PSES115-18/19WC
Text
ELRC 841-19/20 MP
Award Date:
31 March 2022
Panellist: THABE PHALANE
Case No.: ELRC 841-19/20 MP
Date of Award: 31 MARCH 2022
In the Enquiry by Arbitrator between:
Department of Education-Mpumalanga
(Employer / Applicant)
and
Makhubela, M
(Employee / Respondent)
Employer’s representative: Mr P Sibanyoni
Telephone: 082 844 2985
Telefax:
Email: P.Sibanyoni@mpuedu.gov.za.
Employee’s representative: Mr. G.P Mohlala-Union Official, SADTU
Telephone: 066 509 7299/ 072 615 9839
Telefax:
Email: gplmohlala@gmail.com.
DETAILS OF HEARING AND REPRESENTATION.
1.1 The following is a outcome / judgment / arbitration award from an inquiry by an arbitrator (also known as a disciplinary hearing in the form of an arbitration) that took place on 12 May 2021, 21 July 2021, 01 December 2021 and 14 March 2021, at no 89 Bhekumuzi Masango Drive, Belfast, Mpumalanga.
1.2 The Employer/Applicant, as defined in the Employment of Educators Act 76 of 1998, wants to take disciplinary action against an educator for alleged sexual misconduct committed towards any learner.
1.3 Collective agreement no 3 of 2018 (collective agreement) provides in clause 3, that an inquiry by an arbitrator as intended in section 188A of the Labour Relations Act 66 of 1995, as amended, ( LRA), and clause 32 of the Dispute Resolution Procedures (dispute resolution procedures) of the ELRC shall be mandatory.
1.4 Both parties attended and the employee was represented by Mr. G.P Mohlala, a Union Official from SADTU, whilst the employer was represented by Mr P Sibanyoni, the Respondent’s representative.
1.5 The proceedings were digitally recorded and Mrs Mule Padi provided the intermediary services, and Mr Sebastian Khuzwayo provided the interpretation services.
1.6 The allegations happened during 2019 and the learner has subsequently changed the school. The learner was 18 at the time of the alleged incident.
1.7 At the preliminary stages of the arbitration the employee requested that an inspection in loco be conducted at the school, which is a Boarding school situated in Machadodorp, Mpumalanga.
1.8 At the resumption of the proceedings the learner was able to testify in English and openly so but I still ensured that the intermediary remain in the process to assist when necessary.
1.9 The employer handed in a bundle of documents marked bundle ‘R’ and the employee submitted bundle marked bundle ’A’. Both parties called two witnesses who testified and were cross examined.
1.10 The parties agreed to submit written arguments on 21 March 2022. The Applicant submitted on 16 March 2022, and the Respondent submitted their arguments on 23 March 2022.
ISSUE TO BE DECIDED
I am required to determine whether the employee is guilty of sexual misconduct committed towards any learner, and consequent thereon, to issue the appropriate sanction.
BACKGROUND TO THE DISPUTE
1.11 The employer has initiated the disciplinary process and a disciplinary enquiry in the form of arbitration, which takes the place of the internal disciplinary enquiry. There is however no additional hearing on sanction.
1.12 The parties were therefore directed to present additional evidence on mitigation or aggravation of judgment, because there may be a finding of guilty, an acquittal, or a conviction on a less serious offence.
1.13 The judgment of an arbitrator in an inquiry in terms of the collective agreement shall be final and binding and has the same status of an arbitration award. It cannot be appealed but can be reviewed by the Labour Court.
1.14 The employee is appointed as an Educator at Emakhazeni Boarding School in Machadodorp, Mpumalanga. He is currently on suspension with full pay.
1.15 He was charged with 1 allegation relating to the period 2019. This was in terms of section 17 (1) (c) of the Employment of Educators Act 76 of 1998, as amended.
1.16 The charge read; Charge 1- …’ It is alleged that in terms of section 17(1) ( c) of the Employment of Educators Act 1988 as amended in that during the second quarter of 2019 academic year, you had a sexual relationship with Xolile Mahlangu who was a learner at Emakhazeni Boarding school’.
1.17 The employee pleaded not guilty to the allegations against him.
1.18 The employer then called its witnesses and herein follows a summary of their evidence.
SURVEY OF EVIDENCE AND ARGUMENT
EMPLOYER’S EVIDENCE AND ARGUMENTS
1st witness, Ms Learner X.
1.19 The witness was attending at Emakhazeni Boarding School during 2019. She was 18 at the time. She is now attending at Sekhulile Secondary school from 2021.
1.20 She admitted to writing a document handed in as evidence by the Respondent, but she denied that the content of her statement was the truth.
1.21 She also denied that she had a sexual relationship with the employee and submitted that she was forced to make the statement by one of the female educators at the school, Ms Nkosi. She does not know where the teacher is currently working as she is no longer at the school.
1.22 She denied that what she wrote on the paper was the truth and submitted that she is now telling the truth at this enquiry.
Under cross examination
1.23 The learner submitted that she cannot remember the date when the document was written.
1.24 She was however unwilling to answer more questions and was uncooperative.
2nd witness, Mr L. Twala.
1.25 The witness is the Principal of the Boarding School from September 2019. He knows the employee as one of the staff members.
1.26 He became aware of the case against the employee around September 2019. There was a case of clothes being stolen and at that time it also emerged that a letter was written alleging that the employee was involved in a relationship with a learner.
1.27 The SGB and the Hostel parents conducted their in house investigation by around 8 people and whilst investigating they found out about the sexual relationship.
