ELRC644-20/21 EC
Text
ELRC957-19/20GP
Text
Award Date:
20 October 2021
Case Number: ELRC957-19/20GP
Commissioner: E Maree
Date of Award: 20 October 2021
In the inquiry between
Gauteng Department of Education
(Employer)
And
Kerri-Ann Ramessar
(Employee)
Employer representative: Ms. E. Magadla
Representative address:
Telephone: [074] 1457 146
E-Mail: Emily.magadla.org.za
Employee representative: Mr. A. Peterson
Representative address:
Telephone [011] 4861 256
E-mail: pietersen@a@naptosa.org.za
Details of hearing and representation
1The inquiry by arbitrator regarding alleged acts of misconduct, set down in terms of Section 188A of the Labour Relations Act, 66 of 1995 ‘’the LRA’’ and Collective Agreement 3 of 2018, was heard on the 29th of June 2021, the 29th of July 2021 and the 22nd of September 2021. On the first day, the matter was heard at the ELRC offices in Centurion, on the second day at the respondent’s offices situated Simmonds Street, Johannesburg and on the last day via TEAMS.
2. The employee was represented by Mr. A. Petersen an official from NAPTOSA while the employer was represented by Ms. E. Magadla, the Deputy Chief, Education Specialist.
3. The arbitration was electronically recorded, and handwritten notes were taken. The process was also assisted by an intermediary, Ms E. M.V Shibisi and council interpreter Mr M. Myeza.
4. The parties have agreed to submit written closing arguments on or before the 29th of September 2021.
Issues to be decided
5. I must determine if the employee was guilty of the charges of misconduct levelled against her. In the event of a finding of guilt, the appropriate sanction must be determined.
Background to the dispute
6. The employee, a physiotherapist, had been employed as such at the Hope School since 2017.
7. During November 2019 she had been served with a precautionary transfer, following allegations of misconduct.
8. The charges levelled against the employee read as follows. Due to the fact that the charges relate to allegations of sexual misconduct, and the learner is a minor, he will not be identified but referred to as ‘’the minor’’ or ‘’K’’. The identity of the learner was confirmed off the record by all the parties.
Allegation 1
‘’It is alleged that during the period March 2019 to date, at or near Hope School, you committed an act of misconduct in that, you had a sexual relationship with K, a boy learner at the same school. Whilst you knew and or ought to have known it was wrong to do so.
In view of the above you are hereby charged in terms of Section 17(1) (c) of the Employment of Educators Act, 76 of 1998, as amended.
Allegation 2
‘’It is alleged that during the period March 2019 to date at or near Hope School, you conducted yourself in an improper, disgraceful or unacceptable manner in that you invited K to your house and whilst playing video games with him, you will kiss, hug and touch each other’s hands, legs and hair.
In view of the above, you are hereby charged in terms of Section 18(1)(q) of the Employment of Educators Act, 76 of 1998, as amended’’.
9. The bundle submitted on behalf of the employer was not disputed after it was properly exchanged and perused.
10. The employee admitted that the notice was received timeously, that there was sufficient time to prepare, that she was informed of the right to be represented and was indeed represented by an official from Naptosa. The employee also acknowledged that she understood the charges and pleaded ‘’not guilty’’ to both.
Survey of evidence and argument
The LRA requires that brief reasons be given in an award, therefore the following is a summary of the relevant evidence given under oath and submissions made in argument all of which is not reflected in this award but had nevertheless been taken into account.
Employer’s evidence
10. The employer called four witnesses in order to prove, on a balance of probabilities, that the employee was guilty of misconduct.
11. The first witness Mrs. Nika du Toit testified that she is the HOD at Hope School since 2019 and is currently acting Principal for the term. She knows the employee and they have no issues, gets on very well and socialises together.
12. Mrs du Toit stated that during 2019 she taught English to Grade 8 and during one period, she was approached by K, who sat down at the desk next to hers. K then asked her if she had ever been in a relationship with an older person. She found the question strange, and K then told her that he was in a relationship with an older person. She asked K who this person was, and he said ‘’she is in her thirties’’.
