PSES115-18/19WC
Text
ELRC 680-20/21 FS
Award Date:
12 April 2022
Arbitrator: Minette van der Merwe
Case Reference No.: ELRC 680-20/21 FS
Date of award: 12 April2022
In the Inquiry by Arbitrator between:
SADTU obo Paseka Jacob Tonjana Employee party/Accused
and
Department of Education – Free State Employer party
DETAILS OF HEARING AND REPRESENTATION
1. The Inquiry by Arbitrator proceedings in terms of section 188A of the Labour Relations Act 66 of 1995, as amended, (“LRA”) read with the ELRC Practice Note: 1 of 2018, was held on 10 June 2021 and 29 March 2022. The matter had been postponed multiple times and for various reasons in between these two dates.
2. The matter was arbitrated at the Respondent’s premises, albeit two different venues, on both the dates.
3. Parties were present throughout and duly represented. The Accused was represented initially by Ms M Moiloa on 10 June 2021 and thereafter by Mr M Frans, both SADTU (South African Democratic Teachers’ Union) officials. The Employer was represented by Mr N Tsoai throughout.
4. The proceedings were digitally recorded, and hand written notes were kept.
5. Interpretation was conducted by Ms Philani Nyezi on both dates that the matter proceeded. On 29 March 2022 Ms Boitumelo Koeshe, an Interpreter in Training, assisted with interpretation under the guidance of Ms Nyezi.
ISSUE TO BE DECIDED
6. The dispute has been referred to the ELRC as an Inquiry by Arbitrator in terms of section 188A of the LRA, as amended, read with the ELRC Practice Note: 1 of 2018.
7. I was required to determine whether the Accused is guilty of the charges as listed below (bundle “A” pages 1 & 2), and if so, determine the appropriate sanction:
Charge 1
You have contravened section 18(1)(q) of the Employment of Educators Act 76 of 1998 in that on the 15th October 2020, you conducted yourself in an improper, disgraceful and unacceptable manner when you asked a grade 7 learner (“the Learner”) if she has a boyfriend and subsequently told her that boys will copulate her, quoting verbatim “bashemane ba tla o kota”
Alternative to Charge 1
You have contravened section 18(1)(a) of the Employment of Educators Act 76 of 1998 in that on the 15th of October 2020, you failed to comply with or contravened this Act of any other statute, regulation or legal obligation relating to education and the employment relationship (SACE CODE OF ETHICS, ITEM 3.12) when you used inappropriate language and said to a learner (“the Learner”) “bashemane ba tla o kota”.
Charge 2
You have contravened section 18(1)(q) of the Employment of Educators Act 76 of 1998 in that you the 15th of October 2020, you conducted yourself in an improper, disgraceful and unacceptable manner when you touched a grade 7 leaner (“the Learner”) inappropriately around the waist and told her that she is beautiful.
Alternative to Charge 2
You have contravened section 18(1)(a) of the Employment of Educators Act 76 of 1998 in that on the 15th of October 2020, you failed to comply with or contravened this Act or any other statute, regulation or legal obligation relating to education and the employment relationship (SACE CODE OF ETHICS, ITEM 3.6) when you touched a grade 7 learner (“the Learner”) inappropriately around the waist and told her that she is beautiful.
PRELIMINARY ISSUES
8. The Employer applied for the admission of hearsay evidence, which was opposed by the Employee. I explained that I would provisionally allow the hearsay evidence, and will make a finding on its admissibility in the award. The hearsay evidence was ultimately not led by the Employer.
BACKGROUND TO THE ISSUE
9. The Accused (hereinafter referred to as “Tonjana”) was informed of the charges against him on 2 February 2021.
10. Tonjana pled not guilty to the charges, as well as the alternative charges. He confirmed he had adequate notice of the hearing and time to prepare, had received the charge sheet and were ready to proceed.
11. Tonjana is an Educator at Mokwallo Primary School in the Fezile Dabi District. The Learner was a leaner at the same school at the time of the incident.
Competency finding of the Learner to testify
12. There is a three-fold test to establish a child's competence. First, the child must have sufficient intelligence to be able to record events and store them accurately in their memory. Second, the child must be able to communicate effectively, which means being able to understand questions put to them, and to formulate rational answers. Third, the child must be able to distinguish between truth and lies. If the child has not been properly found to be competent, any testimony given by that child may be found to be inadmissible. Although a more flexible approach is adopted to establishing the competency of a child to testify in arbitrations, it is still necessary to establish whether the child understands the difference between truth and lies in order for them to be allowed to testify.