1.28 He was called to the meeting together with the learner and she admitted to the relationship. He cannot say if the learner was telling the truth or not as he did not speak to the learner directly as he was asking questions relayed to the learner. He said he can only report the matter to the Department.
1.29 He then called the employee and informed him of the allegations and that given the severity of the allegations he was required to report the matter to the Department.
1.30 The employment contract of Ms Nkosi has ended as she was employed by the SGB.
1.31 That is how the District Department became involved.
1.32 Under cross examination.
1.33 The witness started to work at the school after this incident had occurred.
1.34 The structure at the Boarding school is that there are House Mothers and Fathers, a Block Manager, a Principal Housekeeping Supervisor and the Hostel Superintendent.
1.35 The convener of the meeting was the Block Manager, and there were 3 SGB members, 3 House members, 3 learners and an Uncle of the learner who was alleged to have stolen the clothes and the one who wrote a statement alleging a sexual relationship with the employee.
1.36 He was aware that the meeting was going to call a parent about the case of the stolen clothes. He does not know how the case of sexual relationship came about, and the Uncle was introduced to him as the Uncle to the accused learner.
1.37 Although he was called and expected to investigate the matter of the sexual relationship further, his letter said the Department will investigate and find out what was happening.
1.38 He was amazed at the allegations against the employee and wondered why there were such allegations against him because he was called to deal with the issue of the sexual relationship and the Learner confirmed that there was a relationship.
EMPLOYEE’S EVIDENCE AND ARGUMENTS
Mr Hofny Mathew Makhubela
1.39 The employee denied that he had a relationship with the learner.
1.40 He was an Educator at the school and after school he had the role of Block Manager for the boys. He was also the sports coordinator.
1.41 The learners are always under adult supervision. Their movements are controlled and if found alone they can be charged.
1.42 There are palisades enclosing the academic section, the boys section and the girls section. All entrances are nexst to the security gate. The learners share the same dining hall but sit separately.
1.43 The learners are always escorted to their dormitories and stay there unless they have activities like sport, where they will be escorted until reaching the security gate.
1.44 He submitted that he was suspended on 08 October 2019 and his suspension was lifted on 17 February 2021 and he was supposed to report on 01 March 2021.
1.45 When he was on his way to the school he received a call from a SGB member that he will not be allowed at the school until they speak with the Director.
1.46 His initial suspension was different from the current charge and he does not have any other charges against his name. He was suspended for sexual assault on a lady but there was no criminal charge laid against him, other than a call he received from one Detective saying some male person was trying to open a rape case against him. He heard nothing after that.
Under Cross examination
1.47 The employee admitted knowing the learner. He was working at the school around 2019 and he owns a vehicle.
1.48 He reiterated that the learners do not move without supervision and it is not possible to instruct a learner to comply with an instruction to come to an educator alone or separate the learner from their block or house parent.
1.49 There are some policies that do not allow a learner to go to the educators’ vehicle as that conduct is viewed similar to calling a learner to an educators’ room, which act is prohibited.
1.50 He was the Block Manager for boys and he only met female learners as their Educator. He denies having ever had a sexual relationship with any learner.
1.51 He does not know what this learner was trying to do as she said many things. The learner said she was influenced by others to write the letter, and that the message came from the SGB. He again denied having sex with the learner, and is unhappy by the lack of protection from the Employer.
1st witness, Ms Abigail Vuyiswa Lukhuleni.
1.52 The witness is an Educator at the Boarding School and also a Block Manager from 2017. She knows the employee as a colleague and did not know the learner who made allegations of sexual relationship with the educator.
1.53 Her duties include monitoring House mothers. She gives them registers to complete and then reports to the superintendent and the Principal.
1.54 The Clerk convened the meeting where the issue of the stolen clothes was discussed. The allegation was that a learner stole the clothes of an educator, Ms Shongwe. She was however not part of that meeting when it was convened.
1.55 The school staff only heard about the allegation against the employee when the Principal told them at their staff meeting that the case is at the District Department and that they are not allowed to talk about it.
1.56 The learners have breakfast at 8am, lunch at 1pm and supper at 5pm. If an educator wants to communicate with a learner they must go to the security gate where there is a guard posted because it is not possible for a learner to leave their dormitory without supervision.
1.57 When he heard about the allegations she was numb but there was an instruction not to discuss the matter.
Under cross examination
1.58 The witness submitted that she was called to testify about his work as Block Manager just like the employee.
1.59 She was surprised to hear the allegations as he never saw the employee with the learner and she believes that the allegations are not true. She however conceded that she did not speak to the learner so she has not heard the facts from both sides.
1.60 She does not know the learner and does not owe the employee anything.
ANALYSIS OF EVIDENCE AND SUBMISSIONS
1.61 The parties presented evidence as well as written submissions which I have also considered when arriving at these findings. The arbitrator will not know before the end of proceedings whether the employee is guilty or not guilty of the alleged offence until the evidence is heard and evaluated.
1.62 There is no requirement for the employer to prove the guilt of the employee beyond a reasonable doubt. Proof on a balance of probabilities is sufficient.
1.63 In determining probabilities, evidence is assessed against human experience, logic and common sense.
1.64 The truth may however be stranger than fiction, and sometimes the human element is also an important factor when considering or evaluating evidence as people sometimes act imprudently and contrary to what one would expect.
