ELRC644-20/21 EC
Text
ELRC 115-21/22 FS
Award Date:
10 October 2021
Arbitrator: SHIRAZ MAHOMED OSMAN Case Reference No: ELRC 115-21/22 FS
Date of award: 10 OCTOBER 2021
In the arbitration between:
Mr. A LEEUW Employee party
and
Department of Education – Free State Employer party
DETAILS OF HEARING AND REPRESENTATION
1. The present dispute between Mr. A Leeuw (hereinafter referred to as the employee) and The Department of Education-Free State (hereinafter referred to as the employer) was referred to, Inquiry by Arbitrator in terms of Section 188A of the Labour Relations Act no.66 of 1995, as amended (the Act); read with Collective Agreement 3 of 2018. At the Inquiry by Arbitrator hearing, which was held at the Boardroom of the employer, in Bloemfontein, on, 16 September 2021, the employee was represented by Mr. M Frans, of SADTU, a trade union and the employer was represented by Ms. L Cweba.
2. The employee was charged in terms of Section 18 of the Employment of Educators Act no 76 of 1998 (hereinafter referred to as the EEA).
3. For the purposes of this award, the affected learners shall not be identified by name, but shall be referred to, as Ms. X (Charge 1) & Ms. Y (Charge 2) though, both the learners are above the age of 18. The ancillary witnesses shall be named B & C, so as not to identify the learners.
4. Parties were afforded the opportunity to submit their written closing arguments by no later than, 23 September 2021. Hence, being the last date of the Arbitration.
5. The submission of the extension of the award was extended by 7 days, by Council.
THE CHARGES TO BE DECIDED:
6. I am to decide whether the employee, is indeed guilty of the following:
Charge 1
You have contravened Section 18 (1) (q) of the Employment of Educators Act 76 of 1998, in that on 05 March 2021, you conducted yourself in an improper or disgraceful manner when you touched the breasts of grade 12 learner Ms X.
Alternative to Charge 1
You have contravened Section 18 (1) (f) of the Employment of Educators Act, Act No 76 of 1998, in that on 05 March 2020, you unjustifiably prejudiced the administration and discipline of the Department of Education when you touched the breasts of grade 12 learner Ms. X.
Charge 2
You have contravened Section 18 (1) (q) of the Employment of Educators Act 76 of 1998, in that on or about December 2019 you conducted yourself in an improper or disgraceful manner when you kissed a grade 12 learner Ms. Y
Alternative to Charge 2
You have contravened section 18 (1) (f) of the Employment of Educators Act, Act No 76 of 1998, in that on or about December 2019, you unjustifiably prejudiced the administration and discipline of the Department of Education when you kissed a grade 12 learner Ms. Y
PLEA
7. The employee pleaded not guilty to both the Charges.
BACKGROUND
8. The employee is an office based educator and was charged in May 2021, as per the above allegations.
9. He was charged in terms of Sections 18 of the Employment of Educators Act no.78, of 1998 (the EEA). He was charged for having committed the above sexual misconduct on two learners.
10. The employee is still employed as an office based educator.
11. The matter was referred to Council by the employer, in terms of Collective Agreement 3 of 2018; read with Section 188A, of the Act, an Inquiry by Arbitrator.
12. At the previous occasion of the arbitration, the employee raised a preliminary issue. The issue was considered and a ruling was issued.
13. Herewith, brief reasons for my decision, in terms of Section 138 (7) of the Act. Should any of the argument not be reflected hereunder, then, it does not mean that it was not considered.
SURVEY AND ANALYSIS OF EVIDENCE AND ARGUMENTS
14. At the onset, I am inclined to indicate that the charges, though they were brought in terms of Section 18, are intertwined with acts of sexual misconduct provided for in terms of Section 17 of the EEA.
Charge 1
15. The respondent’s witness, Ms. X testified on her own behalf, that her class teacher had informed her that Mr. Leeuw would fetch her to go to the social worker, as Mr. Leeuw was going to assist her with her identity document. The educator picked the learner up and informed her that he did not know where the social worker was based. Instead of taking a right turn on the way, the educator turned left. When she enquired where they were going, he did not answer. The educator drove to a veld and stopped his vehicle, got out and approached the passenger’s side of the vehicle, and asked her to get off, when she did, he pulled her towards him, opened the back door and told her to get in. He went around the other side, locked the doors and touched her breasts and thighs. She told him that she was not comfortable. Mr. Leeuw got out of the car, drove off and said that she was behaving like a child. He then proceeded to the social worker. He told her that the next time she should behave like an adult. The educator had driven a departmental motor vehicle.
16. At cross-examination, the educator’s representative made an issue of the date that the learner insisted that the incident happened. Ms. Y was insistent that the incident had occurred on 5 March 2020, as there was a SADTU meeting and teachers were allowed off early to attend that meeting. I find this a credible response as she had explained how she had remembered the date of the incident. Indeed, the employee did not dispute that there was no SADTU meeting on, 5 March 2020. Indeed, Mr. Leeuw had collected her from school to take her off to the social worker. Indeed, it is plausible that she would not have known if the educator had taken her to the same area as Ms. Y who had made similar allegations in the following charge.
