ELRC644-20/21 EC
Text
ELRC148-21/22EC
Award Date:
29 October 2021
Panellist/s: Jonathan Gruss
Case No.: ELRC148-21/22EC
Date of Award: 29 October 2021
In the ARBITRATION between:
NAPTOSA obo Bongani Sixtus Mbobo
(Applicant)
and
Department of Education: Eastern Cape
(Respondent)
Applicant’s representative: Mr Adams
Respondent’s representative: Mr Mashoai
DETAILS OF HEARING AND REPRESENTATION
1. This dispute was referred for arbitration in terms of Section 191(5)(a) of the Labour Relations Act 66 of 1995 as amended (“the LRA”). The hearing was held via the virtual zoom platform on 14 October 2021. The proceedings were electronically recorded. The applicant, Bongani Sixtus Mbobo appeared in person and was represented by Mr Adams, an official from NAPTOSA. The respondent, Department of Education: Eastern Cape were represented by Mr Mashoai, a Chief Education Specialist: Employee Relations. The parties by agreement submitted written closing arguments on 22 October 2021.
ISSUE TO BE DECIDED
2. I am required to determine whether the dismissal of the Applicant was both procedurally and substantively fair.
BACKGROUND TO THE ISSUES
3. At the commencement of the arbitration proceedings, the following were agreed as common cause:
3.1 The applicant commenced employment with the respondent on 19 July 1988 as an educator. The applicant was dismissed on 14 September 2020 at the conclusion of a disciplinary hearing. After the applicant appealed against the verdict and sanction, the MEC for Education in the Eastern Cape on 22 February 2021 upheld the applicant’s dismissal.
3.2 At the time of the applicant’s dismissal, he was employed as an HOD at Le Grange Senior Secondary School and earned a basic salary of R427 839 per annum or R35 653.25 per month.
3.3 As a precautionary measure the applicant was suspended with salary pending finalisation of his disciplinary hearing.
3.4 The applicant was dismissed on the following misconduct charges:
3.4.1 Contravening section 18(1)(f) of the Employment of Educators Ac, 76 of 1998 in that he allegedly unjustifiably prejudiced the administration, discipline or efficiency of the Department of education and the school by sexually assaulting a learner “TT” who was a learner at the school where the applicant taught.
3.4.2 Contravening section 18 (1) (q) of the Employment of Educators Act, 76 of 1998 in that whilst on duty he conducted herself in an improper, disgraceful or unacceptable manner by sexually assaulting “TT” while she was unconscious.
3.5 The applicant was initially charged with misconduct charges relating to the contravention of sections 17(b) and 17(e) of the EEA, these charges were withdrawn.
3.6 As an explanation to the charges, the respondent explained the learner “TT” was writing midyear exams during June 2017 and after exiting the examination room she was approached by the applicant and showing the video clip of a choir practising. The applicant then gave “TT” a lift home and en route, the applicant stopped at his house and the alleged sexual assault occurred at the applicants’ house. It’s alleged that the applicant utilising some substance that caused “TT” to become unconscious and after she woke up, she woke up on the applicant’s bed her panties had been pulled down and she felt as if something happened to her private parts. The applicant after the incident dressed herself and was taken home.
3.7 The Applicant claims that his dismissal was unfair, substantively in that he denies committing the misconduct for which she was dismissed. He does however admit that he took “TT” to his house to show her the venue where choir practices were to occur. He denies that they were ever on his bed together. As it relates to procedural fairness, in contravention the disciplinary Code, the sanction of dismissal was not issued within five working days in that the hearing concluded on 26 February 2020 and the applicant was only notified on Friday, 13 March 2020 of the finding. He only received the written notification in September 2020. On 15 March 2020 mitigating factors were submitted and on 20 August 2020 the chairperson rendered his sanction. The applicant was notified of the sanction on 1 September 2020 and the Superintendent General (HoD) implemented the sanction on 14 September 2020. The respondent did not submit any aggravating factors.
3.8 As to relied, he sought to be reinstated.
SURVEY OF EVIDENCE AND ARGUMENT
4. This is a brief summary of evidence considered as provided for in terms of Section 138(7)(a) of the LRA relevant to the dispute at hand and does not reflect all the evidence and arguments heard and considered in deciding this matter. The identity of the learners who testified against the Applicant are protected and therefore they are identified by alphabetical letters.
RESPONDENT’S EVIDENCE
5. The complainant, “TT” testified to the following effect:
5.1 She was a learner at La Grange Senior Secondary School and in June 2017 she was 16 years old in grade 11. After she finished her exams during June 2017 she came across the applicant who informed her that he was looking for her. The applicant told her that there was something that he wanted to show her and the applicant showed her a video clip. This was a video clip of a choir and she viewed the video clip while seated in the applicant’s vehicle sitting at the back, the applicant when she watched the video was seated in front. The applicant enquired from her as to whether she was finished with her examinations and she confirmed this. The applicant offered her a lift home and she did not have a problem with this and therefore she agreed.
5.2 The applicant informed her that he wanted to start a choir separate from the school’s choir. It would be a private choir. The applicant advised her that he would be the one that would choose the members of the choir and before reaching her home, the applicant informed her that he wanted to show her the place where they would practice. It was still early so she did not protest and trusted the applicant so they drove to Mahlatini, the place where the applicant lives.
5.3 When they arrived at the applicant’s residence they entered the gate and she followed the applicant into the house. They entered from the back into a small room and then through a second door. She was told by the applicant to sit on the couch and the applicant then exited the room. The room was a small room and no choir would be able to practice in that room. She started to get nervous. The room was small and there was a table in the room. When the applicant return she indicated to the applicant that the room was too small to practising in and that she wanted to go home. The applicant responded that it was too early and she insisted that she wanted to go home. She wanted to go home in that at home no one knew where she was. She then stood up and as she attempted to open the second door of the dwelling, she noticed that the second door was locked. As she was about to turn and asked the applicant why the doors was locked she felt something stinging on the side of her neck. She thought it was a syringe. When she gained consciousness thereafter she found herself half naked lying on the bed, her panties were off and she noticed the applicant pulling up his trousers. She then pulled up a panties and put on her tracksuit pants. She cannot recall how she ended up on the applicant’s bed. As she dressed herself the applicant got ready in the same room. She noticed a table within medication in the form of tables on table. She did not enquire from applicant about the medication.
