ELRC194-21/22GP
Text
ELRC194-21/22GP
Award Date:
11 May 2022
Case Number: ELRC194-21/22GP
Commissioner: Ramadimala Jacky Mateta
Date of Award: 16 May 2022
In the MATTER between
Yawa Monwabisi Victor
Employee
And
Department of Education-Gauteng
(Respondent)
Union/Applicant’s representative: Mr.Mthimkhulu N.E (Sadtu Official)
Union/Applicant’s address: Thabeng Primary School
Sedibeng District
Telephone: 083 495 1191
Telefax:
E-mail: yawavictor@gmail.com
Respondent’s representative: Mr. Tsebe M.D (LR Manager)
Respondent’s address: 17 Simmonds Street
Hollard Buildings
Johannesburg, 2017
Telephone: 011 355 1109
Telefax:
E-mail: Mogoba.tsebe@gauteng.gov.za
DETAILS OF HEARING AND REPRESENTATION
1. This award comes as a result of the inquiry proceedings were held in terms of Schedule 2 of the Disciplinary Code and Procedures for Educators.
2. The inquiry was held on the 29th of July 2021, the 15th of October 2021, 20 and 21 January 2022 and were finalized on the on the 7th of April 2022
3. The employee party Mr. Monwabisi Victor Yawa (“Employee” hereinafter) was present and dealt with his matter represented by Mr. Mthimkulu N.E, a representative from Sadtu
4. The employer party, Department of Education-Gauteng (“Employer” hereafter) was also in attendance and was represented by Tsebe M.D, Labour Relations Manager of the respondent.
5. The arbitration proceedings followed only an adversarial approach as both parties were sufficiently represented in the proceedings. Bundle of documents were received from only the respondent party and was marked bundle A (“A” hereafter).
6. Parties requested for the extension and submission of their closing arguments in writing and were Closing arguments were given until the 20th of April 2022.
7. At the conclusion of this award, both parties had submitted their written closing arguments.
8. The inquiry was recorded both electronically and manually.
PRELIMINARY ISSUES:
10. Before starting with the inquiry, employee party confirmed having received the charge sheet and his understanding to the allegations levelled against him.
11. The Inquiry by the Arbitrator was explained and the employee confirmed his understanding of the process.
12. The pre-arbitration minutes were submitted and adopted with the necessary changes.
13. Bundles of documents were exchanged.
14. The following rights were read and explained to the employee:
• The right to representation,
• The right to the interpreter in language of his chose.
• The right to give and adduce evidence
• The right to cross-examine witnesses and evidence submitted against him
• The rights to submit mitigation and aggravating circumstances and legal argument at the conclusion of oral evidence.
15. The employee chose to proceed with his matter without interpreter. An undertaking was written and filed.
INTERLOCATORY RULING
16. Just before commencement of the proceedings the employee submitted that the matter should be dismissed and struck-off the roll firstly because it took time for the employer to initiate the process. Also that the key witness who is also a person who brought the complaint against the employee was not going to be called to testify. He submitted that the employee is on precautionary transfer, reporting to the District office, where there is dust and conditions that do not suit his health condition. His reporting to the district office continued making him suffer psychologically as well. He is a soccer coach and respected person within the community. The allegations against him continue to torment him as a community leader.
17. The employer opposed the application and submitted that the employee was precautionary transferred in terms of the disciplinary code and procedure. His transfer is in the interest of the learners and also for his safety. There was no delay in initiating the proceedings. The employer submitted the request to the ELRC well in time but due to suspension of cases during COVID 19 lock-down, the Council took time to schedule the matter. The witness who is absence is not the complainant in the matter the complainant remains the employer and the employer as the initiator has discretion to call any person as a witness and not to. The allegations about personal vendetta are denied. Evidence will be lead and the applicant is free to put such to witnesses whom he alleges had personal vendettas with him.
18. The applicant is psychologically and physically fit to stand trial. Issues relating to community involvement are issues that he may raise as mitigating circumstance. The learner/ key witness’s absence has nothing to do with the allegations. The right to institute disciplinary rests with the employer and the employer is doing so in the interest of the learner and to correct the employee’s behaviour. Evidence will be led through other available witnesses and it would be up to the arbitrator to decide whether evidence that would be led is sufficient; relevant and admissible.