13. Prior to the testimony of the Learner, allegedly aged thirteen or fourteen on 10 June 2021 (first day of arbitration), through the services of the Intermediary Ms T Mokgwamme, her competency to testify was determined through the asking of knowledge, comprehension and educational questions. She could not demonstrate that she could distinguish between the truth and a lie, and that there are consequences for lying in proceedings of this nature. A break was given of 45 minutes, and the Learner was given something to eat and drink. I attempted the process to establish her competency again by asking the same questions, and she was found to be incompetent. The Learner was accordingly excluded as a witness.
14. Some of the questions asked to the Learner, and responses recorded, are reflected below:
i. Date of birth – she could not give the year in which she was born multiple times, and the age she said that she was, did not correspond to the year she stated she was born in
ii. She could not provide her address
iii. She could not state whether she was a boy or a girl, and merely responded “yes” to the question, which was asked multiple times
iv. She could not say that, if a person alleged that she was a girl, they would be lying
v. When asked what the consequences could be if she would lie to her mother she merely stated that she would be lying
vi. When asked what the consequences could be if she lied to a teacher, she stated that a case would be opened against such a teacher
vii. When asked what the consequences would be of lying in a court or during the arbitration, she stated that it would be said that she was destroying the teacher’s name
viii. When asked what colour the jacket was that she was wearing, she stated that it was grey, whereas the jacket was white
ix. When asked whether she knew why she was called to the proceedings, she stated that, if she lied, she would lose the case
15. In South Africa, as in many other countries, a child is only permitted to testify in a proceedings once the presiding officer is satisfied that the child is competent to be a witness. A presiding officer has a duty to establish the competency of a minor to testify during proceedings, and I was not convinced that the Learner was competent. It was not alleged that the Learner had any learning disabilities, or any cognitive challenges that I should be aware of.
SURVEY OF EVIDENCE AND ARGUMENT
Documentary:
16. Bundle “A” was submitted into evidence by the Employer. Its veracity was not disputed and it was accepted as it purported to be.
Evidence from the Employer:
17. The Employer called three witnesses to testify. The first witness, the Learner, was excluded as a witness (see paragraph 12 above). The Applicant was the only witness that testified in his defense. The testimonies, under oath, are fully captured on the record of proceedings, and a copy of the digital recording is available on request from the ELRC. I therefore do no deem it necessary to repeat it in this award.
18. The 2nd witness, Monapo Josephine Tlhapi (“Tlhapi”), testified that Tonjana had been her colleague for approximately seven years. She has never observed any worrisome or inappropriate behaviour from Tonjane towards learners and she trusted Tonjana around female learners. She confronted Tonjana after school on 15 October 2020 and she believed him when he had told her that he had touched the Learner on her shoulder, and not her waist, as alleged, and he told her that he had said to the Learner that boys would have sex with her.
19. During October 2020 she was approached by learners in the grade 5 class who told her that the Learner was crying. She assumed that the Learner was crying as a result of bullying by some boys, which was a regular occurrence. She went to the classroom and the Learner went to her and was crying, and she said that Tonjana asked her where she had been over the weekend. She answered him and Tonjana asked her who had plait her hair and that she should not play with boys. She stated that, during the conversation, Tonjane had touched her around her waist. She reported the incident to Mr Makwadi and Mr Bayana, her supervisors, and she was advised by Mr Bayana to go back to the Learner and get her version on record, which she did.
20. She confirmed that she did not see the interaction between Tonjana and the Learner herself, and could only testify as to what the Learner had reported to her. She has personally seen the Learner visit Tonjane’s neighbour, a Malawian citizen who worked at an abattoir, at his house. She could understand Tonjana’s concern with the Learner. She stated that the Learner in question was now pregnant. She testified that it was not unusual for a Learner to lie about or exaggerate incidents.
21. The 2nd witness, Thamsanqa Ruben Bayana (“Bayana”), confirmed the evidence of Tlhapi that an incident was reported to him, and that he told her to record the Learner’s version. He confirmed that he had always had a good working relationship with Tonjana and trusted him with female learners. His evidence did not take the Employer’s case any further.
