ELRC644-20/21 EC
Text
ELRC727 -19/20EC
Text
Award Date:
28 April 2021
Case Number: ELRC727 -19/20EC
Commissioner: MBULELO SAFA
Date of Award: 28 April 2021
In an Enquiry by Arbitrator between: -
EASTERN CAPE DEPARTMENT OF EDUCATION
Applicant
And
PETELA LW
RESPONDENT
Applicant’s representative: Mr Thobelani Mlahleni
Applicant’s Address: c/o District Director, Chris Hani East District, Ngcobo
Telephone: 0475481121
Telefax: 0475481257
E-mail : thobelanimlahleni@gmail.com
Respondent’s Representative: No appearance
Respondent’s Address: C/O District Director, Chris Hani East District, Ngcobo
Telephone: 0475481121
Telefax : 0475481257
E-mail: fundile.ngwendu@ecdoe.gov.za
DETAILS OF THE HEARING AND REPRESENTATION
1. The matter was set down for Inquiry by Arbitrator on the 9th April 2021 at the Magistrate’s court in Ngcobo.
2. The Applicant did not make an appearance; the Respondent was represented by Mr Thobelani Mlahleni who is their Labour Relations Officer.
3. The proceedings were recorded on digital tape.
ISSUES TO BE DECIDED
4. Whether or not the Respondent is guilty of the charges proffered against him and impose an appropriate sanction.
BACKGROUND TO THE ISSUE
5. The Respondent is employed by the Applicant as an educator at Bashee PJS in the Chris Hani East District of the Applicant in the Eastern Cape.
6. He was charged by the Applicant in terms of ELRC Collective Agreement 3 of 2018. The allegations he faced are the following:
Charge 1: Contravention of section 17(1)(f) of the Employment of Educators Act in that he caused a learner to use alcohol and thereafter sexually molested him.
Charge 2: Contravention of section 17(1)(b) of Employment of Educators Act in that on the 16th August 2019 he sexually molested a grade 8 learner who was 16 years old learner at Bhashee PJS.
Charge 3: Contravention of section 18(1)(g) of Employment of Educators Act in that he forced the learner to drink alcohol and thereafter molested him sexually.
Charge 4: Contravention of section 18(1)(q) of the Employment of Educators Act in that instead of acting in loco parentis he preyed on a vulnerable 16-year-old learner.
SURVEY OF EVIDENCE AND ARGUMENT
7. The Applicant led evidence through two witnesses and the Respondent was not in attendance and therefore did not lead evidence.
8. Applicant also submitted one bundle of documents.
9. The Applicant suggested to submit the closing arguments on the 13th April 2021, which they did.
APPLICANT’S EVEDENCE AND ARGUMENT
10. The first witness of the Applicant, Nomfuyo Mahlutshana who is the principal of Bhashee PJ School, testified that her responsibilities as the principal included ensuring that teaching and learning takes place, ensures that the school is a safe environment for all and monitors the work of the educators and School Governing Body.
11. She testified that she knew the Applicant as he is the educator at the school.
12. On the 10th September 2019 she was informed by one of the Phase Heads at the school that one of the learners came to school drunk.
13. When the learner was called he admitted that he was drunk and informed the witness that he got the alcohol from an educator at the school, Mr Nxasana who was together with the Respondent.
14. The learner stated that he was part of a group of three (03) learners who used to be given alcohol by three educators and later molested sexually. When stating this the learner was highly emotional. All the three affected learners were called by the witness and they confirmed what was said.
15. When called the Respondent admitted that he gave alcohol to the learner, Onke Bede and slept with him. He apologized for his deed. What was said was written down and the educators signed to acknowledge it.
16. The parents of the three learners were called to the school and informed about the incident. The parents were shocked, disturbed, angry and highly emotional when they were informed about this incident. They were also disappointed at the school and the teachers. One of the parents did not even want to meet the educators.
17. Another meeting was held between the educators, principal and the parents of the learners. In that meeting the educators again admitted to the incident and apologized.
