PSES115-18/19WC
Text
ELRC263-21/22EC
Award Date:
04 April 2022
Panellist/s: Jonathan Gruss
Case No.: ELRC263-21/22EC
Date of Award: 4 April 2022
In the DISCIPLINARY ENQUIRY between:
SELLO GIYOSE (Employee)
and
DEPARTMENT OF EDUCATION : EASTERN CAPE
(Employer)
Employee’s representative: Mr Papiso (SADTU)
Employer’s representative: Mr Hela
DETAILS OF HEARING AND REPRESENTATION
1. This matter was set-down for an enquiry by arbitrator as provided for in terms of Clause 32 of the ELRC Dispute Resolution Procedures read with clause 3 of ELRC Collective Agreement 3 of 2018. The enquiry takes the form of a Section 188A of the Labour Relations Act, Act 66 of 1995 enquiry by arbitrator. The enquiry was scheduled on 9 September 2021 at the Magistrates Court in East London and on 18 and 19 March 2022 at the offices of the Department of Education: Eastern Cape in King Williams Town. The accused employee, Sello Giyose was represented by Mr Papiso from SADT. The employer, Department of Education: Eastern Cape was represented by Mr Hela. Written closing arguments were submitted by the parties on 25 March 2022.
CHARGES
2. The employee was charged with three (2) counts of misconduct.
2.1 Charge 1: Contravening section 17(1) (b) of the Employment of Educators Act 76 of 1998 as amended by committing an act of sexual harassment to a grade 7v learner “MD” at EZ Pondo Primary School.
2.2 Alternative Charge 2: Contravention of section 18(1) (f) of the Employment of Educators Act as amended, in that he unjustifiably prejudiced the administration, discipline or efficiency of the Department of Education, or a school or acting profession and unethical towards a learner who had trusted him as a teacher and a parent.
3. A not guilty plea was entered on behalf of the employee as relates to the charges.
SURVEY OF EVIDENCE AND ARGUMENT
4. This is a brief summary of evidence considered as provided for in terms of Section 138(7)(a) of the Act relevant to the dispute at hand and does not reflect all the evidence and arguments heard and considered in deciding this matter.
ANALYSIS OF EVIDENCE
EMPLOYER’S EVIDENCE
5. Ms MD testified under oath to the following effect:
5.1 She knows the employee in that on 6 May 2021 after they had finished with a choir practice at the school the employee approached her and hugged her and in the process he touched and felt her breasts. The employee told her that she must not disclose this to anyone, that this is a private issue between them. On 7 May 2021 she was called by a teacher, Mazwi, and told that the employee was calling her. She was with other people at that stage they then went to look for the employee and they found him in another office. The employee then told her to enter the office and close the door. She did not close the door completely and left it slightly open. The employee asked her if he was old and she responded to him that he was old and then he asked her if she could keep a secret. She responded that she could. The employee then told her that she must write a letter and tell him how he feels about him. The employee told him that she must hug him and she responded no and then ran away. The employee then came to her class and indicated that he wanted to ask her something. The employee again indicated to her that he wanted to hug her and she again said that she did not want him to hug him. The employee then enquired about the letter and reminded her about the note that he asked her to write him. She wrote that she had the same feelings for him as she had for all the teachers and “I love you like all the teachers in the school, this is how I feel”. After the incident the relationship between her and the employee was not good and the employee had learnt that she had told other learners as to what had transpired.
5.2 Under cross-examination the witness confirmed that she has a close friend and that she had told her friend what had occurred between her and the employee. It was suggested to the witness as to her claiming that they had come from choir practice and that due to Covid 19 restrictions there were no choir activities. The witness reiterated that they were practising how to sing the anthem. When enquired as to the feelings towards the employee, the witness indicated that every time the employee ended up in the classroom she used to be scared but after July 2021 after the incident was reported nothing came of the report and she felt as if the school had forgotten and therefore she was no longer scared. It was suggested to the witness that should someone do something like, as the employee was allegedly to have done, you would not want to be near that person. Therefore, it was pointed out to the witness that she massaged the employee’s shoulder even though she was not asked to do that. Her response was that that after she had massaged the employee’s neck, she realised that she should not have done that.
5.3 The witness was asked whether the employee had unintentionally touched her breasts. The response given was that the employee did so deliberately and that he thought that she would keep quiet and he had done this to other learners but they had kept quiet about it. As to the question of whether she could keep secrets, the witness indicated that she thought he wanted to rape her and the employee did not want anyone to know about it. It is further suggested to the witness that the reason why the employee had enquired from her whether she could keep a secret in that the employee wanted her to help him in recording the classes marks. The witness responded that there were other learners that were recording the marks and there was no reason for him to request her to record the marks.
5.4 Under re-examination, the witness was asked whether she was still afraid of the employee and she responded that she was not afraid of him because she no longer has a reason to be scared of him. When she offered to massage the employee’s neck she realised shortly thereafter that it was wrong in that she hated what he had done to her. When the employee touched her breast she felt scared and she wanted to tell him he take his hands away but she could not do so because she was feeling scared.