13. Mrs du Toit testified that she then asked K ‘’is it Ma’am Kerri’’ as she often saw them together on the school property and she is his physiotherapist. K then said ‘’it is one of the prosthetics/jumping kids’’. The employee is in charge of this and thus often works with K. K then said ‘’yes, it is Ma’am Kerri, and we have intercourse and oral sex’. K also told her ‘’I ended the relationship, but we still do things’’.
14. According to Mrs du Toit she told K that it is wrong, and he said ‘’I know’’. As K did not ask her for help or advice but he just needed someone to confide in, she ‘’sat’’ on the issue during the day and later the day approached the school psychologist for advice. The next day she approached K and asked him if he is ‘’very sure it happened’’ as she was going to report it and has no wish to ruin a life, if it is a lie. They spoke a while and he confirmed it is the truth, he was not happy that she was going to report it but he ‘’stuck to his story’’ and said it was the truth.
15. Mrs du Toit submitted that she then reported the matter to the Principal, Mrs Bekker and wrote a report.
16. The second witness, Ms Tsholofelo Dipale stated that she is a Grade 4 -10 teacher for Social Sciences, Life Orientation and History. She commenced employment at the school during April 2016 and during 2019 inter alia taught Life Orientation and Social Sciences to Grades 7 – 9.
17. According to Ms Dipale during the Life Orientation class for Grade 8, she was moving between the groups and heard K telling the learners in his group that he was dating a staff member. She stopped and asked him who he was dating, and K said ‘’nothing ma’am’’ and later he told her it was Kerri. During the third term she saw a change in his behaviour and raised a complaint with the HOD, Mr. Miyandi, as he missed a number of her classes, especially it was after the break. When she asked K about this, he told her he was going to the physiotherapist as his leg ‘’made a funny sound and does not fit’’. She thinks the physiotherapist was Louise.
18. The third witness Mr. Justice Siaga testified that he is the driver at the school and transport learners to and from school. He also drives them to Pretoria.
19. Mr Siaga stated that during 2019 he drove learners, who had to service their prosthetic legs, to Pretoria on a weekly basis and therefore accompanied the learner and the employee, Ms. Kerri who sat at the back.
20. Mr Siaga stated that he was not comfortable with the fact that they sat at the back and ‘’hid themselves’’ and he reported his discomfort to his supervisor. He heard rumours and thus ‘’thought they were doing funny things at the back’. He could, however, not see them in the mirror and has no idea what happened. This is against the ‘’African Culture and it is not allowed that a male and female sit alone at the back’’. However, due to the rumours he heard that they had a romantic relationship, he thought they were ‘’doing something inappropriate’’.
21. The fourth witness, Mr. K testified that he is 17 years old and is a learner at Hope School and currently in Grade 10. He was thus in Grade 8 during 2019 and during this time, Mrs du Toit was his English teacher. He told Ms du Toit that he ‘’was close to Ma’am Kerri’’ and that they ‘’do things together’’. He told her that they would watch movies and ‘’smooch’. The day after he told this to Mrs. du Toit, she approached him and asked him if he was telling the truth, and he said that he was, upon which she told him she was going to report it to the principal and she asked him to write a statement.
22. He went on trips to Pretoria for ‘’my legs’’ with Ma’am Kerri and other learners and they would sit at the back. Ma’am Kerri helped his parents with food and transport, and he had been to her house once, and once to the movies. She also took him home twice as there was no other transport.
23. The learner submitted that he ‘’does not know’’ why she helped him, but he ‘assumed it was because she cares for people and usually helps them and also takes them to her home and to the movies’’. Ma’am Kerri told the running team that if they do well, they will be rewarded, thus were went to her house or the movies. He was thus rewarded by her as was the rest of the team.
Employee’s evidence
24. On behalf of the employee Mrs. Kerri-Ann Ramessar testified that her parents had been educators for 40 years and that she completed her degree in Physiotherapy with honours during 2010, She commenced her career at Sitinga hospital, later had a private practise but during June 2017 joined Hope School as she always wanted to work with children.