Evidence from the Accused:
22. The Accused, Paseka Jacob Tonjana (“Tonjana”), testified that he had been an Educator at Mokwallo Primary School for approximately 15 years, and he had a good working relationship with Tlhapi and Bayana.
23. He knew the Learner in question as one of his students during grade 4 and 5. He had started to observe a change in the Learner’s behaviour during grade 6 and 7 in that she was hanging around a lot of boys. He warned her not to play with boys, and said that they will have sex with her. His motivation was due to a lot of young female learners dropping out of school due to pregnancy. The previous Principle had encouraged the Educators to caution the male and female learners against unwanted pregnancies. He has cautioned many Learners before when he had observed worrying behavior.
24. He touched her on her shoulder in a non-sexual manner while he spoke to the Learner, like a parent would, and he did not put his hand on or around her waist. She did not show any reaction to him touching her shoulder. This was the way he usually acted when he spoke to Learners he wanted to caution and comfort. Although he often addressed a group of Leaners together, it was sometimes necessary to have a one-on-one conversation with a Learner.
25. He had a neighbour who was a Malawian citizen and who worked at an abattoir. He had seen the Learner visiting the house of his neighbour on two occasions during term and her visits would last between 2 to 3 hours. He went home over weekends and holidays, so he could not say if she visited him during those periods. This was another reason he had the conversation with her, to caution her. He had since heard that the Learner had fallen pregnant and had dropped out of school.
ANALYSIS OF EVIDENCE AND ARGUMENT
26. Parties were given an opportunity to make oral closing arguments. Same was considered, but will not be repeated herein.
27. The Employer must prove on a balance of probabilities that the Accused is guilty of the charges levelled against him. The LRA provides in the Code of Good Practice: Dismissal in Schedule 8, Article 7, that a person considering the fairness of a dismissal for misconduct must consider the following:
(a) Whether or not the employee contravened a rule or standard regulating conduct in, or of relevance to, the workplace; and
(b) If a rule or standard was contravened, whether or not –
(i) the rule was a valid or reasonable rule or standard;
(ii) the employee was aware, or could reasonably be expected to have been aware, or the rule or standard;
(iii) the rule or standard has been consistently applied by the employer; and
(iv) dismissal is an appropriate sanction for the contravention of the rule or standard.
28. Notwithstanding the fact that this is an Inquiry by Arbitrator, I will apply the same criteria when deciding whether the Accused, Tonjana, has made himself guilty of the charges against him, and if so, on the appropriate sanction.
Did the Employee Contravene the Rule?
29. Tlhapi and Bayana were found to be credible and reliable witnesses. Their evidence was consistent and factual, and no material contradictions were found.
30. The evidence of Tonjana was found to be credible and reliable. His evidence was consistent with his version from the time that he was confronted by Tlhapi, and had remained unchanged, as per the evidence of Tlhapi and compared with page 2 of “A”. No material contradictions were found in his evidence.
31. The Learner was excluded as a witness as she was found to be incompetent to testify. As such, no direct evidence on the incident was presented by the Employer. The only evidence presented by the Employer in support of the allegations against Tonjana was the evidence of Tlhapi. She gave direct evidence of what the Learner had shared with her, but she could not give direct evidence about the alleged incident.
32. Tonjana disputed the allegation that he had acted inappropriately in any way towards the Learner. He explained the context of his words “boys will have sex with you” as part of a larger conversation he had with the Learner, in an attempt to caution her about the risks and consequences of sex. It was his evidence that he regularly had such conversations with the learners, either in a group or one-on-one, and that the previous Principle had encouraged the Educators to do so. The Employer was unable to refute the version of Tonjana in this regard.
33. The incident allegedly happened one-on-one but in the presence of the grade 5 female learners. It begs the question why the Employer did not attempt to call one of the other learner’s to testify on what was observed, which would have been considered direct evidence. One such a learner could have been the learner who is specifically named in the statement by Tonjana as to what transpired on 15 October 2020 (page 2 of “A”).
34. After considering all evidence in this regard, the version of Tonjana is found to be more probable that the version of the Employer. The Employer has failed to discharge the burden of proof.
35. Insofar as Charge 1 is concerned, the Accused is found not guilty. Insofar as Alternative to Charge 1 is concerned, the Accused is found not guilty.
36. It deems mentioning that, even if it was found that Tonjana said “boys will fuck you”, as alleged in charge 1 and its alternative, instead of “boys will have sex with you”, this would not have automatically rendered the Accused’s actions serious enough to warrant dismissal in terms of section 17 and/or 18 of the Employment of Educators Act, 76 of 1998.