6. Ms Yaniswa D testified under oath to the following effect.
6.1 She is the MD’s mother and after the incident on 7 May 2021 after MD arrived from school, MD told her that she wanted to tell her something. Her child told her that the preceding day, 6 May 2021 after they were practising the anthem, the employee touched her breasts and had told her that she must not tell the others anything. MD explained to her that on the 7th the employee called her and asked her if she is old enough and he asked her if she could keep secret. MD indicated that she told the employee that she could keep a secret. The employee then asked MD how she felt about him and he then gave her a piece of paper requested to write how she felt about him. MD indicated to the witness that she did not want to write and therefore she ran away to her class. After a few minutes according to MD, the employee returned to her class and he enquired from MD as to where the paper was that he had requested her to write on. MD had reported to her that she wrote on the paper “teacher I love you like any other teacher in the school” this note MD left with the employee.
6.2 The following Monday, she reported the incident to the principal and after the incident her daughter became afraid of other men. She had a tenant that lodged with them and because of the incident she could not send MD to the tenant any longer.
6.3 Under cross-examination the witness confirmed that MD’s father was not her husband and was not the biological father for her other children. She did not report the incident to the police in that the incident happened at school and she reported the incident to the principal and had the principal requested her to report this matter to the police she would have done so. She has a good relationship with her daughter. It was suggested to the witness that MD had come to school and had requested assistance because the witness was abusing MD and MD wanted to go stay with her biological father. The response given was that she was never informed of this and the school should have called her to report this. There were times that she had beaten MD in the past for instance when she returned home late in that MD is expected to be at home before17h00. She disciplined MD and told her not to go to the gym again in that this was a cause of her returning home late. She is angry and disappointed at the employee in the employee knows and she also knows the employee’s wife. The employee should have approached her and asked for forgiveness. As relates the incident wherein she disciplined MD for coming late, she emphasised that the community wherein they live is a dangerous community and she had no reason not to believe MD, it is known that some teachers do rape children. MD would not make up the stories if they were not true. MD is aware of the reason why there is no contact between her and her biological father and she is aware why she cannot see her father.
7. Mr Mninawe Hans testified under oath to the following effect.
7.1 The principal at the school where MD is a scholar. As it relates to the complaint involving the employee, after MD’s mother came to him and made a verbal complaint he requested her to put the complaint in writing. MD’s mother then went home and returned with a letter of complaint. She informed MDs mother that the complaint would be dealt with by the district office. He informed the SMT of the sexual harassment complaint lodged against the employee and he informed the SMT that he had reported this matter to the district office. He also informed the staff component of the SGB after two of the parent component members came for something else. He told them that he was about to call them and he then informed them and then called the employee. He had previously commended the employee in that he had seen him disciplining learners when he instructed them to return to class. When he inform the employee of the complaint on 12 May 2021 he told that in that the matter would be dealt with by the district office. The EDO of the school requested him to furnish the district office with incident report. This led to the EDO coming to the school to address parents. The following day the employee was on leave and they were dealing with analysis and he informed SMT of the alleged incident and some of the staff members took issue with him taking the parent side and not the employee’s side.
7.2 Under cross-examination the witness confirmed remembering an essay which MD about her absent biological father he was not involved in her upbringing. After the incident he had to teach learners about different types of abuse, MD even raised a hand indicating that at school these types of abuse do occur and she has evidence that it occurred in the classroom.
EMPLOYEE’S EVIDENCE
8. Mr Sello Giyose testified under oath to the following effect.
8.1 He is married with five children.
8.2 On 6 May 21 they were called by the principal and told that one of HOD’s would be redeployed and the person to be redeployed was teaching grade 7. He then realised that his workload would increase. He realised that he would need learners to assist him in the other classes to keep the kids quiet. He required a learner to be able to keep a secret and in that they would deal with confidential information. He remembered that in 2019 there was a learner that passed away and there was this one learner who delivered a speech at the funeral, this person came over as a confident speaker and spoke eloquently. This learner happened to be MD.
8.3 He is a playful person and therefore when he called her, MD he placed his arms around her shoulders and requested her to walk with him to the grade 7 classes. He enquired from her whether she was old enough to keep a secret and she replied that she was able to keep secret. He saw the possibility that he would be teaching grade 7 and when they were about to enter one of the grade 7 classes there were other learners in the class as well, he told the learners that he would be teaching them and the learners appeared to be excited. He then asked all the learners to write a note, this note must be anonymous and must indicate how they perceive him. This he did as a baseline assessment.
8.4 The following day, 7th he was busy with a grade 6 class and the grade 7’s were making a noise. He then asked one of the learners from grades 6 to go and call MD. He then requested MD to give the grade learners activities. This was his last interaction he had with her when he asked her to write an anonymous letter.
8.5 On Monday the 10th, there was supposed to have been a meeting with the principal, he was at the principal’s office and some of the parents came to the school to fetch reports and MD’s mother came into the principal’s office and he teased her in that they used to arrange farewells gatherings together. After the allegations were made against him by MD, this caused him much stress and he could not teach properly. He had to face MD knowing that she had made these allegations against him. In one incident, he called the boys to assist him in massaging his shoulder because he felt stress, MD then stood up and started massaging his shoulders. He allowed her to do so and in a polite manner he told her that she had soft hands and he wanted one of the boys to massage him in that they had stronger hands.