1.65 The employee has been charged in terms of Section 17 (1) (c) of the Employment of Educators Act 76 of 1998, as amended, which reads;
17. Serious Misconduct.—(1) An educator must be dismissed if he or she is found guilty of;
(c) having a sexual relationship with a learner of the school where he or she is employed;
1.66 This type of misconduct can only be committed in respect of a learner of the school where the Educator is employed, and even if there was consent.
1.67 The offence carries a mandatory sanction of dismissal and the arbitrator must, in a finding of guilty, issue a sanction of dismissal.
1.68 Clause 4 of the collective agreement 3 of 2018 provides that the relevant provision in the dispute resolution procedures shall take preference in the case of any conflict between the provisions of any section in the LRA and the dispute resolution procedures.
1.69 In this matter the oral evidence of the learner was not credible as it amounted to a refusal to give evidence. There is however a statement that she made confirming the existence of a sexual relationship with the employee.
1.70 The statement she made about the sexual relationship was made at the earliest opportunity and she was not aware that she may be called to testify about the relationship. There was no hint or suggestion at that time that she was being forced to write the statement.
1.71 At the hearing she admitted to making the statement and that triggered the whole investigation and enquiry. Her attempt to now discredit her statement amounts to reality check and her reaction is one of embarrassment. The learner came across as someone racked with guilt, alarm and humiliation after the fact and when she comprehended that there is now an investigation and questions of what actually happened.
1.72 The allegation she makes that she was forced to make a statement by one of the Educators at the school and that what she wrote was all lies, is a highly unlikely suggestion at best. The learner had many opportunities to repudiate and disavow her statement when she was asked by the Department to provide her evidence at an enquiry.
1.73 My view is that the reality of the situation evoked and triggered feelings of guilt, irritation and remorse and she could not handle it. Her cantankerous refusal to testify and give evidence actually made her statement more believable than the opposite as she made the statement soon after the event, and in her own writing, told at least three other people what was happening in her life.
1.74 The grammatical errors were insightful to her level of intelligence that it cannot be argued that there was input made by an Educator who, if she were to be believed, had an axe to grind with the employee. The natural disposition is to write a story clearly and believable so that there cannot be any uncertainties.
1.75 The other factor that must be considered is that the learner was 18 at the time of the incident. She was legally an adult even though she was a learner, and I found that she was aware of what she was doing and her agony comes from having acted thoughtlessly without thinking of the consequences.
1.76 I have also considered that even though there was an attempt to discredit her statement, she could not assist the arbitration by answering the specifics of when and where the manipulation or stimulus to make these allegations came from.
1.77 What the learner failed to appreciate was that the allegation that one Educator can collude with someone to implicate another Educator in misconduct is equally serious misconduct by itself. She simplistically thought her allegation will be accepted and left at that however questions will be asked to establish the veracity of the allegation.
1.78 If she did not refuse to participate, and her allegations were to be found true, efforts could be made to bring the conniving Educator to account. The fact remains that every action has consequences and it is clear that this learner has the conceptual understanding of what happened in her relationship with the employee but lacked the emotional maturity to deal with the burden of giving evidence.
1.79 I am left with the conclusion not to ignore the contents of the statement for reasons above and it is the best evidence available. The learner was asked to confirm if she wrote the statement, which she did, and as indicated above, her attempt to eliminate the statement from the evidence failed miserably.
1.80 The statement was made soon after the multiple events, she talks of May and June and it is accepted that the statement was made after the June examinations. The statement was made under a background of fear and she crying for help.
1.81 The learner was 18 at the time and she had no reason to lie about such a serious allegation and was old enough to write rationally and recognized right from wrong, separated different times and events, and she also told more than one person what was happening.
1.82 Having accepted that the letter was written freely as a cry for help, I proceeded to analyze the statement she made. The letter details the first encounter with the Educator as one that was forced upon her.
1.83 There is also suggestion of threats of being beaten by the Educator if she did not comply with the educators’ instructions, as well as running away from the Educator and failing to concentrate in class.
1.84 The learner also expresses her relief by finding the same Educator she accuses of forcing her to write the statement and she stated that this other female Educator was open and she asked her to help so that she can be like other learners.
1.85 As explained above there was a duty to at least explain why the sudden vilification of this Educator after she approached her for emotional support. Her statement therefore reveals that she was speaking to her friends and the female Educator before she was asked to write the statement.
1.86 This then brings to what evidence other than the statement of the learner was presented.
1.87 The employer called a principal who submitted that he was called to a meeting where the learner had confessed to having a relationship with the Educator hence he was called to come and deal with the matter.
1.88 As alluded to above, the learner was not cooperative and refused to answer questions posed by the employer. Her cooperation would have assisted to clarify if there was indeed such an admission or not.
1.89 The fact remains that the arbitration is sitting as a result of the admission she made in front of many people. What is not contested is that the statement was made after the admissions in the meeting called at the school where they were talking about the stolen clothes.
1.90 The Principal could not have reported the matter without any substantive facts to support the Department initiating an investigation. The employee was informed about the allegations against him by the Principal and at that stage there was no mention of a statement being made to that effect.
1.91 The learner was therefore in essence corroborating the allegation that first surfaced when a meeting was held and there was an admission made by her that she was in a sexual relationship with the employee.
1.92 The employee has only denied these allegations and has submitted that it was practically impossible for the learners to be alone with the educators because there are barriers at the school separating the boys from the girls.
1.93 The employee also questions why the people mentioned in the statement were not called to testify to the truthfulness of the allegations against him. The principal was called and he was challenged that the learner did not speak to him directly therefore he is presenting hearsay.