5.4 Whilst the applicant was driving her home, he told that she was not supposed to tell anyone what happened because no one would believe her because he is a trusted person. This confirmed her suspicion that the applicant did something to her. The applicant was not her direct teacher and was only the choir master.
5.5 Under cross-examination, the witness could not recall on which day in June 2017 the incident occurred. She could not remember the clothing the applicant was wearing and she could not remember the subject she wrote that day. She also could not remember how long she was at the applicant’s house. She indicated that when she arrived at the applicant’s house there was no one there and that the first room she entered into seemed to be a kitchen because there was a microwave therein. She could not recall the colour of the room. She could remember that the applicant’s house was painted green. She could recall that in the second room there was a couch hidden behind curtains.
5.6 The witness confirmed that en route to applicant’s house, the applicant did not touch her. When questioned as to whether there was a mark on her neck as a consequence to the pricking sensation she believed it to be a syringe prick, she confirmed there was a mark on her neck after the incident, and the mark disappeared within time. When she woke up her socks were still on her feet but the shoes were on the floor. When the incident happened she was not a virgin and she suffered no injuries to her vagina. She just felt that something happened to as if she was penetrated. There was a white substance on a vagina that resembled semen.
5.7 As to whether there were people at the house when she left the house, the witness indicated that she saw no one. When question as to why she did not report the incident to the South African Police Service immediately after the incident, she explained that she was scared and it took her six months to report the incident to a member of her family, her sister and this was in December that year. The incident was only report to the school the following year and she spoke to Mr Maleko.
5.8 It was suggested to the witness that she made up this incident in that the applicant did not want to use her as the lead singer for his choir. This she denied and indicated that the private choir did not materialise. After the incident she experienced episodes of her fainting at the school and when she woke up or gained consciousness, she felt tired.
5.9 Under re-examination, the witness indicated that that she is currently 20 years old and she will be turning 21 the following month. She testified at the applicant’s disciplinary hearing during August 2019.
APPLICANT’S EVIDENCE
6. The Applicant testified to the following effect.
6.1 He is currently 57 years old and he took “TT” to his residence to show her the place where the choir would practice. This would have been a private choir that would sing at weddings. The way that “TT” described his house is accurate and correct however he disagrees that he injected her. They were only at his house for five minutes and when they exited the house at the boundary gate his domestic was standing at the gate and as they passed the domestic “TT” made no mention of the alleged incident to his domestic. The first time that he became aware of the alleged incident was when charges were brought against him by the respondent. He suffers from high blood pressure and diabetes and he takes medication and the combination of the medication and this medical conditions causes him erectile dysfunction. He struggles to get an erection and therefore could not have done what “TT” accuses him of doing.
6.2 On 15 March 2018 the police came to school and arrested him, the case was withdrawn due to lack of evidence. He does not know why “TT” would accuse him of rape/sexual assault and he could only speculate that because she has a boyfriend and was sexually active she wanted to smear him.
6.3 Under cross-examination, he indicated that he never taught “TT” and there was no bad blood between them prior to the alleged incident. “TT” was the best singer in the choir and there were other alto singers in the school’s choir. He showed her the video so that she could decide whether she wanted to join his choir. This was the first time that he ever took any of the choir members to his house. He confirmed that the room where he wanted the choir to practice was a bit small but 7 people could fit into the room singing. The private choir did not materialise in that the wedding party that wanted choral music and a choir to sing at their wedding changed their mind.
ANALYSIS OF EVIDENCE AND ARGUMENT
7. I must first determine on a balance of probabilities whether the applicant committed the misconduct for which he was dismissed.
8. Eksteen AJP in the matter of National Employer's General Insurance v Jagers 1984 (4) SA 437 (ECD) at 440D-F held as follows:
"In deciding whether that evidence is true or not the Court will weigh up and test the plaintiff's allegations against the general probabilities. The estimate of the credibility of a witness will therefore be inextricably bound up with the consideration of the probabilities of the case and, if the balance of probabilities favours the plaintiff, then the Court will accept his version as being probably true".
9. The Applicant denies committing the misconduct for which he was dismissed. The applicant was dismissed on two charges, the first relates the sexual assault on “TT” who was a learner at the same school where the applicant taught. The second charge relates to the applicant allegedly sexually assaulting “TT” whilst she was allegedly unconscious.
10. The evidence tendered by “TT” was that after completing her exams she was approached by the applicant who wanted to show her the video of a choir singing. The applicant gave “TT” a lift home and en route home, the applicant stopped at his residence in order to show the applicant the place where the choir the applicant was organising would practice. “TT” agreed and noticed that the room the applicant identified as a place for the choir to practice in was too small and when she indicated to the applicant she wanted to go home, she noticed that the second door was locked. “TT” believes that she was drugged by the applicant in that she felt the prick in her neck and when she woke up she was lying on the bed, half naked with her panties at her ankles and that when she pulled up her panties she noticed a substance that resembles semen on her vagina. “TT” testified that she could not recall what occurred prior to her gaining consciousness one thing she knew was that something was done to her in that she could feel something penetrated her vagina. “TT” further testified that as she gained consciousness, she noticed the applicant pulling up his pants and dressing himself.
11. I find “TT” to be credible and honest witness and the inherent probabilities suggests that “TT” was drugged, and she believes that this occurred in that she was injected with something. What is clear should I accept “TT” version is that when she gained consciousness she felt as if she was penetrated as if something happened inside her vagina and there was a substance on her vagina that resembled semen. This means that “TT” must have been drugged either by an injection or by some other means. “TT” admitted that she was not a virgin at the time of the incident and therefore she was sexually active.