8.6 He knew he would need the assistance of MD to call out the marks so that he could record them in his recording sheet. He knows the kids like to tease each other and that is why he asked her if she could keep a secret so that she would not inform the others of their marks. He admits that he is a touchy person and as a choir conductor he often touches learners, not intentionally touching private parts. He can recall during November 2021 MD crying at school. One of MD’s friends told him that MD was crying and it was reported to him that MD’s mother was abusing MD by beating her. He asked MD what she wanted him to do about her complaint regarding her mother and MD indicated that she wanted to speak to the social worker in that she was unhappy about responsibilities resting on her. He then asked some of the educators to assist and deal with MDs mother.
8.7 Under cross-examination he denies touching or fondling MDs breasts and he denies ever telling MD not to disclose to anyone what occurred. Only thing he said to her was as it relates to the recording of marks that this was private.
9. Ms Tadisa Gwija testified under oath to the following effect.
9.1 She is employed by the employer as an educator and has worked with the employee since 2015. The employee is a kind of person that likes to relate to people with colleagues. Since he is a music teacher and the choir conductor he loves to interact with the students. When there is a problem learners would approach the employee and he would be the one that would notice should there be problems with learners.
9.2 Last year there was a male learner who was in grade 11 who is now in grade 12. That learner approached the employee and indicated to the employee that he wanted to go to the initiation school but he had nothing. The employee helped this learner and going through initiation processes. She has assisted the employee with the choir and they even travelled with the learners to various places such as Mthatha, Port Elizabeth and East London. She has never received any complaints about the employee’s behaviour. She has never witnessed the employee interacting with the learners in an inappropriate manner.
9.3 She knows MD, who she knows as a loud sweet girl and she heard about the allegations after the principal called the staff to inform them. It was reported to them that the preceding day MD’s mother had come to the office and reported to the principal allegations concerning the employee. She was shocked and could not believe what she heard. She is aware of incident where MD complained about her mother abusing her. After the alleged incident relating to the employee she could see no change in MD behaviour and she could remember seeing MD massaging the employee in the class. She herself taught MD in grade 5 and 6.
9.4 Under cross-examination, the witness could recall the principal talking to the staff about abuse of learners so when she was informed of the allegation concerning the employee she could not believe that this occurred. There was a video of a teacher punching a learner from a nearby school, and the parents were unhappy in that the principal of that school did not manage the situation. He was a NGO he used to deal with such issues. She is aware that the principal was verbally attacked by the staff for not standing up for the educators in that they felt that the principal was taking the learners side. She felt that the principal could have handled the matter differently in that he should have listened to what the employee had to say about the incident.
FINDING
8. I’m required to determine whether the employee is guilty of committing an act of sexual harassment on MD at EZ Pondo Primary School. It is alleged that on 6 May 2021 the employee approached MD the 12 year old learner hugged her and he touched and fondled her breasts and that he told her not to disclose this to anyone in that this was a private issue between them. MD testified that the employee had enquired from her whether she could keep a secret. It is further alleged that the employee requested MD to write a note expressing how she felt about the employee. MD testified that she wrote a note indicating that she loves the employee like any other educator at the school.
9. The employee denies fondling or placing his hand on MD’s breasts and painted a picture that the interaction he had with MD was innocent in that the only thing he did was to put his arms around MD’s shoulder after walking with her. The employee testified that he had witnessed MD speaking at a funeral of one of the learners who had passed on and he was impressed by the eloquent manner in which she spoke and when he realised that his work load would increase due to the redeployment of a colleague he had MD in mind as someone that he could rely on to assist him.
10. MD only informed her mother of the incident after she return home from school on 7 May 2021 and the complaint was escalated by MD’s mother to the principal on Monday, 11 May 2021. What is important to note as from date when MD’s mother reported the incident to the principal, the employee was never suspended or removed from the school pending finalisation of the investigation and pending disciplinary hearing. The evidence presented by the employee that is corroborated Ms Gwija is that after the incident was reported to the school MD was seen massaging the employee’s shoulders. This was done in the class in front of the learners. The employee suggested that had there been any truth in the allegations that he had fondled MD’s breasts she would not have volunteered herself to massage his shoulders. MD when she testified express that after the incident she was scared of the employee, especially when Mazwi an educator informed her that the employee was looking for her. She testified that when she was called she was with other learners and she went to the employee as instructed, she was told to close the door but she did not close the door completely. She left it slightly open and the employee enquired from MD whether she views him as old and she confirmed that she viewed him as old. The employee alleged he then asked MD if she could keep a secret and she indicated that she could. The employee then requested MD to write him a letter telling him how she felt about him. The MD testified that the employee then requested her to hug him and she refused and she ran away. The employee then went to MDs class and requested her to hug him and she again refused. MD testified that on the instructions of the employee in expressing how she felt about the employee, she wrote “I love you like all teachers in the school, this is how I feel “. The question I asked myself is why a learner would write a note informing her teacher that I love you like all the teachers in the school this is how I feel. This tells me that this was specific response telling the reader or the addressee that her feelings towards the employee was not romantic but how a learner would feel towards her educator. The employee when he testified presented pieces of papers purported to be written by learners expressing how they felt about him. These so called notes were never discovered at the commencement of the proceedings by the employee and therefore they were never presented to MD when she testified 7 month prior to the discovery thereof. I got the impression that they were collected for purposes of the enquiry after the fact and therefore I viewed the sudden presentation thereof with circumspect. This only proves that they were obtained for purposes of enquiry.