18. When the district office was informed the District Director informed the principal that the matter was already on social media. The District Director came to the school and met the three educators, School Governing Body and the School Management Team. The educators again admitted to the incident and apologized going further to say they may have been possessed by the evil spirits. The educators were advised not to report to school the following Monday but to report at the district office.
19. On the following Monday all the parents came to the school shouting to the principal and other educators demanding answers about what had happened. The parents also demanded to see the educators.
20. According to Onke Bede, Mr Petela invited him to his(Petela’s) place wherein he gave him alcohol and molested him. After the incident Mr Petela was put on precautionary suspension and a substitute educator was employed to do his work.
21. The police and the Mayor came to the school to try and calm the parents. The District Director assured the parents that the Department was going to deal with the matter. Several meeting were subsequently held with various stakeholders at the school over the following days to try and calm the situation.
22. Various media bodies like social media, SABC, YouTube and Daily Dispatch ran stories about the incident, which made the incident at the school be known throughout the country.
23. The dignity of the all educators of the school suffered as the parents insulted all of them in front of the learners. The reputation the school built over a period of more than twenty years was thrown down the drain because of the incident.
24. The second witness of the Applicant was the learner, Onke Bede. He testified in camera with the assistance of an intermediary, Nolulamo Nxala. He testified that when the incident happened in 2016 he was sixteen years and he was doing grade eight and taught by Mr Petela.
25. On this particular day in August 2019 Mr Petela(Respondent) asked when witness was going to visit him(Petela) at his home in Bhaziya. Initially the witness did not respond but when the Respondent persisted and promised to provide transport he gave in and agreed to visit.
26. On that day he got a lift to Bhaziya on Mr Patela's car which was driven by another educator, Mr Nxasana. In the car there were other learners.
27. When he arrived at Bhaziya the Respondent was not at his house. They slaughtered a sheep whose meat was cooked and some roasted in fire. There were three other girls who visited the house with whom they consumed the meat. At some stage the Respondent arrived with another gentleman carrying liquor. The Respondent invited Onke to come to him in the kitchen whenever he wanted to take alcohol.
28. The Respondent later called Onke to the kitchen where he offered him a glass of brandy. He refused the glass but ultimately relented when the Respondent insisted. When he (Onke) was about to leave the kitchen the Respondent called him to sit in the chair. Respondent touched him in the shoulders and kissed him in the mouth. He left the kitchen to be with others in the sitting room.
29. After sometime Onke slept on the couch. The Respondent lifted him to the bedroom where he put him inside the bed next to his(Petela’s) child who was already asleep.
30. The Respondent later came to the bed. He undressed Onke and had sex with him. After he has finished and the witness looked at him Respondent pretended as if he working on his phone. Onke left the bedroom and sat outside whilst the Respondent was busy with cleaning.
31. The following day in the evening Mr Petela again touched the witness on the shoulders but when he tried to kiss him(witness) he refused. Mr Petela asked the witness if he(witness) would like him(Petela) to come to his back again (meaning to have sex with him), but the witness did not agree saying he was not a girl.
32. As in the previous day the witness slept in the couch in the sitting room and was again lifted by Mr Petela to the bedroom. This time around the witness woke up when Mr Petela got into the bed.
33. The following day (which was a Sunday) the witness told Mr Petela that he wanted to go home. He was given R50 which he used to hitch a hike to his home. When he got home there was no one at his home.
34. Witness stated that Mr Petela gave him alcohol once on the first day he came to his house. He was not sure if he molested him once but stated that he saw it once.
35. Witness said he felt bad after the incident and was deeply hurt. Mr Petela made things worse by asking him in front of other learners when he(witness) was going to visit again.
36. After the incident he did not perform well at school. When he was at school and at home he was always thinking about the incident. His sister decided to take him to study in Johannesburg because he could not focus on the studies as he was not in the right frame of mind.