12. The applicant denies committing the misconduct and emphasis was placed that “TT” could not recall what the applicant was wearing, what subject she wrote the day of the alleged incident, the day of the week and when the incident occurred. What we do know it must have been the last day of the exams in that “TT” was able to recall that the applicant specifically asked her whether she was finished with the exams. “TT” was further unable to recall the colour of the room where the alleged sexual assault occurred and although the house was painted green. “TT” testified that when she gained consciousness, she felt tired and subsequent to the sexual assault she started experiencing blackouts or episodes of fainting.
13. The applicant when he testified admitted that the room that he identified where the choir would practice was a small room and although “TT” claimed that the room was too small for a choir to practice in, the applicant was of view that 7 people would be able to practice in that room. This was not a school choir, “TT” was a member of the school choir, and the applicant envisage this choir to be a private choir that would sing choral music at weddings. According to the applicant at the time of conception of the choir idea, there was a prospective gig lined up, this did not materialise in that the couple seeking a choir to perform at their wedding changed their minds. Therefore, the private choir did not materialise. I accept the evidence of “TT” that the room identified by the applicant was too small for choir practice in and considering concessions made by the applicant that the room was small I must agree with the applicant that it would have been highly impractical for choir of 7 members to practice in that room. The applicant explained that the school choir usually practices at various venues and this is a clear indicator that the venue for choir practice must be spacious. The question that is then asked, why did the applicant take “TT” to show her a room in his house that would have been too small to use as a choir practice venue? Therefore, I am of the view that the “private choir” was nothing but a ploy to entice “TT” to accompany him to his house for no honourable reason.
14. The applicant testified that he suffered from erectile dysfunction caused by high blood pressure, diabetes and medication he was taking and therefore he could not have physically done what “TT” was accusing him of doing. This may be so, however in the absence of medical evidence by the applicant’s doctor I’m unable to place much weight on his suggestion. Furthermore, the utilisation of enhancement substances would negate the notion that it was impossible for the applicant to have done what he was alleged to have done.
15. The question I ask, why would “TT” fabricate an incident, wherein she claims to have been drugged and sexually assaulted. The only suggestion put forward by the applicant was that “TT” had a boyfriend and she was sexually active and she was smearing him. This still does not private a motive for “TT” to falsely accuse the applicant. The applicant testified that prior to the incident the relation between him and “TT” was good and she was one of his better singers. No probable ulterior motive was put forward that question the credibility and honesty of “TT” as a witness. Considering the length between when the alleged incident occurred and the date of arbitration and the possibility that “TT” was drugged, I’m not surprised that her memory may be fuzzy as to colour of the walls, and what the applicant wearing on the day in question and on the precise date and day when the incident occurred. “TT” recollection and observance when she woke up and gained consciousness is not fuzzy.
16. It took “TT” almost 6 months to report the incident to her sister and she explained that when the applicant took her home, he told her not to tell anyone in that no one would believe her, she was therefore afraid of reporting the sexual assault. It appears that in December that year “TT” report the incident to sister and the school was informed thereof early on in the year. The delay in reporting the sexual assault does not mean that it did not occur it is only factor that one must consider in determining whether the incident occurred or not.
17. I’m satisfied that the applicant is guilty on both charges in that the version of the respondent, more specifically “TT” I find more probable than that of the applicant.
18. The applicant has formulated a technical approach to procedural fairness and it was argued that contrary to the disciplinary Code, the sanction was not served on him within five working days in that the hearing concluded on 26 February 2020 and he was informed of the finding on 13 March 2020. When it comes to procedural fairness first question is whether there was substantive compliance with the discipline code and whether the aggrieved person suffered any prejudice as a result of the lapse of procedure. It took the respondent 14 days to notify the applicant of his hearing outcome and this in my view is rather quick. I’m satisfied that the applicant was afforded a fair hearing, he was given advance notice of the charges, he was afforded representation and he participated in his own disciplinary hearing. As a precautionary measure, the applicant was suspended with salary and therefore any delay was monetary reward.
19. The applicant has argued correctly so that the alleged incident occurred in June 2017 and the incident was reported to the school in March 2018 and the disciplinary hearing of the applicant was postponed several times in 2019 due to the unavailability of the employer representative and a presiding officer. The applicant has referred me to the case of Van Eyk and the Minister of Correctional Services 2005 BLLR 639, a case relates to an employee who was charged almost 2 years after fraudulent transactions had allegedly taken place. As the employer’s disciplinary code appeared to require that charges be brought within three and half months after the employer discovering the alleged transgression, the High Court ruled that the disciplinary charges had fallen away. I’m aware of that judgement and that determination was based on the Correctional Services Disciplinary Code at the time that took the form of a collective agreement that prescribed that after a certain period of inactiveness charges would fall away. Therefore, based on the collective agreement there were consequences prescribed should something not happen within certain period. Such eventualities are not provided for in the respondent’s disciplinary code as regulated by the Employment of Educators Act.
20. The respondent in their written closing arguments submitted that Covid 19 and the hard lock down had an influence in the delay in finalising the applicant’s disciplinary hearing. I agree, unfortunately the respondent has not explained the period prior to the lock down. The applicant as confirmed by the bundle submitted in the arbitration that on 17 July 2018, the applicant was was served a notice to attend a disciplinary hearing that was scheduled to commence on 27 July 2018. The disciplinary hearing sat on 5 September 2019 and 26 February 2020 and the hearing was postponed on 25 September 2019 due to the unavailability of the employer representative and again postponed on 12 November 2019 due to the unavailability of the presiding officer. The respondent has failed to explain the delay from 27 July 2018 to 5 September 2019. Normally a delay this significant could render a dismissal to be substantively unfair. The substantive unfairness is premised that should you delay a disciplinary hearing for such an extended period and an employee has performed his or her duties how can you say that the trust relationship had broken down irretrievably. The applicant had been suspended with full pay during the period in question and therefore, he had not been allowed to work.