17. Ms. X had informed her friend Ms. B. Indeed, Mr. Leeuw was supposed to take her to the Weppenaar office of the social worker. He took her to the social worker and left her there. Obviously, Ms X had not informed the social worker of the incident as it was uncomfortable for the learner. Indeed, the learner must have been in shock. It is not something that often is relayed to another person that is unknown to the victim. In fact she testified that she was in shock.
18. There is no reason for me not to believe the social worker. The learner was consistent in her testimony and nothing new had come off the cross-examination to suggest that the learner’s version was contradictory or a fabrication.
19. Ms. B confirmed the testimony of the learner, her friend. Ms. B had seen that the educator turned left instead of right, towards the social worker, since Ms. X had asked Ms. B to look out for Mr. Leeuw’s arrival at school. She confirmed that the educator was driving a departmental vehicle; that teachers had left early to attend a SADTU meeting.
20. Moreover, she confirmed that when they returned and drove past, towards the social worker, Ms. X was seated in the back. This testimony remained unchallenged and therefore must be accepted. When Ms. X had initially left the school with the educator, she sat at the front passenger seat. She relayed the version that Ms. X had testified to about the incident. There was no material difference except that Ms. X had had her school bag on her lap, which in my opinion is not material.
21. At cross-examination, Ms. B denied that either one turned right or left, it would be towards the direction of the social worker. After the incident was reported, Mr. Leeuw stopped giving extra lessons until August of that year.
22. I am persuaded towards the testimony of Ms. B since she had indeed seen the motor vehicle leave in the opposite direction with Ms. X in the front passenger seat and return with Ms. X in the back seat. She was consistent in her testimony and had no reason to lie. It was also not disputed that Ms. B had seen the educator and Ms X leave from school and return from the direction that was initially taken.
23. Mr. Leeuw testified on his own behalf that he was not in Weppenaar on 5 March 2020, but that it was 4 March 2020. The only testimony of Ms X and B that was disputed by the applicant was that they had known that it was 5 March 2020. They both testified that teachers had left early on the date of the SADTU meeting. It was not disputed that there was no SADTU meeting. Therefore I accept the testimony of Ms. X and Ms. B.
24. He further testified that there was an agreement between himself and Ms. X’s boyfriend that whenever they went for the identity document, the boyfriend would come along. He testified that they went to fetch him; phoned him and looked for him but could not be found. This version was not put to Ms. X. Therefore it must not be accepted. He testified that he introduced the learner to at the social worker, and went away. He phoned the boyfriend and informed him that he had left Ms. X there. Again this version was not put to Ms. X. Moreover, Ms. X testified that he had just left her at the building and had not introduced her to the social worker. Again a version which was not put to Ms. X and therefore cannot be accepted.
25. The cross-examination is covered above. Indeed Mr. Leeuw denied he took Ms. X to the veld. He could not explain why the learners would fabricate versions against him. Indeed, he would not be explain probable and consistent versions that are purportedly true. In the absence of any reason for these learners to fabricate their versions, these versions can only be true.
26. I am persuaded by the versions of Ms. X and Ms. B over that of the employee,
Charge 2
27. The respondent’s witness, Ms. Y testified on her own behalf that Mr. Leeuw, the Accounting subject advisor offered to lend her a text book since five of her peers were using tone text book. He asked the learner to meet him at the FNB branch in Weppenaar. When she arrived at the FNB, the educator insisted that he get her some snacks. He bought her some snacks and asked her to climb into his motor vehicle. She climbed into the back passenger seat and the Mr. Leeuw drove to the veld between the police station and the bridge. There was only a person tending to livestock that could be seen. The educator got out of the car and went to relieve himself. He then got into the back seat and engaged in a conversation with Ms. Y as he moved closer to her. He touched her thighs and kissed her mouth and told her to go with the flow.
28. The learner resisted and the educator drove back to FNB. He was angry, and when he got back to the FNB, he asked the learner angrily whether they could go back. Since the educator was so enraged, she agreed and the same the educator repeated the same sequence of events he had done at the back seat of the car. Again she resisted and told him she was uncomfortable. The educator again drove back to FNB, dropped off the learner with the snacks and the books and sped off. Indeed, it is strange that the learner had agreed to back, but her testimony was that the educator was very angry so she did not say no. The applicant drove a grey VW.
