ELRC644-20/21 EC
Text
ELRC854-20/21FS
Text
Award Date:
20 October 2021
Arbitrator: SHIRAZ MAHOMED OSMAN Case Reference No: ELRC854-20/21FS
Date of award: 20 October 2021
In the arbitration between:
Mr. J Tlhakung Employee party
and
Department of Education – Free State Employer party
DETAILS OF HEARING AND REPRESENTATION
1. The present dispute between Mr. J Tlhakung (hereinafter referred to as the employee) and The Department of Education-Free State (hereinafter referred to as the employer) was referred to, Inquiry by Arbitrator in terms of Section 188A of the Labour Relations Act no.66 of 1995, as amended (the Act); read with Collective Agreement 3 of 2018. At the Inquiry by Arbitrator hearing, which was held at the Boardroom of the employer, in Bloemfontein on, 12 August 2021, the employee was represented by Mr. N Mtolo, of NATU, a trade union and the employer was represented by Ms. L Cweba.
2. For the purposes of this award, the affected learner shall not be identified but shall be referred to, as Ms. X, since her age is not before me, and that she was a learner at the time of the allegation.
3. Though it was decided that the dispute was in respect of an interpretation of law and that there was no factual dispute, since the employee pleaded not guilty to the charge but admitted that he had had a sexual relationship with a learner of another school, the matter was to be decided on written arguments.
4. Parties were afforded the opportunity to submit written arguments. The employer was to submit her argument by no later than, 19 August 2021. The employee was to oppose by no later than, 26 August 2021. Should the employer wished to reply, such reply was to reach Council by no later than, 2 September 2021.
5. The employer failed to file any submissions with Council, or myself.
6. In the absence of the employer’s version, there is only the version of the employee before me.
THE CHARGE TO BE DECIDED:
7. I am to decide whether the employee, is indeed guilty of the following:
Charge 1
You have contravened section 17 (1) (b) of the Employment of Educators Act 76 of 1998, in that on or about September 2018, you committed an act of sexual assault on a learner (Ms. X) when you had sex with her without her consent.
PLEA
8. The employee pleaded not guilty to the Charge.
BACKGROUND
9. The employee is an educator and was charged in March 2021, as per the above allegation.
10. He was charged in terms of Sections 17 of the Employment of Educators Act no. 78, of 1998 (the EEA). He was charged for having committed a sexual assault on a learner, Ms. X, who had conceived a child, as a result. It must be noted that the learner attended another school and was not a learner, at the school, that the employee teaches at.
11. The learner had since withdrawn the charge against the employee, and her mother, allegedly did not wish to put the learner through the trauma of testifying, at the arbitration.
12. The employee is still employed as an educator.
13. The matter was referred to Council by the employer, in terms of Collective Agreement 3 of 2018; read with Section 188A, of the Act, an Inquiry by Arbitrator.
14. At the previous occasion of the arbitration, the employee sought postponement, as he sought union representation. The matter was postponed, and a postponement ruling, along with a cost order, was issued.
SURVEY OF STATEMENTS AT THE ARBITRATION
15. The applicant at the arbitration insisted that he had had a sexual relationship with the learner, who had however, attended a different school. She was not a learner at the school he taught at, and neither, was there sexual assault. The learner had consented to the sexual act.
16. Since, the employee admitted to the sexual act, albeit, by consent, the employer chose not to call witnesses. The employer’s witnesses were another educator and a social worker, whom the learner had allegedly relayed the incident to.
17. Parties chose that they not call witnesses and that the matter be decided on argument since it is not in dispute that the employee had had sexual intercourse with a learner, albeit of another school.
18. Herewith, brief reasons for my decision, in terms of Section 138 (7) of the Act. Should any of the argument not be reflected hereunder, then, it does not mean that it was not considered.
SURVEY OF ARGUMENTS
19. The respondent cited a charge as per the EEA Serious Misconduct
(c) having a sexual relationship with a learner of the school where he or she is employed.
20. The first rule of interpretation of statutes is that it is not competent for a judge to make the law but to apply the law as it is given by the legislature and where the law is not in compliance with prevailing norms to allow the legislature an opportunity to rectify the relevant statute.
21. He cited Minister of Home Affairs & Another v Fourie & Another (2005) CC 19 where the Constitutional Court declared the Marriages Act to be unconstitutional, however it did not amend the relevant legislation and instead referred the matter back to parliament for rectification of the impugned provisions.