21. The applicant has referred me to the judgement of Department of Public Works, Road and Transport v Motshoso [2005] JOL 14643 (LC) where it was held that the failure to provide an explanation for almost 3 years in finalising a disciplinary proceedings rendered the dismissal to be procedurally unfair. I was also referred to the CC judgment Stokwe v Member of the Executive Council: Education [2019] 40 ILJ 773 (CC) where it was held that an unexplained extensive delay rendered the dismissal to be procedurally unfair.
22. Accordingly, the unexplained excessive delay from 27 July 2018 to 5 September 2021 a period of more than 1 year renders the applicant’s dismissal to be procedurally unfair.
23. At the disciplinary hearing of the applicant, Section 17 charges preferred against the applicant was withdrawn and the respondent proceeded with Section 18 transgressions. This is nothing more than a red herring in that the description of the charges for which the applicant was found guilty on and the charges that were withdrawn were the same. Having found that the applicant is guilty of sexual assault I am not left with a discretion as to whether the sanction of dismissal was too harsh, Section 17 is clear, where an employee such as the applicant is found guilty of such misconduct in that he sexually assaulted “TT” and therefore there is not discretion as to sanction other than dismissal. Therefore, dismissal of the applicant was for a fair reason.
24. Clause 5.1.2 and 5.16 of ELRC Collective Agreement 3 of 2018 provides that an arbitrator arbitrated the dispute in terms of this collective agreement must, in light of the evidence presented, and with reference to the following, direct what action, if any shall be taken against the educator with reference to the SACE Code of Professional Ethics for educators in the centre provided for in the Employment of Educators Act, including the mandatory sanction of dismissal is prescribed for certain forms of misconduct by the Employment of Educators Act.
25. Section 120 of the Children’s Act, Act 38 of 2005 provides that a finding that a person is unsuitable to work with children may be made by a children’s court; any other court in any criminal or civil proceedings which that person is involved; or any forum established or recognised by law on any disciplinary proceedings concerning the conduct of that person relating to a child. A finding may be made by forum of its own volition or on application. Evidence as to whether a person is unsuitable to work with children may be heard by the court or the forum either in the course of or at the end of the proceedings.
26. Section 122 of the Children’s Act further provides that the relevant administration to forum must notify the Director-General in writing of any finding in terms of section 120 that a person is unsuitable to work with children. The director-general must enter the name of the person found unsuitable to work with children as contemplated in section 120 in Part B of the registrar regardless of where the appeal proceeding has been instituted or not.
27. The Code of Professional Ethics as prescribed by the South African Council of Educators Act 31 of 2000 prescribed that educators who are registered or provisionally registered with the South African Council for Educators:
27.1 Acknowledge the noble calling of their profession to educate and train the learners of our country;
27.2 Acknowledge that the attitude, dedication, self-discipline, ideals, training and conduct of the teaching profession determine the quality of education in this country;
27.3 Acknowledge, uphold and promote basic human rights, as embodied in the Constitution of South Africa.
27.4 Commit themselves therefore to do all within their power, in the exercising of their professional duties, to act in accordance with the ideals of their profession, as expressed in this Code and
27.5 Act in a proper and becoming way such that their behaviour does not bring the teaching profession into disrepute
28. Clause 3.6.; 3.8 and 3.9 of the Code of Professional Ethics under the heading, CONDUCT: The educator and the learner prescribes that an educator: refrains from improper physical contact with learners; refrains from any form of sexual harassment (physical or otherwise) of learners; and refrains from any form of sexual relationship with learners at a school.
28. Section 194(1) of the LRA provides that compensation awarded to an employee whose dismissal is found to be unfair either because the Employer did not prove that the reason for the dismissal was a fair reason relating to the employee’s conduct or capacity or the employer’s operational requirements or the employer did not follow fair procedure, or both, must be just and equitable in all circumstances, but not be more than the equivalent of 12 months’ remuneration calculated at the employee’s rate of remuneration on the date of dismissal.
29. In the matter of Johnson & Johnson (Pty) Ltd v CWIU (1999) 20 ILJ 89 (LAC) held at paragraph 41 [also reported at [1998] 12 BLLR 1209 (LAC) – Ed] that the compensation for the wrong in failing to give effect to an Employee’s right to a fair procedure is not based on patrimonial or actual loss. It is in the nature of a solatium for the loss of the right, and is punitive to the extent that an Employer (who breached the right) must pay a fixed penalty for causing that loss. In the normal cause a legal wrong done by one person to another deserves some form of redress. The party who committed the wrong is usually not allowed to benefit from external factors which might have ameliorated the wrong in some way or another.
29. I consider one month’s salary to be just and equitable compensation for the procedural unfairness.
AWARD
30. The dismissal of the Applicant, Bongani Sixtus Mbobo was procedurally unfair and substantively fair.
31. As it relates to procedural fairness, I order the respondent, Department of Education: Eastern Cape to pay the Applicant an amount of R35653.25 that equates to one month salary to be paid by no later than 30 November 2021.
32. I find that the applicant, Bongani Sixtus Mbobo as provided for in terms of Section 120 of the Children’s Act, Act 38 of 2005 as amended, as a consequence to the transgression of sexually assaulting “TT” is unsuitable to work with children.
33. I further find that the applicant, Bongani Sixtus Mbobo as a consequence to the transgressions of sexually assaulting “TT”is in breach of the SACE Code of Professional Ethics as prescribed in terms of the South African Council of Educators Act 31 of 2000.
34. In terms of Section 122 of the Children’s Act, Act 38 of 2005, as amended, the General Secretary of the ELRC shall send a copy of this award to the Director-General of the Department of Social Development.
35. In terms of clause 5.4 of ELRC Collective Agreement 3 of 2018, the General Secretary shall also send a copy of this award to the South African Council of Educators.