19. The applicant’s point limine should be dismissed and the inquiry must continue in the interests of fairness, justice and the learners.
20. The ruling in this point limine was reserved and to hear the merits.
WHAT TO BE DETERMINED
21. The employee was charged by the employer and served with a charge sheet on the 25th of May 2021. The charges are as per the charged sheet attached as Bundle A and are outlined as follows:
“Allegation 1.it is alleged that on or around 30 November 2020, you sexually assaulted Learner X, a Grade 7 learner at Thabeng Primary School where you are teaching, by touching and pressing her breast”.
22. The inquiry was to determine whether the employee could be found guilty of this allegation. If found guilty, to determine an appropriate sanction in terms of the Employment of Educators’ Act 78 of 1998
23. The applicant pleaded not guilty to the charge.
SURVEY OF EVIDENCE AND ARGUMENTS
Employer’s case
Evidence:
24. Mr. Mabandla Rhonyuza testified as the first witness of the employer. The summary of his evidence is that he was a Senior Education Specialist: Labour Relations at Sedibeng West District office of the employer. He was an investigator in the alleged incident that led to the inquiry being initiated against the employee.
25. His role was to investigate. He investigated and issued a report. In his investigation, he met with Leaner X through her parent/guardian. In there she told him that on the 20th of November 2020, Mr. Yawa, came and called her from her classroom in the presence of her class teacher. Mr. Yawa outside touched on her breasts (Teatis) and told her that she would be stolen. He then gave her a R4.50.
26. Pages 1 to 5 of B are the statement that he collected during investigation. Page 1 of B is a report that was received from the school; page 1of B is the statement by the learner; page 3 of B is the statement by the educator; page 4 of B is a statement by another educator. Page 8 of B is consent for sent by the Department to parents of the learner seeking a permission to interview the leaner.
27. He also interviewed the accused employee Mr. Yawa. Mr. Yawa confirmed having met the learner but declined to comment on the allegation in the absence of hi trade union. They wrote a letter on page 6 of B requesting him give his side of the story. They received a letter from the trade union SADTU. (Page 9 of B)
28. There was no fabrication. When he went to the school he never anticipated any results. Mr. Yawa also never told him that there was any personal vendetta with anyone at the school. The statements on page 2 to 6 were no written under duress. The employer did not go to the parents and ask the information but the parent came to the school. There was no pressure or duress to the parents or the learner.
29. He spoke to the learner through her parents and informed her about the hearing of the 29th of July 2021 but it does not seem like she would come.
30. Under cross-examination, he confirmed that the statement by the learner was written by the learner herself and front on him. He agreed that statement was not signed and argued that signing and the date were not important. He stated that he does not have a proof that Mr. Yawa gave the learner R4.50 but that Mr. Yawa himself also confirmed. He stated that his understanding of stealing was that Mr. Yawa would come and collect her as it was towards December holidays. He could not tell the distance from Ms. Mfolo; Ms. Gaula and Mr Yawa’s classrooms, however denied that his investigation was not complete. He argued that the distance travelled from senior phase to junior phase at Ms. Mtolo’s class shows how the learner was felt. He stated that the learner said that she was advised to go to Mr. Keeto but chose to go to Ms. Gaula because she felt it would be comfortable to approach the lady as Mr. Mtolo already told her that ‘maybe it was a mistake and it will not happen again.’
31. Mr. Sanele Julius Ntolo testified as the second witness. The summary of his evidence is that he is an educator at Thabeng Primary School. He is the author of the statement in page 5 of B. he gave and signed the statement because of the incident of the 30th of November 2020. He referred the learner Mr. Kuto because he was shocked; didn’t know how to handle. On that day Learner X was in his class. Prior to the incident, the relationship between Mr. Yawa and Learner X was just normal. He does not have any idea as to documents regulating the conduct of educators except SACE which he read about at the University.
32. Under cross-examination, he confirmed having been Learner X’s class-teacher and for about three months. He stated that when Learner X came back she went to the chalkboard and started writing names of male educator. He stated that the words he wrote in his statement, “I will see you in December” where Learner X’s own words and he does not have any interpretation. He stated that he sent her to the HOD because he thought it was the right thing to do. He confirmed that when Mr. Yawa came to the classroom other learners where there. He however declined to comment on why they are not called to the inquiry.