25. According to Mrs Ramessar, she had 65 learners and do individual and group therapy and also administration related to it. She is also part of the team that do assessments for the department regarding the placement of learners at schools. She also assists with sport at the school and started the ‘’learn to swim’’ and obtained external contractors to fix the indoor pool. She also assists the learners with ‘’jumping kids’’ the clinic in Pretoria that makes prosthetic legs. She was also motivated to assist the learners to run. During March 2019, 30 learners qualified to participate in the National Games in Stellenbosch during which she was the physiotherapist for all the team members.
26. K also qualified for the competition but due to a cyst on his lower back. he did not participate. She assessed him as he needed a medical certificate. If there was no such certificate, the school would have been fined/disqualified. She then also treated his cyst and accompanied him to the doctor the next day, where K was given a medical certificate and medication that she had to keep as learners are not allowed to. There were also 3 other learners with medical issues whom she attended to and accompanied to the doctor. Upon returning to the school, K was collected by his father to whom she gave the medication and explained how it worked. She also had continued interaction with his mother regarding the well-being of K.
27. Mrs Ramessar submitted that she also contacted the parents of other learners for various learners and not only those of K. He was at first at another physiotherapist but as she had health issues and often absent, could not help him and he was transferred to her care.
28. K further had medical issues after the competition and needed extensive therapy. He also experienced pain due to a growing piece of bone on his amputation and experienced pain if he put his prosthetic leg on. She thus accompanied him to ‘’Jumping Kids’’. They consulted an orthidic surgeon at Chris Hani and it was recommended that he undergo surgery.
29. Mrs Ramessar stated that her goal was to motivate learners to better themselves. She talks to all athletes and helps where possible. She lives with her husband and parents, and they were present when K came to the house. They watched a movie and did not play TV games. During this time there was no physical contact, and they left the house before her parents.
30. Due to gynaecological issues, she was told she would have trouble falling pregnant and had to undergo surgery. She had a miscarriage during June 2019. However, during a visit to the gynaecologist on the 5th of November 2019 was told that she was pregnant. She was ‘’so happy’’ but upon returning to the school was served an audi letter and 2 weeks later with a notice of precautionary transfer. This robbed her of all happiness. She had a high-risk pregnancy and due to the stress, the baby did not grow sufficiently, and she went into early labour. Her baby is luckily healthy and well.
31. The charges levelled against her is not true which is endorsed by the confession of the learner during cross-examination that everything was a lie. It is a relief that after 2 years, the truth came out.
32. Mrs Ramessar stated that she is shocked that the word of a teenager was taken so seriously and that a lie had such an impact on her life and career. She would however be able to return to the school to assist learners as 90% of her experience was good and the incident is a bad memory. She is looking forward to going back and would treat K the same way she always did and has not ill feelings towards him. She does not know if he realized the impact of his actions and is aware of what he had done.
Analysis of evidence and Arguments
33. The onus in this matter was on the employer to prove, on a preponderance of probabilities that the workplace rules were contravened and that the employee was guilty of the charges levelled against her.
34. The employer called four witnesses to testified on its behalf. The crux of this evidence was that the learner, K, informed two educators that he had a relationship/is dating the employee, whom he referred to as Ma’am Kerri. Their version was that K informed them he was in a relationship with an older person/staff member. K specifically told the first witness. Mrs du Toit that they had intercourse and oral sex.
35. These allegations led to the matter being reported by Mrs du Toit to the Principal. Following this an investigation ensued, statements were taken and the minor, K also made a written statement, that he read into the record at the inquiry.
36. The third witness for the employer, Mr Siaga, is the driver at the school and testified that he transported the learner and employee to Pretoria from the school in Johannesburg on various occasions. He explained that they would also sit at the back out of his sight which made him feel uncomfortable as this was ‘’against African culture for a man and woman to sit alone at the back. Mr Siaga submitted that he ‘’heard rumours’’ that the learner and employee ‘were romantically involved’’ and thus he ‘’concluded they were doing something inappropriate’’ at the back. He stated that due to their position at the back, he could not see anything.