Name: Jonathan Gruss
(ELRC) Arbitrator
Case No.: ELRC148-21/22EC
Date of Award: 29 October 2021
In the ARBITRATION between:
NAPTOSA obo Bongani Sixtus Mbobo
(Applicant)
and
Department of Education: Eastern Cape
(Respondent)
Applicant’s representative: Mr Adams
Respondent’s representative: Mr Mashoai
DETAILS OF HEARING AND REPRESENTATION
1. This dispute was referred for arbitration in terms of Section 191(5)(a) of the Labour Relations Act 66 of 1995 as amended (“the LRA”). The hearing was held via the virtual zoom platform on 14 October 2021. The proceedings were electronically recorded. The applicant, Bongani Sixtus Mbobo appeared in person and was represented by Mr Adams, an official from NAPTOSA. The respondent, Department of Education: Eastern Cape were represented by Mr Mashoai, a Chief Education Specialist: Employee Relations. The parties by agreement submitted written closing arguments on 22 October 2021.
ISSUE TO BE DECIDED
2. I am required to determine whether the dismissal of the Applicant was both procedurally and substantively fair.
BACKGROUND TO THE ISSUES
3. At the commencement of the arbitration proceedings, the following were agreed as common cause:
3.1 The applicant commenced employment with the respondent on 19 July 1988 as an educator. The applicant was dismissed on 14 September 2020 at the conclusion of a disciplinary hearing. After the applicant appealed against the verdict and sanction, the MEC for Education in the Eastern Cape on 22 February 2021 upheld the applicant’s dismissal.
3.2 At the time of the applicant’s dismissal, he was employed as an HOD at Le Grange Senior Secondary School and earned a basic salary of R427 839 per annum or R35 653.25 per month.
3.3 As a precautionary measure the applicant was suspended with salary pending finalisation of his disciplinary hearing.
3.4 The applicant was dismissed on the following misconduct charges:
3.4.1 Contravening section 18(1)(f) of the Employment of Educators Ac, 76 of 1998 in that he allegedly unjustifiably prejudiced the administration, discipline or efficiency of the Department of education and the school by sexually assaulting a learner “TT” who was a learner at the school where the applicant taught.
3.4.2 Contravening section 18 (1) (q) of the Employment of Educators Act, 76 of 1998 in that whilst on duty he conducted herself in an improper, disgraceful or unacceptable manner by sexually assaulting “TT” while she was unconscious.
3.5 The applicant was initially charged with misconduct charges relating to the contravention of sections 17(b) and 17(e) of the EEA, these charges were withdrawn.
3.6 As an explanation to the charges, the respondent explained the learner “TT” was writing midyear exams during June 2017 and after exiting the examination room she was approached by the applicant and showing the video clip of a choir practising. The applicant then gave “TT” a lift home and en route, the applicant stopped at his house and the alleged sexual assault occurred at the applicants’ house. It’s alleged that the applicant utilising some substance that caused “TT” to become unconscious and after she woke up, she woke up on the applicant’s bed her panties had been pulled down and she felt as if something happened to her private parts. The applicant after the incident dressed herself and was taken home.
3.7 The Applicant claims that his dismissal was unfair, substantively in that he denies committing the misconduct for which she was dismissed. He does however admit that he took “TT” to his house to show her the venue where choir practices were to occur. He denies that they were ever on his bed together. As it relates to procedural fairness, in contravention the disciplinary Code, the sanction of dismissal was not issued within five working days in that the hearing concluded on 26 February 2020 and the applicant was only notified on Friday, 13 March 2020 of the finding. He only received the written notification in September 2020. On 15 March 2020 mitigating factors were submitted and on 20 August 2020 the chairperson rendered his sanction. The applicant was notified of the sanction on 1 September 2020 and the Superintendent General (HoD) implemented the sanction on 14 September 2020. The respondent did not submit any aggravating factors.
3.8 As to relied, he sought to be reinstated.
SURVEY OF EVIDENCE AND ARGUMENT
4. This is a brief summary of evidence considered as provided for in terms of Section 138(7)(a) of the LRA relevant to the dispute at hand and does not reflect all the evidence and arguments heard and considered in deciding this matter. The identity of the learners who testified against the Applicant are protected and therefore they are identified by alphabetical letters.
RESPONDENT’S EVIDENCE
5. The complainant, “TT” testified to the following effect:
5.1 She was a learner at La Grange Senior Secondary School and in June 2017 she was 16 years old in grade 11. After she finished her exams during June 2017 she came across the applicant who informed her that he was looking for her. The applicant told her that there was something that he wanted to show her and the applicant showed her a video clip. This was a video clip of a choir and she viewed the video clip while seated in the applicant’s vehicle sitting at the back, the applicant when she watched the video was seated in front. The applicant enquired from her as to whether she was finished with her examinations and she confirmed this. The applicant offered her a lift home and she did not have a problem with this and therefore she agreed.
5.2 The applicant informed her that he wanted to start a choir separate from the school’s choir. It would be a private choir. The applicant advised her that he would be the one that would choose the members of the choir and before reaching her home, the applicant informed her that he wanted to show her the place where they would practice. It was still early so she did not protest and trusted the applicant so they drove to Mahlatini, the place where the applicant lives.
5.3 When they arrived at the applicant’s residence they entered the gate and she followed the applicant into the house. They entered from the back into a small room and then through a second door. She was told by the applicant to sit on the couch and the applicant then exited the room. The room was a small room and no choir would be able to practice in that room. She started to get nervous. The room was small and there was a table in the room. When the applicant return she indicated to the applicant that the room was too small to practising in and that she wanted to go home. The applicant responded that it was too early and she insisted that she wanted to go home. She wanted to go home in that at home no one knew where she was. She then stood up and as she attempted to open the second door of the dwelling, she noticed that the second door was locked. As she was about to turn and asked the applicant why the doors was locked she felt something stinging on the side of her neck. She thought it was a syringe. When she gained consciousness thereafter she found herself half naked lying on the bed, her panties were off and she noticed the applicant pulling up his trousers. She then pulled up a panties and put on her tracksuit pants. She cannot recall how she ended up on the applicant’s bed. As she dressed herself the applicant got ready in the same room. She noticed a table within medication in the form of tables on table. She did not enquire from applicant about the medication.