1.94 This submission is misconceived because the Principal is the link between the meeting and the District Department and this fact was not contested. He presented to the Department what was revealed at the meeting and after an investigation a statement also emerged from someone who was at that meeting.
1.95 I find therefore that the evidence of the employers’ second witness is not hearsay and is the more probable version of the allegation that the learner admitted to having a sexual relationship with the employee.
1.96 The employee further expected that the investigations into the allegations should have been conducted by the Principal before he approached the District with his report.
1.97 The employee fails to recognize that the allegations are handled outside the school and any such investigation would have resulted in a claim of interference, influencing the movement and potential witnesses as well as bias on the part of the Principal.
1.98 Without placing any duty on the employee I find that if he felt that the missing witnesses were important to prove a case for the employer, they were equally important to disprove the allegations against him and that was an opportunity he could have utilized.
1.99 It is my finding based on the above that the employee committed misconduct as per section 17 (1) (c) of the Employment of Educators Act by having a sexual relationship with a learner at his school.
1.100 Having determined that the employee is guilty of Misconduct, I turned to the mitigating and aggravating factors when determining a sanction.
1.101 Clause 5 of Collective Agreement 3 of 2018 provides the factors that an arbitrator arbitrating a dispute in terms of this collective agreement must, in light of the evidence presented, and with reference to the factors listed in sub-clause 5.1.1 to 5.1.7, direct what action, if any shall be taken against the educator.
1.102 The employer argued in aggravation that the employee is guilty of misconduct and should be dismissed. He sexually abused the learner and failed to act in loco parentis.
1.103 Dismissal is mandatory and the learners must be protected from him.
1.104 The Applicant on the other hand submitted in mitigation that he undeservedly suffered pain. He is a diligent professional and a hard worker. He has lost many opportunities for higher and better opportunities.
1.105 He is a husband and father and his family and relatives live with a cloud unduly cast upon him. His dignity has been negatively impacted and impaired.
1.106 The concept of fairness requires an evaluation and the taking into account of factors affecting the educator, the employer, and the learner on the one hand, as well as the public interest and needs of the society.
1.107 Section 28(2) of the Constitution of South Africa provides that the best interests of the child are of paramount importance in every matter concerning the child. Statutes must be interpreted and the common law developed in a manner which favors protecting and advancing the interest of the child.
1.108 Consideration must also be given to the effect that decisions regarding the protection of children against sexual abuse from educators will have on the lives of child victims and also the learners in general.
1.109 There are 3 broad categories of misconduct of a sexual nature against a learner that an educator may be guilty of.
1.110 The first is sexual assault. This type of misconduct is committed against the will of the learner. Section 17 (1) ( b) of the Employment of Educators Act provides dismissal as a mandatory sanction.
1.111 The second category is having a sexual relationship. The relationship with a learner (where the educator is employed) is not against the will of the learner. Section 17 (1) ( c) of the Employment of Educators Act provides dismissal as a mandatory sanction.
1.112 The third category is any other misconduct of a sexual nature. These offences are listed in section 18 of the Employment of Educators Act may not constitute misconduct in terms of section 17. The examples may include kissing of a learner with her consent, proposing love to a learner, having a relationship with a learner of another school, or grooming of a learner.
1.113 It is however rare that a sanction of dismissal will not be the only appropriate sanction in cases of misconduct of a sexual nature committed by an educator in respect of a learner.
1.114 Any form of inappropriate behavior in the part of an educator towards a learner is and must always be viewed in a serious light. Educators are entrusted with the care of children and adolescents.
1.115 They must at with the utmost of good faith, and a breach of this trust, dismissal is the appropriate sanction.
1.116 By the nature of their work, educators already have access to children and the grooming, or manipulation of children, or parents and or staff by gaining their trust is easily achievable.
1.117 The employee has on a balance of probabilities been shown to have had a sexual relationship with the learner at his school.
1.118 In these circumstances and based on the conclusions above, I impose a sanction of dismissal with immediate effect.
1.119 I have not been provided with the arguments that the employee is a danger to and should not work with children. The performance of the learner at the arbitration provided a glimpse of the damage the learner has endured.
1.120 The learner displayed absolute disrespect for the parties, the process and authority in general. She was not only defiant but was threatening as well. At the inspection in loco she threatened to burn the school if she is forced to testify.
1.121 The learner needs psychological assistance as she has picked up a deleterious behavioral component.
1.122 The provisions of the Children’s Act no 38 of 2005 find application in that a finding that a person is unsuitable to work or have access directly or indirectly with children, may be made by any forum, on its own volition or on application by any person having sufficient interest in the protection of children
1.123 The actions of the employee are of such a nature or extent that he must be barred from working with children. In this matter the conduct is not only wrong, but also unacceptable, as it is that of having a sexual relationship with a learner at his school.
1.124 The employee must remain with the knowledge that inappropriate behavior is unacceptable, and more than that is condemnable.
1.125 The loss of his employment as a result of the above misconduct is the most appropriate sanction for his actions and corrective discipline is not appropriate where the trust relationship has been destroyed.
In light of the above I deem the following award to competent.
A. AWARD.
1.126 The employer has succeeded to establish the existence of misconduct by Mr Hofny Mathew Makhubela, the employee.
1.127 The employee is as a result found guilty of misconduct and I direct that a sanction of dismissal be imposed against the employee in terms of section 17 (1) (c) of the Employment of Educators Act 76 of 1998, as amended.
1.128 There is also a finding that the employee, Mr Hofny Mathew Makhubela, is unsuitable to work with children in terms of section 120 of the Childrens Act 38 of 2005.