ANALYSIS OF EVIDENCE AND ARGUMENT
37. The Applicant submitted notice of the charges and the notice of set down whose acknowledgements of receipt were both signed by the Respondent attorneys of record, T. Qina & Sons Attorneys. Both the notice of the disciplinary hearing and the notice of set down were received on the 31st March 2021.
38. ELRC Collective Agreement 3 of 2018 holds that where the employer wants to take disciplinary action against an educator for alleged sexual misconduct towards a learner, there will be a mandatory Inquiry by the Arbitrator in terms of section 188A of the Labour Relations Act. This inquiry was held under the auspices of the ELRC on the strength of the collective agreement.
39. I was satisfied that the Respondent was properly notified about the enquiry and was also given sufficient notice to attend. In the notice of the charges it is stated that if the Respondent is absent without a valid reason the enquiry may proceed in his absence. There was no reason stated for the absence of the Respondent or his representative. I consequently then decided to proceed with the enquiry in the absence of the Respondent.
40. The evidence that was led by the witnesses of the Applicant was overwhelming in favour of the case of the Applicant. The evidence of the first witness was confirmed by written documents wherein the Respondent signed the admission and apology to the allegations.
41. The evidence of the second witness was unambiguous in stating exactly what the Respondent did.
42. The Respondent is guilty of charge 1 because he caused the learner, Onke Bede, to drink alcohol and thereafter sexually molested him.
43. The Criminal Law(Sexual Offences and Related matters) describes sexual assault as a situation where someone unlawfully and intentionally sexually violates the other (complainant). The act of the Respondent on the 16th August 2019 amounted to sexual assault on Onke. The Respondent is hence guilty of the second charge.
44. The learner regarded the Respondent as his educator, senior and someone to look up to. The situation as depicted by the learner shows that the learner found himself being sexually assaulted because of the respect he accorded the Respondent by allowing to visit him in his house and following his instructions. It is clear that the Respondent abused the position he was holding as the educator of the learner. He is consequently found guilty on the third charge as well.
45. The actions of the Respondent were not in line with his duty as a parent of the learner in his school. His actions were also in conflict with his profession as an educator. I hence find the Respondent guilty of conducting himself in an improper, disgraceful and unacceptable manner.
46. The oral evidence of the principal of Bhashee JPS pointed out that the whole incident of the sexual assault of the learners by the Respondent and his colleagues was covered in social media and various mainstream media. She further testified that the reputation the school had of more than twenty years was eroded through the incident. The action of the Respondent and his colleagues seriously prejudiced the discipline of the Applicant. The Applicant received serious negative publicity for a considerable long time due to the incident and there is no doubt that the Applicant also suffered reputational damage due to the incident. The Respondent is found guilty of the fifth charge as well.
47. Section 17 of the Employment of Educator’s Act provides as follows;
(1) An educator must (my own emphasis) be dismissed if he or she is found guilty of –
(a) theft, bribery, fraud or an act of corruption in regard to examinations or promotional reports;
(b) committing an act of sexual assault on a learner, student or other employee;
(c) having a sexual relationship with a learner of the school where he or she is employed; (d) seriously assaulting, with the intention to cause grievous bodily harm to, a learner, student or other employee;
(e) illegal possession of an intoxicating, illegal or stupefying substance; or
(f) causing a learner or a student to perform any of the acts contemplated in paragraphs (a) to (e)
46. The reading of the above extract suggests that once the chairperson of the enquiry makes a finding of guilt in any of the misconducts listed in section 17, the chairperson does not have a discretion in the sanction he can impose. The sanction that must be imposed in terms of this section is dismissal.
47. There is no legal basis for me to deviate from the prescribed sanction. In fact, the misconduct the Respondent is found guilty of is so serious that the life and future of Onke Bede may never be the same since the assault happened. The action of the Respondent undermined and disgraced the teaching profession as whole. He does not deserve to be again called a teacher.