5.4 Whilst the applicant was driving her home, he told that she was not supposed to tell anyone what happened because no one would believe her because he is a trusted person. This confirmed her suspicion that the applicant did something to her. The applicant was not her direct teacher and was only the choir master.
5.5 Under cross-examination, the witness could not recall on which day in June 2017 the incident occurred. She could not remember the clothing the applicant was wearing and she could not remember the subject she wrote that day. She also could not remember how long she was at the applicant’s house. She indicated that when she arrived at the applicant’s house there was no one there and that the first room she entered into seemed to be a kitchen because there was a microwave therein. She could not recall the colour of the room. She could remember that the applicant’s house was painted green. She could recall that in the second room there was a couch hidden behind curtains.
5.6 The witness confirmed that en route to applicant’s house, the applicant did not touch her. When questioned as to whether there was a mark on her neck as a consequence to the pricking sensation she believed it to be a syringe prick, she confirmed there was a mark on her neck after the incident, and the mark disappeared within time. When she woke up her socks were still on her feet but the shoes were on the floor. When the incident happened she was not a virgin and she suffered no injuries to her vagina. She just felt that something happened to as if she was penetrated. There was a white substance on a vagina that resembled semen.
5.7 As to whether there were people at the house when she left the house, the witness indicated that she saw no one. When question as to why she did not report the incident to the South African Police Service immediately after the incident, she explained that she was scared and it took her six months to report the incident to a member of her family, her sister and this was in December that year. The incident was only report to the school the following year and she spoke to Mr Maleko.
5.8 It was suggested to the witness that she made up this incident in that the applicant did not want to use her as the lead singer for his choir. This she denied and indicated that the private choir did not materialise. After the incident she experienced episodes of her fainting at the school and when she woke up or gained consciousness, she felt tired.
5.9 Under re-examination, the witness indicated that that she is currently 20 years old and she will be turning 21 the following month. She testified at the applicant’s disciplinary hearing during August 2019.
APPLICANT’S EVIDENCE
6. The Applicant testified to the following effect.
6.1 He is currently 57 years old and he took “TT” to his residence to show her the place where the choir would practice. This would have been a private choir that would sing at weddings. The way that “TT” described his house is accurate and correct however he disagrees that he injected her. They were only at his house for five minutes and when they exited the house at the boundary gate his domestic was standing at the gate and as they passed the domestic “TT” made no mention of the alleged incident to his domestic. The first time that he became aware of the alleged incident was when charges were brought against him by the respondent. He suffers from high blood pressure and diabetes and he takes medication and the combination of the medication and this medical conditions causes him erectile dysfunction. He struggles to get an erection and therefore could not have done what “TT” accuses him of doing.
6.2 On 15 March 2018 the police came to school and arrested him, the case was withdrawn due to lack of evidence. He does not know why “TT” would accuse him of rape/sexual assault and he could only speculate that because she has a boyfriend and was sexually active she wanted to smear him.
6.3 Under cross-examination, he indicated that he never taught “TT” and there was no bad blood between them prior to the alleged incident. “TT” was the best singer in the choir and there were other alto singers in the school’s choir. He showed her the video so that she could decide whether she wanted to join his choir. This was the first time that he ever took any of the choir members to his house. He confirmed that the room where he wanted the choir to practice was a bit small but 7 people could fit into the room singing. The private choir did not materialise in that the wedding party that wanted choral music and a choir to sing at their wedding changed their mind.
ANALYSIS OF EVIDENCE AND ARGUMENT
7. I must first determine on a balance of probabilities whether the applicant committed the misconduct for which he was dismissed.
8. Eksteen AJP in the matter of National Employer's General Insurance v Jagers 1984 (4) SA 437 (ECD) at 440D-F held as follows:
"In deciding whether that evidence is true or not the Court will weigh up and test the plaintiff's allegations against the general probabilities. The estimate of the credibility of a witness will therefore be inextricably bound up with the consideration of the probabilities of the case and, if the balance of probabilities favours the plaintiff, then the Court will accept his version as being probably true".
9. The Applicant denies committing the misconduct for which he was dismissed. The applicant was dismissed on two charges, the first relates the sexual assault on “TT” who was a learner at the same school where the applicant taught. The second charge relates to the applicant allegedly sexually assaulting “TT” whilst she was allegedly unconscious.
10. The evidence tendered by “TT” was that after completing her exams she was approached by the applicant who wanted to show her the video of a choir singing. The applicant gave “TT” a lift home and en route home, the applicant stopped at his residence in order to show the applicant the place where the choir the applicant was organising would practice. “TT” agreed and noticed that the room the applicant identified as a place for the choir to practice in was too small and when she indicated to the applicant she wanted to go home, she noticed that the second door was locked. “TT” believes that she was drugged by the applicant in that she felt the prick in her neck and when she woke up she was lying on the bed, half naked with her panties at her ankles and that when she pulled up her panties she noticed a substance that resembles semen on her vagina. “TT” testified that she could not recall what occurred prior to her gaining consciousness one thing she knew was that something was done to her in that she could feel something penetrated her vagina. “TT” further testified that as she gained consciousness, she noticed the applicant pulling up his pants and dressing himself.
11. I find “TT” to be credible and honest witness and the inherent probabilities suggests that “TT” was drugged, and she believes that this occurred in that she was injected with something. What is clear should I accept “TT” version is that when she gained consciousness she felt as if she was penetrated as if something happened inside her vagina and there was a substance on her vagina that resembled semen. This means that “TT” must have been drugged either by an injection or by some other means. “TT” admitted that she was not a virgin at the time of the incident and therefore she was sexually active.