29. At cross-examination, it emerged that the educator used to text her and call her prior to the incident. She did not think that he was a bad person when he asked her to get into his car. She confirmed all her testimony that she had related in her examination in chief. She did not tell anyone about the incident. It was after months that she had told her friend, Ms. D. After the incident she travelled with other learners to Zastron with the educator for a learning camp. She stuck to her version that she returned to the veld because the educator was angry. She insisted that the incident occurred on, 16 December 2019. On the 17 & 18 December she drove to the camp in a state vehicle. When interrogated about the motor vehicle, she stated that how else would she, have known the grey motor vehicle. I accept the testimony in this regard, in respect of the type and colour of the motor vehicle. Therefore, it must have been the educator’s personal car. She asserted that the educator had probably got her number from her call teacher. I am of the opinion that, as the learner and her colleagues’ was going to travel with the educator he must have been able to procure their numbers for travel arrangements. It emerged that the educator had initiated the texting to the Ms. Y. Nothing further was established from her cross-examination.
30. Ms. D confirmed the testimony of Ms. Y, in detail, and the victim’s version was corroborated. She confirmed that when the incident of Ms. X in charge 1, came to light, then is when Ms. Y told her of her experience with the same educator. The only contradiction that emerged which in my opinion is not material is that on the day of the incident the educator drove a state vehicle whilst Ms. Y insisted that it was a grey VW. Otherwise her version was detailed and consistent with that of Ms. Y’s.
31. Ms. D testified that on their ride to Zastron, the educator was not “harmonious” with Ms. Y who sat in the front seat next to him. They opted that she sit in front because she was bigger in size than her three colleagues who had sat at the back.
32. At cross-examination, indeed Ms. D had not witnessed the incident but indeed it was directly related to her by Ms. Y. There was no conversation between Ms. Y and the educator on their way to Zastron and back. The educator was not courteous to neither of the occupants in the car. He drove recklessly and drove over potholes.
33. Mr. Leeuw testified on his own behalf and again disputed the date when he had met Ms. Y at the FNB. He insisted that it was, 17 December 2019 and not, 16 December 2019, as he would not have been able to use the state vehicle on a holiday. The version in respect of the which car the employee drove was not put to Ms. Y. The applicant would not have been able to use a state vehicle during a holiday, explains that Ms. Y’s testimony that the employee drove a private vehicle is plausible.
34. Mr. Leeuw introduced a new version, which was not disputed with any of the employer’s witnesses nor was their testimony challenged. He suggested that he had fisrt picked up Ms. Y, gave her the book and then picked the three learners at school. Since this version was not put to Ms. D or Ms. Y, I am not inclined to accept this version. He denied that he travelled with Ms. Y alone or had committed any sexual act with her. He could not explain why the learners would fabricate these detailed versions. He nonetheless suggested that two other educators whom he had a bad relationship with had probably instigated this. This version is hardly likely and maybe borders on a ridiculous suggestion. It is not believable.
35. At cross-examination, he insisted that he had not been in Weppenaar on the 16 December 2019. He denied that he used his private motor vehicle. He also denied giving the learner any snacks. He could not explain the learner’s allegation. Nothing further emerged from cross-examination.
36. For the above brief but compelling reasons it would suggest to any person that the employer’s version has more credible than the employee.
37. I find the employee guilty of the charge.
SANCTION
38. Section 18 Misconduct provides as follows:
(1) Misconduct refers to a breakdown in the employment relationship and an educator commits misconduct if he or she –
(a) fails to comply with or contravenes this Act or any other statute, regulation or legal obligation relating to education and the employment relationship;
(b) wilfully or negligently mismanages the finances of the State, a school, a further education and training institution or an adult learning centre;
(c) without permission possesses or wrongfully uses the property of the State, a school, a further education and training institution, an adult learning centre, another employee or a visitor;
(d) wilfully, intentionally or negligently damages or causes loss to the property of the State, a school, a further education and training institution or an adult learning centre;
(e) in the course of duty endangers the lives of himself or herself or others by disregarding set safety rules or regulations;
(f) unjustifiably prejudices the administration, discipline or efficiency of the Department of Education, an office of the State or a school, further education and training institution or adult learning centre;
(g) misuses his or her position in the Department of Education or a school, further education and training institution or adult learning centre to promote or to prejudice the interests of any person;
(h) accepts any compensation in cash or otherwise from a member of the public or another employee for performing his or her duties without written approval from the employer;
(i) fails to carry out a lawful order or routine instruction without just or reasonable cause;
(j) absents himself or herself from work without a valid reason or permission;
(k) unfairly discriminates against other persons on the basis of race, gender, disability, sex, pregnancy, marital status, ethnic and social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language, birth, family responsibility, HIV status, political opinion or other grounds prohibited by the Constitution;
(l) performs poorly or inadequately for reasons other than incapacity;
(m) without the written approval of the employer, performs work for compensation for another person or organisation either during or outside working hours;
(n) without prior permission of the employer accepts or demands in respect of the carrying out of or the failure to carry out the educator’s duties, any commission, fee, pecuniary or other reward to which the educator is not entitled by virtue of the educator’s office, or fails to report to the employer the offer of any such commission, fee or reward;
(o) without authorisation, sleeps on duty;
(p) while on duty, is under the influence of an intoxicating, illegal, unauthorised or stupefying substance, including alcohol;
(q) while on duty, conducts himself or herself in an improper, disgraceful or unacceptable manner;
(r) assaults, or attempts to or threatens to assault, another employee or another person;
(s) incites other personnel to unprocedural and unlawful conduct;
(t) displays disrespect towards others in the work-place or demonstrates abusive or insolent behaviour;
(u) intimidates or victimises fellow employees, learners or students;
(v) prevents other employees from exercising their rights to freely associate with trade unions in terms of any labour legislation;
(w) operates any money-lending scheme for employees for his or her own benefit during working hours or from the premises of the educational institution or office where he or she is employed;
(x) carries or keeps firearms or other dangerous weapons on State premises, without the written authorisation of the employer;
(y) refuses to obey security regulations;
(z) gives false statements or evidence in the execution of his or her duties;
(aa) falsifies records or any other documentation;
(bb) participates in unprocedural, unprotected or unlawful industrial action;
(cc) fails or refuses to –
(i) follow a formal programme of counselling as contemplated in item 2(4) of Schedule 1;
(ii) subject himself or herself to a medical examination as contemplated in item 3(3) of Schedule 1 and in accordance with section 7 of the Employment Equity Act, 1998 (Act No. 55 of 1998); or
(iii) attend rehabilitation or follow a formal rehabilitation programme as contemplated in item 3(8) of Schedule 1;
(dd) commits a common law or statutory offence;
(ee) commits an act of dishonesty; or
(ff) victimises an employee for, amongst others, his or her association with a trade union.