37. The learner, K, is currently 17 years old. At the outset of the process, he was asked questions to get an understanding of his knowledge and awareness of telling the truth. He stated that he understood the difference between lying and telling the truth as well as the consequences of lying. He then proceeded taking the oath, stating he understood such. During the process he testified behind a one-way mirror and was assisted by a qualified intermediary who sat with him in a room, adjacent to the one, the rest of the parties where in. A council interpreter also assisted him in his mother tongue.
38. The learner read his statement, written by himself in English, into the record also in English. During the process when testifying in chief and during cross-examination, on a number of occasions, he proceeded giving evidence and answering questions before it was relayed to him by the intermediary and before it was translated from English. It was clear from this that he understood English, spoke it quite well and had no trouble expressing himself. He also came across as confident.
39. During cross-examination the learner made a full turnaround on his written statement. He stated that his written statement was a lie and that what he told Mrs du Toit ‘’was all false’’. He confirmed this by stating that ‘’the issue of the sexual relationship is all false, what I said to Mrs du Toit was not true. The issue that we had a sexual relationship was not true. It is true that Ma’am Kerry to things for me, but it is not true that we had a sexual relationship, we were close’’. The learner also confirmed that what Ms. Dipale overheard in her class, was not true.
40. The learner was asked to explain why he made these statements.
41. The learner stated that Ma’am Kerry was beautiful, kind, that he respected her, that she was always professional, respected him, did good things for him, he confided in her, and that she treated all the learners the same. He stated that he ‘’used good words’’ towards her and that she had boundaries and was always professional.
42. The learner confirmed that this ‘’most likely’’ led to him ‘’being attracted’’ to her. When asked if his friends felt the same about the employee, the learner said ‘’I don’t know but their actions show they are at my wavelength of thinking about her’’. The learner also stated that when the employee walked pass them ‘’we would giggle’’, and that when he spoke to her, his friends would always ‘’try to get into the conversation’’.
43. According to the learner, his friends would ask him what was going on with himself and Ma’am Kerri and would ask it they are sleeping together. He then ‘’as I was spiteful told them yes’’. When asked if the case was therefore ‘’about spite’’, the learner said ‘’yes, definitely, it is all about spite, it is true, I did not expect that this would happen, where we now are [the hearing], all is due to spite. I apologise sincerely, profusely’’. It was put to him that the allegations against Ms Kerri was ‘’not true, but false’’ and he reiterated ‘’yes, it is not true, it is all lies’’. He again reiterated that what he told Mrs du Toit ‘’about the oral sex and sex things’’ is false.
44. The learner was asked if he told anyone that everything was a misunderstanding. To this he responded ‘’Yes, the day after I told the principal, that what I wrote is all lies’’. The learner submitted that the principal then told him to write another statement to explain what occurred, he then wrote a second statement but the ‘second truthful letter was not taken into consideration’’. The questions asked to him was based ‘’on the lies letter and not on the truth letter’’.
45. The learner, as already stated, testified in chief and answered questions during cross-examination on many occasions in English, before it could be translated in his mother tongue or before the intermediary could assist. His English was good as is evident by his use of such words such as ‘’professional / sincerely / profusely/ same wavelength’’ and others. He also did not come across as being scared or intimidated but was confident and self-assured throughout.
46. I thus accept that his evidence at the arbitration was the truth and that there was no sexual relationship of any kind, nor any kissing, hugging and touching of hands, legs and hair.
47. The employee testified that she had no sexual relationship with the learner as claimed in charge 1, treated him the same way she did other learners and did not engage in any improper, disgraceful or unacceptable conduct as per charge 2. She gave a lengthy expose of her background, values, education, objectives at the school, her involvement with the learners as well as a detailed explanation of the hardship the allegations placed on her.
48. Based on this the version presented on behalf of the employer failed to proof the charges against the employee.
Award
49 I therefore make the following award:
“The employee is found not guilty of both charges levelled against her and must resume duties at Hope School and report there on the 25th of October 2021’’.