22. He argued that many people may perceive the Employment of Educators Act (EEA) may fall short in protecting the interests of learners it was not for this forum to extend the powers of the Council beyond those provided by the EEA. The law currently constructed did not prohibit consensual sexual intercourse where the learner is of another school, if displeased by that, then, we were at liberty to lobby the legislature for a change in the legislation.
23. It was clear, he argued and unequivocal that once the employer conceded that the intercourse was consensual then, the educator may only be disciplined in terms of the EEA if the learner was of the same school where the educator is employed.
24. He submitted that Mr. Tlhakung and the learner were not of the same school and he has never taught in a school where the learner was a student. It was therefore, beyond the ambit of this forum to determine how they came to be involved in a relationship and the substance of such relationship.
25. He insisted that the principle of in loco parentis is a common law principle that it is at times misunderstood, and applied incorrectly. In loco parentis was a Latin term which means to stand in the place of a parent. An educator is not in loco parentis to every learner in the education system, but only stands in loco parentis to those learners under his direct supervision and control, it stood to therefore reason, that it would be an absurd extraction to place persons in loco parentis to learners who are outside their purview and control.
26. He cited Introduction to Education Law ; Oosthuizen et al 3rd edition 2016 wherein it states that the educator is in loco parentis obliged to carry out certain functions in place of the parent. He argued that the employee in the present instance could not be a in loco parentis as the learner was in another school. The circumstances under which they met is not known and that he could not exercise any parental control over the learner. The ambit of in loco parentis is clearly defined and ought not to be extended beyond, an educator must protect those learners from his school under his control.
27. He submitted that sexual intercourse was not illegal but that the absence of consent which is criminalised. The employee conceded that the sexual intercourse was consensual.
28. The fact that a criminal court case had been opened was irrelevant, because that matter was ultimately withdrawn and it was never tested before a judicial officer, it was untested and the matter was withdrawn.
29. He insisted that he had submitted clear and cogent reasons as to why Mr Tlhakung ought to rightfully be cleared of the charge. The legislative framework did not allow for this matter to be decided in terms of the Employment of Educators Act and therefore he should not have been charged in terms of that legislation.
ANALYSIS OF ARGUMENTS
30. Section 17 (1) of the EEA provides an educator must be dismissed if he or she is found guilty of (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;
31. In the absence of the employer’s version, I am obliged to accept the version of the employee.
32. I am aware of principle in labour disputes which suggests that a charge against an employee need not read like a criminal charge, as the charges are constructed by IR/HR officials. It is required that the employee must understand the charge against him/her.
33. In the present instance, the charge results from Section 17 (1) (b) of the EEA which regulates the employment conduct of educators in the public education system.
34. I am persuaded by the assertion that a presiding officer is bound to the provisions of the law and is not mandated to change same. It is required of me to interpret the law and apply the law accordingly, based on the balance of probabilities.
35. In the present instance, I have only one version before me, in the absence of the employer’s version.
36. I am persuaded by the employee’s version as it is not disputed the sexual relationship between the employee and the learner was consensual. Moreover, the learner is not in the same institution as the employee, though she might be in the public education system.
37. I am inclined towards the approach the EEA was formulated to regulate the conduct of educators and learners in the same school, as is mentioned in Section 17 (1) (c) as a form of misconduct.
38. Though the employee is charged with sexual assault, his plea was not refuted. The learner was not present to testify and the employer would have relied on hearsay testimony.
39. Though I am of the opinion that the employee draws a fine line between his conduct with a learner, by consent, and the fact that the learner is placed at another school, I am obliged to accept his defence.
40. Seemingly, the EEA regulates the conduct of teachers and learners in the same school and does not encompass the entire schooling system. It is envisaged that any sexual conduct of educators perpetrated on learners in the same school would not be tolerated. Indeed, the employer has a responsibility of learners in school, against its employees/educators however it cannot regulate the conduct of educators of one school, with learners of another school. These relationships if they occur may occur outside the parameters of the employment relationship.
41. Nonetheless, Section 17 (1) (b) the charge with which the employee is charged has not been proven.
42. Section 17 (1) (c) speaks of a sexual relationship between an educator and a learner in the same school. Again it is not disputed that the learner was not in the same school as that of the employee. Therefore, by implication the conduct in Section 17 of the EEA in all probability requires that both the transgressor and complainant must have been in the same school.