11. Evidence was presented by the employee that MD subsequent to the incident that gave rise to the charges that MD was crying at school and claimed that her mother was abusing her and that she wanted to go stay with her father. MD’s mother impressed me as a witness, she admitted that she had beaten MD, given her a hiding for coming home late from school in that she prohibited MD in going to the gym. I take note that we are dealing with the 12 year old adolescent and who has a mother that is extremely strict who takes no nonsense. When Ms Gwija testified on behalf of the employee she described MD as a loud sweet girl. The question I asked, why would MD falsely accuse the employee of sexually harassing her by fondling her breasts. As to MD massaging the employee’s shoulders after the incident, it reminds me considering that the employee was not suspended or removed from the school in my view it is like a child having been molested by her father and after she informs her mother thereof and the mother does not believe her or does nothing about it, a child in such circumstances is then forced to accept what happened and move on.
12. I am satisfied that the employee sexually harassed MD by fondling her breasts and therefore he is guilty of transgressing section 17(1)(b) of the Employment of Educators Act, 76 of 1998.
13. Clause 5.1.2 and 5.16 of ELRC Collective Agreement 3 of 2018 provides that an arbitrator who arbitrates a dispute in terms of this collective agreement must, in light of the evidence presented, and with reference to the following, direct what action, if any should be taken against the educator with reference to the SACE Code of Professional Ethics for educators in the centre provided for in the Employment of Educators Act, including the mandatory sanction of dismissal is prescribed for certain forms of misconduct by the Employment of Educators Act.
14. The charge of sexual harassment on a learner falls under the class of transgressions “serious transgression” as provided for in section 17 of the Employment of Educators Act 76 of 1998 as amended. Section 17(1) specifically provides that should an employee be found guilty of transgression set out in section 17 an employee must be dismissed.
15. Therefore, having found the employee guilty of a section 17 (1)(b) transgression, I’m by law obligated to pronounce on a sanction of dismissal.
16. Section 120 of the Children’s Act, Act 38 of 2005 provides that a finding that a person is unsuitable to work with children may be made by a children’s court; any other court in any criminal or civil proceedings which that person is involved; or any forum established or recognised by law on any disciplinary proceedings concerning the conduct of that person relating to a child. A finding may be made by forum of its own volition or on application. Evidence as to whether a person is unsuitable to work with children may be heard by the court or the forum either in the course of or at the end of the proceedings.
17. Section 122 of the Children’s Act further provides that the relevant administration to forum must notify the Director-General in writing of any finding in terms of section 120 that a person is unsuitable to work with children. The director-general must enter the name of the person found unsuitable to work with children as contemplated in section 120 in Part B of the registrar regardless of where the appeal proceeding has been instituted or not.
18. The Code of Professional Ethics as prescribed by the South African Council of Educators Act 31 of 2000 prescribed that educators who are registered or provisionally registered with the South African Council for Educators:
18.1 Acknowledge the noble calling of their profession to educate and train the learners of our country;
18.2 Acknowledge that the attitude, dedication, self-discipline, ideals, training and conduct of the teaching profession determine the quality of education in this country;
18.3 Acknowledge, uphold and promote basic human rights, as embodied in the Constitution of South Africa.
18.4 Commit themselves therefore to do all within their power, in the exercising of their professional duties, to act in accordance with the ideals of their profession, as expressed in this Code and
18.5 Act in a proper and becoming way such that their behaviour does not bring the teaching profession into disrepute
19. Clause 3.6.; 3.8 and 3.9 of the Code of Professional Ethics under the heading, CONDUCT: The educator and the learner prescribes that an educator: refrains from improper physical contact with learners; refrains from any form of sexual harassment (physical or otherwise) of learners; and refrains from any form of sexual relationship with learners at a school.
AWARD
20. The Employee, Sello Giyose (Persal Number 54815398) is found guilty of contravening Section 17 (1) (b) of the Employment of Educators Act, 76 of 1998 as amended that on 6 May 2021 he sexually harassed learner “MD” a grade 7 learner at EZ Pondo Primary School.
21. The Employee, Sello Giyose (Persal Number 54815398) is therefore dismissed on the charge as reflected in paragraph 20 with immediate effect from the Department of Education: Eastern Cape.
22. I find that the educator, Sello Giyose as provided for in terms of Section 120 of the Children’s Act, Act 38 of 2005 as amended, as a consequence to the transgressions as referred to in paragraph 20 above, is unsuitable to work with children.
23. I further find that the educator, Sello Giyose as a consequence to the transgressions as referred to in paragraph 20 above is in breach of the SACE Code of Professional Ethics as prescribed in terms of the South African Council of Educators Act 31 of 2000.
24. In terms of Section 122 of the Children’s Act, Act 38 of 2005, as amended, the General Secretary of the ELRC shall send a copy of this award to the Director-General of the Department of Social Development.
25. In terms of clause 5.4 of of ELRC Collective Agreement 3 of 2018, the General Secretary shall send a copy of this award to the South African Council of Educators.
