ELRC644-20/21 EC
Text
ELRC305-19/20FS
Award Date:
28 February 2022
Panellist: Khuduga Tlale
Case Reference No.: ELRC305-19/20FS
Date of award: 28 February 2022
In the matter between:
Department of Education – Free State Applicant
And
MA Fokwebe Respondent
¬¬¬¬
ARBITRATION AWARD
Details of hearing and representation
1. This matter was set down as an inquiry by arbitrator in terms of section 188A of the Labour
Relations Act 66 of 1995 as amended (“the LRA”) between Department of Education – Free
State (“Employer”) and Mr. MA Fokwebe (“Educator”) in Bloemfontein on 21 February 2022. Mr.
MA Mokoena, Deputy-Director: Labour Relations represented the Employer and, the Educator
appeared in person and Ms. MM Mololo, SADTU full-time shop steward, represented him.
2. This proceeding was manually and digitally recorded. The Employer did submit a bundle of documents which was used as a common bundle.
3. In all matters in which an Employer wants to take disciplinary action against an Educator for an alleged sexual misconduct towards any learner, an inquiry by an arbitrator, as intended by section 188A of the LRA, and clause 32 of the Dispute Resolution Procedures of the Education Labour Relations Council (“ELRC”), shall be mandatory. In this regard, I have noted section 3.3.1 of Collective Agreement 3 of 2018 of the ELRC.
Issue to be decided
4. I have to decide whether an Educator committed misconduct as per the allegation levelled against him. If I find that he did commit the misconduct, I have to decide on an appropriate sanction.
Background to the dispute
5. The Educator is currently employed as an educator at Welkom Secondary School. The Educator acknowledged receiving the notice of allegations well in advance of the proceeding on 21 February 2022 and he confirmed that he had adequate time to prepare for the proceeding. I explained to the Educator his rights during the proceeding and he confirmed on record that he was comfortable to be represented by Ms. MM Mololo. The Council appointed Mr. L Mpitse as an interpreter and Ms. MA Mphatane as an intermediary.
6. The allegation levelled against the Educator is as follows: Charge one- “You have contravened section 17(1)(b) of the Employment of Educators Act 76 of 1998 (“EEA”) in that on 07 November 2018, you committed an act of sexual assault to a learner when you hugged the learner, grabbed her hardly and kissed with open mouth twice on her lips at Welkom High School”. The alternative charge is as follows: “You contravened section 18(1)(q) of the EEA, in that during 07 November 2018, while on duty, you conducted yourself in an improper, disgraceful or unacceptable manner, when you hugged the learner, grabbed her hardly and kissed with open mouth twice on her lips at Welkom High School”. For the purpose of this award, the name of the learner will be kept confidential and the learner will simply be referred to as “the learner”.
7. It is important to note that the Employer representative withdrew the main charge against the Educator. The allegation against the Educator was for contravening section 18(1)(q) of the EEA, in that during 07 November 2018, while on duty, you conducted yourself in an improper, disgraceful or unacceptable manner, when you hugged the learner, grabbed her hardly and kissed with open mouth twice on her lips at Welkom High School.
Survey of Evidence
8. The Educator registered a plea of “Guilty” to the charge levelled against him. I asked the Educator whether he understand the implications of pleading guilty and he said that he understood the implications. I, as an arbitrator found him guilty as charged.
Survey of Argument
Employer
9. The Employer representative stated that the Educator conduct was not acceptable. He failed to provide a parental care and he failed to set a good example as an educator. The learners might be afraid to be around him. He violated a professional conduct but he need corrective measures. The Employer representative stated that the appropriate sanction would be a final written warning and three (3) months suspension from work without pay.
Educator
10. The Educator representative stated that the Educator showed a remorse by pleading guilty to the offence. Discipline was not a punitive measure but a corrective one. The Educator signed the code of conduct of the South African Council for Educators (“SACE”) and he understood its code. The Educator contravened SACE code of conduct. The learner was still attending school at Welkom Secondary School. The Educator requested to be referred to the Employee Health and Assistance Programme. The fair and appropriate sanction would be a final written warning and three (3) months suspension from work without pay.
Analysis of evidence and argument
11. The allegation against the employee is that he committed an act of sexual assault on a learner by hugging the learner, grabbed her hardly and kissed with open mouth twice on her lips at Welkom High School. This allegation is defined in section 18 of the EEA and relates to the educator conducting himself in an improper, disgraceful and unacceptable manner towards the learner. The Educator did not deny this allegation and he pleaded guilty to the offence.