43. The above suggests to me that there is no issue of an educator having a relationship with a learner from another school. Therefore, the conspectus of Section 17 misconduct must be related to an educator; his colleagues and a learner in the same school.
44. Though I am of the opinion that the nature of the transgression is serious and abhorrent, that the educator had nonetheless had had a sexual relationship with a learner, I am bound to the provisions of Section 17 the EEA which, in all probability regulates the conduct and protects learners and other employees in the same school.
45. It is reading of Section 17 1 (c) that persuades towards this approach as it clearly states that an educator may not have a sexual relationship with a learner in the same school. Had this express provision not been stated in Section 17 (1) (c) then I would have certainly have interpreted that an educator may not have a relationship with any learner, from any school. Indeed, such a relationship is hard to regulate or even enforce.
46. The EEA which regulates an the employment relationship and conduct of educators with learners is not a Collective Agreement but it indeed is law. Though I am of the opinion that the EEA was poorly drafted in Section 17 (1) (c), I have no authority to read it or interpret it otherwise. If the relationship of the educator is regulated the way it reads in Section 17 (1) (c) then indeed it must regulate the conduct of an educator and learner in the same school.
47. Section 17 (1) (c) follows from Section 17 (1) (b) and Section 17 is related to Serious Misconduct.
48. Indeed, I am aware of the established law that a charge in a labour dispute need not read like a criminal charge, I am still bound to the provisions of the EEA. An Act of law must be interpreted the way it reads unless the plain reading leads to an absurdity. However, the charge is not formulated by the labour relations and human resource officials of the employer, it was indeed chosen by them.
49. Since the law is not subject to my jurisdiction to change, I am bound by the simple reading of the law and in the present instance, does, not lead to an absurdity. The law does fall short in not protecting all learners in the public education system from all educators in the public schooling system in respect of charges contemplated in Section 17. A more appropriate charge should have been that the employee had brought the employer into disrepute as is provided for in Section 18. Section 18 deals with misconduct that might impede on the employment relationship.
50. The absence of the employer’s submission has seriously impacted on the result of the case.
51. Nonetheless, I must reluctantly make the above decision, with these brief reasons.
AWARD
52. The employee is found not guilty of Charge 1.
ELRC PANELLIST
SHIRAZ MAHOMED OSMAN
Date of award: 20 October 2021
In the arbitration between:
Mr. J Tlhakung Employee party
and
Department of Education – Free State Employer party
DETAILS OF HEARING AND REPRESENTATION
1. The present dispute between Mr. J Tlhakung (hereinafter referred to as the employee) and The Department of Education-Free State (hereinafter referred to as the employer) was referred to, Inquiry by Arbitrator in terms of Section 188A of the Labour Relations Act no.66 of 1995, as amended (the Act); read with Collective Agreement 3 of 2018. At the Inquiry by Arbitrator hearing, which was held at the Boardroom of the employer, in Bloemfontein on, 12 August 2021, the employee was represented by Mr. N Mtolo, of NATU, a trade union and the employer was represented by Ms. L Cweba.
2. For the purposes of this award, the affected learner shall not be identified but shall be referred to, as Ms. X, since her age is not before me, and that she was a learner at the time of the allegation.
3. Though it was decided that the dispute was in respect of an interpretation of law and that there was no factual dispute, since the employee pleaded not guilty to the charge but admitted that he had had a sexual relationship with a learner of another school, the matter was to be decided on written arguments.
4. Parties were afforded the opportunity to submit written arguments. The employer was to submit her argument by no later than, 19 August 2021. The employee was to oppose by no later than, 26 August 2021. Should the employer wished to reply, such reply was to reach Council by no later than, 2 September 2021.
5. The employer failed to file any submissions with Council, or myself.
6. In the absence of the employer’s version, there is only the version of the employee before me.
THE CHARGE TO BE DECIDED:
7. I am to decide whether the employee, is indeed guilty of the following:
Charge 1
You have contravened section 17 (1) (b) of the Employment of Educators Act 76 of 1998, in that on or about September 2018, you committed an act of sexual assault on a learner (Ms. X) when you had sex with her without her consent.
PLEA
8. The employee pleaded not guilty to the Charge.
BACKGROUND
9. The employee is an educator and was charged in March 2021, as per the above allegation.
10. He was charged in terms of Sections 17 of the Employment of Educators Act no. 78, of 1998 (the EEA). He was charged for having committed a sexual assault on a learner, Ms. X, who had conceived a child, as a result. It must be noted that the learner attended another school and was not a learner, at the school, that the employee teaches at.