Name: Jonathan Gruss
(ELRC) Arbitrator
Case No.: ELRC263-21/22EC
Date of Award: 4 April 2022
In the DISCIPLINARY ENQUIRY between:
SELLO GIYOSE (Employee)
and
DEPARTMENT OF EDUCATION : EASTERN CAPE
(Employer)
Employee’s representative: Mr Papiso (SADTU)
Employer’s representative: Mr Hela
DETAILS OF HEARING AND REPRESENTATION
1. This matter was set-down for an enquiry by arbitrator as provided for in terms of Clause 32 of the ELRC Dispute Resolution Procedures read with clause 3 of ELRC Collective Agreement 3 of 2018. The enquiry takes the form of a Section 188A of the Labour Relations Act, Act 66 of 1995 enquiry by arbitrator. The enquiry was scheduled on 9 September 2021 at the Magistrates Court in East London and on 18 and 19 March 2022 at the offices of the Department of Education: Eastern Cape in King Williams Town. The accused employee, Sello Giyose was represented by Mr Papiso from SADT. The employer, Department of Education: Eastern Cape was represented by Mr Hela. Written closing arguments were submitted by the parties on 25 March 2022.
CHARGES
2. The employee was charged with three (2) counts of misconduct.
2.1 Charge 1: Contravening section 17(1) (b) of the Employment of Educators Act 76 of 1998 as amended by committing an act of sexual harassment to a grade 7v learner “MD” at EZ Pondo Primary School.
2.2 Alternative Charge 2: Contravention of section 18(1) (f) of the Employment of Educators Act as amended, in that he unjustifiably prejudiced the administration, discipline or efficiency of the Department of Education, or a school or acting profession and unethical towards a learner who had trusted him as a teacher and a parent.
3. A not guilty plea was entered on behalf of the employee as relates to the charges.
SURVEY OF EVIDENCE AND ARGUMENT
4. This is a brief summary of evidence considered as provided for in terms of Section 138(7)(a) of the Act relevant to the dispute at hand and does not reflect all the evidence and arguments heard and considered in deciding this matter.
ANALYSIS OF EVIDENCE
EMPLOYER’S EVIDENCE
5. Ms MD testified under oath to the following effect:
5.1 She knows the employee in that on 6 May 2021 after they had finished with a choir practice at the school the employee approached her and hugged her and in the process he touched and felt her breasts. The employee told her that she must not disclose this to anyone, that this is a private issue between them. On 7 May 2021 she was called by a teacher, Mazwi, and told that the employee was calling her. She was with other people at that stage they then went to look for the employee and they found him in another office. The employee then told her to enter the office and close the door. She did not close the door completely and left it slightly open. The employee asked her if he was old and she responded to him that he was old and then he asked her if she could keep a secret. She responded that she could. The employee then told her that she must write a letter and tell him how he feels about him. The employee told him that she must hug him and she responded no and then ran away. The employee then came to her class and indicated that he wanted to ask her something. The employee again indicated to her that he wanted to hug her and she again said that she did not want him to hug him. The employee then enquired about the letter and reminded her about the note that he asked her to write him. She wrote that she had the same feelings for him as she had for all the teachers and “I love you like all the teachers in the school, this is how I feel”. After the incident the relationship between her and the employee was not good and the employee had learnt that she had told other learners as to what had transpired.
5.2 Under cross-examination the witness confirmed that she has a close friend and that she had told her friend what had occurred between her and the employee. It was suggested to the witness as to her claiming that they had come from choir practice and that due to Covid 19 restrictions there were no choir activities. The witness reiterated that they were practising how to sing the anthem. When enquired as to the feelings towards the employee, the witness indicated that every time the employee ended up in the classroom she used to be scared but after July 2021 after the incident was reported nothing came of the report and she felt as if the school had forgotten and therefore she was no longer scared. It was suggested to the witness that should someone do something like, as the employee was allegedly to have done, you would not want to be near that person. Therefore, it was pointed out to the witness that she massaged the employee’s shoulder even though she was not asked to do that. Her response was that that after she had massaged the employee’s neck, she realised that she should not have done that.
5.3 The witness was asked whether the employee had unintentionally touched her breasts. The response given was that the employee did so deliberately and that he thought that she would keep quiet and he had done this to other learners but they had kept quiet about it. As to the question of whether she could keep secrets, the witness indicated that she thought he wanted to rape her and the employee did not want anyone to know about it. It is further suggested to the witness that the reason why the employee had enquired from her whether she could keep a secret in that the employee wanted her to help him in recording the classes marks. The witness responded that there were other learners that were recording the marks and there was no reason for him to request her to record the marks.
5.4 Under re-examination, the witness was asked whether she was still afraid of the employee and she responded that she was not afraid of him because she no longer has a reason to be scared of him. When she offered to massage the employee’s neck she realised shortly thereafter that it was wrong in that she hated what he had done to her. When the employee touched her breast she felt scared and she wanted to tell him he take his hands away but she could not do so because she was feeling scared.
