PSES115-18/19WC
Text
ELRC721-21/22NW
Award Date:
06 May 2022
IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD AT SANDTON
Case No: ELRC721-21/22NW
In the matter between
SEGAU I Applicant
and
NORTH WEST DEPARTMENT OF EDUCATION Respondent
ARBITRATOR: Adv S Fourie
HEARD: 7 and 8 April 2022;
FINALISED: (7days to submit closing statements 15 April 2022)
DELIVERED: 06 May 2022
INQUIRY BY ARBITRATOR - ARBITRATION AWARD
DETAILS OF THE HEARING AND REPRESENTATION
1. The Inquiry by Arbitrator, was heard at 10 Piet Hugo, Nelson Mandela Drive, Mafikeng, on 7 and 8 April 2022. The Employee, Mr. Itumeleng Segau (“Segau”), was present and represented by Mr. S Molete (“Molete”), a representative of the trade union SADTU. The Employer was represented Ms. L Sifumba (“Sifumba”), its labour relations officer. It was compulsory for an intermediary service due to a minor witness although the witness’s identity is known to the parties. Ms. Mule Padi served as intermediary and Mr. Herbert Matsenene as interpreter.
THE ISSUES TO BE DETERMINED
2. I am required to determine whether the employee is guilty of the charges against him and if so, to determine the appropriate sanction in terms of Section 188A of the Labour Relations Act 66 of 1995, as amended (“LRA”). This is an arbitration award issued in terms of Section 138 of the Labour Relations Act 66 of 1995 (as amended) read with Section 188A (9) of the LRA, that states that an arbitrator conducting an inquiry in terms of this section must, in the light of the evidence presented and by reference to the criteria of fairness in the Act, rule as to what action, if any, may be taken against the employee. The employee Itumeleng Segau pleaded guilty to both allegations listed hereunder, however I altered to pleas to not guilty after the plea explanation presented to me.
BACKGROUND TO THE DISPUTE
3. The employee, is employed by Respondent from 24 January 1992. At the time of this enquiry at Adam Masebe Secondary School, as a PL1 educator. The employee was suspended from duty on 9 September 2019 where after two charges were levelled against the employee being:
Allegation 1
On 4th June 2021, whilst on duty at Ga-Khunwana Secondary School you hugged a learner, by the name of Learner A . In doing so you committed an act of misconduct in terms of section 18(1) (q) of the Employment of Educators, Act 76 of 1998, which reads ‘while on duty, conducts himself or herself in an improper, disgraceful or unacceptable manner’ read with section 3.6 of South African Schools Act read thus ‘refrains from improper physical contact with learners’.
Allegation 2
On 4th June 2021, whilst on duty at Ga-Khunwana Secondary School you kissed a learner, by the name of Learner A. In doing so you committed an act of misconduct in terms of section 17(1)(b) of the Employment of Educators, Act 76 of 1998, which reads ‘committing an act of sexual assault on a learner, student or other employee’ read with section 3.9 of South African Schools Act read thus ‘refrains from any form of sexual harassment (Physical or otherwise) of learners’.
SUMMARY OF THE EVIDENCE
4. This is an arbitration award issued in terms of Section 138 of the Labour Relations Act 66 of 1995 (as amended) and referred to as the LRA read with the changes as required by the context read with Section 188A (9) of the LRA, that states that an arbitrator conducting an inquiry in terms of this section must, in the light of the evidence presented and by reference to the criteria of fairness in the Act, rule as to what action, if any, may be taken against the employee. This award is not intended to be a verbatim transcript of the evidence led at the inquiry by arbitrator hearing but rather a determination with brief reasons for such determination.
5. Evidence relevant to the determination or to support any of the elements of fairness as required may be referred to. This however does not mean that I failed to consider other evidence or ignored such evidence in coming to my decision. The Employer submitted a bundle of documents (Bundle ‘ER’ 1 – 9 pages). The Employee accepted the bundle submitted for what it purports to be.
The Employer’s case
6. Learner A, testified under a solemn affirmation (through an intermediary) in camera. She is 16 years of age and attended school at Ga-Khunwana Secondary School as a grade 10 learner during 2021. She knows Segau because he used to teach her. On the 4th of June 2021, she and a friend stood at the veranda of the grade 11 class (Tsabarira’s class) when Segau called her to fetch water for him. When she returned with the water, he was inside Mr. Salebau’s office. He asked her questions about her studies such as if she is still a hard worker which she responded to. Segau then asked if it was the last time he asked for something to which she responded; if he wanted Zimba. Segau responded not Zimba but a hug and opened his arms. She then gave him a hug, and whilst hugging, Segau kissed her on the lips. Segau then said that she must always come to check up on him.
7. She and her friend, Boitumelo went together to the toilets where she told Boitumelo what happened who advised her to speak out. Close to break-time she went to Ms. Chabaesele on the other side of the school to tell her. She first gave them dishes to wash after which she spoke to Ms. Chabaesele at the storeroom. She got emotional and cried when she told her what happened and wanted to leave the school for another. Chabaesele told her not to leave the school, asked her number and gave them money to buy some food. At home, she called her mother who was in Mafikeng and informed her when she arrived at home.
8. During cross examination she stated that Segau did not coerce or forced her to hug him when he opened his arms to hug her and she went to hug him. She was at first not offended with the hug, but the kiss offended her. She was shocked when he kissed her. From there she could have told Mam Mogalethe, but she was busy with a class. She told her friend on their way to the bathroom. She does not know the time they were at the toilets but it was close to break time when she reported it to Chabaesele. She acknowledged that she was not emotional when she told her friend, but was emotional when she told Chabaesele. She acknowledged that her friend advised her to report the incident before she goes home. That happened after she told her friend that she was going to tell her mother about it. She thinks Segau had the intention to harass her after the hug which she thought was a friendly hug. To the statement whether the hug and the kiss was not friendly, she responded that Segau is older than her and he hugged her in a room. To the statement that Segau was happy for her performance at school, she did not know and could not understand the kiss. To the statement that whether someone who is happy for you, not allowed to kiss you, she responded no not an educator.
9. Lerato Chabaesele (Chabaesele), testified under oath that she a PL 1 educator at Ga-Khunwana Secondary School. On the 4th of June 2021, she was at school. During break-time learner A came to her with her friend. They went to the computer laboratory where learner A informed her that Segau asked her for water. She told her that when she returned with the water, Segau asked for a hug. She also explained that when Segau hugged her, he kissed her. Thereafter she told her friend. Later the day learner A’s mother called her to enquire whether she spoke to her. The parents visited the school the following day, attending to the HOD because the Principal was not at school. Learner A is not attending the school anymore.
10. During cross examination, she stated that learner A came to her two times. The first time she had something to do at the other side of the school and she asked them to wash her dishes. The second time they returned with the dishes when learner A talked to her about the incident. She could not see any harm to learner A but she was offended with the hug. To the question when learner A told her about the kiss, Chabaesele replied that it was at the same time learner A told her about the hug. She had mixed reaction about the incident because she knows children when they make up stories and when not. She knows Segau having a good relationship with him. Both she and Segau taught learner A in grade eight acknowledging her to be a bright student. She never experienced any learner to have complained about Segau.