33. Ms. Ivy Mpho Gaula testified as the third witness. The summary of her evidence is that she was an educator at Thabeng Primary School. She wrote a statement on page 3 of B. (statement read). In her explanation of the statement she stated tha it was on the 30th of November 2020 when Learner X came to her crying. She at first wanted to tell her later but realized that she was crying. She then called her; calmed her down and asked her to explain. Learner X in explaining, she told her that Mr. Yawa came to her classroom and called her. And while at the stairs, he touched her, pressed her breasts and told her that he is going to steal her in December.
34. She took her with her to Ms. Fokozi and asked her to demonstrate how she was touched and she did. She then realized that it was inappropriate and too her with Ms. Fokozi to the principal where she repeated the same to the principal.
35. She denied having had personal vendetta with Mr. Yawa and testified that she was SATT coordinator where Mr. Yawa was a chairperson and was always having good relationship with him.
36. Under cross-examination, she stated that she did not know that Learner X was from Mr. Ntolo before coming to her. He stated that the distance from Mr. Ntolo’s classroom was about a block away. He stated that she took her to Ms. Fokozi because it was her first time to experience such and did not know what to do. She needed a second opinion. She said that by saying he would steal her in December Mr. Yawa meant that he would be seeing her in December.
INTERLOCATARY RULING
37. Just before the fourth witness could take a stand, the employee party requested for the adjournment of the proceedings. The application was opposed by the employer party. I then gave the employee party to address its request formally, gave the employer party an opportunity to respond and then made a ruling
EMPLOYEE Party’s SUBMISSION
38. The employee submitted that the reason he is requesting for the adjournment of the proceedings is that he had an appointment with the doctor. He could not mention whether the reason for adjournment was for deteriorating health condition or an appointment and only said that it was both. He could not produce a proof of the appointment with the doctor and stated that it was only telephonic conversation.
EMPLOYER Party’s SUBMISSION
39. In opposing the employer party submitted that the application should be refused. It submitted that the employee party firstly said that he had an appointment with the doctor and later said that he health condition is deteriorating and later said that he is traumatised.
40. He could not produce proof appointment and later want to rely on trauma. That should be rejected as everyone is traumatised, witnesses; learners; administrators all equally traumatised. He failed to communicate with the Council about his doctor’s appointment; and want to argue that his appointment and health are more important than the proceedings. The ELRC proceedings are equally important and must be taken serious.
Ruling
41. In coming to my conclusion I considered that the employee failed to provide proof of the appointment with doctor; he also failed to alert the ELRC or proceedings prior to the commencement that he would not stay for the full or that he was going to ask to be released. I also considered his submission that the proceedings were traumatizing him and making his health more deteriorating. It was however argued by the employer party that the proceedings are making everyone equally traumatised and the employee should not think that he is the only one. I considered that the process is adversarial process and affecting both parties equally and psychologically.
42. The absence of proof of the doctors’ appointment; non explanation of the kind of deteriorating health condition; rejection of the trauma argument, costs of the proceedings; all led to weighed against the employee’s adjournment request.
43. The proceedings were ordered to continue until the close of the day.
44. Ms. Ntolokazi Alfnsina Fokazi testified as the fourth witness. The summary of her evidence is that she was an educator at Thabeng Primary School teaching Grade 3. In page 4 of B is her statement which she wrote about Learner X’s incident. She was never forced to write the statement.
45. On that day she was approached by Ms. Gaula and the leaner, Learner X. Ms. Gaula came to her class explain what Learner X told her. Learner X also explained and demonstrated how she was allegedly touched by Mr. Yawa. She found it difficult to deal with and advised that the learner be taken to the principal. At that time Learner X was not crying but she was emotional and with red eyes.
46. During cross-examination she stated she never thought of taking Learner X to another teacher except to the principal. She did not know if Learner X had first went to any other. She only knew after that Learner X was given money when it was counted in the principal’s office. Her class is just next to Ms. Gaula’s class.
47. Mr. Frans Shikuto Popo Hlokwane testified. The summary of his evidence is that he was a Principal at Thabeng Primary School. In page 1 of C it is circular 1/2016 which he received at the principal meeting. It comes from the Department and deals with management of discipline. In that meeting new principals were also given a workshop managing Labour relations. They were told to cascade the same to the educators. Upon his arrival at the school, he gathered the educators and conducted a workshop dealing specifically with the document.