37. The Employer’s witnesses, Tlhapi and Bayana, testified that they trusted Tonjana around female learners, and had never observed or heard about allegations that he acted inappropriate towards learners, specifically female learners.
38. The Accused testified that he did not touch the Learner around the waist, as alleged, but had patted her on her shoulder whilst he spoke to her, like a parent would. Tlhapi testified that, when she shared the allegation with Tonjana after school on the day in question, he had stated that he had touched the Learner on her shoulder, and not around her waist. Tlhapi testified that she had believed Tonjana when he gave her his version of what happened. Once again, no direct evidence was led by the Employer to prove this allegation.
39. After considering all evidence in this regard, the version of Tonjana is found to be more probable than the version of the Employer. The Employer has failed to discharge the burden of proof.
40. Insofar as Charge 2 is concerned, the Accused is found not guilty. Insofar as Alternative to Charge 2 is concerned, the Accused is found not guilty.
IS THE RULE VALID AND REASONABLE?
41. This aspect was not placed in dispute by Tonjana. It is worth mentioning that a rule against any inappropriate actions and/or conduct between an Educator and Learner is reasonable in the education environment, for the protection of both Leaners and Educators, and is sensical.
WAS THE EMPLOYEE AWARE OF THE RULE?
42. This aspect was not placed in dispute by Tonjana. Further the EEA is very clear in section 17 and section 18 as to the existence of the rule. Tonjana was appointed as an Educator in terms of the EEA, and reasonably ought to have been aware of the rule.
HAS THE EMPLOYER APPLIED THE RULE CONSISTENTLY?
43. I had no evidence to the contrary.
APPROPRIATE SANCTION?
44. In light of the finding that the Accused is not guilty as charged, the charges against the Accused is accordingly hereby dismissed.
SANCTION
45. No sanction is imposed against the Accused.
AWARD
46. The Accused, Paseka Jacob Tonjana, is found not guilty on Charge 1, Alternative to Charge 1, Charge 2 and Alternative to Charge 2 (all charges).
47. Accordingly, all charges against the Accused are dismissed.
Minette van der Merwe
ELRC Panelist
Case Reference No.: ELRC 680-20/21 FS
Date of award: 12 April2022
In the Inquiry by Arbitrator between:
SADTU obo Paseka Jacob Tonjana Employee party/Accused
and
Department of Education – Free State Employer party
DETAILS OF HEARING AND REPRESENTATION
1. The Inquiry by Arbitrator proceedings in terms of section 188A of the Labour Relations Act 66 of 1995, as amended, (“LRA”) read with the ELRC Practice Note: 1 of 2018, was held on 10 June 2021 and 29 March 2022. The matter had been postponed multiple times and for various reasons in between these two dates.
2. The matter was arbitrated at the Respondent’s premises, albeit two different venues, on both the dates.
3. Parties were present throughout and duly represented. The Accused was represented initially by Ms M Moiloa on 10 June 2021 and thereafter by Mr M Frans, both SADTU (South African Democratic Teachers’ Union) officials. The Employer was represented by Mr N Tsoai throughout.
4. The proceedings were digitally recorded, and hand written notes were kept.
5. Interpretation was conducted by Ms Philani Nyezi on both dates that the matter proceeded. On 29 March 2022 Ms Boitumelo Koeshe, an Interpreter in Training, assisted with interpretation under the guidance of Ms Nyezi.
ISSUE TO BE DECIDED
6. The dispute has been referred to the ELRC as an Inquiry by Arbitrator in terms of section 188A of the LRA, as amended, read with the ELRC Practice Note: 1 of 2018.
7. I was required to determine whether the Accused is guilty of the charges as listed below (bundle “A” pages 1 & 2), and if so, determine the appropriate sanction:
Charge 1
You have contravened section 18(1)(q) of the Employment of Educators Act 76 of 1998 in that on the 15th October 2020, you conducted yourself in an improper, disgraceful and unacceptable manner when you asked a grade 7 learner (“the Learner”) if she has a boyfriend and subsequently told her that boys will copulate her, quoting verbatim “bashemane ba tla o kota”
Alternative to Charge 1
You have contravened section 18(1)(a) of the Employment of Educators Act 76 of 1998 in that on the 15th of October 2020, you failed to comply with or contravened this Act of any other statute, regulation or legal obligation relating to education and the employment relationship (SACE CODE OF ETHICS, ITEM 3.12) when you used inappropriate language and said to a learner (“the Learner”) “bashemane ba tla o kota”.