12. Based on his plea of guilty, I find that the Educator committed misconduct in terms of section 18(1)(q) of the EEA. The Educator’s conduct amounted to a sexual nature committed against a learner. Having found that the Educator did commit misconduct in terms of section 18(1)(q) of the EEA, the sanction of dismissal is not mandatory. The parties were advised to provide mitigating and aggravating factors for me to consider.
13. I have considered the totally of circumstances in order to decide whether dismissal would be a fair and appropriate sanction if it was not mandatory. It is important to note that sexual assault on a learner is a standard that should not be breached and that conduct was unwelcome and unwarranted. This kind of conduct is not acceptable within an educator and learner context particularly that an educator holds the balance of power in such a relationship.
14. Educators have a positive duty to ensure that learners are educated in a safe environment. The environment must be free from harassment of any nature but particularly harassment or assault of a sexual nature. Parents entrust their children for safe keeping at school. Educators take the role and responsibilities of parents while at school. Viewed against this background, the Educator’s conduct is viewed in an extremely serious light and is in contradiction of relevant legislation and legislation prohibits such conduct.
15. I have particularly considered the EEA as well as the SACE Code of Professional Ethics for educators. The SACE Code of Professional Ethics provides that educators; “respect the dignity, beliefs and constitutional rights of learners and in particular children” and that educator must: “refrain from any form of sexual harassment (physical or otherwise) of learners, and to refrain from any form of sexual relationship with learners from any school.” The protection of learners and consideration of their interests is paramount, particularly as educators are leaders within the school environment as well as leaders within the community environment. Such conduct serves to destroy the relationship of trust between employee and employer. The fact that no previous incidents on record was provided during the proceeding, does not necessarily mean that his conduct will not be repeated. In tribunals of this nature, consideration of the best interests of children, is paramount. My finding is aimed at the protection of children and in particular, vulnerable young girls.
Award
16. I find the Educator, Mr MA Fokwebe, guilty of the charge that preferred against him and I, as a consequence, impose a sanction of summary dismissal effective from 01 March 2022.
17. The General Secretary of the ELRC must, within 14 days of receipt of this award, report or refer the award to the educators’ professional body, SACE.
18. The Educator, Mr MA Fokwebe, has the right to take this award on review to the Labour Court as envisaged in Section 145 of the LRA and to do so within the prescribed timeframe.
Signature:
Commissioner: Khuduga Tlale
Sector: Education
Case Reference No.: ELRC305-19/20FS
Date of award: 28 February 2022
In the matter between:
Department of Education – Free State Applicant
And
MA Fokwebe Respondent
¬¬¬¬
ARBITRATION AWARD
Details of hearing and representation
1. This matter was set down as an inquiry by arbitrator in terms of section 188A of the Labour
Relations Act 66 of 1995 as amended (“the LRA”) between Department of Education – Free
State (“Employer”) and Mr. MA Fokwebe (“Educator”) in Bloemfontein on 21 February 2022. Mr.
MA Mokoena, Deputy-Director: Labour Relations represented the Employer and, the Educator
appeared in person and Ms. MM Mololo, SADTU full-time shop steward, represented him.
2. This proceeding was manually and digitally recorded. The Employer did submit a bundle of documents which was used as a common bundle.
3. In all matters in which an Employer wants to take disciplinary action against an Educator for an alleged sexual misconduct towards any learner, an inquiry by an arbitrator, as intended by section 188A of the LRA, and clause 32 of the Dispute Resolution Procedures of the Education Labour Relations Council (“ELRC”), shall be mandatory. In this regard, I have noted section 3.3.1 of Collective Agreement 3 of 2018 of the ELRC.
Issue to be decided
4. I have to decide whether an Educator committed misconduct as per the allegation levelled against him. If I find that he did commit the misconduct, I have to decide on an appropriate sanction.
Background to the dispute
5. The Educator is currently employed as an educator at Welkom Secondary School. The Educator acknowledged receiving the notice of allegations well in advance of the proceeding on 21 February 2022 and he confirmed that he had adequate time to prepare for the proceeding. I explained to the Educator his rights during the proceeding and he confirmed on record that he was comfortable to be represented by Ms. MM Mololo. The Council appointed Mr. L Mpitse as an interpreter and Ms. MA Mphatane as an intermediary.