48. All were given a copy, signed and a copy put in the educators’ file. Mr. Yawa is also an educator at Thabeng Primary School. He is also a Sports Coach and Sadtu representative. He was also in a meeting; received a copy and made contribution from Sadtu’s perspective as received from the shop stewards council. Serious and Less serious misconduct; SACE Code of Conduct were discussed.
49. Sexual assault is serious misconduct. Page 1 of B is a report from the school written and signed by him. What prompted the statement is that there was an incident on the 30th of November 2020, where Ms. Fokazi and Ms. Gaula came with a learner in his office. Ms. Gaula asked the learner to relate a story to him. Tears started rolling down her face and she calmed down. She then started telling the story. She said that Mr. Yawa came and called from the class. He walked her down the steps and walking down the steps, Mr. Yawa hugged her, pressed his hand against her breasts. She said she felt uncomfortable with the advances and touching and went to report.
50. He then called Mr. Ntolo asked if any teacher came and called the learner from the classroom. Mr. Ntolo confirmed that Mr. Yawa came and called Learner X. The following a lady who said that she was the learner guardian came to the school and said that Learner X reported to her about the incident and only wanted to be assured her safety and the educator also called her (learner) after school and she ran away. He then reported the incident to the District office. A district officer came to the school for investigation. He only gave him an office, where conducted his duty. He (witness) does not know how each wrote their statements.
51. To him, relationship between the educator should only be a cordial and professional one. He is not aware of any personal vendetta against the Mr. Yawa. If there was any, he expected Mr. Yawa to have reported it to him or deputy or through his trade union.
52. Under cross-examination, he stated that the proof of attendance of the workshop is available in his office and that if it was required, he could make it available. He said that the incident was the first of that kind and Labour relations only advised him to write a report. He could not write in the report that when Learner X came back she wrote on the chalkboard, “Male teachers are dangerous as it was brought to his attention after a report. He never investigated and all statement were written and given to the investigator. Learner X reported about the money, she took it out from her pocket and counted it. He is not aware of any animosity between her and Mr Yawa. His (witness’s) relationship with Mr Yawa was a cordial and work related. Even as a shop steward, he was allowed to perform his duties without any interference. He never heard of any other incident in his school where educators are in sexual relationships with the learners.
53. The inquiry was adjourned and reconvened on the 15th of October 2021. On that day, the employer party requested for adjournment in order to be allowed an opportunity to subpoena the learner Learner X. The employee party was not opposed to the application and the inquiry was adjourned.
54. The inquiry was reconvened for the 20th and 21st of January 2022. The subpoena was submitted and Learner X, appeared as a subpoenaed witness. She testified virtually in camera through the assistance of an intermediary Ms. Erna Shibisi.
55. The summary of her evidence is that she was a learner at Thabeng Primary School. At the time of the alleged incident, she was in Grade 7 and 13 years of age. On the 30th of November 2020, she was in the class and just shortly before a short break, Mr. Yawa entered the classroom and spoke to Mr. Mtolo. After that, Mr. Yawa called her to follow him. She asked another learner, to accompany her and she refused. Mr. Yawa hurried her and she went out. They went down the first step and before descending the second step to the second floor, Mr. Yawa took left his hand around her middle body, touched her left breast and started pressing it and said that during December he is going to fetch her. He then took R4.80 from his pocket and gave it to her.
56. She then returned to the class and could not know what he meant when he said during December, he is going to fetch her. She then told Mbali and also Mr. Mtolo of what happed outside. Mr. Mtolo said that it was mistake and that it would not happen again. After realizing that Mr. Mtolo did not belief her, she said that she is going to tell Ms. Gaula. When trying to go out Mr. Mtolo order another learner, to close the door. She forced it open and went to Ms. Gaula. Ms. Gaula said that she could not handle and suggested that they must together go to Ms. Fokazi. Ms. Fokazi asked to demonstrate how it happed and she showed them. She then also suggested that they must go to the principal. They three went to the principal and she explained to the principal. The principal told her to take out the money. She took out the money and counted it in front of the three.
57. The principal told her that she must not use the money and went back to classroom. After school when descending down the steps, Mr Yawa called her and she ran to Ms Gaula. Ms Gaula told to go home and to report the incident at parents when reaching home. Upon her arrival at home, she narrated the store to her aunt.