Charge 2
You have contravened section 18(1)(q) of the Employment of Educators Act 76 of 1998 in that you the 15th of October 2020, you conducted yourself in an improper, disgraceful and unacceptable manner when you touched a grade 7 leaner (“the Learner”) inappropriately around the waist and told her that she is beautiful.
Alternative to Charge 2
You have contravened section 18(1)(a) of the Employment of Educators Act 76 of 1998 in that on the 15th of October 2020, you failed to comply with or contravened this Act or any other statute, regulation or legal obligation relating to education and the employment relationship (SACE CODE OF ETHICS, ITEM 3.6) when you touched a grade 7 learner (“the Learner”) inappropriately around the waist and told her that she is beautiful.
PRELIMINARY ISSUES
8. The Employer applied for the admission of hearsay evidence, which was opposed by the Employee. I explained that I would provisionally allow the hearsay evidence, and will make a finding on its admissibility in the award. The hearsay evidence was ultimately not led by the Employer.
BACKGROUND TO THE ISSUE
9. The Accused (hereinafter referred to as “Tonjana”) was informed of the charges against him on 2 February 2021.
10. Tonjana pled not guilty to the charges, as well as the alternative charges. He confirmed he had adequate notice of the hearing and time to prepare, had received the charge sheet and were ready to proceed.
11. Tonjana is an Educator at Mokwallo Primary School in the Fezile Dabi District. The Learner was a leaner at the same school at the time of the incident.
Competency finding of the Learner to testify
12. There is a three-fold test to establish a child's competence. First, the child must have sufficient intelligence to be able to record events and store them accurately in their memory. Second, the child must be able to communicate effectively, which means being able to understand questions put to them, and to formulate rational answers. Third, the child must be able to distinguish between truth and lies. If the child has not been properly found to be competent, any testimony given by that child may be found to be inadmissible. Although a more flexible approach is adopted to establishing the competency of a child to testify in arbitrations, it is still necessary to establish whether the child understands the difference between truth and lies in order for them to be allowed to testify.
13. Prior to the testimony of the Learner, allegedly aged thirteen or fourteen on 10 June 2021 (first day of arbitration), through the services of the Intermediary Ms T Mokgwamme, her competency to testify was determined through the asking of knowledge, comprehension and educational questions. She could not demonstrate that she could distinguish between the truth and a lie, and that there are consequences for lying in proceedings of this nature. A break was given of 45 minutes, and the Learner was given something to eat and drink. I attempted the process to establish her competency again by asking the same questions, and she was found to be incompetent. The Learner was accordingly excluded as a witness.
14. Some of the questions asked to the Learner, and responses recorded, are reflected below:
i. Date of birth – she could not give the year in which she was born multiple times, and the age she said that she was, did not correspond to the year she stated she was born in
ii. She could not provide her address
iii. She could not state whether she was a boy or a girl, and merely responded “yes” to the question, which was asked multiple times
iv. She could not say that, if a person alleged that she was a girl, they would be lying
v. When asked what the consequences could be if she would lie to her mother she merely stated that she would be lying
vi. When asked what the consequences could be if she lied to a teacher, she stated that a case would be opened against such a teacher
vii. When asked what the consequences would be of lying in a court or during the arbitration, she stated that it would be said that she was destroying the teacher’s name
viii. When asked what colour the jacket was that she was wearing, she stated that it was grey, whereas the jacket was white
ix. When asked whether she knew why she was called to the proceedings, she stated that, if she lied, she would lose the case
15. In South Africa, as in many other countries, a child is only permitted to testify in a proceedings once the presiding officer is satisfied that the child is competent to be a witness. A presiding officer has a duty to establish the competency of a minor to testify during proceedings, and I was not convinced that the Learner was competent. It was not alleged that the Learner had any learning disabilities, or any cognitive challenges that I should be aware of.
SURVEY OF EVIDENCE AND ARGUMENT
Documentary:
16. Bundle “A” was submitted into evidence by the Employer. Its veracity was not disputed and it was accepted as it purported to be.