6. Ms Yaniswa D testified under oath to the following effect.
6.1 She is the MD’s mother and after the incident on 7 May 2021 after MD arrived from school, MD told her that she wanted to tell her something. Her child told her that the preceding day, 6 May 2021 after they were practising the anthem, the employee touched her breasts and had told her that she must not tell the others anything. MD explained to her that on the 7th the employee called her and asked her if she is old enough and he asked her if she could keep secret. MD indicated that she told the employee that she could keep a secret. The employee then asked MD how she felt about him and he then gave her a piece of paper requested to write how she felt about him. MD indicated to the witness that she did not want to write and therefore she ran away to her class. After a few minutes according to MD, the employee returned to her class and he enquired from MD as to where the paper was that he had requested her to write on. MD had reported to her that she wrote on the paper “teacher I love you like any other teacher in the school” this note MD left with the employee.
6.2 The following Monday, she reported the incident to the principal and after the incident her daughter became afraid of other men. She had a tenant that lodged with them and because of the incident she could not send MD to the tenant any longer.
6.3 Under cross-examination the witness confirmed that MD’s father was not her husband and was not the biological father for her other children. She did not report the incident to the police in that the incident happened at school and she reported the incident to the principal and had the principal requested her to report this matter to the police she would have done so. She has a good relationship with her daughter. It was suggested to the witness that MD had come to school and had requested assistance because the witness was abusing MD and MD wanted to go stay with her biological father. The response given was that she was never informed of this and the school should have called her to report this. There were times that she had beaten MD in the past for instance when she returned home late in that MD is expected to be at home before17h00. She disciplined MD and told her not to go to the gym again in that this was a cause of her returning home late. She is angry and disappointed at the employee in the employee knows and she also knows the employee’s wife. The employee should have approached her and asked for forgiveness. As relates the incident wherein she disciplined MD for coming late, she emphasised that the community wherein they live is a dangerous community and she had no reason not to believe MD, it is known that some teachers do rape children. MD would not make up the stories if they were not true. MD is aware of the reason why there is no contact between her and her biological father and she is aware why she cannot see her father.
7. Mr Mninawe Hans testified under oath to the following effect.
7.1 The principal at the school where MD is a scholar. As it relates to the complaint involving the employee, after MD’s mother came to him and made a verbal complaint he requested her to put the complaint in writing. MD’s mother then went home and returned with a letter of complaint. She informed MDs mother that the complaint would be dealt with by the district office. He informed the SMT of the sexual harassment complaint lodged against the employee and he informed the SMT that he had reported this matter to the district office. He also informed the staff component of the SGB after two of the parent component members came for something else. He told them that he was about to call them and he then informed them and then called the employee. He had previously commended the employee in that he had seen him disciplining learners when he instructed them to return to class. When he inform the employee of the complaint on 12 May 2021 he told that in that the matter would be dealt with by the district office. The EDO of the school requested him to furnish the district office with incident report. This led to the EDO coming to the school to address parents. The following day the employee was on leave and they were dealing with analysis and he informed SMT of the alleged incident and some of the staff members took issue with him taking the parent side and not the employee’s side.
7.2 Under cross-examination the witness confirmed remembering an essay which MD about her absent biological father he was not involved in her upbringing. After the incident he had to teach learners about different types of abuse, MD even raised a hand indicating that at school these types of abuse do occur and she has evidence that it occurred in the classroom.
EMPLOYEE’S EVIDENCE
8. Mr Sello Giyose testified under oath to the following effect.
8.1 He is married with five children.
8.2 On 6 May 21 they were called by the principal and told that one of HOD’s would be redeployed and the person to be redeployed was teaching grade 7. He then realised that his workload would increase. He realised that he would need learners to assist him in the other classes to keep the kids quiet. He required a learner to be able to keep a secret and in that they would deal with confidential information. He remembered that in 2019 there was a learner that passed away and there was this one learner who delivered a speech at the funeral, this person came over as a confident speaker and spoke eloquently. This learner happened to be MD.
8.3 He is a playful person and therefore when he called her, MD he placed his arms around her shoulders and requested her to walk with him to the grade 7 classes. He enquired from her whether she was old enough to keep a secret and she replied that she was able to keep secret. He saw the possibility that he would be teaching grade 7 and when they were about to enter one of the grade 7 classes there were other learners in the class as well, he told the learners that he would be teaching them and the learners appeared to be excited. He then asked all the learners to write a note, this note must be anonymous and must indicate how they perceive him. This he did as a baseline assessment.
8.4 The following day, 7th he was busy with a grade 6 class and the grade 7’s were making a noise. He then asked one of the learners from grades 6 to go and call MD. He then requested MD to give the grade learners activities. This was his last interaction he had with her when he asked her to write an anonymous letter.
8.5 On Monday the 10th, there was supposed to have been a meeting with the principal, he was at the principal’s office and some of the parents came to the school to fetch reports and MD’s mother came into the principal’s office and he teased her in that they used to arrange farewells gatherings together. After the allegations were made against him by MD, this caused him much stress and he could not teach properly. He had to face MD knowing that she had made these allegations against him. In one incident, he called the boys to assist him in massaging his shoulder because he felt stress, MD then stood up and started massaging his shoulders. He allowed her to do so and in a polite manner he told her that she had soft hands and he wanted one of the boys to massage him in that they had stronger hands.