Case No.: ELRC 841-19/20 MP
Date of Award: 31 MARCH 2022
In the Enquiry by Arbitrator between:
Department of Education-Mpumalanga
(Employer / Applicant)
and
Makhubela, M
(Employee / Respondent)
Employer’s representative: Mr P Sibanyoni
Telephone: 082 844 2985
Telefax:
Email: P.Sibanyoni@mpuedu.gov.za.
Employee’s representative: Mr. G.P Mohlala-Union Official, SADTU
Telephone: 066 509 7299/ 072 615 9839
Telefax:
Email: gplmohlala@gmail.com.
DETAILS OF HEARING AND REPRESENTATION.
1.1 The following is a outcome / judgment / arbitration award from an inquiry by an arbitrator (also known as a disciplinary hearing in the form of an arbitration) that took place on 12 May 2021, 21 July 2021, 01 December 2021 and 14 March 2021, at no 89 Bhekumuzi Masango Drive, Belfast, Mpumalanga.
1.2 The Employer/Applicant, as defined in the Employment of Educators Act 76 of 1998, wants to take disciplinary action against an educator for alleged sexual misconduct committed towards any learner.
1.3 Collective agreement no 3 of 2018 (collective agreement) provides in clause 3, that an inquiry by an arbitrator as intended in section 188A of the Labour Relations Act 66 of 1995, as amended, ( LRA), and clause 32 of the Dispute Resolution Procedures (dispute resolution procedures) of the ELRC shall be mandatory.
1.4 Both parties attended and the employee was represented by Mr. G.P Mohlala, a Union Official from SADTU, whilst the employer was represented by Mr P Sibanyoni, the Respondent’s representative.
1.5 The proceedings were digitally recorded and Mrs Mule Padi provided the intermediary services, and Mr Sebastian Khuzwayo provided the interpretation services.
1.6 The allegations happened during 2019 and the learner has subsequently changed the school. The learner was 18 at the time of the alleged incident.
1.7 At the preliminary stages of the arbitration the employee requested that an inspection in loco be conducted at the school, which is a Boarding school situated in Machadodorp, Mpumalanga.
1.8 At the resumption of the proceedings the learner was able to testify in English and openly so but I still ensured that the intermediary remain in the process to assist when necessary.
1.9 The employer handed in a bundle of documents marked bundle ‘R’ and the employee submitted bundle marked bundle ’A’. Both parties called two witnesses who testified and were cross examined.
1.10 The parties agreed to submit written arguments on 21 March 2022. The Applicant submitted on 16 March 2022, and the Respondent submitted their arguments on 23 March 2022.
ISSUE TO BE DECIDED
I am required to determine whether the employee is guilty of sexual misconduct committed towards any learner, and consequent thereon, to issue the appropriate sanction.
BACKGROUND TO THE DISPUTE
1.11 The employer has initiated the disciplinary process and a disciplinary enquiry in the form of arbitration, which takes the place of the internal disciplinary enquiry. There is however no additional hearing on sanction.
1.12 The parties were therefore directed to present additional evidence on mitigation or aggravation of judgment, because there may be a finding of guilty, an acquittal, or a conviction on a less serious offence.
1.13 The judgment of an arbitrator in an inquiry in terms of the collective agreement shall be final and binding and has the same status of an arbitration award. It cannot be appealed but can be reviewed by the Labour Court.
1.14 The employee is appointed as an Educator at Emakhazeni Boarding School in Machadodorp, Mpumalanga. He is currently on suspension with full pay.
1.15 He was charged with 1 allegation relating to the period 2019. This was in terms of section 17 (1) (c) of the Employment of Educators Act 76 of 1998, as amended.
1.16 The charge read; Charge 1- …’ It is alleged that in terms of section 17(1) ( c) of the Employment of Educators Act 1988 as amended in that during the second quarter of 2019 academic year, you had a sexual relationship with Xolile Mahlangu who was a learner at Emakhazeni Boarding school’.
1.17 The employee pleaded not guilty to the allegations against him.
1.18 The employer then called its witnesses and herein follows a summary of their evidence.
SURVEY OF EVIDENCE AND ARGUMENT
EMPLOYER’S EVIDENCE AND ARGUMENTS
1st witness, Ms Learner X.
1.19 The witness was attending at Emakhazeni Boarding School during 2019. She was 18 at the time. She is now attending at Sekhulile Secondary school from 2021.
1.20 She admitted to writing a document handed in as evidence by the Respondent, but she denied that the content of her statement was the truth.
1.21 She also denied that she had a sexual relationship with the employee and submitted that she was forced to make the statement by one of the female educators at the school, Ms Nkosi. She does not know where the teacher is currently working as she is no longer at the school.
1.22 She denied that what she wrote on the paper was the truth and submitted that she is now telling the truth at this enquiry.
Under cross examination
1.23 The learner submitted that she cannot remember the date when the document was written.
1.24 She was however unwilling to answer more questions and was uncooperative.
2nd witness, Mr L. Twala.
1.25 The witness is the Principal of the Boarding School from September 2019. He knows the employee as one of the staff members.
1.26 He became aware of the case against the employee around September 2019. There was a case of clothes being stolen and at that time it also emerged that a letter was written alleging that the employee was involved in a relationship with a learner.
1.27 The SGB and the Hostel parents conducted their in house investigation by around 8 people and whilst investigating they found out about the sexual relationship.