(2) If it is alleged that an educator committed misconduct as contemplated in subsection (1), the employer must institute disciplinary proceedings in accordance with the disciplinary code and procedures contained in Schedule 2.
(3) If, after having followed the procedures contemplated in subsection (2), a finding is made that the educator committed misconduct as contemplated in subsection (1), the employer may, in accordance with the disciplinary code and procedures contained in Schedule 2, impose a sanction of –
(a) counselling;
(b) a verbal warning;
(c) a written warning;
(d) a final written warning;
(e) a fine not exceeding one month’s salary;
(f) suspension without pay for a period not exceeding three months;
(g) demotion;
(h) a combination of the sanctions referred to in paragraphs (a) to (f); or
(i) dismissal, if the nature or extent of the misconduct warrants dismissal.
(4) Any sanction contemplated in subsection (3)(e), (f) or (g) may be suspended for a specified period on conditions determined by the employer.
(5) An educator may be dismissed if he or she is found guilty of –
(a) dishonesty, as contemplated in subsection (1)(ee);
(b) victimising an employee for, amongst others, his or her association with a trade union, as contemplated in subsection (1)(ff);
(c) unfair discrimination, as contemplated in subsection (1)(k);
(d) rape, as contemplated in subsection (1) (dd);
(e) murder, as contemplated in subsection (1) (dd);
(f) contravening section 10 of the South African Schools Act, 1996 (Act No. 84 of 1996), as contemplated in subsection (1) (dd).
39. I am of the opinion that the charges brought against the educator falls squarely in terms of Section 17 of the EEA, which provides:
Serious misconduct
17. (1) An educator must be dismissed if he or she is found guilty of –
(a) theft, bribery, fraud or an act of corruption in regard to examinations or promotional reports;
(b) committing an act of sexual assault on a learner, student or other employee;
(c) having a sexual relationship with a learner of the school where he or she is employed;
(d) seriously assaulting, with the intention to cause grievous bodily harm to, a learner, student or other employee;
(e) illegal possession of an intoxicating, illegal or stupefying substance; or
(f) causing a learner or a student to perform any of the acts contemplated in paragraphs (a) to (e).
(2) If it is alleged that an educator committed a serious misconduct contemplated in subsection (1), the employer must institute disciplinary proceedings in accordance with the disciplinary code and procedures provided for in Schedule 2.
33. In EOH ABANTU (PTY) LTD v CCMA (LAC) 2019 (JA4/18) [2019] ZALAC 57 it was held: An accused employee can be convicted of a competent verdict not mentioned in the charge sheet For example the charge sheet only mentioned dishonesty which was not proved, but the employee can still be convicted of gross negligence if this was proved (even though negligence was not mentioned in charge sheet) Only where the accused employee would be prejudiced as a result of a conviction on a different charge than mentioned in the charge sheet, would it be unfair to convict him. The test for prejudice in the circumstances is whether the employee would have conducted his defence differently had he known of the possibility of a ‘competent verdict’ to the charges.
34. I am of the opinion that the same principle applies in the present instance. The applicant is
guilty of sexual assault/misconduct and the employer has proved same in terms of Section 17
of the EEA. I do not believe that the employee would have conducted his defence differently
had he known of the possibility of a competent verdict of the charges.
35. In light of the above I must apply the sanction of dismissal which is mandatory as per Section
17.