8.6 He knew he would need the assistance of MD to call out the marks so that he could record them in his recording sheet. He knows the kids like to tease each other and that is why he asked her if she could keep a secret so that she would not inform the others of their marks. He admits that he is a touchy person and as a choir conductor he often touches learners, not intentionally touching private parts. He can recall during November 2021 MD crying at school. One of MD’s friends told him that MD was crying and it was reported to him that MD’s mother was abusing MD by beating her. He asked MD what she wanted him to do about her complaint regarding her mother and MD indicated that she wanted to speak to the social worker in that she was unhappy about responsibilities resting on her. He then asked some of the educators to assist and deal with MDs mother.
8.7 Under cross-examination he denies touching or fondling MDs breasts and he denies ever telling MD not to disclose to anyone what occurred. Only thing he said to her was as it relates to the recording of marks that this was private.
9. Ms Tadisa Gwija testified under oath to the following effect.
9.1 She is employed by the employer as an educator and has worked with the employee since 2015. The employee is a kind of person that likes to relate to people with colleagues. Since he is a music teacher and the choir conductor he loves to interact with the students. When there is a problem learners would approach the employee and he would be the one that would notice should there be problems with learners.
9.2 Last year there was a male learner who was in grade 11 who is now in grade 12. That learner approached the employee and indicated to the employee that he wanted to go to the initiation school but he had nothing. The employee helped this learner and going through initiation processes. She has assisted the employee with the choir and they even travelled with the learners to various places such as Mthatha, Port Elizabeth and East London. She has never received any complaints about the employee’s behaviour. She has never witnessed the employee interacting with the learners in an inappropriate manner.
9.3 She knows MD, who she knows as a loud sweet girl and she heard about the allegations after the principal called the staff to inform them. It was reported to them that the preceding day MD’s mother had come to the office and reported to the principal allegations concerning the employee. She was shocked and could not believe what she heard. She is aware of incident where MD complained about her mother abusing her. After the alleged incident relating to the employee she could see no change in MD behaviour and she could remember seeing MD massaging the employee in the class. She herself taught MD in grade 5 and 6.
9.4 Under cross-examination, the witness could recall the principal talking to the staff about abuse of learners so when she was informed of the allegation concerning the employee she could not believe that this occurred. There was a video of a teacher punching a learner from a nearby school, and the parents were unhappy in that the principal of that school did not manage the situation. He was a NGO he used to deal with such issues. She is aware that the principal was verbally attacked by the staff for not standing up for the educators in that they felt that the principal was taking the learners side. She felt that the principal could have handled the matter differently in that he should have listened to what the employee had to say about the incident.
FINDING
8. I’m required to determine whether the employee is guilty of committing an act of sexual harassment on MD at EZ Pondo Primary School. It is alleged that on 6 May 2021 the employee approached MD the 12 year old learner hugged her and he touched and fondled her breasts and that he told her not to disclose this to anyone in that this was a private issue between them. MD testified that the employee had enquired from her whether she could keep a secret. It is further alleged that the employee requested MD to write a note expressing how she felt about the employee. MD testified that she wrote a note indicating that she loves the employee like any other educator at the school.
9. The employee denies fondling or placing his hand on MD’s breasts and painted a picture that the interaction he had with MD was innocent in that the only thing he did was to put his arms around MD’s shoulder after walking with her. The employee testified that he had witnessed MD speaking at a funeral of one of the learners who had passed on and he was impressed by the eloquent manner in which she spoke and when he realised that his work load would increase due to the redeployment of a colleague he had MD in mind as someone that he could rely on to assist him.
10. MD only informed her mother of the incident after she return home from school on 7 May 2021 and the complaint was escalated by MD’s mother to the principal on Monday, 11 May 2021. What is important to note as from date when MD’s mother reported the incident to the principal, the employee was never suspended or removed from the school pending finalisation of the investigation and pending disciplinary hearing. The evidence presented by the employee that is corroborated Ms Gwija is that after the incident was reported to the school MD was seen massaging the employee’s shoulders. This was done in the class in front of the learners. The employee suggested that had there been any truth in the allegations that he had fondled MD’s breasts she would not have volunteered herself to massage his shoulders. MD when she testified express that after the incident she was scared of the employee, especially when Mazwi an educator informed her that the employee was looking for her. She testified that when she was called she was with other learners and she went to the employee as instructed, she was told to close the door but she did not close the door completely. She left it slightly open and the employee enquired from MD whether she views him as old and she confirmed that she viewed him as old. The employee alleged he then asked MD if she could keep a secret and she indicated that she could. The employee then requested MD to write him a letter telling him how she felt about him. The MD testified that the employee then requested her to hug him and she refused and she ran away. The employee then went to MDs class and requested her to hug him and she again refused. MD testified that on the instructions of the employee in expressing how she felt about the employee, she wrote “I love you like all teachers in the school, this is how I feel “. The question I asked myself is why a learner would write a note informing her teacher that I love you like all the teachers in the school this is how I feel. This tells me that this was specific response telling the reader or the addressee that her feelings towards the employee was not romantic but how a learner would feel towards her educator. The employee when he testified presented pieces of papers purported to be written by learners expressing how they felt about him. These so called notes were never discovered at the commencement of the proceedings by the employee and therefore they were never presented to MD when she testified 7 month prior to the discovery thereof. I got the impression that they were collected for purposes of the enquiry after the fact and therefore I viewed the sudden presentation thereof with circumspect. This only proves that they were obtained for purposes of enquiry.