Evidence from the Employer:
17. The Employer called three witnesses to testify. The first witness, the Learner, was excluded as a witness (see paragraph 12 above). The Applicant was the only witness that testified in his defense. The testimonies, under oath, are fully captured on the record of proceedings, and a copy of the digital recording is available on request from the ELRC. I therefore do no deem it necessary to repeat it in this award.
18. The 2nd witness, Monapo Josephine Tlhapi (“Tlhapi”), testified that Tonjana had been her colleague for approximately seven years. She has never observed any worrisome or inappropriate behaviour from Tonjane towards learners and she trusted Tonjana around female learners. She confronted Tonjana after school on 15 October 2020 and she believed him when he had told her that he had touched the Learner on her shoulder, and not her waist, as alleged, and he told her that he had said to the Learner that boys would have sex with her.
19. During October 2020 she was approached by learners in the grade 5 class who told her that the Learner was crying. She assumed that the Learner was crying as a result of bullying by some boys, which was a regular occurrence. She went to the classroom and the Learner went to her and was crying, and she said that Tonjana asked her where she had been over the weekend. She answered him and Tonjana asked her who had plait her hair and that she should not play with boys. She stated that, during the conversation, Tonjane had touched her around her waist. She reported the incident to Mr Makwadi and Mr Bayana, her supervisors, and she was advised by Mr Bayana to go back to the Learner and get her version on record, which she did.
20. She confirmed that she did not see the interaction between Tonjana and the Learner herself, and could only testify as to what the Learner had reported to her. She has personally seen the Learner visit Tonjane’s neighbour, a Malawian citizen who worked at an abattoir, at his house. She could understand Tonjana’s concern with the Learner. She stated that the Learner in question was now pregnant. She testified that it was not unusual for a Learner to lie about or exaggerate incidents.
21. The 2nd witness, Thamsanqa Ruben Bayana (“Bayana”), confirmed the evidence of Tlhapi that an incident was reported to him, and that he told her to record the Learner’s version. He confirmed that he had always had a good working relationship with Tonjana and trusted him with female learners. His evidence did not take the Employer’s case any further.
Evidence from the Accused:
22. The Accused, Paseka Jacob Tonjana (“Tonjana”), testified that he had been an Educator at Mokwallo Primary School for approximately 15 years, and he had a good working relationship with Tlhapi and Bayana.
23. He knew the Learner in question as one of his students during grade 4 and 5. He had started to observe a change in the Learner’s behaviour during grade 6 and 7 in that she was hanging around a lot of boys. He warned her not to play with boys, and said that they will have sex with her. His motivation was due to a lot of young female learners dropping out of school due to pregnancy. The previous Principle had encouraged the Educators to caution the male and female learners against unwanted pregnancies. He has cautioned many Learners before when he had observed worrying behavior.
24. He touched her on her shoulder in a non-sexual manner while he spoke to the Learner, like a parent would, and he did not put his hand on or around her waist. She did not show any reaction to him touching her shoulder. This was the way he usually acted when he spoke to Learners he wanted to caution and comfort. Although he often addressed a group of Leaners together, it was sometimes necessary to have a one-on-one conversation with a Learner.
25. He had a neighbour who was a Malawian citizen and who worked at an abattoir. He had seen the Learner visiting the house of his neighbour on two occasions during term and her visits would last between 2 to 3 hours. He went home over weekends and holidays, so he could not say if she visited him during those periods. This was another reason he had the conversation with her, to caution her. He had since heard that the Learner had fallen pregnant and had dropped out of school.
ANALYSIS OF EVIDENCE AND ARGUMENT
26. Parties were given an opportunity to make oral closing arguments. Same was considered, but will not be repeated herein.
27. The Employer must prove on a balance of probabilities that the Accused is guilty of the charges levelled against him. The LRA provides in the Code of Good Practice: Dismissal in Schedule 8, Article 7, that a person considering the fairness of a dismissal for misconduct must consider the following:
(a) Whether or not the employee contravened a rule or standard regulating conduct in, or of relevance to, the workplace; and
(b) If a rule or standard was contravened, whether or not –
(i) the rule was a valid or reasonable rule or standard;
(ii) the employee was aware, or could reasonably be expected to have been aware, or the rule or standard;
(iii) the rule or standard has been consistently applied by the employer; and
(iv) dismissal is an appropriate sanction for the contravention of the rule or standard.