In the circumstances I hereby issue the following award;
AWARD
96. The Respondent is found guilty of all the charges he faced in this inquiry.
97. The appropriate sanction, which I hereby impose on the Respondent is DISMISSAL with immediate effect.
_____________________________
Mbulelo Safa : ELRC Panelist
Commissioner: MBULELO SAFA
Date of Award: 28 April 2021
In an Enquiry by Arbitrator between: -
EASTERN CAPE DEPARTMENT OF EDUCATION
Applicant
And
PETELA LW
RESPONDENT
Applicant’s representative: Mr Thobelani Mlahleni
Applicant’s Address: c/o District Director, Chris Hani East District, Ngcobo
Telephone: 0475481121
Telefax: 0475481257
E-mail : thobelanimlahleni@gmail.com
Respondent’s Representative: No appearance
Respondent’s Address: C/O District Director, Chris Hani East District, Ngcobo
Telephone: 0475481121
Telefax : 0475481257
E-mail: fundile.ngwendu@ecdoe.gov.za
DETAILS OF THE HEARING AND REPRESENTATION
1. The matter was set down for Inquiry by Arbitrator on the 9th April 2021 at the Magistrate’s court in Ngcobo.
2. The Applicant did not make an appearance; the Respondent was represented by Mr Thobelani Mlahleni who is their Labour Relations Officer.
3. The proceedings were recorded on digital tape.
ISSUES TO BE DECIDED
4. Whether or not the Respondent is guilty of the charges proffered against him and impose an appropriate sanction.
BACKGROUND TO THE ISSUE
5. The Respondent is employed by the Applicant as an educator at Bashee PJS in the Chris Hani East District of the Applicant in the Eastern Cape.
6. He was charged by the Applicant in terms of ELRC Collective Agreement 3 of 2018. The allegations he faced are the following:
Charge 1: Contravention of section 17(1)(f) of the Employment of Educators Act in that he caused a learner to use alcohol and thereafter sexually molested him.
Charge 2: Contravention of section 17(1)(b) of Employment of Educators Act in that on the 16th August 2019 he sexually molested a grade 8 learner who was 16 years old learner at Bhashee PJS.
Charge 3: Contravention of section 18(1)(g) of Employment of Educators Act in that he forced the learner to drink alcohol and thereafter molested him sexually.
Charge 4: Contravention of section 18(1)(q) of the Employment of Educators Act in that instead of acting in loco parentis he preyed on a vulnerable 16-year-old learner.
SURVEY OF EVIDENCE AND ARGUMENT
7. The Applicant led evidence through two witnesses and the Respondent was not in attendance and therefore did not lead evidence.
8. Applicant also submitted one bundle of documents.
9. The Applicant suggested to submit the closing arguments on the 13th April 2021, which they did.
APPLICANT’S EVEDENCE AND ARGUMENT
10. The first witness of the Applicant, Nomfuyo Mahlutshana who is the principal of Bhashee PJ School, testified that her responsibilities as the principal included ensuring that teaching and learning takes place, ensures that the school is a safe environment for all and monitors the work of the educators and School Governing Body.
11. She testified that she knew the Applicant as he is the educator at the school.
12. On the 10th September 2019 she was informed by one of the Phase Heads at the school that one of the learners came to school drunk.
13. When the learner was called he admitted that he was drunk and informed the witness that he got the alcohol from an educator at the school, Mr Nxasana who was together with the Respondent.
14. The learner stated that he was part of a group of three (03) learners who used to be given alcohol by three educators and later molested sexually. When stating this the learner was highly emotional. All the three affected learners were called by the witness and they confirmed what was said.
15. When called the Respondent admitted that he gave alcohol to the learner, Onke Bede and slept with him. He apologized for his deed. What was said was written down and the educators signed to acknowledge it.
16. The parents of the three learners were called to the school and informed about the incident. The parents were shocked, disturbed, angry and highly emotional when they were informed about this incident. They were also disappointed at the school and the teachers. One of the parents did not even want to meet the educators.
17. Another meeting was held between the educators, principal and the parents of the learners. In that meeting the educators again admitted to the incident and apologized.