11. Florence Hoffman (Hoffman), testified under oath that she is the mother to learner A who was in grade 10 during 2021. She is also a teacher. On the 4th of June 2021, she was in Mafikeng when she received a call from her daughter who had something to tell her. She informed her at home that Segau hugged and kissed her after he asked her to fetch water for him. She told her that Segau went to the staff room where she gave him the water. Segau asked her what else he wanted and she responded about Zimba’s (chips). Segau said he wanted a hug and opened his arms. Her daughter being just a child went to hug him and Segau kissed her. On the 7th of June 2021, she went to report the incident at the Principal who was not at work and she spoke to the HOD. She requested the Principal to be informed and the social worker. On the 8th of June 2021, they had a meeting at the school where the Principal called Segau to the meeting to explain his side of the story. Segau’s explanation was different to her daughters’ that he hugged her but did not kiss her. Segau apologized about the hug. Her daughter never returned to the school and the school failed to support her child.
12. During cross examination she stated that there is conflicting versions but she knows her child would not lie. She does not understand the reason why Segau would want her to bring him water to the office.
The Employee’s Case
13. Itumeleng Segau (Segau), testified under oath that he is teaching for grades 8, 9 and 12 learners. He taught learner A when she was in grade 8 when he realized her being a hard worker. They were a group of around 16 to 18 who were good in math and science and would tease them whether they were still working hard. They were now in grade 10, he was not teaching the group. He still admired them and motivating them when he saw them. Prior to the incident, in passing, he joked with learner A when he told her that he met with her father (which he never did but merely joking with her) who told him he must give her lashes if she was not working hard. He experienced her to be frightened with the joke and felt guilty about it.
14. The morning of the 4th of June 2021, he entered the office and wanted to use the kettle. The nearest learner was learner A, whom he asked to fetch some water. Having the thought of what he mentioned when joking about her farther, his intention was to give her a hug, Being the same age as his daughter, he asked to give her a hug to feel free (better sic). He had no intention with the hug but he did not kiss her. He gave her a hug and told her that she would be fine and to learn hard. He knew it was wrong to hug her but wanted to comfort her to be what she used to be. He is aware he is not supposed to hug a learner and is very sorry about it but it just happened. Kissing is also wrong and as a human he can make a mistake but it was not a trend. To the statement what he would do if it was his child, he would forgive the educator after hearing the educator’s side. He denied to have kissed learner A. The discussion at the school on the 8th of June 2021, was only about the hug and not about kissing. He stated that the partner to learner A’s mother, had an attitude towards him and thought he would bring up something like touching her private parts but not kissing. He noticed something about a kiss on the notice to attend a disciplinary hearing. He admits that hugging was wrong.
15. During cross examination, he stated that the incident when he joked about learner A’s farther was about April. He thought she was still offended because she appeared to be not as vibrant as always. He knows learner A to be brilliant and hardworking. To the statement that if the partner to learner’s mother influenced her why would she have told Chabaesele and her friend. Segau had no answer but responded that learners influence other learners. To the question why he did not hug other learners he responded that it was only learner A, he responded that he never said insensitive words to other learners. To the question why he called learner A to a private room, he responded that he did not had any bad intention.
SUBMISSIONS IN ARGUMENT
16. Both parties agreed to submit arguments (inclusive of mitigating and aggravating circumstances) in writing which was useful. The submissions were carefully considered, but will not be repeated here, as the contents basically mirror what was put during the leading of evidence and cross-examination in the arbitration hearing itself. None of the submissions convinced me to a different outcome that has been reached.
ANALYSIS OF EVIDENCE AND ARGUMENT
17. Written arguments inclusive of mitigating and aggravating evidence were submitted by both parties. I do not intend to summarise it here in detail. In short it was submitted on behalf of the employer that the employer has proved the charges against the applicant and that dismissal should be the sanction.
18. In order for a dismissal to be fair, Section 188A of the Labour Relations Act requires and Inquiry by arbitrator. An employer may, with the consent of the employee or in accordance with a collective agreement, request a council, an accredited agency or the Commission to appoint an arbitrator to conduct an inquiry into allegations about the conduct or capacity of that employee. The onus is on the employer to prove the allegations levelled against the employee is in accordance with substantive fairness. The parties in this matter agreed that I am required to determine under substantive fairness, whether the employee, Itumeleng Segau kissed a Grade 10 learner,
19. It is common cause that Segau was a teacher to Learner A, in grade 8, the learner but not in grade 10. It is common cause that Learner A was called by Segau to fetch water for him. It is also common cause that Learner A took the water to Segau where they were alone in a classroom. It is also common cause that Segau opened his arms for a hug to which Learner A responded to and received the hug offered to her from Segau.
Under Substantive Fairness
20. I am guided by item 7 of the Code of Good Conduct on Dismissals contained in Schedule 8 to the LRA (hereinafter referred to as "the Code") which requires me to consider whether or not the Applicant contravened a rule regulating conduct in or of relevance to the workplace referring to misconduct in terms in terms of section 17(1)(b) and section 18(1)(q) of the Employment of Educators, Act 76 of 1998 as amended.
;
21. Segau claims that he hugged Learner A but did not kiss her. In Moahlodi v East Rand Gold & Uranium Co Ltd (1998) 19 ILJ (IC) the court formulated the test as follows: an employer need not to be satisfied beyond reasonable doubt that an employee has committed the offence. We must remind ourselves that this is not a criminal trial and that the employer is therefore not required to prove the guilt of the applicant beyond a reasonable doubt. The standard of proof in civil proceedings and arbitrations, is a balance of probabilities see Early Bird Farms (Pty) Ltd v Mlambo [1997] 5 BLLR 541 (LAC). The test for deciding whether something has been proved on a balance of probabilities, is whether the version of the party bearing the onus, is more probable than not see Ocean Accident & Guarantee Corporation Ltd v Kock 1963 (4) SA 147 (A) at 157D.