AWARD
35. The employee is found guilty of both Charges, 1 & 2.
36. Dismissal of the employee is an appropriate sanction.
Signed at Kimberley on this 10 day of October 2021
ELRC PANELLIST
SHIRAZ MAHOMED OSMAN
Date of award: 10 OCTOBER 2021
In the arbitration between:
Mr. A LEEUW Employee party
and
Department of Education – Free State Employer party
DETAILS OF HEARING AND REPRESENTATION
1. The present dispute between Mr. A Leeuw (hereinafter referred to as the employee) and The Department of Education-Free State (hereinafter referred to as the employer) was referred to, Inquiry by Arbitrator in terms of Section 188A of the Labour Relations Act no.66 of 1995, as amended (the Act); read with Collective Agreement 3 of 2018. At the Inquiry by Arbitrator hearing, which was held at the Boardroom of the employer, in Bloemfontein, on, 16 September 2021, the employee was represented by Mr. M Frans, of SADTU, a trade union and the employer was represented by Ms. L Cweba.
2. The employee was charged in terms of Section 18 of the Employment of Educators Act no 76 of 1998 (hereinafter referred to as the EEA).
3. For the purposes of this award, the affected learners shall not be identified by name, but shall be referred to, as Ms. X (Charge 1) & Ms. Y (Charge 2) though, both the learners are above the age of 18. The ancillary witnesses shall be named B & C, so as not to identify the learners.
4. Parties were afforded the opportunity to submit their written closing arguments by no later than, 23 September 2021. Hence, being the last date of the Arbitration.
5. The submission of the extension of the award was extended by 7 days, by Council.
THE CHARGES TO BE DECIDED:
6. I am to decide whether the employee, is indeed guilty of the following:
Charge 1
You have contravened Section 18 (1) (q) of the Employment of Educators Act 76 of 1998, in that on 05 March 2021, you conducted yourself in an improper or disgraceful manner when you touched the breasts of grade 12 learner Ms X.
Alternative to Charge 1
You have contravened Section 18 (1) (f) of the Employment of Educators Act, Act No 76 of 1998, in that on 05 March 2020, you unjustifiably prejudiced the administration and discipline of the Department of Education when you touched the breasts of grade 12 learner Ms. X.
Charge 2
You have contravened Section 18 (1) (q) of the Employment of Educators Act 76 of 1998, in that on or about December 2019 you conducted yourself in an improper or disgraceful manner when you kissed a grade 12 learner Ms. Y
Alternative to Charge 2
You have contravened section 18 (1) (f) of the Employment of Educators Act, Act No 76 of 1998, in that on or about December 2019, you unjustifiably prejudiced the administration and discipline of the Department of Education when you kissed a grade 12 learner Ms. Y
PLEA
7. The employee pleaded not guilty to both the Charges.
BACKGROUND
8. The employee is an office based educator and was charged in May 2021, as per the above allegations.
9. He was charged in terms of Sections 18 of the Employment of Educators Act no.78, of 1998 (the EEA). He was charged for having committed the above sexual misconduct on two learners.
10. The employee is still employed as an office based educator.
11. The matter was referred to Council by the employer, in terms of Collective Agreement 3 of 2018; read with Section 188A, of the Act, an Inquiry by Arbitrator.
12. At the previous occasion of the arbitration, the employee raised a preliminary issue. The issue was considered and a ruling was issued.
13. Herewith, brief reasons for my decision, in terms of Section 138 (7) of the Act. Should any of the argument not be reflected hereunder, then, it does not mean that it was not considered.
SURVEY AND ANALYSIS OF EVIDENCE AND ARGUMENTS
14. At the onset, I am inclined to indicate that the charges, though they were brought in terms of Section 18, are intertwined with acts of sexual misconduct provided for in terms of Section 17 of the EEA.
Charge 1
15. The respondent’s witness, Ms. X testified on her own behalf, that her class teacher had informed her that Mr. Leeuw would fetch her to go to the social worker, as Mr. Leeuw was going to assist her with her identity document. The educator picked the learner up and informed her that he did not know where the social worker was based. Instead of taking a right turn on the way, the educator turned left. When she enquired where they were going, he did not answer. The educator drove to a veld and stopped his vehicle, got out and approached the passenger’s side of the vehicle, and asked her to get off, when she did, he pulled her towards him, opened the back door and told her to get in. He went around the other side, locked the doors and touched her breasts and thighs. She told him that she was not comfortable. Mr. Leeuw got out of the car, drove off and said that she was behaving like a child. He then proceeded to the social worker. He told her that the next time she should behave like an adult. The educator had driven a departmental motor vehicle.
16. At cross-examination, the educator’s representative made an issue of the date that the learner insisted that the incident happened. Ms. Y was insistent that the incident had occurred on 5 March 2020, as there was a SADTU meeting and teachers were allowed off early to attend that meeting. I find this a credible response as she had explained how she had remembered the date of the incident. Indeed, the employee did not dispute that there was no SADTU meeting on, 5 March 2020. Indeed, Mr. Leeuw had collected her from school to take her off to the social worker. Indeed, it is plausible that she would not have known if the educator had taken her to the same area as Ms. Y who had made similar allegations in the following charge.
