.
28. Moloto brought pressure to bear on her as to what she should write but she resisted his efforts. At one point Moloto threatened her that if she did not implicate the employee she would be prevented from writing grade 12.
29. During the course of the interview she felt uncomfortable, traumatized and terrified and had, to date, received no counseling for the traumatic events that she had to endure when interviewed by Moloto.
30. Moshito testified further that she became the laughing stock of the school as the teachers were making a mockery of her. She admitted to being angry with the principal and accusing her of ruining her life.
31. Shortly after the interview with Moloto Moshito drafted a long letter to the employee which letter was handed in as evidence and marked page ‘P’. Moshito admitted to hand delivering the letter to the employee shortly after drafting it. The letter, inter alia, discussed the details of her interview with Moloto.
32. The employee denied that he had a sexual or intimate relationship with Moshito and deposed that his relationship with Moshito was that of a teacher and learner.
33. Moshito demanded an apology from Moloto and the National Department of Education for the way she had been treated.
34. The employee testified that that he had a strained relationship with the principal of Amandsig Secondary School which started in May 2016.
35. The employee testified that he did not sign for the notice of the disciplinary hearing because what he was asked to sign for was different to what was in the ELRC handbook and he wanted to consult with his union first.
36. It was argued on behalf of the employee that his testimony was consistent, truthful and reliable and was corroborated by the testimony of Moshito. It was basically argued that principal Jacobz engineered the alleged events against the employee because of the strained relationship between them.
37. It was also argued that the conduct of employer representative (Moloto) amounted to an abuse of power and union official Makaleng reiterated the employee and Moshito’s call for their conduct to be investigated by the Department.
ANALYSIS OF EVIDENCE AND ARGUMENT
38. The onus rests on the employer to prove the allegations against the employee on a balance of probabilities.
39. One of the main allegations made by the employee is that the principal was responsible for orchestrating trumped up charges of sexual misconduct against the employee because of their previous strained relationship.
40. It is clear from the employer testimony that the approach to the principal was initiated by Matshidza accompanied by her friends. As per established procedure all matters involving alleged sexual misconduct must be referred to the district office and that is what Jacobz did. I find no evidence that Jacobz interfered in the process or elicited the learner witnesses to make statements and testify against the employee. Any clashes that Jacobz may have had with the employee in the past clearly did not provide the genesis for these charges.
41. Moloto, as per his job description, was appointed to investigate the matter and recommend disciplinary action against the employer. Moshito alleged that Moloto abused her by, inter alia; interviewing her without the consent of her parents and threatened that he would prevent her from writing her matric exams if she did not implicate the employee. It is necessary to examine Moshito’s testimony in context. Moloto introduced an unchallenged affidavit from the Moshito’s parents (marked page ‘M’) wherein they attested to the rude and vile manner in which the Moshito responded to teachers and other learners at school. The parents consented to any necessary disciplinary measures available and mentioned that they were aware of her attitude as it is also experienced at home. It is common cause that Moshito’s mother is an admitted attorney.
42. I wish to place on record that I observed Moshito as having an arrogant, high handed manner and much of her testimony consisted of making extreme demands to the extent of trying to push the Commissioner into a corner to accept her assertions and call for apologies. The employee had a similar arrogant, demeaning and supercilious manner to Moshito.
43. It is highly improbable that Moloto approached Moshito without the consent of her parents. The parents’ affidavit acknowledged that the employer had reached out to them prior to the interview and further acknowledged that Moshito displayed unacceptable conduct towards educators and learners alike. I find that the fact that no parental or other complaint was ever lodged against Moloto for the way in which he dealt with Moshito is sufficient proof that he dealt with her in a normal and acceptable manner. It is common cause that Moshito left school out of her own accord shortly after the report to the principal and thus did not make herself available to write the matric exams in 2020. Her allegations that Moloto stated that he would prevent her from writing her matric exams are thus false and disingenuous in the extreme and are rejected. During the course of her testimony Moshito mentioned that she had returned to the same school in 2021 to complete her matric.
44. I also find no procedural issue with the way in which the disciplinary charge sheet was served on the employee. The employee presented no supporting testimony on how the manner in which the charge sheet was served differed from the ELRC handbook. I find that this is a clear case of the employee raising imaginary procedural unfairness contentions in a desperate attempt to strengthen his case.
45. My findings in paragraphs 42 and 43 provide support for the testimonies of Matshidza and Mafora on the substantive merits of this case. The learner witnesses impressed me with their demeanor and candor. I find that the interactions with and the words of Moshito disturbed Matshidza to the extent that she felt the need to report the incident to the principal. I find that the only motivation for Matshidza reporting Moshito was a legitimate fear for her safety. Both witnesses had accurately observed Moshito’s Whats App posts and furthermore had no problems with the employee and thus no motive to give false testimony against him. I find that both Matshidza and Mafora had normal teacher/student relationships with the employee.