22. In other words, the evidence must show that the existence of the fact in dispute is more probable than its non-existence. The difference between a possibility and a probability is that when something is possible, it can or could have happened. When something is probable, it most likely will or did happen. In determining probabilities, evidence is assessed against human experience, logic and common sense see Hoffmann en Zeffertt the South African Law of Evidence 4th ed 102. In order to resolve factual disputes, a tribunal must make findings with reference to (a) the credibility of the various factual witnesses; (b) their reliability; and (c) the probabilities. In Stellenbosch Farmers’ Winery Group Ltd v Martell & Cie 2003 (1) SA 11 (SCA) at 14I par 5. The Court further remarked as follows: “As to (a), the court’s finding on the credibility of a particular witness will depend on its impression about the veracity of the witness. That in turn will depend on a variety of subsidiary factors, not necessarily in order of importance, such as (i) the witness’s candour and demeanor in the witness-box, (ii) his bias, latent and blatant, (iii) internal contradictions in his evidence, (iv) external contradictions with what was pleaded or put on his behalf, or with established fact or with his own extra curial statements or actions, (v) the probability or improbability of particular aspects of his version, (vi) the caliber and cogency of his performance compared to that of other witnesses testifying about the same incident or events. As to (b), a witness’s reliability will depend, apart from the factors mentioned under (a)(ii), (iv) and (v) above, on (i) the opportunities he had to experience or observe the event in question and (ii) the quality, integrity and independence of his recall thereof. As to (c), this necessitates an analysis and evaluation of the probability or improbability of each party’s version on each of the disputed issues. In the light of its assessment of (a), (b) and (c) the court will then, as a final step, determine whether the party burdened with the onus of proof has succeeded in discharging it…But when all factors are equipoised probabilities prevail " (at 14I - 15E par 5 per Nienaber JA)
23. Learner A testified that the incident took place (4 June 2021) when she was in grade 10. It is an established principle that the evidence of children should be treated with caution and that a tribunal must fully appreciate the dangers inherent in the acceptance of such evidence see Woji v Santam Insurance Co Limited (A) at 1028B – D. Although Learner A’s identity was disclosed, I have indeed approached her evidence with caution. I am cautioned that single witness evidence was presented and also hearsay evidence of those who were not present with Segau and Learner A. The parties in this matter agreed that I have to decide under substantive fairness whether the applicant was guilty of kissing Learner A, therefore, I need to determine whether Segau is guilty of such alleged misconduct in terms of section 17(1)(b) of the Employment of Educators Act. In relation to the hug in terms of section 18(1)(q) of the Employment of Educators Act, Segau pleaded guilty. A plea explanation was presented which confirmed the hug although he stated that he had no bad intention in doing it.
24. The employer presented Learner A, Lerato Chabaesele and Florence Hoffman, the mother of Learner A in support of their case. Segau testified in support of his case. In relation to the hearsay evidence presented by Chabaesele and Hoffman, in Sisonke Partnership t/a International Healthcare Distributors v National Bargaining Council for Chemical Industry & Others (JA51/10) [2013] ZALAC 16 (handed down on 19 July 2013), the Court with approval referred to the matter of Southern Sun Hotels and that of Swiss South Africa and confirmed the principle that hearsay evidence is allowed if it is in the interest of justice and that it was not irregular for the arbitrator to have relied on the hearsay evidence as the evidence was confirmed by other evidence. In addition, arbitrators have even more leeway than civil courts in determining what evidence should be admitted (Le Monde Luggage CC t/a Pakwells Petje v Commissioner Dunn & others [2007] 10 BLLR 909 (LAC) at paragraph 17); Naraindath v CCMA & others [2006] 6 BLLR 716 (LC) at paragraph 26.) What is more important than admissibility is the weight a commissioner ultimately attaches to evidence such as hearsay when making inferences to deduce the facts of a case.
25. During cross-examination Learner A stated that Segau did not coerce or forced her to hug him when he opened his arms to hug her and she went to hug him. She continued to state that at first she was not offended with the hug, but the kiss offended her and was shocked when he kissed her. It maybe so that the hug, even though it is unacceptable conduct, may never have reached this forum.
26. Only Learner A and Segau was together when the hug occured. Whether there was a kiss from Segau on the lips of learner A when they hugged, must be determined on a balance of probabilities. It was the Segau’s case that Learner A reported the kiss later after she told her friend about the hug, she and her friend made up the kiss accusation. Also that he made an earlier statement towards Learner A about a talk he had with her farther in teasing her, which made her to make up the kissing accusation. The cross examination towards Leaner A could not establish such notion. Chabaesele’s response during cross-examination, to the question when learner A told her about the kiss, was that it was at the same time learner A told her about the hug.
27. Segau and Learner A’s credibility and reliability as two single witnesses must be dealt with caution being the only two present when the alleged kissing took place The question to be determined is not whether a witness (Learner A) is wholly truthful in all she says, but whether the Arbitrator in this instance, can be satisfied that the story which the witness tells, is a true one in its essential features (see Nicholas J in S v Oosthuizen 1982 (3) SA 571 (T) 576) Witnesses who reconstruct their observations frequently make mistakes (see Frank J in Johannes v South West Transport 1994 1 SA 200 (Nm HC) at 202C-D, quoting Lambrechts v African Guarantee & Indemnity Co 1955 3 SA 459 A). I could not find mistakes from Learner A, evidence to conclude reconstruction thereof. From Segau side I only have a bare denial, claiming that Learner A concocted the kissing accusation afterwards because of her friend she talked to or him to have teased her in the past. In Shange v MEC for Education, Kwazulu-Natal (15860/08) [2013] ZAKZDHC 32 (17 May 2013) the court warned that while a bare denial is easy to maintain to stonewall further interrogation during cross-examination, the risk of a bare denial defense is that a more credible version trumps a bare denial with equal ease. Segau and Chabaesele attested that Learner A is not a mischievous child and also that Learner A is a bright student achieving academically well. Chabaesele also had mixed reactions about the incident because she knows children when they make up stories and when not. She also knows Segau having a good relationship with him.
28. To the statement that Segau was happy with learner A’s performance at school during cross-examination, Learner A, did not know it to be so and could not understand the kiss. To the statement that whether someone who is happy for you, not allowed to kiss you, she responded, no not an educator. Two undisputed portions of Learner’s A’s evidence are:
• That Segau asked her if it was the last time he asked for something to which she responded if he wanted Zimba. Segau responded not Zimba but a hug and opened his arms.
• Segau then said that she must always come to check up on him.
These statements I find disturbing. Being a concerned teacher, I am of the view that Segau could have asked Learner A, a direct question. During cross-examination Segau stated that Learner A was not as vibrant as she used to be. This he asked with the mindset of him having teased her with her father during April when he experienced her to be frightened with the joke and felt guilty about it. This Learner A was not questioned about this during cross-examination. If this was so, Segau could have asked directly Learner A about it and apologized it to be a joke. Segau chose not to say anything about what he thought could have been the reason which he felt was important but rather requested a hug. Learner A responded to the hug. I am of the view that Learner responded in hugging Segau because she felt it to be a safe space at that moment. The discussion between them however revealed nothing about previous joking or incidents that could have directed to Learner A’s unhappiness or to have influenced her not being vibrant anymore. This was Segau’s subjective perception but he refrained to be upfront with Learner A to ask her why she was not vibrant anymore. The last undisputed statement, that she must always come and check on him in my view could have fitted in after a ‘concerned’ discussion between them of what Segau thought the reason was that Learner A lost her vibrancy. There was absolutely no question or statement from Segau to have prompted Learner A to disclose any unhappiness being the reason Segau submitted to be the reason he requested a hug. He only asked about her school work and opened his arms for a hug. Segau stated that he asked to give her a hug to feel free, without asking her how she was doing but merely excepting based on his own thoughts that she lost her vibrancy. He could have asked her directly in my view. Segau’s version I find to be improbable. The only probable version is that Segau had his arms open towards Learner A prompting a hug which he received and kissed her.