DATED AT PRETORIA ON THIS 20th DAY OF OCTOBER 2021
Council Commissioner
Commissioner: E Maree
Date of Award: 20 October 2021
In the inquiry between
Gauteng Department of Education
(Employer)
And
Kerri-Ann Ramessar
(Employee)
Employer representative: Ms. E. Magadla
Representative address:
Telephone: [074] 1457 146
E-Mail: Emily.magadla.org.za
Employee representative: Mr. A. Peterson
Representative address:
Telephone [011] 4861 256
E-mail: pietersen@a@naptosa.org.za
Details of hearing and representation
1The inquiry by arbitrator regarding alleged acts of misconduct, set down in terms of Section 188A of the Labour Relations Act, 66 of 1995 ‘’the LRA’’ and Collective Agreement 3 of 2018, was heard on the 29th of June 2021, the 29th of July 2021 and the 22nd of September 2021. On the first day, the matter was heard at the ELRC offices in Centurion, on the second day at the respondent’s offices situated Simmonds Street, Johannesburg and on the last day via TEAMS.
2. The employee was represented by Mr. A. Petersen an official from NAPTOSA while the employer was represented by Ms. E. Magadla, the Deputy Chief, Education Specialist.
3. The arbitration was electronically recorded, and handwritten notes were taken. The process was also assisted by an intermediary, Ms E. M.V Shibisi and council interpreter Mr M. Myeza.
4. The parties have agreed to submit written closing arguments on or before the 29th of September 2021.
Issues to be decided
5. I must determine if the employee was guilty of the charges of misconduct levelled against her. In the event of a finding of guilt, the appropriate sanction must be determined.
Background to the dispute
6. The employee, a physiotherapist, had been employed as such at the Hope School since 2017.
7. During November 2019 she had been served with a precautionary transfer, following allegations of misconduct.
8. The charges levelled against the employee read as follows. Due to the fact that the charges relate to allegations of sexual misconduct, and the learner is a minor, he will not be identified but referred to as ‘’the minor’’ or ‘’K’’. The identity of the learner was confirmed off the record by all the parties.
Allegation 1
‘’It is alleged that during the period March 2019 to date, at or near Hope School, you committed an act of misconduct in that, you had a sexual relationship with K, a boy learner at the same school. Whilst you knew and or ought to have known it was wrong to do so.
In view of the above you are hereby charged in terms of Section 17(1) (c) of the Employment of Educators Act, 76 of 1998, as amended.
Allegation 2
‘’It is alleged that during the period March 2019 to date at or near Hope School, you conducted yourself in an improper, disgraceful or unacceptable manner in that you invited K to your house and whilst playing video games with him, you will kiss, hug and touch each other’s hands, legs and hair.
In view of the above, you are hereby charged in terms of Section 18(1)(q) of the Employment of Educators Act, 76 of 1998, as amended’’.
9. The bundle submitted on behalf of the employer was not disputed after it was properly exchanged and perused.
10. The employee admitted that the notice was received timeously, that there was sufficient time to prepare, that she was informed of the right to be represented and was indeed represented by an official from Naptosa. The employee also acknowledged that she understood the charges and pleaded ‘’not guilty’’ to both.
Survey of evidence and argument
The LRA requires that brief reasons be given in an award, therefore the following is a summary of the relevant evidence given under oath and submissions made in argument all of which is not reflected in this award but had nevertheless been taken into account.
Employer’s evidence
10. The employer called four witnesses in order to prove, on a balance of probabilities, that the employee was guilty of misconduct.
11. The first witness Mrs. Nika du Toit testified that she is the HOD at Hope School since 2019 and is currently acting Principal for the term. She knows the employee and they have no issues, gets on very well and socialises together.
12. Mrs du Toit stated that during 2019 she taught English to Grade 8 and during one period, she was approached by K, who sat down at the desk next to hers. K then asked her if she had ever been in a relationship with an older person. She found the question strange, and K then told her that he was in a relationship with an older person. She asked K who this person was, and he said ‘’she is in her thirties’’.