11. Evidence was presented by the employee that MD subsequent to the incident that gave rise to the charges that MD was crying at school and claimed that her mother was abusing her and that she wanted to go stay with her father. MD’s mother impressed me as a witness, she admitted that she had beaten MD, given her a hiding for coming home late from school in that she prohibited MD in going to the gym. I take note that we are dealing with the 12 year old adolescent and who has a mother that is extremely strict who takes no nonsense. When Ms Gwija testified on behalf of the employee she described MD as a loud sweet girl. The question I asked, why would MD falsely accuse the employee of sexually harassing her by fondling her breasts. As to MD massaging the employee’s shoulders after the incident, it reminds me considering that the employee was not suspended or removed from the school in my view it is like a child having been molested by her father and after she informs her mother thereof and the mother does not believe her or does nothing about it, a child in such circumstances is then forced to accept what happened and move on.
12. I am satisfied that the employee sexually harassed MD by fondling her breasts and therefore he is guilty of transgressing section 17(1)(b) of the Employment of Educators Act, 76 of 1998.
13. Clause 5.1.2 and 5.16 of ELRC Collective Agreement 3 of 2018 provides that an arbitrator who arbitrates a dispute in terms of this collective agreement must, in light of the evidence presented, and with reference to the following, direct what action, if any should be taken against the educator with reference to the SACE Code of Professional Ethics for educators in the centre provided for in the Employment of Educators Act, including the mandatory sanction of dismissal is prescribed for certain forms of misconduct by the Employment of Educators Act.
14. The charge of sexual harassment on a learner falls under the class of transgressions “serious transgression” as provided for in section 17 of the Employment of Educators Act 76 of 1998 as amended. Section 17(1) specifically provides that should an employee be found guilty of transgression set out in section 17 an employee must be dismissed.
15. Therefore, having found the employee guilty of a section 17 (1)(b) transgression, I’m by law obligated to pronounce on a sanction of dismissal.
16. Section 120 of the Children’s Act, Act 38 of 2005 provides that a finding that a person is unsuitable to work with children may be made by a children’s court; any other court in any criminal or civil proceedings which that person is involved; or any forum established or recognised by law on any disciplinary proceedings concerning the conduct of that person relating to a child. A finding may be made by forum of its own volition or on application. Evidence as to whether a person is unsuitable to work with children may be heard by the court or the forum either in the course of or at the end of the proceedings.
17. Section 122 of the Children’s Act further provides that the relevant administration to forum must notify the Director-General in writing of any finding in terms of section 120 that a person is unsuitable to work with children. The director-general must enter the name of the person found unsuitable to work with children as contemplated in section 120 in Part B of the registrar regardless of where the appeal proceeding has been instituted or not.
18. The Code of Professional Ethics as prescribed by the South African Council of Educators Act 31 of 2000 prescribed that educators who are registered or provisionally registered with the South African Council for Educators:
18.1 Acknowledge the noble calling of their profession to educate and train the learners of our country;
18.2 Acknowledge that the attitude, dedication, self-discipline, ideals, training and conduct of the teaching profession determine the quality of education in this country;
18.3 Acknowledge, uphold and promote basic human rights, as embodied in the Constitution of South Africa.
18.4 Commit themselves therefore to do all within their power, in the exercising of their professional duties, to act in accordance with the ideals of their profession, as expressed in this Code and
18.5 Act in a proper and becoming way such that their behaviour does not bring the teaching profession into disrepute
19. Clause 3.6.; 3.8 and 3.9 of the Code of Professional Ethics under the heading, CONDUCT: The educator and the learner prescribes that an educator: refrains from improper physical contact with learners; refrains from any form of sexual harassment (physical or otherwise) of learners; and refrains from any form of sexual relationship with learners at a school.
AWARD
20. The Employee, Sello Giyose (Persal Number 54815398) is found guilty of contravening Section 17 (1) (b) of the Employment of Educators Act, 76 of 1998 as amended that on 6 May 2021 he sexually harassed learner “MD” a grade 7 learner at EZ Pondo Primary School.
21. The Employee, Sello Giyose (Persal Number 54815398) is therefore dismissed on the charge as reflected in paragraph 20 with immediate effect from the Department of Education: Eastern Cape.
22. I find that the educator, Sello Giyose as provided for in terms of Section 120 of the Children’s Act, Act 38 of 2005 as amended, as a consequence to the transgressions as referred to in paragraph 20 above, is unsuitable to work with children.
23. I further find that the educator, Sello Giyose as a consequence to the transgressions as referred to in paragraph 20 above is in breach of the SACE Code of Professional Ethics as prescribed in terms of the South African Council of Educators Act 31 of 2000.
24. In terms of Section 122 of the Children’s Act, Act 38 of 2005, as amended, the General Secretary of the ELRC shall send a copy of this award to the Director-General of the Department of Social Development.
25. In terms of clause 5.4 of of ELRC Collective Agreement 3 of 2018, the General Secretary shall send a copy of this award to the South African Council of Educators.
Name: Jonathan Gruss
(ELRC) Arbitrator