29. In relation to charge 1, I find that Segau’s conduct to be improper and unacceptable when he requested and hugged Learner A. This is an offence in terms of Section 18(1)(q) of the Employment of Educators Act 76 of 1998 read with section 3.6 of South African Council of Educators Act 31 of 2000 when he failed to refrain from improper physical contact with Learner A.
30. In relation to charge 2, I find that Segau kissed Learner A when he hugged her. Such conduct is an act of sexual assault on Learner A. This is an offence in terms of Section 17(1)(b) of the Employment of Educators Act 76 of 1998 read with section 3.9 of South African Council of Educators Act 31 of 2000 when he failed to refrain from any form of sexual harassment (physical or otherwise) with Learner A
31. Having held that Segau misused his position as teacher, on a balance of probabilities has made himself guilty of the allegations levelled against him. The South African government ratified the UN Convention on the Rights of the Child (CRC) in 1995. The CRC therefore forms part of South Africa’s international law obligations which means that the South African government is under an obligation to ensure that the CRC is implemented and complied with. In line with South Africa’s obligations under international law, the South African Constitution states that:
“Everyone has inherent dignity and the right to have their dignity respected and protected”
“Everyone has the right to be free from all forms of violence and not to be treated or punished in a cruel, inhuman or degrading way”
“A child’s best interest is of paramount importance in every matter concerning the child”
‘Every child has the right to be protected from maltreatment, neglect, abuse or degradation.’.
32. In determining the appropriateness of dismissal in relation to the charges, I adopt the approach of the Constitutional Court in Sidumo v Rustenburg Platinum Mines Ltd (2007) 28 ILJ 2405 (CC). I also take into account the CCMA Guidelines on Misconduct Arbitrations. While discipline falls within the discretion of the employer, the employer must impose an appropriate and fair sanction.
Having held that Segau is guilty of sexual harassment as defined in section 17(1)(b) of the Employment of Educators Act, in relation to charge 2, dismissal is mandatory. Neither the employer, nor I, or the Labour Court has any discretion to impose any other sanction than dismissal for this misconduct for as long as the conviction on section 17 in relation to charge 2 stands. Mitigating factors are completely irrelevant once an educator is convicted of this form of misconduct. For an educator to kiss a learner constitute serious misconduct. Adults are expected to help protecting all children from sexual abuse. In this regard Borchers J remarked in S v G 2004 (2) SACR 296 (W): There is general outrage in South Africa at the moment over child abuse, and the prevalence thereof and the damage done by such crimes to society justifies that outcry. People are being exhorted to adopt the motto, ‘your child is my child’. All that this amounts to is that the public knows that its children are vulnerable and often cannot be protected for every moment of their lives. Decent people recognise these facts and help and protect children. They do not harm them, as the accused had done” (300h-301b);
33. Despite Segau accepting guilt when he conceded to the wrongfulness when he hugged Learner A. Evidence directed that it was more likely to have kissed Learner A when he hugged her. After having committed the acts of misconduct, he subjected Learner A to further trauma in that she had to testify about the sexual harassment that he had subjected her to in the enquiry. In order to show true remorse, a person must be willing to accept guilt for his wrongdoing, must accept that he has done wrong and must accept that some sanction must be imposed for it (see S v G 1993 (2) SACR 359 (C)). Segau was not willing to do that in respect of the 2nd charge. During cross examination he stated that the discussion at the school on the 8th of June 2021, was only about the hug and not about kissing. This version remained undisputed. He also stated that the partner to Learner A’s mother, had an attitude towards him and thought he would bring up something like touching her private parts but not kissing, which version also remained undisputed. Segau also stated during cross examination that he only became aware about the kiss on the notice to attend a disciplinary hearing which I find unlikely. Hofmann stated that on the 8th of June 2021, they had a meeting at the school where the Principal called Segau to the meeting to explain his side of the story. Segau’s explanation was different to her daughters’ that he hugged her but did not kiss her. This version of Hofmann also remained undisputed by Segau. The refusal by an employee to admit guilt and thereby show remorse for his misconduct is generally considered to be a serious aggravating factor (see Grogan Dismissal (2014 ed) 211). In this regard the Labour Appeal Court has stated in De Beers Consolidated Mines Ltd v CCMA & others (2000) 21 ILJ 1051 (LAC) at 1058 par 25: "Acknowledgment of wrongdoing is the first step towards rehabilitation. In the absence of a recommitment to the employer's workplace values, an employee cannot hope to re-establish the trust which he himself has broken. Where…an employee… falsely denies having [committed misconduct] an employer would, particularly where a high degree of trust is reposed in an employee, be legitimately entitled to say to itself that the risk of continuing to employ the offender is unacceptably great."
34. The SACE Code of Professional Conduct provides that an educator must respect the dignity, beliefs and constitutional rights of learners, shall refrain from any form of physical or psychological abuse of children and shall refrain from improper physical contact with learners (Item 3 of the SACE Code) and must behave in a way that enhances the dignity and status of the teaching profession and that does not bring the profession into disrepute (Item 7.2 of the SACE Code). Our Courts have recognized that where the misconduct is of such a serious nature that from itself the inference could be drawn that the trust relationship and therefore the employment relationship has been destroyed, an Arbitrator may on this basis find that the trust relationship has been destroyed, and that dismissal is justified, see Grogan Dismissal (2nd ed 2014) 201, M Brassey et al The new Labour Law (Juta) at 96-7; Electrical & Allied Workers Union v The Production Casting Co (Pty) Ltd (1988) 9 ILJ 702. Conduct like this makes a continued employment relationship intolerable as teachers who act in this manner, cannot be trusted, especially when they in denial.
35. I am satisfied that employer has succeeded in proving on a balance of probabilities that Segau has irreparably destroyed the relationship of trust and had made the continuation of the employment relationship intolerable. I confirm dismissal as an appropriate sanction and find dismissal as sanction to be substantively fair.
AWARD
36. In the premises, I find summarily dismissal of Segau from the employment of the North West Department of Education to be effected from 30 April 2022.
37. Mr Itumeleng Segau (Persal No 90284348) is found UNSUITABLE TO WORK WITH CHILDREN in terms of Section 120(4) of the Children's Act 38 of 2005.
The General Secretary of the ELRC must, in terms of Section 122(1) of the Children's Act 38 of 2005, notify the Director General: Department of Social Development in writing of the findings of this forum made in terms of Section 120(4) of the Children's Act 38 of 2005, that Mr Itumeleng Segau (Persal No 90284348) is unsuitable to work with children, for the Director General to enter his name as contemplated in section 120 in part B of the register.
38. The ELRC is directed to forward a copy of this award to SACE. The attention of SACE is drawn to the fact that an educator Mr. Itumeleng Segau (Persal No 90284348) has sexually harassed Learner A by kissing her on the lips when he hugged her.