28. Notwithstanding the fact that this is an Inquiry by Arbitrator, I will apply the same criteria when deciding whether the Accused, Tonjana, has made himself guilty of the charges against him, and if so, on the appropriate sanction.
Did the Employee Contravene the Rule?
29. Tlhapi and Bayana were found to be credible and reliable witnesses. Their evidence was consistent and factual, and no material contradictions were found.
30. The evidence of Tonjana was found to be credible and reliable. His evidence was consistent with his version from the time that he was confronted by Tlhapi, and had remained unchanged, as per the evidence of Tlhapi and compared with page 2 of “A”. No material contradictions were found in his evidence.
31. The Learner was excluded as a witness as she was found to be incompetent to testify. As such, no direct evidence on the incident was presented by the Employer. The only evidence presented by the Employer in support of the allegations against Tonjana was the evidence of Tlhapi. She gave direct evidence of what the Learner had shared with her, but she could not give direct evidence about the alleged incident.
32. Tonjana disputed the allegation that he had acted inappropriately in any way towards the Learner. He explained the context of his words “boys will have sex with you” as part of a larger conversation he had with the Learner, in an attempt to caution her about the risks and consequences of sex. It was his evidence that he regularly had such conversations with the learners, either in a group or one-on-one, and that the previous Principle had encouraged the Educators to do so. The Employer was unable to refute the version of Tonjana in this regard.
33. The incident allegedly happened one-on-one but in the presence of the grade 5 female learners. It begs the question why the Employer did not attempt to call one of the other learner’s to testify on what was observed, which would have been considered direct evidence. One such a learner could have been the learner who is specifically named in the statement by Tonjana as to what transpired on 15 October 2020 (page 2 of “A”).
34. After considering all evidence in this regard, the version of Tonjana is found to be more probable that the version of the Employer. The Employer has failed to discharge the burden of proof.
35. Insofar as Charge 1 is concerned, the Accused is found not guilty. Insofar as Alternative to Charge 1 is concerned, the Accused is found not guilty.
36. It deems mentioning that, even if it was found that Tonjana said “boys will fuck you”, as alleged in charge 1 and its alternative, instead of “boys will have sex with you”, this would not have automatically rendered the Accused’s actions serious enough to warrant dismissal in terms of section 17 and/or 18 of the Employment of Educators Act, 76 of 1998.
37. The Employer’s witnesses, Tlhapi and Bayana, testified that they trusted Tonjana around female learners, and had never observed or heard about allegations that he acted inappropriate towards learners, specifically female learners.
38. The Accused testified that he did not touch the Learner around the waist, as alleged, but had patted her on her shoulder whilst he spoke to her, like a parent would. Tlhapi testified that, when she shared the allegation with Tonjana after school on the day in question, he had stated that he had touched the Learner on her shoulder, and not around her waist. Tlhapi testified that she had believed Tonjana when he gave her his version of what happened. Once again, no direct evidence was led by the Employer to prove this allegation.
39. After considering all evidence in this regard, the version of Tonjana is found to be more probable than the version of the Employer. The Employer has failed to discharge the burden of proof.
40. Insofar as Charge 2 is concerned, the Accused is found not guilty. Insofar as Alternative to Charge 2 is concerned, the Accused is found not guilty.
IS THE RULE VALID AND REASONABLE?
41. This aspect was not placed in dispute by Tonjana. It is worth mentioning that a rule against any inappropriate actions and/or conduct between an Educator and Learner is reasonable in the education environment, for the protection of both Leaners and Educators, and is sensical.
WAS THE EMPLOYEE AWARE OF THE RULE?
42. This aspect was not placed in dispute by Tonjana. Further the EEA is very clear in section 17 and section 18 as to the existence of the rule. Tonjana was appointed as an Educator in terms of the EEA, and reasonably ought to have been aware of the rule.
HAS THE EMPLOYER APPLIED THE RULE CONSISTENTLY?
43. I had no evidence to the contrary.
APPROPRIATE SANCTION?
44. In light of the finding that the Accused is not guilty as charged, the charges against the Accused is accordingly hereby dismissed.
SANCTION
45. No sanction is imposed against the Accused.
AWARD
46. The Accused, Paseka Jacob Tonjana, is found not guilty on Charge 1, Alternative to Charge 1, Charge 2 and Alternative to Charge 2 (all charges).
47. Accordingly, all charges against the Accused are dismissed.
Minette van der Merwe
ELRC Panelist