1.28 He was called to the meeting together with the learner and she admitted to the relationship. He cannot say if the learner was telling the truth or not as he did not speak to the learner directly as he was asking questions relayed to the learner. He said he can only report the matter to the Department.
1.29 He then called the employee and informed him of the allegations and that given the severity of the allegations he was required to report the matter to the Department.
1.30 The employment contract of Ms Nkosi has ended as she was employed by the SGB.
1.31 That is how the District Department became involved.
1.32 Under cross examination.
1.33 The witness started to work at the school after this incident had occurred.
1.34 The structure at the Boarding school is that there are House Mothers and Fathers, a Block Manager, a Principal Housekeeping Supervisor and the Hostel Superintendent.
1.35 The convener of the meeting was the Block Manager, and there were 3 SGB members, 3 House members, 3 learners and an Uncle of the learner who was alleged to have stolen the clothes and the one who wrote a statement alleging a sexual relationship with the employee.
1.36 He was aware that the meeting was going to call a parent about the case of the stolen clothes. He does not know how the case of sexual relationship came about, and the Uncle was introduced to him as the Uncle to the accused learner.
1.37 Although he was called and expected to investigate the matter of the sexual relationship further, his letter said the Department will investigate and find out what was happening.
1.38 He was amazed at the allegations against the employee and wondered why there were such allegations against him because he was called to deal with the issue of the sexual relationship and the Learner confirmed that there was a relationship.
EMPLOYEE’S EVIDENCE AND ARGUMENTS
Mr Hofny Mathew Makhubela
1.39 The employee denied that he had a relationship with the learner.
1.40 He was an Educator at the school and after school he had the role of Block Manager for the boys. He was also the sports coordinator.
1.41 The learners are always under adult supervision. Their movements are controlled and if found alone they can be charged.
1.42 There are palisades enclosing the academic section, the boys section and the girls section. All entrances are nexst to the security gate. The learners share the same dining hall but sit separately.
1.43 The learners are always escorted to their dormitories and stay there unless they have activities like sport, where they will be escorted until reaching the security gate.
1.44 He submitted that he was suspended on 08 October 2019 and his suspension was lifted on 17 February 2021 and he was supposed to report on 01 March 2021.
1.45 When he was on his way to the school he received a call from a SGB member that he will not be allowed at the school until they speak with the Director.
1.46 His initial suspension was different from the current charge and he does not have any other charges against his name. He was suspended for sexual assault on a lady but there was no criminal charge laid against him, other than a call he received from one Detective saying some male person was trying to open a rape case against him. He heard nothing after that.
Under Cross examination
1.47 The employee admitted knowing the learner. He was working at the school around 2019 and he owns a vehicle.
1.48 He reiterated that the learners do not move without supervision and it is not possible to instruct a learner to comply with an instruction to come to an educator alone or separate the learner from their block or house parent.
1.49 There are some policies that do not allow a learner to go to the educators’ vehicle as that conduct is viewed similar to calling a learner to an educators’ room, which act is prohibited.
1.50 He was the Block Manager for boys and he only met female learners as their Educator. He denies having ever had a sexual relationship with any learner.
1.51 He does not know what this learner was trying to do as she said many things. The learner said she was influenced by others to write the letter, and that the message came from the SGB. He again denied having sex with the learner, and is unhappy by the lack of protection from the Employer.
1st witness, Ms Abigail Vuyiswa Lukhuleni.
1.52 The witness is an Educator at the Boarding School and also a Block Manager from 2017. She knows the employee as a colleague and did not know the learner who made allegations of sexual relationship with the educator.
1.53 Her duties include monitoring House mothers. She gives them registers to complete and then reports to the superintendent and the Principal.
1.54 The Clerk convened the meeting where the issue of the stolen clothes was discussed. The allegation was that a learner stole the clothes of an educator, Ms Shongwe. She was however not part of that meeting when it was convened.
1.55 The school staff only heard about the allegation against the employee when the Principal told them at their staff meeting that the case is at the District Department and that they are not allowed to talk about it.
1.56 The learners have breakfast at 8am, lunch at 1pm and supper at 5pm. If an educator wants to communicate with a learner they must go to the security gate where there is a guard posted because it is not possible for a learner to leave their dormitory without supervision.
1.57 When he heard about the allegations she was numb but there was an instruction not to discuss the matter.
Under cross examination
1.58 The witness submitted that she was called to testify about his work as Block Manager just like the employee.
1.59 She was surprised to hear the allegations as he never saw the employee with the learner and she believes that the allegations are not true. She however conceded that she did not speak to the learner so she has not heard the facts from both sides.
1.60 She does not know the learner and does not owe the employee anything.
ANALYSIS OF EVIDENCE AND SUBMISSIONS
1.61 The parties presented evidence as well as written submissions which I have also considered when arriving at these findings. The arbitrator will not know before the end of proceedings whether the employee is guilty or not guilty of the alleged offence until the evidence is heard and evaluated.
1.62 There is no requirement for the employer to prove the guilt of the employee beyond a reasonable doubt. Proof on a balance of probabilities is sufficient.
1.63 In determining probabilities, evidence is assessed against human experience, logic and common sense.
1.64 The truth may however be stranger than fiction, and sometimes the human element is also an important factor when considering or evaluating evidence as people sometimes act imprudently and contrary to what one would expect.
1.65 The employee has been charged in terms of Section 17 (1) (c) of the Employment of Educators Act 76 of 1998, as amended, which reads;
17. Serious Misconduct.—(1) An educator must be dismissed if he or she is found guilty of;
(c) having a sexual relationship with a learner of the school where he or she is employed;
1.66 This type of misconduct can only be committed in respect of a learner of the school where the Educator is employed, and even if there was consent.