12. The applicant denies committing the misconduct and emphasis was placed that “TT” could not recall what the applicant was wearing, what subject she wrote the day of the alleged incident, the day of the week and when the incident occurred. What we do know it must have been the last day of the exams in that “TT” was able to recall that the applicant specifically asked her whether she was finished with the exams. “TT” was further unable to recall the colour of the room where the alleged sexual assault occurred and although the house was painted green. “TT” testified that when she gained consciousness, she felt tired and subsequent to the sexual assault she started experiencing blackouts or episodes of fainting.
13. The applicant when he testified admitted that the room that he identified where the choir would practice was a small room and although “TT” claimed that the room was too small for a choir to practice in, the applicant was of view that 7 people would be able to practice in that room. This was not a school choir, “TT” was a member of the school choir, and the applicant envisage this choir to be a private choir that would sing choral music at weddings. According to the applicant at the time of conception of the choir idea, there was a prospective gig lined up, this did not materialise in that the couple seeking a choir to perform at their wedding changed their minds. Therefore, the private choir did not materialise. I accept the evidence of “TT” that the room identified by the applicant was too small for choir practice in and considering concessions made by the applicant that the room was small I must agree with the applicant that it would have been highly impractical for choir of 7 members to practice in that room. The applicant explained that the school choir usually practices at various venues and this is a clear indicator that the venue for choir practice must be spacious. The question that is then asked, why did the applicant take “TT” to show her a room in his house that would have been too small to use as a choir practice venue? Therefore, I am of the view that the “private choir” was nothing but a ploy to entice “TT” to accompany him to his house for no honourable reason.
14. The applicant testified that he suffered from erectile dysfunction caused by high blood pressure, diabetes and medication he was taking and therefore he could not have physically done what “TT” was accusing him of doing. This may be so, however in the absence of medical evidence by the applicant’s doctor I’m unable to place much weight on his suggestion. Furthermore, the utilisation of enhancement substances would negate the notion that it was impossible for the applicant to have done what he was alleged to have done.
15. The question I ask, why would “TT” fabricate an incident, wherein she claims to have been drugged and sexually assaulted. The only suggestion put forward by the applicant was that “TT” had a boyfriend and she was sexually active and she was smearing him. This still does not private a motive for “TT” to falsely accuse the applicant. The applicant testified that prior to the incident the relation between him and “TT” was good and she was one of his better singers. No probable ulterior motive was put forward that question the credibility and honesty of “TT” as a witness. Considering the length between when the alleged incident occurred and the date of arbitration and the possibility that “TT” was drugged, I’m not surprised that her memory may be fuzzy as to colour of the walls, and what the applicant wearing on the day in question and on the precise date and day when the incident occurred. “TT” recollection and observance when she woke up and gained consciousness is not fuzzy.
16. It took “TT” almost 6 months to report the incident to her sister and she explained that when the applicant took her home, he told her not to tell anyone in that no one would believe her, she was therefore afraid of reporting the sexual assault. It appears that in December that year “TT” report the incident to sister and the school was informed thereof early on in the year. The delay in reporting the sexual assault does not mean that it did not occur it is only factor that one must consider in determining whether the incident occurred or not.
17. I’m satisfied that the applicant is guilty on both charges in that the version of the respondent, more specifically “TT” I find more probable than that of the applicant.
18. The applicant has formulated a technical approach to procedural fairness and it was argued that contrary to the disciplinary Code, the sanction was not served on him within five working days in that the hearing concluded on 26 February 2020 and he was informed of the finding on 13 March 2020. When it comes to procedural fairness first question is whether there was substantive compliance with the discipline code and whether the aggrieved person suffered any prejudice as a result of the lapse of procedure. It took the respondent 14 days to notify the applicant of his hearing outcome and this in my view is rather quick. I’m satisfied that the applicant was afforded a fair hearing, he was given advance notice of the charges, he was afforded representation and he participated in his own disciplinary hearing. As a precautionary measure, the applicant was suspended with salary and therefore any delay was monetary reward.
19. The applicant has argued correctly so that the alleged incident occurred in June 2017 and the incident was reported to the school in March 2018 and the disciplinary hearing of the applicant was postponed several times in 2019 due to the unavailability of the employer representative and a presiding officer. The applicant has referred me to the case of Van Eyk and the Minister of Correctional Services 2005 BLLR 639, a case relates to an employee who was charged almost 2 years after fraudulent transactions had allegedly taken place. As the employer’s disciplinary code appeared to require that charges be brought within three and half months after the employer discovering the alleged transgression, the High Court ruled that the disciplinary charges had fallen away. I’m aware of that judgement and that determination was based on the Correctional Services Disciplinary Code at the time that took the form of a collective agreement that prescribed that after a certain period of inactiveness charges would fall away. Therefore, based on the collective agreement there were consequences prescribed should something not happen within certain period. Such eventualities are not provided for in the respondent’s disciplinary code as regulated by the Employment of Educators Act.
20. The respondent in their written closing arguments submitted that Covid 19 and the hard lock down had an influence in the delay in finalising the applicant’s disciplinary hearing. I agree, unfortunately the respondent has not explained the period prior to the lock down. The applicant as confirmed by the bundle submitted in the arbitration that on 17 July 2018, the applicant was was served a notice to attend a disciplinary hearing that was scheduled to commence on 27 July 2018. The disciplinary hearing sat on 5 September 2019 and 26 February 2020 and the hearing was postponed on 25 September 2019 due to the unavailability of the employer representative and again postponed on 12 November 2019 due to the unavailability of the presiding officer. The respondent has failed to explain the delay from 27 July 2018 to 5 September 2019. Normally a delay this significant could render a dismissal to be substantively unfair. The substantive unfairness is premised that should you delay a disciplinary hearing for such an extended period and an employee has performed his or her duties how can you say that the trust relationship had broken down irretrievably. The applicant had been suspended with full pay during the period in question and therefore, he had not been allowed to work.