17. Ms. X had informed her friend Ms. B. Indeed, Mr. Leeuw was supposed to take her to the Weppenaar office of the social worker. He took her to the social worker and left her there. Obviously, Ms X had not informed the social worker of the incident as it was uncomfortable for the learner. Indeed, the learner must have been in shock. It is not something that often is relayed to another person that is unknown to the victim. In fact she testified that she was in shock.
18. There is no reason for me not to believe the social worker. The learner was consistent in her testimony and nothing new had come off the cross-examination to suggest that the learner’s version was contradictory or a fabrication.
19. Ms. B confirmed the testimony of the learner, her friend. Ms. B had seen that the educator turned left instead of right, towards the social worker, since Ms. X had asked Ms. B to look out for Mr. Leeuw’s arrival at school. She confirmed that the educator was driving a departmental vehicle; that teachers had left early to attend a SADTU meeting.
20. Moreover, she confirmed that when they returned and drove past, towards the social worker, Ms. X was seated in the back. This testimony remained unchallenged and therefore must be accepted. When Ms. X had initially left the school with the educator, she sat at the front passenger seat. She relayed the version that Ms. X had testified to about the incident. There was no material difference except that Ms. X had had her school bag on her lap, which in my opinion is not material.
21. At cross-examination, Ms. B denied that either one turned right or left, it would be towards the direction of the social worker. After the incident was reported, Mr. Leeuw stopped giving extra lessons until August of that year.
22. I am persuaded towards the testimony of Ms. B since she had indeed seen the motor vehicle leave in the opposite direction with Ms. X in the front passenger seat and return with Ms. X in the back seat. She was consistent in her testimony and had no reason to lie. It was also not disputed that Ms. B had seen the educator and Ms X leave from school and return from the direction that was initially taken.
23. Mr. Leeuw testified on his own behalf that he was not in Weppenaar on 5 March 2020, but that it was 4 March 2020. The only testimony of Ms X and B that was disputed by the applicant was that they had known that it was 5 March 2020. They both testified that teachers had left early on the date of the SADTU meeting. It was not disputed that there was no SADTU meeting. Therefore I accept the testimony of Ms. X and Ms. B.
24. He further testified that there was an agreement between himself and Ms. X’s boyfriend that whenever they went for the identity document, the boyfriend would come along. He testified that they went to fetch him; phoned him and looked for him but could not be found. This version was not put to Ms. X. Therefore it must not be accepted. He testified that he introduced the learner to at the social worker, and went away. He phoned the boyfriend and informed him that he had left Ms. X there. Again this version was not put to Ms. X. Moreover, Ms. X testified that he had just left her at the building and had not introduced her to the social worker. Again a version which was not put to Ms. X and therefore cannot be accepted.
25. The cross-examination is covered above. Indeed Mr. Leeuw denied he took Ms. X to the veld. He could not explain why the learners would fabricate versions against him. Indeed, he would not be explain probable and consistent versions that are purportedly true. In the absence of any reason for these learners to fabricate their versions, these versions can only be true.
26. I am persuaded by the versions of Ms. X and Ms. B over that of the employee,
Charge 2
27. The respondent’s witness, Ms. Y testified on her own behalf that Mr. Leeuw, the Accounting subject advisor offered to lend her a text book since five of her peers were using tone text book. He asked the learner to meet him at the FNB branch in Weppenaar. When she arrived at the FNB, the educator insisted that he get her some snacks. He bought her some snacks and asked her to climb into his motor vehicle. She climbed into the back passenger seat and the Mr. Leeuw drove to the veld between the police station and the bridge. There was only a person tending to livestock that could be seen. The educator got out of the car and went to relieve himself. He then got into the back seat and engaged in a conversation with Ms. Y as he moved closer to her. He touched her thighs and kissed her mouth and told her to go with the flow.
28. The learner resisted and the educator drove back to FNB. He was angry, and when he got back to the FNB, he asked the learner angrily whether they could go back. Since the educator was so enraged, she agreed and the same the educator repeated the same sequence of events he had done at the back seat of the car. Again she resisted and told him she was uncomfortable. The educator again drove back to FNB, dropped off the learner with the snacks and the books and sped off. Indeed, it is strange that the learner had agreed to back, but her testimony was that the educator was very angry so she did not say no. The applicant drove a grey VW.
29. At cross-examination, it emerged that the educator used to text her and call her prior to the incident. She did not think that he was a bad person when he asked her to get into his car. She confirmed all her testimony that she had related in her examination in chief. She did not tell anyone about the incident. It was after months that she had told her friend, Ms. D. After the incident she travelled with other learners to Zastron with the educator for a learning camp. She stuck to her version that she returned to the veld because the educator was angry. She insisted that the incident occurred on, 16 December 2019. On the 17 & 18 December she drove to the camp in a state vehicle. When interrogated about the motor vehicle, she stated that how else would she, have known the grey motor vehicle. I accept the testimony in this regard, in respect of the type and colour of the motor vehicle. Therefore, it must have been the educator’s personal car. She asserted that the educator had probably got her number from her call teacher. I am of the opinion that, as the learner and her colleagues’ was going to travel with the educator he must have been able to procure their numbers for travel arrangements. It emerged that the educator had initiated the texting to the Ms. Y. Nothing further was established from her cross-examination.