18. When the district office was informed the District Director informed the principal that the matter was already on social media. The District Director came to the school and met the three educators, School Governing Body and the School Management Team. The educators again admitted to the incident and apologized going further to say they may have been possessed by the evil spirits. The educators were advised not to report to school the following Monday but to report at the district office.
19. On the following Monday all the parents came to the school shouting to the principal and other educators demanding answers about what had happened. The parents also demanded to see the educators.
20. According to Onke Bede, Mr Petela invited him to his(Petela’s) place wherein he gave him alcohol and molested him. After the incident Mr Petela was put on precautionary suspension and a substitute educator was employed to do his work.
21. The police and the Mayor came to the school to try and calm the parents. The District Director assured the parents that the Department was going to deal with the matter. Several meeting were subsequently held with various stakeholders at the school over the following days to try and calm the situation.
22. Various media bodies like social media, SABC, YouTube and Daily Dispatch ran stories about the incident, which made the incident at the school be known throughout the country.
23. The dignity of the all educators of the school suffered as the parents insulted all of them in front of the learners. The reputation the school built over a period of more than twenty years was thrown down the drain because of the incident.
24. The second witness of the Applicant was the learner, Onke Bede. He testified in camera with the assistance of an intermediary, Nolulamo Nxala. He testified that when the incident happened in 2016 he was sixteen years and he was doing grade eight and taught by Mr Petela.
25. On this particular day in August 2019 Mr Petela(Respondent) asked when witness was going to visit him(Petela) at his home in Bhaziya. Initially the witness did not respond but when the Respondent persisted and promised to provide transport he gave in and agreed to visit.
26. On that day he got a lift to Bhaziya on Mr Patela's car which was driven by another educator, Mr Nxasana. In the car there were other learners.
27. When he arrived at Bhaziya the Respondent was not at his house. They slaughtered a sheep whose meat was cooked and some roasted in fire. There were three other girls who visited the house with whom they consumed the meat. At some stage the Respondent arrived with another gentleman carrying liquor. The Respondent invited Onke to come to him in the kitchen whenever he wanted to take alcohol.
28. The Respondent later called Onke to the kitchen where he offered him a glass of brandy. He refused the glass but ultimately relented when the Respondent insisted. When he (Onke) was about to leave the kitchen the Respondent called him to sit in the chair. Respondent touched him in the shoulders and kissed him in the mouth. He left the kitchen to be with others in the sitting room.
29. After sometime Onke slept on the couch. The Respondent lifted him to the bedroom where he put him inside the bed next to his(Petela’s) child who was already asleep.
30. The Respondent later came to the bed. He undressed Onke and had sex with him. After he has finished and the witness looked at him Respondent pretended as if he working on his phone. Onke left the bedroom and sat outside whilst the Respondent was busy with cleaning.
31. The following day in the evening Mr Petela again touched the witness on the shoulders but when he tried to kiss him(witness) he refused. Mr Petela asked the witness if he(witness) would like him(Petela) to come to his back again (meaning to have sex with him), but the witness did not agree saying he was not a girl.
32. As in the previous day the witness slept in the couch in the sitting room and was again lifted by Mr Petela to the bedroom. This time around the witness woke up when Mr Petela got into the bed.
33. The following day (which was a Sunday) the witness told Mr Petela that he wanted to go home. He was given R50 which he used to hitch a hike to his home. When he got home there was no one at his home.
34. Witness stated that Mr Petela gave him alcohol once on the first day he came to his house. He was not sure if he molested him once but stated that he saw it once.
35. Witness said he felt bad after the incident and was deeply hurt. Mr Petela made things worse by asking him in front of other learners when he(witness) was going to visit again.
36. After the incident he did not perform well at school. When he was at school and at home he was always thinking about the incident. His sister decided to take him to study in Johannesburg because he could not focus on the studies as he was not in the right frame of mind.
ANALYSIS OF EVIDENCE AND ARGUMENT
37. The Applicant submitted notice of the charges and the notice of set down whose acknowledgements of receipt were both signed by the Respondent attorneys of record, T. Qina & Sons Attorneys. Both the notice of the disciplinary hearing and the notice of set down were received on the 31st March 2021.