21. The applicant has referred me to the judgement of Department of Public Works, Road and Transport v Motshoso [2005] JOL 14643 (LC) where it was held that the failure to provide an explanation for almost 3 years in finalising a disciplinary proceedings rendered the dismissal to be procedurally unfair. I was also referred to the CC judgment Stokwe v Member of the Executive Council: Education [2019] 40 ILJ 773 (CC) where it was held that an unexplained extensive delay rendered the dismissal to be procedurally unfair.
22. Accordingly, the unexplained excessive delay from 27 July 2018 to 5 September 2021 a period of more than 1 year renders the applicant’s dismissal to be procedurally unfair.
23. At the disciplinary hearing of the applicant, Section 17 charges preferred against the applicant was withdrawn and the respondent proceeded with Section 18 transgressions. This is nothing more than a red herring in that the description of the charges for which the applicant was found guilty on and the charges that were withdrawn were the same. Having found that the applicant is guilty of sexual assault I am not left with a discretion as to whether the sanction of dismissal was too harsh, Section 17 is clear, where an employee such as the applicant is found guilty of such misconduct in that he sexually assaulted “TT” and therefore there is not discretion as to sanction other than dismissal. Therefore, dismissal of the applicant was for a fair reason.
24. Clause 5.1.2 and 5.16 of ELRC Collective Agreement 3 of 2018 provides that an arbitrator arbitrated the dispute in terms of this collective agreement must, in light of the evidence presented, and with reference to the following, direct what action, if any shall be taken against the educator with reference to the SACE Code of Professional Ethics for educators in the centre provided for in the Employment of Educators Act, including the mandatory sanction of dismissal is prescribed for certain forms of misconduct by the Employment of Educators Act.
25. Section 120 of the Children’s Act, Act 38 of 2005 provides that a finding that a person is unsuitable to work with children may be made by a children’s court; any other court in any criminal or civil proceedings which that person is involved; or any forum established or recognised by law on any disciplinary proceedings concerning the conduct of that person relating to a child. A finding may be made by forum of its own volition or on application. Evidence as to whether a person is unsuitable to work with children may be heard by the court or the forum either in the course of or at the end of the proceedings.
26. Section 122 of the Children’s Act further provides that the relevant administration to forum must notify the Director-General in writing of any finding in terms of section 120 that a person is unsuitable to work with children. The director-general must enter the name of the person found unsuitable to work with children as contemplated in section 120 in Part B of the registrar regardless of where the appeal proceeding has been instituted or not.
27. The Code of Professional Ethics as prescribed by the South African Council of Educators Act 31 of 2000 prescribed that educators who are registered or provisionally registered with the South African Council for Educators:
27.1 Acknowledge the noble calling of their profession to educate and train the learners of our country;
27.2 Acknowledge that the attitude, dedication, self-discipline, ideals, training and conduct of the teaching profession determine the quality of education in this country;
27.3 Acknowledge, uphold and promote basic human rights, as embodied in the Constitution of South Africa.
27.4 Commit themselves therefore to do all within their power, in the exercising of their professional duties, to act in accordance with the ideals of their profession, as expressed in this Code and
27.5 Act in a proper and becoming way such that their behaviour does not bring the teaching profession into disrepute
28. Clause 3.6.; 3.8 and 3.9 of the Code of Professional Ethics under the heading, CONDUCT: The educator and the learner prescribes that an educator: refrains from improper physical contact with learners; refrains from any form of sexual harassment (physical or otherwise) of learners; and refrains from any form of sexual relationship with learners at a school.
28. Section 194(1) of the LRA provides that compensation awarded to an employee whose dismissal is found to be unfair either because the Employer did not prove that the reason for the dismissal was a fair reason relating to the employee’s conduct or capacity or the employer’s operational requirements or the employer did not follow fair procedure, or both, must be just and equitable in all circumstances, but not be more than the equivalent of 12 months’ remuneration calculated at the employee’s rate of remuneration on the date of dismissal.
29. In the matter of Johnson & Johnson (Pty) Ltd v CWIU (1999) 20 ILJ 89 (LAC) held at paragraph 41 [also reported at [1998] 12 BLLR 1209 (LAC) – Ed] that the compensation for the wrong in failing to give effect to an Employee’s right to a fair procedure is not based on patrimonial or actual loss. It is in the nature of a solatium for the loss of the right, and is punitive to the extent that an Employer (who breached the right) must pay a fixed penalty for causing that loss. In the normal cause a legal wrong done by one person to another deserves some form of redress. The party who committed the wrong is usually not allowed to benefit from external factors which might have ameliorated the wrong in some way or another.
29. I consider one month’s salary to be just and equitable compensation for the procedural unfairness.
AWARD
30. The dismissal of the Applicant, Bongani Sixtus Mbobo was procedurally unfair and substantively fair.
31. As it relates to procedural fairness, I order the respondent, Department of Education: Eastern Cape to pay the Applicant an amount of R35653.25 that equates to one month salary to be paid by no later than 30 November 2021.
32. I find that the applicant, Bongani Sixtus Mbobo as provided for in terms of Section 120 of the Children’s Act, Act 38 of 2005 as amended, as a consequence to the transgression of sexually assaulting “TT” is unsuitable to work with children.
33. I further find that the applicant, Bongani Sixtus Mbobo as a consequence to the transgressions of sexually assaulting “TT”is in breach of the SACE Code of Professional Ethics as prescribed in terms of the South African Council of Educators Act 31 of 2000.
34. In terms of Section 122 of the Children’s Act, Act 38 of 2005, as amended, the General Secretary of the ELRC shall send a copy of this award to the Director-General of the Department of Social Development.
35. In terms of clause 5.4 of ELRC Collective Agreement 3 of 2018, the General Secretary shall also send a copy of this award to the South African Council of Educators.
Name: Jonathan Gruss
(ELRC) Arbitrator