S Fourie
ELRC Arbitrator
North West
Case No: ELRC721-21/22NW
In the matter between
SEGAU I Applicant
and
NORTH WEST DEPARTMENT OF EDUCATION Respondent
ARBITRATOR: Adv S Fourie
HEARD: 7 and 8 April 2022;
FINALISED: (7days to submit closing statements 15 April 2022)
DELIVERED: 06 May 2022
INQUIRY BY ARBITRATOR - ARBITRATION AWARD
DETAILS OF THE HEARING AND REPRESENTATION
1. The Inquiry by Arbitrator, was heard at 10 Piet Hugo, Nelson Mandela Drive, Mafikeng, on 7 and 8 April 2022. The Employee, Mr. Itumeleng Segau (“Segau”), was present and represented by Mr. S Molete (“Molete”), a representative of the trade union SADTU. The Employer was represented Ms. L Sifumba (“Sifumba”), its labour relations officer. It was compulsory for an intermediary service due to a minor witness although the witness’s identity is known to the parties. Ms. Mule Padi served as intermediary and Mr. Herbert Matsenene as interpreter.
THE ISSUES TO BE DETERMINED
2. I am required to determine whether the employee is guilty of the charges against him and if so, to determine the appropriate sanction in terms of Section 188A of the Labour Relations Act 66 of 1995, as amended (“LRA”). This is an arbitration award issued in terms of Section 138 of the Labour Relations Act 66 of 1995 (as amended) read with Section 188A (9) of the LRA, that states that an arbitrator conducting an inquiry in terms of this section must, in the light of the evidence presented and by reference to the criteria of fairness in the Act, rule as to what action, if any, may be taken against the employee. The employee Itumeleng Segau pleaded guilty to both allegations listed hereunder, however I altered to pleas to not guilty after the plea explanation presented to me.
BACKGROUND TO THE DISPUTE
3. The employee, is employed by Respondent from 24 January 1992. At the time of this enquiry at Adam Masebe Secondary School, as a PL1 educator. The employee was suspended from duty on 9 September 2019 where after two charges were levelled against the employee being:
Allegation 1
On 4th June 2021, whilst on duty at Ga-Khunwana Secondary School you hugged a learner, by the name of Learner A . In doing so you committed an act of misconduct in terms of section 18(1) (q) of the Employment of Educators, Act 76 of 1998, which reads ‘while on duty, conducts himself or herself in an improper, disgraceful or unacceptable manner’ read with section 3.6 of South African Schools Act read thus ‘refrains from improper physical contact with learners’.
Allegation 2
On 4th June 2021, whilst on duty at Ga-Khunwana Secondary School you kissed a learner, by the name of Learner A. In doing so you committed an act of misconduct in terms of section 17(1)(b) of the Employment of Educators, Act 76 of 1998, which reads ‘committing an act of sexual assault on a learner, student or other employee’ read with section 3.9 of South African Schools Act read thus ‘refrains from any form of sexual harassment (Physical or otherwise) of learners’.
SUMMARY OF THE EVIDENCE
4. This is an arbitration award issued in terms of Section 138 of the Labour Relations Act 66 of 1995 (as amended) and referred to as the LRA read with the changes as required by the context read with Section 188A (9) of the LRA, that states that an arbitrator conducting an inquiry in terms of this section must, in the light of the evidence presented and by reference to the criteria of fairness in the Act, rule as to what action, if any, may be taken against the employee. This award is not intended to be a verbatim transcript of the evidence led at the inquiry by arbitrator hearing but rather a determination with brief reasons for such determination.
5. Evidence relevant to the determination or to support any of the elements of fairness as required may be referred to. This however does not mean that I failed to consider other evidence or ignored such evidence in coming to my decision. The Employer submitted a bundle of documents (Bundle ‘ER’ 1 – 9 pages). The Employee accepted the bundle submitted for what it purports to be.
The Employer’s case
6. Learner A, testified under a solemn affirmation (through an intermediary) in camera. She is 16 years of age and attended school at Ga-Khunwana Secondary School as a grade 10 learner during 2021. She knows Segau because he used to teach her. On the 4th of June 2021, she and a friend stood at the veranda of the grade 11 class (Tsabarira’s class) when Segau called her to fetch water for him. When she returned with the water, he was inside Mr. Salebau’s office. He asked her questions about her studies such as if she is still a hard worker which she responded to. Segau then asked if it was the last time he asked for something to which she responded; if he wanted Zimba. Segau responded not Zimba but a hug and opened his arms. She then gave him a hug, and whilst hugging, Segau kissed her on the lips. Segau then said that she must always come to check up on him.
7. She and her friend, Boitumelo went together to the toilets where she told Boitumelo what happened who advised her to speak out. Close to break-time she went to Ms. Chabaesele on the other side of the school to tell her. She first gave them dishes to wash after which she spoke to Ms. Chabaesele at the storeroom. She got emotional and cried when she told her what happened and wanted to leave the school for another. Chabaesele told her not to leave the school, asked her number and gave them money to buy some food. At home, she called her mother who was in Mafikeng and informed her when she arrived at home.
8. During cross examination she stated that Segau did not coerce or forced her to hug him when he opened his arms to hug her and she went to hug him. She was at first not offended with the hug, but the kiss offended her. She was shocked when he kissed her. From there she could have told Mam Mogalethe, but she was busy with a class. She told her friend on their way to the bathroom. She does not know the time they were at the toilets but it was close to break time when she reported it to Chabaesele. She acknowledged that she was not emotional when she told her friend, but was emotional when she told Chabaesele. She acknowledged that her friend advised her to report the incident before she goes home. That happened after she told her friend that she was going to tell her mother about it. She thinks Segau had the intention to harass her after the hug which she thought was a friendly hug. To the statement whether the hug and the kiss was not friendly, she responded that Segau is older than her and he hugged her in a room. To the statement that Segau was happy for her performance at school, she did not know and could not understand the kiss. To the statement that whether someone who is happy for you, not allowed to kiss you, she responded no not an educator.
9. Lerato Chabaesele (Chabaesele), testified under oath that she a PL 1 educator at Ga-Khunwana Secondary School. On the 4th of June 2021, she was at school. During break-time learner A came to her with her friend. They went to the computer laboratory where learner A informed her that Segau asked her for water. She told her that when she returned with the water, Segau asked for a hug. She also explained that when Segau hugged her, he kissed her. Thereafter she told her friend. Later the day learner A’s mother called her to enquire whether she spoke to her. The parents visited the school the following day, attending to the HOD because the Principal was not at school. Learner A is not attending the school anymore.
10. During cross examination, she stated that learner A came to her two times. The first time she had something to do at the other side of the school and she asked them to wash her dishes. The second time they returned with the dishes when learner A talked to her about the incident. She could not see any harm to learner A but she was offended with the hug. To the question when learner A told her about the kiss, Chabaesele replied that it was at the same time learner A told her about the hug. She had mixed reaction about the incident because she knows children when they make up stories and when not. She knows Segau having a good relationship with him. Both she and Segau taught learner A in grade eight acknowledging her to be a bright student. She never experienced any learner to have complained about Segau.