11. The learner had since withdrawn the charge against the employee, and her mother, allegedly did not wish to put the learner through the trauma of testifying, at the arbitration.
12. The employee is still employed as an educator.
13. The matter was referred to Council by the employer, in terms of Collective Agreement 3 of 2018; read with Section 188A, of the Act, an Inquiry by Arbitrator.
14. At the previous occasion of the arbitration, the employee sought postponement, as he sought union representation. The matter was postponed, and a postponement ruling, along with a cost order, was issued.
SURVEY OF STATEMENTS AT THE ARBITRATION
15. The applicant at the arbitration insisted that he had had a sexual relationship with the learner, who had however, attended a different school. She was not a learner at the school he taught at, and neither, was there sexual assault. The learner had consented to the sexual act.
16. Since, the employee admitted to the sexual act, albeit, by consent, the employer chose not to call witnesses. The employer’s witnesses were another educator and a social worker, whom the learner had allegedly relayed the incident to.
17. Parties chose that they not call witnesses and that the matter be decided on argument since it is not in dispute that the employee had had sexual intercourse with a learner, albeit of another school.
18. Herewith, brief reasons for my decision, in terms of Section 138 (7) of the Act. Should any of the argument not be reflected hereunder, then, it does not mean that it was not considered.
SURVEY OF ARGUMENTS
19. The respondent cited a charge as per the EEA Serious Misconduct
(c) having a sexual relationship with a learner of the school where he or she is employed.
20. The first rule of interpretation of statutes is that it is not competent for a judge to make the law but to apply the law as it is given by the legislature and where the law is not in compliance with prevailing norms to allow the legislature an opportunity to rectify the relevant statute.
21. He cited Minister of Home Affairs & Another v Fourie & Another (2005) CC 19 where the Constitutional Court declared the Marriages Act to be unconstitutional, however it did not amend the relevant legislation and instead referred the matter back to parliament for rectification of the impugned provisions.
22. He argued that many people may perceive the Employment of Educators Act (EEA) may fall short in protecting the interests of learners it was not for this forum to extend the powers of the Council beyond those provided by the EEA. The law currently constructed did not prohibit consensual sexual intercourse where the learner is of another school, if displeased by that, then, we were at liberty to lobby the legislature for a change in the legislation.
23. It was clear, he argued and unequivocal that once the employer conceded that the intercourse was consensual then, the educator may only be disciplined in terms of the EEA if the learner was of the same school where the educator is employed.
24. He submitted that Mr. Tlhakung and the learner were not of the same school and he has never taught in a school where the learner was a student. It was therefore, beyond the ambit of this forum to determine how they came to be involved in a relationship and the substance of such relationship.
25. He insisted that the principle of in loco parentis is a common law principle that it is at times misunderstood, and applied incorrectly. In loco parentis was a Latin term which means to stand in the place of a parent. An educator is not in loco parentis to every learner in the education system, but only stands in loco parentis to those learners under his direct supervision and control, it stood to therefore reason, that it would be an absurd extraction to place persons in loco parentis to learners who are outside their purview and control.
26. He cited Introduction to Education Law ; Oosthuizen et al 3rd edition 2016 wherein it states that the educator is in loco parentis obliged to carry out certain functions in place of the parent. He argued that the employee in the present instance could not be a in loco parentis as the learner was in another school. The circumstances under which they met is not known and that he could not exercise any parental control over the learner. The ambit of in loco parentis is clearly defined and ought not to be extended beyond, an educator must protect those learners from his school under his control.
27. He submitted that sexual intercourse was not illegal but that the absence of consent which is criminalised. The employee conceded that the sexual intercourse was consensual.
28. The fact that a criminal court case had been opened was irrelevant, because that matter was ultimately withdrawn and it was never tested before a judicial officer, it was untested and the matter was withdrawn.
29. He insisted that he had submitted clear and cogent reasons as to why Mr Tlhakung ought to rightfully be cleared of the charge. The legislative framework did not allow for this matter to be decided in terms of the Employment of Educators Act and therefore he should not have been charged in terms of that legislation.