38. ELRC Collective Agreement 3 of 2018 holds that where the employer wants to take disciplinary action against an educator for alleged sexual misconduct towards a learner, there will be a mandatory Inquiry by the Arbitrator in terms of section 188A of the Labour Relations Act. This inquiry was held under the auspices of the ELRC on the strength of the collective agreement.
39. I was satisfied that the Respondent was properly notified about the enquiry and was also given sufficient notice to attend. In the notice of the charges it is stated that if the Respondent is absent without a valid reason the enquiry may proceed in his absence. There was no reason stated for the absence of the Respondent or his representative. I consequently then decided to proceed with the enquiry in the absence of the Respondent.
40. The evidence that was led by the witnesses of the Applicant was overwhelming in favour of the case of the Applicant. The evidence of the first witness was confirmed by written documents wherein the Respondent signed the admission and apology to the allegations.
41. The evidence of the second witness was unambiguous in stating exactly what the Respondent did.
42. The Respondent is guilty of charge 1 because he caused the learner, Onke Bede, to drink alcohol and thereafter sexually molested him.
43. The Criminal Law(Sexual Offences and Related matters) describes sexual assault as a situation where someone unlawfully and intentionally sexually violates the other (complainant). The act of the Respondent on the 16th August 2019 amounted to sexual assault on Onke. The Respondent is hence guilty of the second charge.
44. The learner regarded the Respondent as his educator, senior and someone to look up to. The situation as depicted by the learner shows that the learner found himself being sexually assaulted because of the respect he accorded the Respondent by allowing to visit him in his house and following his instructions. It is clear that the Respondent abused the position he was holding as the educator of the learner. He is consequently found guilty on the third charge as well.
45. The actions of the Respondent were not in line with his duty as a parent of the learner in his school. His actions were also in conflict with his profession as an educator. I hence find the Respondent guilty of conducting himself in an improper, disgraceful and unacceptable manner.
46. The oral evidence of the principal of Bhashee JPS pointed out that the whole incident of the sexual assault of the learners by the Respondent and his colleagues was covered in social media and various mainstream media. She further testified that the reputation the school had of more than twenty years was eroded through the incident. The action of the Respondent and his colleagues seriously prejudiced the discipline of the Applicant. The Applicant received serious negative publicity for a considerable long time due to the incident and there is no doubt that the Applicant also suffered reputational damage due to the incident. The Respondent is found guilty of the fifth charge as well.
47. Section 17 of the Employment of Educator’s Act provides as follows;
(1) An educator must (my own emphasis) be dismissed if he or she is found guilty of –
(a) theft, bribery, fraud or an act of corruption in regard to examinations or promotional reports;
(b) committing an act of sexual assault on a learner, student or other employee;
(c) having a sexual relationship with a learner of the school where he or she is employed; (d) seriously assaulting, with the intention to cause grievous bodily harm to, a learner, student or other employee;
(e) illegal possession of an intoxicating, illegal or stupefying substance; or
(f) causing a learner or a student to perform any of the acts contemplated in paragraphs (a) to (e)
46. The reading of the above extract suggests that once the chairperson of the enquiry makes a finding of guilt in any of the misconducts listed in section 17, the chairperson does not have a discretion in the sanction he can impose. The sanction that must be imposed in terms of this section is dismissal.
47. There is no legal basis for me to deviate from the prescribed sanction. In fact, the misconduct the Respondent is found guilty of is so serious that the life and future of Onke Bede may never be the same since the assault happened. The action of the Respondent undermined and disgraced the teaching profession as whole. He does not deserve to be again called a teacher.
In the circumstances I hereby issue the following award;
AWARD
96. The Respondent is found guilty of all the charges he faced in this inquiry.
97. The appropriate sanction, which I hereby impose on the Respondent is DISMISSAL with immediate effect.
_____________________________
Mbulelo Safa : ELRC Panelist