11. Florence Hoffman (Hoffman), testified under oath that she is the mother to learner A who was in grade 10 during 2021. She is also a teacher. On the 4th of June 2021, she was in Mafikeng when she received a call from her daughter who had something to tell her. She informed her at home that Segau hugged and kissed her after he asked her to fetch water for him. She told her that Segau went to the staff room where she gave him the water. Segau asked her what else he wanted and she responded about Zimba’s (chips). Segau said he wanted a hug and opened his arms. Her daughter being just a child went to hug him and Segau kissed her. On the 7th of June 2021, she went to report the incident at the Principal who was not at work and she spoke to the HOD. She requested the Principal to be informed and the social worker. On the 8th of June 2021, they had a meeting at the school where the Principal called Segau to the meeting to explain his side of the story. Segau’s explanation was different to her daughters’ that he hugged her but did not kiss her. Segau apologized about the hug. Her daughter never returned to the school and the school failed to support her child.
12. During cross examination she stated that there is conflicting versions but she knows her child would not lie. She does not understand the reason why Segau would want her to bring him water to the office.
The Employee’s Case
13. Itumeleng Segau (Segau), testified under oath that he is teaching for grades 8, 9 and 12 learners. He taught learner A when she was in grade 8 when he realized her being a hard worker. They were a group of around 16 to 18 who were good in math and science and would tease them whether they were still working hard. They were now in grade 10, he was not teaching the group. He still admired them and motivating them when he saw them. Prior to the incident, in passing, he joked with learner A when he told her that he met with her father (which he never did but merely joking with her) who told him he must give her lashes if she was not working hard. He experienced her to be frightened with the joke and felt guilty about it.
14. The morning of the 4th of June 2021, he entered the office and wanted to use the kettle. The nearest learner was learner A, whom he asked to fetch some water. Having the thought of what he mentioned when joking about her farther, his intention was to give her a hug, Being the same age as his daughter, he asked to give her a hug to feel free (better sic). He had no intention with the hug but he did not kiss her. He gave her a hug and told her that she would be fine and to learn hard. He knew it was wrong to hug her but wanted to comfort her to be what she used to be. He is aware he is not supposed to hug a learner and is very sorry about it but it just happened. Kissing is also wrong and as a human he can make a mistake but it was not a trend. To the statement what he would do if it was his child, he would forgive the educator after hearing the educator’s side. He denied to have kissed learner A. The discussion at the school on the 8th of June 2021, was only about the hug and not about kissing. He stated that the partner to learner A’s mother, had an attitude towards him and thought he would bring up something like touching her private parts but not kissing. He noticed something about a kiss on the notice to attend a disciplinary hearing. He admits that hugging was wrong.
15. During cross examination, he stated that the incident when he joked about learner A’s farther was about April. He thought she was still offended because she appeared to be not as vibrant as always. He knows learner A to be brilliant and hardworking. To the statement that if the partner to learner’s mother influenced her why would she have told Chabaesele and her friend. Segau had no answer but responded that learners influence other learners. To the question why he did not hug other learners he responded that it was only learner A, he responded that he never said insensitive words to other learners. To the question why he called learner A to a private room, he responded that he did not had any bad intention.
SUBMISSIONS IN ARGUMENT
16. Both parties agreed to submit arguments (inclusive of mitigating and aggravating circumstances) in writing which was useful. The submissions were carefully considered, but will not be repeated here, as the contents basically mirror what was put during the leading of evidence and cross-examination in the arbitration hearing itself. None of the submissions convinced me to a different outcome that has been reached.
ANALYSIS OF EVIDENCE AND ARGUMENT
17. Written arguments inclusive of mitigating and aggravating evidence were submitted by both parties. I do not intend to summarise it here in detail. In short it was submitted on behalf of the employer that the employer has proved the charges against the applicant and that dismissal should be the sanction.
18. In order for a dismissal to be fair, Section 188A of the Labour Relations Act requires and Inquiry by arbitrator. An employer may, with the consent of the employee or in accordance with a collective agreement, request a council, an accredited agency or the Commission to appoint an arbitrator to conduct an inquiry into allegations about the conduct or capacity of that employee. The onus is on the employer to prove the allegations levelled against the employee is in accordance with substantive fairness. The parties in this matter agreed that I am required to determine under substantive fairness, whether the employee, Itumeleng Segau kissed a Grade 10 learner,
19. It is common cause that Segau was a teacher to Learner A, in grade 8, the learner but not in grade 10. It is common cause that Learner A was called by Segau to fetch water for him. It is also common cause that Learner A took the water to Segau where they were alone in a classroom. It is also common cause that Segau opened his arms for a hug to which Learner A responded to and received the hug offered to her from Segau.
Under Substantive Fairness
20. I am guided by item 7 of the Code of Good Conduct on Dismissals contained in Schedule 8 to the LRA (hereinafter referred to as "the Code") which requires me to consider whether or not the Applicant contravened a rule regulating conduct in or of relevance to the workplace referring to misconduct in terms in terms of section 17(1)(b) and section 18(1)(q) of the Employment of Educators, Act 76 of 1998 as amended.
;
21. Segau claims that he hugged Learner A but did not kiss her. In Moahlodi v East Rand Gold & Uranium Co Ltd (1998) 19 ILJ (IC) the court formulated the test as follows: an employer need not to be satisfied beyond reasonable doubt that an employee has committed the offence. We must remind ourselves that this is not a criminal trial and that the employer is therefore not required to prove the guilt of the applicant beyond a reasonable doubt. The standard of proof in civil proceedings and arbitrations, is a balance of probabilities see Early Bird Farms (Pty) Ltd v Mlambo [1997] 5 BLLR 541 (LAC). The test for deciding whether something has been proved on a balance of probabilities, is whether the version of the party bearing the onus, is more probable than not see Ocean Accident & Guarantee Corporation Ltd v Kock 1963 (4) SA 147 (A) at 157D.