ANALYSIS OF ARGUMENTS
30. Section 17 (1) of the EEA provides an educator must be dismissed if he or she is found guilty of (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;
31. In the absence of the employer’s version, I am obliged to accept the version of the employee.
32. I am aware of principle in labour disputes which suggests that a charge against an employee need not read like a criminal charge, as the charges are constructed by IR/HR officials. It is required that the employee must understand the charge against him/her.
33. In the present instance, the charge results from Section 17 (1) (b) of the EEA which regulates the employment conduct of educators in the public education system.
34. I am persuaded by the assertion that a presiding officer is bound to the provisions of the law and is not mandated to change same. It is required of me to interpret the law and apply the law accordingly, based on the balance of probabilities.
35. In the present instance, I have only one version before me, in the absence of the employer’s version.
36. I am persuaded by the employee’s version as it is not disputed the sexual relationship between the employee and the learner was consensual. Moreover, the learner is not in the same institution as the employee, though she might be in the public education system.
37. I am inclined towards the approach the EEA was formulated to regulate the conduct of educators and learners in the same school, as is mentioned in Section 17 (1) (c) as a form of misconduct.
38. Though the employee is charged with sexual assault, his plea was not refuted. The learner was not present to testify and the employer would have relied on hearsay testimony.
39. Though I am of the opinion that the employee draws a fine line between his conduct with a learner, by consent, and the fact that the learner is placed at another school, I am obliged to accept his defence.
40. Seemingly, the EEA regulates the conduct of teachers and learners in the same school and does not encompass the entire schooling system. It is envisaged that any sexual conduct of educators perpetrated on learners in the same school would not be tolerated. Indeed, the employer has a responsibility of learners in school, against its employees/educators however it cannot regulate the conduct of educators of one school, with learners of another school. These relationships if they occur may occur outside the parameters of the employment relationship.
41. Nonetheless, Section 17 (1) (b) the charge with which the employee is charged has not been proven.
42. Section 17 (1) (c) speaks of a sexual relationship between an educator and a learner in the same school. Again it is not disputed that the learner was not in the same school as that of the employee. Therefore, by implication the conduct in Section 17 of the EEA in all probability requires that both the transgressor and complainant must have been in the same school.
43. The above suggests to me that there is no issue of an educator having a relationship with a learner from another school. Therefore, the conspectus of Section 17 misconduct must be related to an educator; his colleagues and a learner in the same school.
44. Though I am of the opinion that the nature of the transgression is serious and abhorrent, that the educator had nonetheless had had a sexual relationship with a learner, I am bound to the provisions of Section 17 the EEA which, in all probability regulates the conduct and protects learners and other employees in the same school.
45. It is reading of Section 17 1 (c) that persuades towards this approach as it clearly states that an educator may not have a sexual relationship with a learner in the same school. Had this express provision not been stated in Section 17 (1) (c) then I would have certainly have interpreted that an educator may not have a relationship with any learner, from any school. Indeed, such a relationship is hard to regulate or even enforce.
46. The EEA which regulates an the employment relationship and conduct of educators with learners is not a Collective Agreement but it indeed is law. Though I am of the opinion that the EEA was poorly drafted in Section 17 (1) (c), I have no authority to read it or interpret it otherwise. If the relationship of the educator is regulated the way it reads in Section 17 (1) (c) then indeed it must regulate the conduct of an educator and learner in the same school.
47. Section 17 (1) (c) follows from Section 17 (1) (b) and Section 17 is related to Serious Misconduct.
48. Indeed, I am aware of the established law that a charge in a labour dispute need not read like a criminal charge, I am still bound to the provisions of the EEA. An Act of law must be interpreted the way it reads unless the plain reading leads to an absurdity. However, the charge is not formulated by the labour relations and human resource officials of the employer, it was indeed chosen by them.
49. Since the law is not subject to my jurisdiction to change, I am bound by the simple reading of the law and in the present instance, does, not lead to an absurdity. The law does fall short in not protecting all learners in the public education system from all educators in the public schooling system in respect of charges contemplated in Section 17. A more appropriate charge should have been that the employee had brought the employer into disrepute as is provided for in Section 18. Section 18 deals with misconduct that might impede on the employment relationship.
50. The absence of the employer’s submission has seriously impacted on the result of the case.
51. Nonetheless, I must reluctantly make the above decision, with these brief reasons.
AWARD
52. The employee is found not guilty of Charge 1.
ELRC PANELLIST
SHIRAZ MAHOMED OSMAN