1.67 The offence carries a mandatory sanction of dismissal and the arbitrator must, in a finding of guilty, issue a sanction of dismissal.
1.68 Clause 4 of the collective agreement 3 of 2018 provides that the relevant provision in the dispute resolution procedures shall take preference in the case of any conflict between the provisions of any section in the LRA and the dispute resolution procedures.
1.69 In this matter the oral evidence of the learner was not credible as it amounted to a refusal to give evidence. There is however a statement that she made confirming the existence of a sexual relationship with the employee.
1.70 The statement she made about the sexual relationship was made at the earliest opportunity and she was not aware that she may be called to testify about the relationship. There was no hint or suggestion at that time that she was being forced to write the statement.
1.71 At the hearing she admitted to making the statement and that triggered the whole investigation and enquiry. Her attempt to now discredit her statement amounts to reality check and her reaction is one of embarrassment. The learner came across as someone racked with guilt, alarm and humiliation after the fact and when she comprehended that there is now an investigation and questions of what actually happened.
1.72 The allegation she makes that she was forced to make a statement by one of the Educators at the school and that what she wrote was all lies, is a highly unlikely suggestion at best. The learner had many opportunities to repudiate and disavow her statement when she was asked by the Department to provide her evidence at an enquiry.
1.73 My view is that the reality of the situation evoked and triggered feelings of guilt, irritation and remorse and she could not handle it. Her cantankerous refusal to testify and give evidence actually made her statement more believable than the opposite as she made the statement soon after the event, and in her own writing, told at least three other people what was happening in her life.
1.74 The grammatical errors were insightful to her level of intelligence that it cannot be argued that there was input made by an Educator who, if she were to be believed, had an axe to grind with the employee. The natural disposition is to write a story clearly and believable so that there cannot be any uncertainties.
1.75 The other factor that must be considered is that the learner was 18 at the time of the incident. She was legally an adult even though she was a learner, and I found that she was aware of what she was doing and her agony comes from having acted thoughtlessly without thinking of the consequences.
1.76 I have also considered that even though there was an attempt to discredit her statement, she could not assist the arbitration by answering the specifics of when and where the manipulation or stimulus to make these allegations came from.
1.77 What the learner failed to appreciate was that the allegation that one Educator can collude with someone to implicate another Educator in misconduct is equally serious misconduct by itself. She simplistically thought her allegation will be accepted and left at that however questions will be asked to establish the veracity of the allegation.
1.78 If she did not refuse to participate, and her allegations were to be found true, efforts could be made to bring the conniving Educator to account. The fact remains that every action has consequences and it is clear that this learner has the conceptual understanding of what happened in her relationship with the employee but lacked the emotional maturity to deal with the burden of giving evidence.
1.79 I am left with the conclusion not to ignore the contents of the statement for reasons above and it is the best evidence available. The learner was asked to confirm if she wrote the statement, which she did, and as indicated above, her attempt to eliminate the statement from the evidence failed miserably.
1.80 The statement was made soon after the multiple events, she talks of May and June and it is accepted that the statement was made after the June examinations. The statement was made under a background of fear and she crying for help.
1.81 The learner was 18 at the time and she had no reason to lie about such a serious allegation and was old enough to write rationally and recognized right from wrong, separated different times and events, and she also told more than one person what was happening.
1.82 Having accepted that the letter was written freely as a cry for help, I proceeded to analyze the statement she made. The letter details the first encounter with the Educator as one that was forced upon her.
1.83 There is also suggestion of threats of being beaten by the Educator if she did not comply with the educators’ instructions, as well as running away from the Educator and failing to concentrate in class.
1.84 The learner also expresses her relief by finding the same Educator she accuses of forcing her to write the statement and she stated that this other female Educator was open and she asked her to help so that she can be like other learners.
1.85 As explained above there was a duty to at least explain why the sudden vilification of this Educator after she approached her for emotional support. Her statement therefore reveals that she was speaking to her friends and the female Educator before she was asked to write the statement.
1.86 This then brings to what evidence other than the statement of the learner was presented.
1.87 The employer called a principal who submitted that he was called to a meeting where the learner had confessed to having a relationship with the Educator hence he was called to come and deal with the matter.
1.88 As alluded to above, the learner was not cooperative and refused to answer questions posed by the employer. Her cooperation would have assisted to clarify if there was indeed such an admission or not.
1.89 The fact remains that the arbitration is sitting as a result of the admission she made in front of many people. What is not contested is that the statement was made after the admissions in the meeting called at the school where they were talking about the stolen clothes.
1.90 The Principal could not have reported the matter without any substantive facts to support the Department initiating an investigation. The employee was informed about the allegations against him by the Principal and at that stage there was no mention of a statement being made to that effect.
1.91 The learner was therefore in essence corroborating the allegation that first surfaced when a meeting was held and there was an admission made by her that she was in a sexual relationship with the employee.
1.92 The employee has only denied these allegations and has submitted that it was practically impossible for the learners to be alone with the educators because there are barriers at the school separating the boys from the girls.
1.93 The employee also questions why the people mentioned in the statement were not called to testify to the truthfulness of the allegations against him. The principal was called and he was challenged that the learner did not speak to him directly therefore he is presenting hearsay.