22. In other words, the evidence must show that the existence of the fact in dispute is more probable than its non-existence. The difference between a possibility and a probability is that when something is possible, it can or could have happened. When something is probable, it most likely will or did happen. In determining probabilities, evidence is assessed against human experience, logic and common sense see Hoffmann en Zeffertt the South African Law of Evidence 4th ed 102. In order to resolve factual disputes, a tribunal must make findings with reference to (a) the credibility of the various factual witnesses; (b) their reliability; and (c) the probabilities. In Stellenbosch Farmers’ Winery Group Ltd v Martell & Cie 2003 (1) SA 11 (SCA) at 14I par 5. The Court further remarked as follows: “As to (a), the court’s finding on the credibility of a particular witness will depend on its impression about the veracity of the witness. That in turn will depend on a variety of subsidiary factors, not necessarily in order of importance, such as (i) the witness’s candour and demeanor in the witness-box, (ii) his bias, latent and blatant, (iii) internal contradictions in his evidence, (iv) external contradictions with what was pleaded or put on his behalf, or with established fact or with his own extra curial statements or actions, (v) the probability or improbability of particular aspects of his version, (vi) the caliber and cogency of his performance compared to that of other witnesses testifying about the same incident or events. As to (b), a witness’s reliability will depend, apart from the factors mentioned under (a)(ii), (iv) and (v) above, on (i) the opportunities he had to experience or observe the event in question and (ii) the quality, integrity and independence of his recall thereof. As to (c), this necessitates an analysis and evaluation of the probability or improbability of each party’s version on each of the disputed issues. In the light of its assessment of (a), (b) and (c) the court will then, as a final step, determine whether the party burdened with the onus of proof has succeeded in discharging it…But when all factors are equipoised probabilities prevail " (at 14I - 15E par 5 per Nienaber JA)
23. Learner A testified that the incident took place (4 June 2021) when she was in grade 10. It is an established principle that the evidence of children should be treated with caution and that a tribunal must fully appreciate the dangers inherent in the acceptance of such evidence see Woji v Santam Insurance Co Limited (A) at 1028B – D. Although Learner A’s identity was disclosed, I have indeed approached her evidence with caution. I am cautioned that single witness evidence was presented and also hearsay evidence of those who were not present with Segau and Learner A. The parties in this matter agreed that I have to decide under substantive fairness whether the applicant was guilty of kissing Learner A, therefore, I need to determine whether Segau is guilty of such alleged misconduct in terms of section 17(1)(b) of the Employment of Educators Act. In relation to the hug in terms of section 18(1)(q) of the Employment of Educators Act, Segau pleaded guilty. A plea explanation was presented which confirmed the hug although he stated that he had no bad intention in doing it.
24. The employer presented Learner A, Lerato Chabaesele and Florence Hoffman, the mother of Learner A in support of their case. Segau testified in support of his case. In relation to the hearsay evidence presented by Chabaesele and Hoffman, in Sisonke Partnership t/a International Healthcare Distributors v National Bargaining Council for Chemical Industry & Others (JA51/10) [2013] ZALAC 16 (handed down on 19 July 2013), the Court with approval referred to the matter of Southern Sun Hotels and that of Swiss South Africa and confirmed the principle that hearsay evidence is allowed if it is in the interest of justice and that it was not irregular for the arbitrator to have relied on the hearsay evidence as the evidence was confirmed by other evidence. In addition, arbitrators have even more leeway than civil courts in determining what evidence should be admitted (Le Monde Luggage CC t/a Pakwells Petje v Commissioner Dunn & others [2007] 10 BLLR 909 (LAC) at paragraph 17); Naraindath v CCMA & others [2006] 6 BLLR 716 (LC) at paragraph 26.) What is more important than admissibility is the weight a commissioner ultimately attaches to evidence such as hearsay when making inferences to deduce the facts of a case.
25. During cross-examination Learner A stated that Segau did not coerce or forced her to hug him when he opened his arms to hug her and she went to hug him. She continued to state that at first she was not offended with the hug, but the kiss offended her and was shocked when he kissed her. It maybe so that the hug, even though it is unacceptable conduct, may never have reached this forum.
26. Only Learner A and Segau was together when the hug occured. Whether there was a kiss from Segau on the lips of learner A when they hugged, must be determined on a balance of probabilities. It was the Segau’s case that Learner A reported the kiss later after she told her friend about the hug, she and her friend made up the kiss accusation. Also that he made an earlier statement towards Learner A about a talk he had with her farther in teasing her, which made her to make up the kissing accusation. The cross examination towards Leaner A could not establish such notion. Chabaesele’s response during cross-examination, to the question when learner A told her about the kiss, was that it was at the same time learner A told her about the hug.
27. Segau and Learner A’s credibility and reliability as two single witnesses must be dealt with caution being the only two present when the alleged kissing took place The question to be determined is not whether a witness (Learner A) is wholly truthful in all she says, but whether the Arbitrator in this instance, can be satisfied that the story which the witness tells, is a true one in its essential features (see Nicholas J in S v Oosthuizen 1982 (3) SA 571 (T) 576) Witnesses who reconstruct their observations frequently make mistakes (see Frank J in Johannes v South West Transport 1994 1 SA 200 (Nm HC) at 202C-D, quoting Lambrechts v African Guarantee & Indemnity Co 1955 3 SA 459 A). I could not find mistakes from Learner A, evidence to conclude reconstruction thereof. From Segau side I only have a bare denial, claiming that Learner A concocted the kissing accusation afterwards because of her friend she talked to or him to have teased her in the past. In Shange v MEC for Education, Kwazulu-Natal (15860/08) [2013] ZAKZDHC 32 (17 May 2013) the court warned that while a bare denial is easy to maintain to stonewall further interrogation during cross-examination, the risk of a bare denial defense is that a more credible version trumps a bare denial with equal ease. Segau and Chabaesele attested that Learner A is not a mischievous child and also that Learner A is a bright student achieving academically well. Chabaesele also had mixed reactions about the incident because she knows children when they make up stories and when not. She also knows Segau having a good relationship with him.
28. To the statement that Segau was happy with learner A’s performance at school during cross-examination, Learner A, did not know it to be so and could not understand the kiss. To the statement that whether someone who is happy for you, not allowed to kiss you, she responded, no not an educator. Two undisputed portions of Learner’s A’s evidence are:
• That Segau asked her if it was the last time he asked for something to which she responded if he wanted Zimba. Segau responded not Zimba but a hug and opened his arms.
• Segau then said that she must always come to check up on him.
These statements I find disturbing. Being a concerned teacher, I am of the view that Segau could have asked Learner A, a direct question. During cross-examination Segau stated that Learner A was not as vibrant as she used to be. This he asked with the mindset of him having teased her with her father during April when he experienced her to be frightened with the joke and felt guilty about it. This Learner A was not questioned about this during cross-examination. If this was so, Segau could have asked directly Learner A about it and apologized it to be a joke. Segau chose not to say anything about what he thought could have been the reason which he felt was important but rather requested a hug. Learner A responded to the hug. I am of the view that Learner responded in hugging Segau because she felt it to be a safe space at that moment. The discussion between them however revealed nothing about previous joking or incidents that could have directed to Learner A’s unhappiness or to have influenced her not being vibrant anymore. This was Segau’s subjective perception but he refrained to be upfront with Learner A to ask her why she was not vibrant anymore. The last undisputed statement, that she must always come and check on him in my view could have fitted in after a ‘concerned’ discussion between them of what Segau thought the reason was that Learner A lost her vibrancy. There was absolutely no question or statement from Segau to have prompted Learner A to disclose any unhappiness being the reason Segau submitted to be the reason he requested a hug. He only asked about her school work and opened his arms for a hug. Segau stated that he asked to give her a hug to feel free, without asking her how she was doing but merely excepting based on his own thoughts that she lost her vibrancy. He could have asked her directly in my view. Segau’s version I find to be improbable. The only probable version is that Segau had his arms open towards Learner A prompting a hug which he received and kissed her.