58. Her aunt said that she would be going to the school the following day and confront Mr Yawa. Learner X suggested to her aunt not to confront Mr Yawa but rather to speak to Mr Kutu. Since the incident, Mr Yawa never came to her to talk about it. She was not hurt but was uncomfortable about it. He lifted he breast but not press it hard.
INTERLOCATORY RULING
59. Just after a break, the employee party raised a concern that the intermediary is hostile to the applicant as she was heard during break that she must not ask questions for longer time. It was submitted that the intermediary must be recused from the proceedings as she came with an impartial mind as she said that Mr. Yawa would be taken to another school. It was also submitted that the interpreter must be substituted as he is not interpreting Zulu language correctly.
60. In response the employer party submitted that it does agree with what the employee was alleging. It submitted that the intermediary is not an interpreter and therefore did not need to be impartial.
Ruling
61. In issuing out the ruling, it was considered that from at the start it was agreed that the interpreter is not a Zulu first language speaker, and arrangement made for him to be assisted by a first language speaker.
62. It was also noted that the intermediary was also assisting in giving and explaining the witness statement in Zulu and where there are disagreement, then the second person would then assist the proceeding and interpreting.
63. It was explained that the only person who is bind by the impartiality is the commissioner. The intermediary cannot be expected to be totally impartial as she is assisting the minor and in her role in trying to put the minor at ease, she may be required buy some amount of trust and reliance by the learner. However the issue relating the interpreter was taken serious. It was also noted that since the proceedings where to be held for two days, the inquiry could be adjourned to the following day to allow the Council to organize an interpreter who is first language speaker.
64. The inquiry was adjourned to the following, the 21st of January 2022.
65. On the 21st of January 2022, before resuming with the inquiry, the intermediary reported that Learner X, a minor was not not in attendance. It was reported that the vehicle was sent to fetch her and the guardian at home; there were both found at home; however refused to be taken to inquiry.
INTERLOCARY RULING
66. The employer party submitted that it request the inquiry to postponement. The reason for postponement was that because the witness was testifying under subpoena; the subpoena is still in place and the witness decided to leave the inquiry before conclusion of her evidence and also without being released, then the employer must be allowed to enforce the subpoena.
67. It was submitted that a contempt ruling be issued so as to enable the employer to enforce subpoena. The application was opposed, ex tempore ruling was issued, written ruling with reason followed and served to the parties by the council.
68. On the 7th of April 2022 the inquiry reconvened. The employer representative submitted that the contempt ruling was received however due to financial reasons, the employer could not proceed to the Labour Court for enforcement. He submitted that the employer had no further witnesses and therefore closing its case.
69. The employer party was reminded that the evidence of the witness was never cross-examined and that the possible adverse inference may be drawn when applying of the Law of Evidence. The employee party was then called upon to present its evidence.
EMPLOYEES’s CASE
70. The applicant submitted that they have an application to make before proceeding with the inquiry. The applicant submitted that it applies for an order of strucking off the matter from the roll. The reason it said so is that it would be unfair for the employee to proceed with his evidence before cross-examining the key witness in the matter. The contempt ruling was issued for the employer party and the employee party cannot be expected to enforce the ruling that it had not requested.
71. In responding the employer party submitted that it is the prerogative of the employer to initiate a disciplinary hearing. The employer still insisted in continuing with the inquiry. If the employee feels that he would be prejudiced by the absence of the witness, the employee party may as well enforce the contempt ruling and compel the witness to attend. As to what must happen to her evidence that was not cross-examined, is legal argument that can be advanced by the parties at the conclusion of the inquiry.
Ruling
72. The ruling was issued ex tempore during the proceedings and parties were informed that a written ruling with reasons would be contained in the award. In arriving at the decision, I considered that the application tabled by the employee party is for having a matter struck off the roll, meaning that arbitrator must dismiss the application/referral.
73. I considered that the Inquiry by the Arbitrator is in simple terms, a disciplinary hearing conducted by the arbitrator of the Council. It is conducted in terms of arbitration guidelines and Rules of conduct of the proceedings before the ELRC. The rules of the Council are contained in the collective agreements and binds the employers and employees together with their unions.