46. The way Moshito approached Matshidza has all the hallmarks of a jealous girlfriend. It is not the conduct of a learner that has a normal teacher/learner relationship with the employee. So too, the long letter hand delivered to the employee after her interview with Moloto is not indicative of a normal teacher/learner relationship but rather an intimate relationship where one communicates and shares detailed and sensitive information with one another.
47. The testimony of Matshidza and to a lesser extent Mafora provides circumstantial evidence and a chain of events that provide clear evidence that the employee and Moshito were in an intimate relationship. Moshito was immature, arrogant and foolish enough to post details of her relationship with the employee on Whats App where it was visible to Matshidza and others, as more than friendship and the employee was arrogant and over confident to allow her to post on the basis that there was insufficient evidence for the employer to connect all the dots. In that regard he is mistaken. The photographs mentioned by all the witnesses were handed in by the employer prior to the commencement of Moshito’s testimony. Moloto had not done so earlier because he had not expected Moshito to testify. Yes it is true that the employee and Moshito are not clearly identified in the pictures but there is no evidence breaking the chain of events testified to by Jacobz, Matshidza and Mafora that lead to the photos being observed, downloaded from Moshito’s Whats App status, transferred to Jacobz and then to Moloto where they were printed out and later handed in as evidence. Thus by an unbroken chain of events the photographs’ are linked to the employee and Moshito.
48. The photos and the other circumstantial evidence prove beyond all doubt that Moshito and the employee were in an intimate relationship. It is probable that persons who are in an intimate relationship, to the extent that the evidence indicates that the employee and Moshito were, would probably include sexual intercourse and other sexual acts as part of that intimacy.
49. The employee argued that the two charges amount to an unwarranted splitting of charges. I disagree. The employer was concerned that it would not have sufficient evidence to prove a sexual relationship between the employee and Moshito and thus it charged the employee with the second lesser charge of having an intimate relationship with Moshito. The evidence to prove the one charge is not necessarily the same as is required to prove the other and the test for splitting is avoided. As it turns out the available evidence has indeed proven both charges on a balance of probabilities.
50. In closing Jacobz and Moloto have not conducted themselves in any manner which justifies further investigation by the employer or the issue of an apology.
51. The parties were given 48 hours from the date of receipt of my finding of guilt to make submissions in mitigation and aggravation of sanction. As at the 6th September 2021 I had received submissions from both parties and my decision on sanction now follows.
52. Mr T.M Moloto argued, inter alia, that the charges were serious and that the employer has a zero tolerance to abuse of learners by their teachers. He submitted further that employee committed a serious violation of the oath of his office as an educator and that the employer could not trust him any further. Moloto submitted that the employee was not fit to work with children and that an order to that effect should be made in addition to the sanction of dismissal.
53. Mr M.J Makaleng, for the employee, argued, inter alia, that the employee was active in going the extra mile for learners and provided a good teaching environment for them. It was also submitted that whilst teaching accounting in 2016 his grade 12 learners had achieved a pass rate of 85%. It was also mentioned that the employee was a family man raising a son and two daughters, whose future would be greatly affected by the sanction determined by the Commissioner.
54. In determining an appropriate sanction I have considered the personal circumstances of the employee and balanced them against the seriousness of the misconduct. I also take into account that the relationship between the employee and Moshito was consensual but brazen and entered into with full knowledge that it was contrary to the provisions of the EEA and number of other education policies. It seems probable that the relationship between the two of them is ongoing and Moshito is back at school, completing her matric and the employee continues to teach there.
55. This is an undesirable situation and provides a poor example of appropriate conduct to other learners. In fact it might create the impression that relationships between educators and pupils at school are the norm and should be accepted.
56. . The employee and Moshito ganged up against Moloto and tried to paint him as the perpetrator of misdeeds, when in fact he was only doing his job. This is a seriously aggravating factor.
57. The employee was convicted of having sexual relations with Moshito in breach of section 17 of the EEA which carries with it an immediate sanction of dismissal. I find that the only appropriate sanction is indeed dismissal.
58. The employee is completely unrepentant and it is almost certain that he would be willing to continue the relationship with Moshito or other learners’ at other schools, should he be given the opportunity to do so.
AWARD
59. This confirms that that the employee has been found guilty on both charges of misconduct.
60. The employee is dismissed with immediate effect.
61. I hereby direct that the employee is declared unfit to work with children i.t.o section 120 (1) (c) of the Children’s Act no 38 of 2005.
______________
MARK HAWYES
ARBITRATOR
ELRC 302 -20 /21 NW
Text