29. In relation to charge 1, I find that Segau’s conduct to be improper and unacceptable when he requested and hugged Learner A. This is an offence in terms of Section 18(1)(q) of the Employment of Educators Act 76 of 1998 read with section 3.6 of South African Council of Educators Act 31 of 2000 when he failed to refrain from improper physical contact with Learner A.
30. In relation to charge 2, I find that Segau kissed Learner A when he hugged her. Such conduct is an act of sexual assault on Learner A. This is an offence in terms of Section 17(1)(b) of the Employment of Educators Act 76 of 1998 read with section 3.9 of South African Council of Educators Act 31 of 2000 when he failed to refrain from any form of sexual harassment (physical or otherwise) with Learner A
31. Having held that Segau misused his position as teacher, on a balance of probabilities has made himself guilty of the allegations levelled against him. The South African government ratified the UN Convention on the Rights of the Child (CRC) in 1995. The CRC therefore forms part of South Africa’s international law obligations which means that the South African government is under an obligation to ensure that the CRC is implemented and complied with. In line with South Africa’s obligations under international law, the South African Constitution states that:
“Everyone has inherent dignity and the right to have their dignity respected and protected”
“Everyone has the right to be free from all forms of violence and not to be treated or punished in a cruel, inhuman or degrading way”
“A child’s best interest is of paramount importance in every matter concerning the child”
‘Every child has the right to be protected from maltreatment, neglect, abuse or degradation.’.
32. In determining the appropriateness of dismissal in relation to the charges, I adopt the approach of the Constitutional Court in Sidumo v Rustenburg Platinum Mines Ltd (2007) 28 ILJ 2405 (CC). I also take into account the CCMA Guidelines on Misconduct Arbitrations. While discipline falls within the discretion of the employer, the employer must impose an appropriate and fair sanction.
Having held that Segau is guilty of sexual harassment as defined in section 17(1)(b) of the Employment of Educators Act, in relation to charge 2, dismissal is mandatory. Neither the employer, nor I, or the Labour Court has any discretion to impose any other sanction than dismissal for this misconduct for as long as the conviction on section 17 in relation to charge 2 stands. Mitigating factors are completely irrelevant once an educator is convicted of this form of misconduct. For an educator to kiss a learner constitute serious misconduct. Adults are expected to help protecting all children from sexual abuse. In this regard Borchers J remarked in S v G 2004 (2) SACR 296 (W): There is general outrage in South Africa at the moment over child abuse, and the prevalence thereof and the damage done by such crimes to society justifies that outcry. People are being exhorted to adopt the motto, ‘your child is my child’. All that this amounts to is that the public knows that its children are vulnerable and often cannot be protected for every moment of their lives. Decent people recognise these facts and help and protect children. They do not harm them, as the accused had done” (300h-301b);
33. Despite Segau accepting guilt when he conceded to the wrongfulness when he hugged Learner A. Evidence directed that it was more likely to have kissed Learner A when he hugged her. After having committed the acts of misconduct, he subjected Learner A to further trauma in that she had to testify about the sexual harassment that he had subjected her to in the enquiry. In order to show true remorse, a person must be willing to accept guilt for his wrongdoing, must accept that he has done wrong and must accept that some sanction must be imposed for it (see S v G 1993 (2) SACR 359 (C)). Segau was not willing to do that in respect of the 2nd charge. During cross examination he stated that the discussion at the school on the 8th of June 2021, was only about the hug and not about kissing. This version remained undisputed. He also stated that the partner to Learner A’s mother, had an attitude towards him and thought he would bring up something like touching her private parts but not kissing, which version also remained undisputed. Segau also stated during cross examination that he only became aware about the kiss on the notice to attend a disciplinary hearing which I find unlikely. Hofmann stated that on the 8th of June 2021, they had a meeting at the school where the Principal called Segau to the meeting to explain his side of the story. Segau’s explanation was different to her daughters’ that he hugged her but did not kiss her. This version of Hofmann also remained undisputed by Segau. The refusal by an employee to admit guilt and thereby show remorse for his misconduct is generally considered to be a serious aggravating factor (see Grogan Dismissal (2014 ed) 211). In this regard the Labour Appeal Court has stated in De Beers Consolidated Mines Ltd v CCMA & others (2000) 21 ILJ 1051 (LAC) at 1058 par 25: "Acknowledgment of wrongdoing is the first step towards rehabilitation. In the absence of a recommitment to the employer's workplace values, an employee cannot hope to re-establish the trust which he himself has broken. Where…an employee… falsely denies having [committed misconduct] an employer would, particularly where a high degree of trust is reposed in an employee, be legitimately entitled to say to itself that the risk of continuing to employ the offender is unacceptably great."
34. The SACE Code of Professional Conduct provides that an educator must respect the dignity, beliefs and constitutional rights of learners, shall refrain from any form of physical or psychological abuse of children and shall refrain from improper physical contact with learners (Item 3 of the SACE Code) and must behave in a way that enhances the dignity and status of the teaching profession and that does not bring the profession into disrepute (Item 7.2 of the SACE Code). Our Courts have recognized that where the misconduct is of such a serious nature that from itself the inference could be drawn that the trust relationship and therefore the employment relationship has been destroyed, an Arbitrator may on this basis find that the trust relationship has been destroyed, and that dismissal is justified, see Grogan Dismissal (2nd ed 2014) 201, M Brassey et al The new Labour Law (Juta) at 96-7; Electrical & Allied Workers Union v The Production Casting Co (Pty) Ltd (1988) 9 ILJ 702. Conduct like this makes a continued employment relationship intolerable as teachers who act in this manner, cannot be trusted, especially when they in denial.
35. I am satisfied that employer has succeeded in proving on a balance of probabilities that Segau has irreparably destroyed the relationship of trust and had made the continuation of the employment relationship intolerable. I confirm dismissal as an appropriate sanction and find dismissal as sanction to be substantively fair.
AWARD
36. In the premises, I find summarily dismissal of Segau from the employment of the North West Department of Education to be effected from 30 April 2022.
37. Mr Itumeleng Segau (Persal No 90284348) is found UNSUITABLE TO WORK WITH CHILDREN in terms of Section 120(4) of the Children's Act 38 of 2005.
The General Secretary of the ELRC must, in terms of Section 122(1) of the Children's Act 38 of 2005, notify the Director General: Department of Social Development in writing of the findings of this forum made in terms of Section 120(4) of the Children's Act 38 of 2005, that Mr Itumeleng Segau (Persal No 90284348) is unsuitable to work with children, for the Director General to enter his name as contemplated in section 120 in part B of the register.
38. The ELRC is directed to forward a copy of this award to SACE. The attention of SACE is drawn to the fact that an educator Mr. Itumeleng Segau (Persal No 90284348) has sexually harassed Learner A by kissing her on the lips when he hugged her.
S Fourie
ELRC Arbitrator
North West