30. Ms. D confirmed the testimony of Ms. Y, in detail, and the victim’s version was corroborated. She confirmed that when the incident of Ms. X in charge 1, came to light, then is when Ms. Y told her of her experience with the same educator. The only contradiction that emerged which in my opinion is not material is that on the day of the incident the educator drove a state vehicle whilst Ms. Y insisted that it was a grey VW. Otherwise her version was detailed and consistent with that of Ms. Y’s.
31. Ms. D testified that on their ride to Zastron, the educator was not “harmonious” with Ms. Y who sat in the front seat next to him. They opted that she sit in front because she was bigger in size than her three colleagues who had sat at the back.
32. At cross-examination, indeed Ms. D had not witnessed the incident but indeed it was directly related to her by Ms. Y. There was no conversation between Ms. Y and the educator on their way to Zastron and back. The educator was not courteous to neither of the occupants in the car. He drove recklessly and drove over potholes.
33. Mr. Leeuw testified on his own behalf and again disputed the date when he had met Ms. Y at the FNB. He insisted that it was, 17 December 2019 and not, 16 December 2019, as he would not have been able to use the state vehicle on a holiday. The version in respect of the which car the employee drove was not put to Ms. Y. The applicant would not have been able to use a state vehicle during a holiday, explains that Ms. Y’s testimony that the employee drove a private vehicle is plausible.
34. Mr. Leeuw introduced a new version, which was not disputed with any of the employer’s witnesses nor was their testimony challenged. He suggested that he had fisrt picked up Ms. Y, gave her the book and then picked the three learners at school. Since this version was not put to Ms. D or Ms. Y, I am not inclined to accept this version. He denied that he travelled with Ms. Y alone or had committed any sexual act with her. He could not explain why the learners would fabricate these detailed versions. He nonetheless suggested that two other educators whom he had a bad relationship with had probably instigated this. This version is hardly likely and maybe borders on a ridiculous suggestion. It is not believable.
35. At cross-examination, he insisted that he had not been in Weppenaar on the 16 December 2019. He denied that he used his private motor vehicle. He also denied giving the learner any snacks. He could not explain the learner’s allegation. Nothing further emerged from cross-examination.
36. For the above brief but compelling reasons it would suggest to any person that the employer’s version has more credible than the employee.
37. I find the employee guilty of the charge.
SANCTION
38. Section 18 Misconduct provides as follows:
(1) Misconduct refers to a breakdown in the employment relationship and an educator commits misconduct if he or she –
(a) fails to comply with or contravenes this Act or any other statute, regulation or legal obligation relating to education and the employment relationship;
(b) wilfully or negligently mismanages the finances of the State, a school, a further education and training institution or an adult learning centre;
(c) without permission possesses or wrongfully uses the property of the State, a school, a further education and training institution, an adult learning centre, another employee or a visitor;
(d) wilfully, intentionally or negligently damages or causes loss to the property of the State, a school, a further education and training institution or an adult learning centre;
(e) in the course of duty endangers the lives of himself or herself or others by disregarding set safety rules or regulations;
(f) unjustifiably prejudices the administration, discipline or efficiency of the Department of Education, an office of the State or a school, further education and training institution or adult learning centre;
(g) misuses his or her position in the Department of Education or a school, further education and training institution or adult learning centre to promote or to prejudice the interests of any person;
(h) accepts any compensation in cash or otherwise from a member of the public or another employee for performing his or her duties without written approval from the employer;
(i) fails to carry out a lawful order or routine instruction without just or reasonable cause;
(j) absents himself or herself from work without a valid reason or permission;
(k) unfairly discriminates against other persons on the basis of race, gender, disability, sex, pregnancy, marital status, ethnic and social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language, birth, family responsibility, HIV status, political opinion or other grounds prohibited by the Constitution;
(l) performs poorly or inadequately for reasons other than incapacity;
(m) without the written approval of the employer, performs work for compensation for another person or organisation either during or outside working hours;
(n) without prior permission of the employer accepts or demands in respect of the carrying out of or the failure to carry out the educator’s duties, any commission, fee, pecuniary or other reward to which the educator is not entitled by virtue of the educator’s office, or fails to report to the employer the offer of any such commission, fee or reward;
(o) without authorisation, sleeps on duty;
(p) while on duty, is under the influence of an intoxicating, illegal, unauthorised or stupefying substance, including alcohol;
(q) while on duty, conducts himself or herself in an improper, disgraceful or unacceptable manner;
(r) assaults, or attempts to or threatens to assault, another employee or another person;
(s) incites other personnel to unprocedural and unlawful conduct;
(t) displays disrespect towards others in the work-place or demonstrates abusive or insolent behaviour;
(u) intimidates or victimises fellow employees, learners or students;
(v) prevents other employees from exercising their rights to freely associate with trade unions in terms of any labour legislation;
(w) operates any money-lending scheme for employees for his or her own benefit during working hours or from the premises of the educational institution or office where he or she is employed;
(x) carries or keeps firearms or other dangerous weapons on State premises, without the written authorisation of the employer;
(y) refuses to obey security regulations;
(z) gives false statements or evidence in the execution of his or her duties;
(aa) falsifies records or any other documentation;
(bb) participates in unprocedural, unprotected or unlawful industrial action;
(cc) fails or refuses to –
(i) follow a formal programme of counselling as contemplated in item 2(4) of Schedule 1;
(ii) subject himself or herself to a medical examination as contemplated in item 3(3) of Schedule 1 and in accordance with section 7 of the Employment Equity Act, 1998 (Act No. 55 of 1998); or
(iii) attend rehabilitation or follow a formal rehabilitation programme as contemplated in item 3(8) of Schedule 1;
(dd) commits a common law or statutory offence;
(ee) commits an act of dishonesty; or
(ff) victimises an employee for, amongst others, his or her association with a trade union.