13. Mrs du Toit testified that she then asked K ‘’is it Ma’am Kerri’’ as she often saw them together on the school property and she is his physiotherapist. K then said ‘’it is one of the prosthetics/jumping kids’’. The employee is in charge of this and thus often works with K. K then said ‘’yes, it is Ma’am Kerri, and we have intercourse and oral sex’. K also told her ‘’I ended the relationship, but we still do things’’.
14. According to Mrs du Toit she told K that it is wrong, and he said ‘’I know’’. As K did not ask her for help or advice but he just needed someone to confide in, she ‘’sat’’ on the issue during the day and later the day approached the school psychologist for advice. The next day she approached K and asked him if he is ‘’very sure it happened’’ as she was going to report it and has no wish to ruin a life, if it is a lie. They spoke a while and he confirmed it is the truth, he was not happy that she was going to report it but he ‘’stuck to his story’’ and said it was the truth.
15. Mrs du Toit submitted that she then reported the matter to the Principal, Mrs Bekker and wrote a report.
16. The second witness, Ms Tsholofelo Dipale stated that she is a Grade 4 -10 teacher for Social Sciences, Life Orientation and History. She commenced employment at the school during April 2016 and during 2019 inter alia taught Life Orientation and Social Sciences to Grades 7 – 9.
17. According to Ms Dipale during the Life Orientation class for Grade 8, she was moving between the groups and heard K telling the learners in his group that he was dating a staff member. She stopped and asked him who he was dating, and K said ‘’nothing ma’am’’ and later he told her it was Kerri. During the third term she saw a change in his behaviour and raised a complaint with the HOD, Mr. Miyandi, as he missed a number of her classes, especially it was after the break. When she asked K about this, he told her he was going to the physiotherapist as his leg ‘’made a funny sound and does not fit’’. She thinks the physiotherapist was Louise.
18. The third witness Mr. Justice Siaga testified that he is the driver at the school and transport learners to and from school. He also drives them to Pretoria.
19. Mr Siaga stated that during 2019 he drove learners, who had to service their prosthetic legs, to Pretoria on a weekly basis and therefore accompanied the learner and the employee, Ms. Kerri who sat at the back.
20. Mr Siaga stated that he was not comfortable with the fact that they sat at the back and ‘’hid themselves’’ and he reported his discomfort to his supervisor. He heard rumours and thus ‘’thought they were doing funny things at the back’. He could, however, not see them in the mirror and has no idea what happened. This is against the ‘’African Culture and it is not allowed that a male and female sit alone at the back’’. However, due to the rumours he heard that they had a romantic relationship, he thought they were ‘’doing something inappropriate’’.
21. The fourth witness, Mr. K testified that he is 17 years old and is a learner at Hope School and currently in Grade 10. He was thus in Grade 8 during 2019 and during this time, Mrs du Toit was his English teacher. He told Ms du Toit that he ‘’was close to Ma’am Kerri’’ and that they ‘’do things together’’. He told her that they would watch movies and ‘’smooch’. The day after he told this to Mrs. du Toit, she approached him and asked him if he was telling the truth, and he said that he was, upon which she told him she was going to report it to the principal and she asked him to write a statement.
22. He went on trips to Pretoria for ‘’my legs’’ with Ma’am Kerri and other learners and they would sit at the back. Ma’am Kerri helped his parents with food and transport, and he had been to her house once, and once to the movies. She also took him home twice as there was no other transport.
23. The learner submitted that he ‘’does not know’’ why she helped him, but he ‘assumed it was because she cares for people and usually helps them and also takes them to her home and to the movies’’. Ma’am Kerri told the running team that if they do well, they will be rewarded, thus were went to her house or the movies. He was thus rewarded by her as was the rest of the team.
Employee’s evidence
24. On behalf of the employee Mrs. Kerri-Ann Ramessar testified that her parents had been educators for 40 years and that she completed her degree in Physiotherapy with honours during 2010, She commenced her career at Sitinga hospital, later had a private practise but during June 2017 joined Hope School as she always wanted to work with children.