74. Firstly, it should be understood that an Inquiry by the Arbitrator, remains the employer initiated process. It is prerogative of the employer to initiate and continue with the process or to abandon it.
75. The other factor that was looked into and taken into consideration is the principle of absolution from instance. This being a principle under which a court may dismiss a matter or case in court because the state or plaintiff has failed to make up a prima facie case in court. The principle does not apply under Labour relations Act matters. For that reason I found that the matter cannot be dismissed following that principle.
76. I also considered that the arbitration is held in terms of the Labour Relations Act. Section 138 of the Act provides for arbitrations in general. Section 138(5)(a) specifically provides for instances under which a commissioner may dismiss the matter. One of those instances is the absence of the referring party at the commencement of the arbitration proceedings. In this instance a person who is absent is a witness. The referring party is the employer party. Therefore, this cannot apply as it is not one of the statutory reasons. The inquiry by arbitrator are statutory proceedings. Meaning that statutory provision applies
77. The instances under which matter may be dismissed or struck of the roll provided by LRA. LRA do not provide for any exceptions to the Rule. Therefore the matter cannot be dismissed for that reason. As to what must happen to the evidence that was led and not cross-examined the Rules of Evidence will apply. Therefore, it is an argument that can be advanced at the conclusion of the proceedings.
78. For that reason, the inquiry cannot be dismissed or struck off the roll solely because the witness who was still at the stand decided to abstain from the inquiry or run away from cross-examination. The inquiry was ordered to continue.
79. After issuing out of the ruling, the employee party indicated that it was not satisfied with the ruling. For the reason that Learner X is not available; that her audio recordings were not made available to the applicant party and that her testimony remains unchallenged, the employee party will not take a stand or lead any evidence.
CLOSING ARGUMENTS and MITIGATING AND AGGRAVATING CIRCUMSTANCES
80. Parties were then requested to submit their closing arguments together with aggravating and mitigating circumstances that they might submit in the event the employee is found guilty. The parties requested and agreed that both closing arguments and mitigating and aggravating circumstances would be submitted in writing on or before the 20th of April 2022.
81. The employer and employee parties submitted their written statements. The statements were filed with the Council and the arbitrator and form the records of the proceedings. For the brevity of the award, I found it not necessary to repeat them.
FINDINGS
The employee was charged with one act of alleged misconduct and as follows: “Allegation 1.it is alleged that on or around 30 November 2020, you sexually assaulted Learner X, a Grade 7 learner at Thabeng Primary School where you are teaching, by touching and pressing her breast”.
82. It is common cause that this charge arises out of an alleged incident where it is alleged that Mr. Yawa appropriately handled and touched a Learner X. The onus rested with the employer party to prove on balance of probabilities that the employee is guilty of the alleged offence.
83. I considered the evidence of the employer led by Ms. Ivy Mpho Gaula that on the 30th of November 2020 Learner X came to her crying and told her that Mr Yawa came to her classroom and called her from the classroom and while at the stairs, Mr Yawa touched her, pressed her breasts and told her that he is going to steal her in December.
84. I also considered that Mr Ntolo was present in the classroom. I also considered evidence by Mr. Rhonyuza that during investigations, he interviewed Mr Yawa who confirmed having called the applicant from the classroom but declined to state whether he touched her or not in the absence of his trade union. I also considered Mr Ntolo’s evidence that he was in the classroom and that Mr Yawa came and called Learner X. I also considered his evidence that upon her return, Learner X went to the chalkboard and wrote names of the male teachers. His further evidence is that he referred the learner, Learner X to Mr Kuto because he was shocked; didn’t know how to handle it. This evidence was never challenged by the employee during cross-examination or rebutted in evidence- in –chief. It then viewed proved that Mr Yawa went to the classroom and called Learner X.
85. As to what happened and the reason why he went to call her depends upon the Learner X and Mr Yawa. The evidence by Learner X is that they went through the steps from level three to two and in between, Mr Yawa took his hand around her, touched her breasts and told her that he is going to fetch her in December. Her evidence was never tested through cross-examination as she absconded from the proceedings. Evidence was given and not tested at cross-examination.