1.94 This submission is misconceived because the Principal is the link between the meeting and the District Department and this fact was not contested. He presented to the Department what was revealed at the meeting and after an investigation a statement also emerged from someone who was at that meeting.
1.95 I find therefore that the evidence of the employers’ second witness is not hearsay and is the more probable version of the allegation that the learner admitted to having a sexual relationship with the employee.
1.96 The employee further expected that the investigations into the allegations should have been conducted by the Principal before he approached the District with his report.
1.97 The employee fails to recognize that the allegations are handled outside the school and any such investigation would have resulted in a claim of interference, influencing the movement and potential witnesses as well as bias on the part of the Principal.
1.98 Without placing any duty on the employee I find that if he felt that the missing witnesses were important to prove a case for the employer, they were equally important to disprove the allegations against him and that was an opportunity he could have utilized.
1.99 It is my finding based on the above that the employee committed misconduct as per section 17 (1) (c) of the Employment of Educators Act by having a sexual relationship with a learner at his school.
1.100 Having determined that the employee is guilty of Misconduct, I turned to the mitigating and aggravating factors when determining a sanction.
1.101 Clause 5 of Collective Agreement 3 of 2018 provides the factors that an arbitrator arbitrating a dispute in terms of this collective agreement must, in light of the evidence presented, and with reference to the factors listed in sub-clause 5.1.1 to 5.1.7, direct what action, if any shall be taken against the educator.
1.102 The employer argued in aggravation that the employee is guilty of misconduct and should be dismissed. He sexually abused the learner and failed to act in loco parentis.
1.103 Dismissal is mandatory and the learners must be protected from him.
1.104 The Applicant on the other hand submitted in mitigation that he undeservedly suffered pain. He is a diligent professional and a hard worker. He has lost many opportunities for higher and better opportunities.
1.105 He is a husband and father and his family and relatives live with a cloud unduly cast upon him. His dignity has been negatively impacted and impaired.
1.106 The concept of fairness requires an evaluation and the taking into account of factors affecting the educator, the employer, and the learner on the one hand, as well as the public interest and needs of the society.
1.107 Section 28(2) of the Constitution of South Africa provides that the best interests of the child are of paramount importance in every matter concerning the child. Statutes must be interpreted and the common law developed in a manner which favors protecting and advancing the interest of the child.
1.108 Consideration must also be given to the effect that decisions regarding the protection of children against sexual abuse from educators will have on the lives of child victims and also the learners in general.
1.109 There are 3 broad categories of misconduct of a sexual nature against a learner that an educator may be guilty of.
1.110 The first is sexual assault. This type of misconduct is committed against the will of the learner. Section 17 (1) ( b) of the Employment of Educators Act provides dismissal as a mandatory sanction.
1.111 The second category is having a sexual relationship. The relationship with a learner (where the educator is employed) is not against the will of the learner. Section 17 (1) ( c) of the Employment of Educators Act provides dismissal as a mandatory sanction.
1.112 The third category is any other misconduct of a sexual nature. These offences are listed in section 18 of the Employment of Educators Act may not constitute misconduct in terms of section 17. The examples may include kissing of a learner with her consent, proposing love to a learner, having a relationship with a learner of another school, or grooming of a learner.
1.113 It is however rare that a sanction of dismissal will not be the only appropriate sanction in cases of misconduct of a sexual nature committed by an educator in respect of a learner.
1.114 Any form of inappropriate behavior in the part of an educator towards a learner is and must always be viewed in a serious light. Educators are entrusted with the care of children and adolescents.
1.115 They must at with the utmost of good faith, and a breach of this trust, dismissal is the appropriate sanction.
1.116 By the nature of their work, educators already have access to children and the grooming, or manipulation of children, or parents and or staff by gaining their trust is easily achievable.
1.117 The employee has on a balance of probabilities been shown to have had a sexual relationship with the learner at his school.
1.118 In these circumstances and based on the conclusions above, I impose a sanction of dismissal with immediate effect.
1.119 I have not been provided with the arguments that the employee is a danger to and should not work with children. The performance of the learner at the arbitration provided a glimpse of the damage the learner has endured.
1.120 The learner displayed absolute disrespect for the parties, the process and authority in general. She was not only defiant but was threatening as well. At the inspection in loco she threatened to burn the school if she is forced to testify.
1.121 The learner needs psychological assistance as she has picked up a deleterious behavioral component.
1.122 The provisions of the Children’s Act no 38 of 2005 find application in that a finding that a person is unsuitable to work or have access directly or indirectly with children, may be made by any forum, on its own volition or on application by any person having sufficient interest in the protection of children
1.123 The actions of the employee are of such a nature or extent that he must be barred from working with children. In this matter the conduct is not only wrong, but also unacceptable, as it is that of having a sexual relationship with a learner at his school.
1.124 The employee must remain with the knowledge that inappropriate behavior is unacceptable, and more than that is condemnable.
1.125 The loss of his employment as a result of the above misconduct is the most appropriate sanction for his actions and corrective discipline is not appropriate where the trust relationship has been destroyed.
In light of the above I deem the following award to competent.
A. AWARD.
1.126 The employer has succeeded to establish the existence of misconduct by Mr Hofny Mathew Makhubela, the employee.
1.127 The employee is as a result found guilty of misconduct and I direct that a sanction of dismissal be imposed against the employee in terms of section 17 (1) (c) of the Employment of Educators Act 76 of 1998, as amended.
1.128 There is also a finding that the employee, Mr Hofny Mathew Makhubela, is unsuitable to work with children in terms of section 120 of the Childrens Act 38 of 2005.