25. According to Mrs Ramessar, she had 65 learners and do individual and group therapy and also administration related to it. She is also part of the team that do assessments for the department regarding the placement of learners at schools. She also assists with sport at the school and started the ‘’learn to swim’’ and obtained external contractors to fix the indoor pool. She also assists the learners with ‘’jumping kids’’ the clinic in Pretoria that makes prosthetic legs. She was also motivated to assist the learners to run. During March 2019, 30 learners qualified to participate in the National Games in Stellenbosch during which she was the physiotherapist for all the team members.
26. K also qualified for the competition but due to a cyst on his lower back. he did not participate. She assessed him as he needed a medical certificate. If there was no such certificate, the school would have been fined/disqualified. She then also treated his cyst and accompanied him to the doctor the next day, where K was given a medical certificate and medication that she had to keep as learners are not allowed to. There were also 3 other learners with medical issues whom she attended to and accompanied to the doctor. Upon returning to the school, K was collected by his father to whom she gave the medication and explained how it worked. She also had continued interaction with his mother regarding the well-being of K.
27. Mrs Ramessar submitted that she also contacted the parents of other learners for various learners and not only those of K. He was at first at another physiotherapist but as she had health issues and often absent, could not help him and he was transferred to her care.
28. K further had medical issues after the competition and needed extensive therapy. He also experienced pain due to a growing piece of bone on his amputation and experienced pain if he put his prosthetic leg on. She thus accompanied him to ‘’Jumping Kids’’. They consulted an orthidic surgeon at Chris Hani and it was recommended that he undergo surgery.
29. Mrs Ramessar stated that her goal was to motivate learners to better themselves. She talks to all athletes and helps where possible. She lives with her husband and parents, and they were present when K came to the house. They watched a movie and did not play TV games. During this time there was no physical contact, and they left the house before her parents.
30. Due to gynaecological issues, she was told she would have trouble falling pregnant and had to undergo surgery. She had a miscarriage during June 2019. However, during a visit to the gynaecologist on the 5th of November 2019 was told that she was pregnant. She was ‘’so happy’’ but upon returning to the school was served an audi letter and 2 weeks later with a notice of precautionary transfer. This robbed her of all happiness. She had a high-risk pregnancy and due to the stress, the baby did not grow sufficiently, and she went into early labour. Her baby is luckily healthy and well.
31. The charges levelled against her is not true which is endorsed by the confession of the learner during cross-examination that everything was a lie. It is a relief that after 2 years, the truth came out.
32. Mrs Ramessar stated that she is shocked that the word of a teenager was taken so seriously and that a lie had such an impact on her life and career. She would however be able to return to the school to assist learners as 90% of her experience was good and the incident is a bad memory. She is looking forward to going back and would treat K the same way she always did and has not ill feelings towards him. She does not know if he realized the impact of his actions and is aware of what he had done.
Analysis of evidence and Arguments
33. The onus in this matter was on the employer to prove, on a preponderance of probabilities that the workplace rules were contravened and that the employee was guilty of the charges levelled against her.
34. The employer called four witnesses to testified on its behalf. The crux of this evidence was that the learner, K, informed two educators that he had a relationship/is dating the employee, whom he referred to as Ma’am Kerri. Their version was that K informed them he was in a relationship with an older person/staff member. K specifically told the first witness. Mrs du Toit that they had intercourse and oral sex.
35. These allegations led to the matter being reported by Mrs du Toit to the Principal. Following this an investigation ensued, statements were taken and the minor, K also made a written statement, that he read into the record at the inquiry.
36. The third witness for the employer, Mr Siaga, is the driver at the school and testified that he transported the learner and employee to Pretoria from the school in Johannesburg on various occasions. He explained that they would also sit at the back out of his sight which made him feel uncomfortable as this was ‘’against African culture for a man and woman to sit alone at the back. Mr Siaga submitted that he ‘’heard rumours’’ that the learner and employee ‘were romantically involved’’ and thus he ‘’concluded they were doing something inappropriate’’ at the back. He stated that due to their position at the back, he could not see anything.