86. I also considered that the employee did not take and stand to testify or call witnesses. The evidence given by Ms. Gaula is that she took Learner X to Ms. Fokozi, asked her to demonstrate how she was touched which she did. I considered that Ms. Fokozo also confirmed having heard and seeing how she was touched. I also considered her evidence that she realized that it was inappropriate and took together with Ms Gaula they took her to the principal where she repeated the same to the principal. The principal Mr. Hlokwane also stated that Learner X told her that she was improperly touched; she produced money that she alleged was given by Mr Yawa.
87. Mr Yawa in closing stated that all these witnesses’ evidence is not true; that it was fabricated as the two educators who took the leaner to the principal had personal vendetta against him. I considered Mr. Rhonyuza’s testimony that he interviewed Learner X, and that she also wrote a statement in her own handwriting. The authenticity of the statement and its admissibility was never disputed by the employee party.
88. I considered that Mr Yawa did not take a stand and testify. He therefore did not rebut the evidence already put against him. It was his chance to take a stand, lead evidence to the effect of alleged personal vendetta; lead evidence as to why Learner X would possibly make such statements against him.
89. I also considered Mr. Yawa’s arguments that all had personal vendetta and coerced Learner X to give false statement against him and this evidence was denied. Mr Gaula denied having had personal vendetta with Mr Yawa and testified that she was SATT coordinator where Mr Yawa was a chairperson and was always having good relationship with him. This evidence was never denied by Mr Yawa. Mr Yawa also failed to put his versions to the witnesses. He also failed to take a stand give probative testimony upon whom an inference should be drawn that indeed there was common purpose of all the witnesses to give false evidence against him.
90. All the evidence above pointed to the effect that there was a prima facie against Mr. Yawa. He had a case to answer. In Bargaining Council for the Furniture Manufacturing Industry KwaZulu- Natal v UKD Marketing cc and others (2013) 34 ILJ 96, it was held that an inference may be drawn against a party for failing to testify only if the evidence of the other party calls for a reply. It is a prerequisite to the application of the rule that an inference that the party faces must have been of such nature that, at the time the other party closing the case, there was sufficient evidence to enable the Court to say, having regards to the absence of any explanation, the other parties version was more probable. In this matter, even if it were argued that the evidence of Learner X should be ignored, the evidence given by other witnesses called upon Mr. Yawa to give an explanation as to why he called the learner, where did go with her and what happened. Failure to do so will render the other parties evidence more probable.
91. In Tshishonga v Minister of justice and Constitutional Development and another (2007) 28 ILJ 296 (LC) it was held that the failure to call witness is reasonable in certain circumstances, such as when the opposition fails to make out a prima facie case. However, an inference must be drawn if a party fails to testify or place evidence of a witness who are available and able elicit the fact as failure leads naturally to inference that he fears that such evidence will expose facts unfavourable to him or damage his case.
92. Lastly in De Beers v Trudon (Pty) Ltd (1994) 15 ILJ 1067 (LAC) the Court held that evidential foundation had to be laid and that a party could not merely rely on arguments only as arguments without an evidential basis would be no more than speculation. The employee did not appreciate and understand the nature of the proceedings against him. I turn to agree with the employer representative’s argument that Inquiry by the Arbitrator, like disciplinary hearing imposes to the employer nothing but an opportunity to give to employee to respond on allegations. Failure by the employee to utilize such opportunity, will give employer a free ride to terminate employment relationship.
93. Having found that there was interaction between the employee and Learner X, that all evidence pointed to a more probable version that Mr Yawa has inappropriately touched the learner, I effectively find that Mr Yawa is guilty of sexually assault to a learner.
SANCTION
94. The charge sheet states that Mr Yawa was charged in terms of section 17(1) (b) of the Employment of Educators Act. Evidence that was submitted by the principal he brought circular 1/2016 and conducted a workshop. His evidence is that it also provided for serious misconduct and less serious misconduct.
95. Section 17(1) provides for serious misconduct. Neither the employee nor the employer party provided for circumstances which I must consider before arriving at the sanction. Section 17 (1) provides for serious misconduct upon which if the educator is found guilty. The only appropriate sanction would be a dismissal. For that reason, I do not find any reason to deviate from the provision of the Act.
As to whether dismissal will be an appropriate sanction.
96. In the Department of Home Affairs & another v Ndlovu & others (2014) ILJ 3340 (LAC) the issue of appropriateness of sanction was dealt with by the LAC which stated that “in order to prove that sanction of dismissal was appropriate, the employer must present evidence to prove a breakdown in the employment relationship. Such evidence is not necessary where the breakdown is apparent from the nature of the offence and/or circumstances.”