(2) If it is alleged that an educator committed misconduct as contemplated in subsection (1), the employer must institute disciplinary proceedings in accordance with the disciplinary code and procedures contained in Schedule 2.
(3) If, after having followed the procedures contemplated in subsection (2), a finding is made that the educator committed misconduct as contemplated in subsection (1), the employer may, in accordance with the disciplinary code and procedures contained in Schedule 2, impose a sanction of –
(a) counselling;
(b) a verbal warning;
(c) a written warning;
(d) a final written warning;
(e) a fine not exceeding one month’s salary;
(f) suspension without pay for a period not exceeding three months;
(g) demotion;
(h) a combination of the sanctions referred to in paragraphs (a) to (f); or
(i) dismissal, if the nature or extent of the misconduct warrants dismissal.
(4) Any sanction contemplated in subsection (3)(e), (f) or (g) may be suspended for a specified period on conditions determined by the employer.
(5) An educator may be dismissed if he or she is found guilty of –
(a) dishonesty, as contemplated in subsection (1)(ee);
(b) victimising an employee for, amongst others, his or her association with a trade union, as contemplated in subsection (1)(ff);
(c) unfair discrimination, as contemplated in subsection (1)(k);
(d) rape, as contemplated in subsection (1) (dd);
(e) murder, as contemplated in subsection (1) (dd);
(f) contravening section 10 of the South African Schools Act, 1996 (Act No. 84 of 1996), as contemplated in subsection (1) (dd).
39. I am of the opinion that the charges brought against the educator falls squarely in terms of Section 17 of the EEA, which provides:
Serious misconduct
17. (1) An educator must be dismissed if he or she is found guilty of –
(a) theft, bribery, fraud or an act of corruption in regard to examinations or promotional reports;
(b) committing an act of sexual assault on a learner, student or other employee;
(c) having a sexual relationship with a learner of the school where he or she is employed;
(d) seriously assaulting, with the intention to cause grievous bodily harm to, a learner, student or other employee;
(e) illegal possession of an intoxicating, illegal or stupefying substance; or
(f) causing a learner or a student to perform any of the acts contemplated in paragraphs (a) to (e).
(2) If it is alleged that an educator committed a serious misconduct contemplated in subsection (1), the employer must institute disciplinary proceedings in accordance with the disciplinary code and procedures provided for in Schedule 2.
33. In EOH ABANTU (PTY) LTD v CCMA (LAC) 2019 (JA4/18) [2019] ZALAC 57 it was held: An accused employee can be convicted of a competent verdict not mentioned in the charge sheet For example the charge sheet only mentioned dishonesty which was not proved, but the employee can still be convicted of gross negligence if this was proved (even though negligence was not mentioned in charge sheet) Only where the accused employee would be prejudiced as a result of a conviction on a different charge than mentioned in the charge sheet, would it be unfair to convict him. The test for prejudice in the circumstances is whether the employee would have conducted his defence differently had he known of the possibility of a ‘competent verdict’ to the charges.
34. I am of the opinion that the same principle applies in the present instance. The applicant is
guilty of sexual assault/misconduct and the employer has proved same in terms of Section 17
of the EEA. I do not believe that the employee would have conducted his defence differently
had he known of the possibility of a competent verdict of the charges.
35. In light of the above I must apply the sanction of dismissal which is mandatory as per Section
17.
AWARD
35. The employee is found guilty of both Charges, 1 & 2.
36. Dismissal of the employee is an appropriate sanction.
Signed at Kimberley on this 10 day of October 2021
ELRC PANELLIST
SHIRAZ MAHOMED OSMAN