6. The allegation levelled against the Educator is as follows: Charge one- “You have contravened section 17(1)(b) of the Employment of Educators Act 76 of 1998 (“EEA”) in that on 07 November 2018, you committed an act of sexual assault to a learner when you hugged the learner, grabbed her hardly and kissed with open mouth twice on her lips at Welkom High School”. The alternative charge is as follows: “You contravened section 18(1)(q) of the EEA, in that during 07 November 2018, while on duty, you conducted yourself in an improper, disgraceful or unacceptable manner, when you hugged the learner, grabbed her hardly and kissed with open mouth twice on her lips at Welkom High School”. For the purpose of this award, the name of the learner will be kept confidential and the learner will simply be referred to as “the learner”.
7. It is important to note that the Employer representative withdrew the main charge against the Educator. The allegation against the Educator was for contravening section 18(1)(q) of the EEA, in that during 07 November 2018, while on duty, you conducted yourself in an improper, disgraceful or unacceptable manner, when you hugged the learner, grabbed her hardly and kissed with open mouth twice on her lips at Welkom High School.
Survey of Evidence
8. The Educator registered a plea of “Guilty” to the charge levelled against him. I asked the Educator whether he understand the implications of pleading guilty and he said that he understood the implications. I, as an arbitrator found him guilty as charged.
Survey of Argument
Employer
9. The Employer representative stated that the Educator conduct was not acceptable. He failed to provide a parental care and he failed to set a good example as an educator. The learners might be afraid to be around him. He violated a professional conduct but he need corrective measures. The Employer representative stated that the appropriate sanction would be a final written warning and three (3) months suspension from work without pay.
Educator
10. The Educator representative stated that the Educator showed a remorse by pleading guilty to the offence. Discipline was not a punitive measure but a corrective one. The Educator signed the code of conduct of the South African Council for Educators (“SACE”) and he understood its code. The Educator contravened SACE code of conduct. The learner was still attending school at Welkom Secondary School. The Educator requested to be referred to the Employee Health and Assistance Programme. The fair and appropriate sanction would be a final written warning and three (3) months suspension from work without pay.
Analysis of evidence and argument
11. The allegation against the employee is that he committed an act of sexual assault on a learner by hugging the learner, grabbed her hardly and kissed with open mouth twice on her lips at Welkom High School. This allegation is defined in section 18 of the EEA and relates to the educator conducting himself in an improper, disgraceful and unacceptable manner towards the learner. The Educator did not deny this allegation and he pleaded guilty to the offence.
12. Based on his plea of guilty, I find that the Educator committed misconduct in terms of section 18(1)(q) of the EEA. The Educator’s conduct amounted to a sexual nature committed against a learner. Having found that the Educator did commit misconduct in terms of section 18(1)(q) of the EEA, the sanction of dismissal is not mandatory. The parties were advised to provide mitigating and aggravating factors for me to consider.
13. I have considered the totally of circumstances in order to decide whether dismissal would be a fair and appropriate sanction if it was not mandatory. It is important to note that sexual assault on a learner is a standard that should not be breached and that conduct was unwelcome and unwarranted. This kind of conduct is not acceptable within an educator and learner context particularly that an educator holds the balance of power in such a relationship.
14. Educators have a positive duty to ensure that learners are educated in a safe environment. The environment must be free from harassment of any nature but particularly harassment or assault of a sexual nature. Parents entrust their children for safe keeping at school. Educators take the role and responsibilities of parents while at school. Viewed against this background, the Educator’s conduct is viewed in an extremely serious light and is in contradiction of relevant legislation and legislation prohibits such conduct.
15. I have particularly considered the EEA as well as the SACE Code of Professional Ethics for educators. The SACE Code of Professional Ethics provides that educators; “respect the dignity, beliefs and constitutional rights of learners and in particular children” and that educator must: “refrain from any form of sexual harassment (physical or otherwise) of learners, and to refrain from any form of sexual relationship with learners from any school.” The protection of learners and consideration of their interests is paramount, particularly as educators are leaders within the school environment as well as leaders within the community environment. Such conduct serves to destroy the relationship of trust between employee and employer. The fact that no previous incidents on record was provided during the proceeding, does not necessarily mean that his conduct will not be repeated. In tribunals of this nature, consideration of the best interests of children, is paramount. My finding is aimed at the protection of children and in particular, vulnerable young girls.
Award
16. I find the Educator, Mr MA Fokwebe, guilty of the charge that preferred against him and I, as a consequence, impose a sanction of summary dismissal effective from 01 March 2022.
17. The General Secretary of the ELRC must, within 14 days of receipt of this award, report or refer the award to the educators’ professional body, SACE.
18. The Educator, Mr MA Fokwebe, has the right to take this award on review to the Labour Court as envisaged in Section 145 of the LRA and to do so within the prescribed timeframe.
Signature:
Commissioner: Khuduga Tlale
Sector: Education