37. The learner, K, is currently 17 years old. At the outset of the process, he was asked questions to get an understanding of his knowledge and awareness of telling the truth. He stated that he understood the difference between lying and telling the truth as well as the consequences of lying. He then proceeded taking the oath, stating he understood such. During the process he testified behind a one-way mirror and was assisted by a qualified intermediary who sat with him in a room, adjacent to the one, the rest of the parties where in. A council interpreter also assisted him in his mother tongue.
38. The learner read his statement, written by himself in English, into the record also in English. During the process when testifying in chief and during cross-examination, on a number of occasions, he proceeded giving evidence and answering questions before it was relayed to him by the intermediary and before it was translated from English. It was clear from this that he understood English, spoke it quite well and had no trouble expressing himself. He also came across as confident.
39. During cross-examination the learner made a full turnaround on his written statement. He stated that his written statement was a lie and that what he told Mrs du Toit ‘’was all false’’. He confirmed this by stating that ‘’the issue of the sexual relationship is all false, what I said to Mrs du Toit was not true. The issue that we had a sexual relationship was not true. It is true that Ma’am Kerry to things for me, but it is not true that we had a sexual relationship, we were close’’. The learner also confirmed that what Ms. Dipale overheard in her class, was not true.
40. The learner was asked to explain why he made these statements.
41. The learner stated that Ma’am Kerry was beautiful, kind, that he respected her, that she was always professional, respected him, did good things for him, he confided in her, and that she treated all the learners the same. He stated that he ‘’used good words’’ towards her and that she had boundaries and was always professional.
42. The learner confirmed that this ‘’most likely’’ led to him ‘’being attracted’’ to her. When asked if his friends felt the same about the employee, the learner said ‘’I don’t know but their actions show they are at my wavelength of thinking about her’’. The learner also stated that when the employee walked pass them ‘’we would giggle’’, and that when he spoke to her, his friends would always ‘’try to get into the conversation’’.
43. According to the learner, his friends would ask him what was going on with himself and Ma’am Kerri and would ask it they are sleeping together. He then ‘’as I was spiteful told them yes’’. When asked if the case was therefore ‘’about spite’’, the learner said ‘’yes, definitely, it is all about spite, it is true, I did not expect that this would happen, where we now are [the hearing], all is due to spite. I apologise sincerely, profusely’’. It was put to him that the allegations against Ms Kerri was ‘’not true, but false’’ and he reiterated ‘’yes, it is not true, it is all lies’’. He again reiterated that what he told Mrs du Toit ‘’about the oral sex and sex things’’ is false.
44. The learner was asked if he told anyone that everything was a misunderstanding. To this he responded ‘’Yes, the day after I told the principal, that what I wrote is all lies’’. The learner submitted that the principal then told him to write another statement to explain what occurred, he then wrote a second statement but the ‘second truthful letter was not taken into consideration’’. The questions asked to him was based ‘’on the lies letter and not on the truth letter’’.
45. The learner, as already stated, testified in chief and answered questions during cross-examination on many occasions in English, before it could be translated in his mother tongue or before the intermediary could assist. His English was good as is evident by his use of such words such as ‘’professional / sincerely / profusely/ same wavelength’’ and others. He also did not come across as being scared or intimidated but was confident and self-assured throughout.
46. I thus accept that his evidence at the arbitration was the truth and that there was no sexual relationship of any kind, nor any kissing, hugging and touching of hands, legs and hair.
47. The employee testified that she had no sexual relationship with the learner as claimed in charge 1, treated him the same way she did other learners and did not engage in any improper, disgraceful or unacceptable conduct as per charge 2. She gave a lengthy expose of her background, values, education, objectives at the school, her involvement with the learners as well as a detailed explanation of the hardship the allegations placed on her.
48. Based on this the version presented on behalf of the employer failed to proof the charges against the employee.
Award
49 I therefore make the following award:
“The employee is found not guilty of both charges levelled against her and must resume duties at Hope School and report there on the 25th of October 2021’’.
DATED AT PRETORIA ON THIS 20th DAY OF OCTOBER 2021
Council Commissioner