AWARD
58. Mr. Monwabisi Victor Yawa is guilty of committing an act of sexual assault on a learner.
59. He is effectively dismissed from employment with effect from the of 18th of May 2022
60. The Employer to deliver a letter of termination stating this reason on or before the 18th of May 2022
Ramadimala Jacky Mateta
Sector: Education
Commissioner: Ramadimala Jacky Mateta
Date of Award: 16 May 2022
In the MATTER between
Yawa Monwabisi Victor
Employee
And
Department of Education-Gauteng
(Respondent)
Union/Applicant’s representative: Mr.Mthimkhulu N.E (Sadtu Official)
Union/Applicant’s address: Thabeng Primary School
Sedibeng District
Telephone: 083 495 1191
Telefax:
E-mail: yawavictor@gmail.com
Respondent’s representative: Mr. Tsebe M.D (LR Manager)
Respondent’s address: 17 Simmonds Street
Hollard Buildings
Johannesburg, 2017
Telephone: 011 355 1109
Telefax:
E-mail: Mogoba.tsebe@gauteng.gov.za
DETAILS OF HEARING AND REPRESENTATION
1. This award comes as a result of the inquiry proceedings were held in terms of Schedule 2 of the Disciplinary Code and Procedures for Educators.
2. The inquiry was held on the 29th of July 2021, the 15th of October 2021, 20 and 21 January 2022 and were finalized on the on the 7th of April 2022
3. The employee party Mr. Monwabisi Victor Yawa (“Employee” hereinafter) was present and dealt with his matter represented by Mr. Mthimkulu N.E, a representative from Sadtu
4. The employer party, Department of Education-Gauteng (“Employer” hereafter) was also in attendance and was represented by Tsebe M.D, Labour Relations Manager of the respondent.
5. The arbitration proceedings followed only an adversarial approach as both parties were sufficiently represented in the proceedings. Bundle of documents were received from only the respondent party and was marked bundle A (“A” hereafter).
6. Parties requested for the extension and submission of their closing arguments in writing and were Closing arguments were given until the 20th of April 2022.
7. At the conclusion of this award, both parties had submitted their written closing arguments.
8. The inquiry was recorded both electronically and manually.
PRELIMINARY ISSUES:
10. Before starting with the inquiry, employee party confirmed having received the charge sheet and his understanding to the allegations levelled against him.
11. The Inquiry by the Arbitrator was explained and the employee confirmed his understanding of the process.
12. The pre-arbitration minutes were submitted and adopted with the necessary changes.
13. Bundles of documents were exchanged.
14. The following rights were read and explained to the employee:
• The right to representation,
• The right to the interpreter in language of his chose.
• The right to give and adduce evidence
• The right to cross-examine witnesses and evidence submitted against him
• The rights to submit mitigation and aggravating circumstances and legal argument at the conclusion of oral evidence.
15. The employee chose to proceed with his matter without interpreter. An undertaking was written and filed.
INTERLOCATORY RULING
16. Just before commencement of the proceedings the employee submitted that the matter should be dismissed and struck-off the roll firstly because it took time for the employer to initiate the process. Also that the key witness who is also a person who brought the complaint against the employee was not going to be called to testify. He submitted that the employee is on precautionary transfer, reporting to the District office, where there is dust and conditions that do not suit his health condition. His reporting to the district office continued making him suffer psychologically as well. He is a soccer coach and respected person within the community. The allegations against him continue to torment him as a community leader.
17. The employer opposed the application and submitted that the employee was precautionary transferred in terms of the disciplinary code and procedure. His transfer is in the interest of the learners and also for his safety. There was no delay in initiating the proceedings. The employer submitted the request to the ELRC well in time but due to suspension of cases during COVID 19 lock-down, the Council took time to schedule the matter. The witness who is absence is not the complainant in the matter the complainant remains the employer and the employer as the initiator has discretion to call any person as a witness and not to. The allegations about personal vendetta are denied. Evidence will be lead and the applicant is free to put such to witnesses whom he alleges had personal vendettas with him.
18. The applicant is psychologically and physically fit to stand trial. Issues relating to community involvement are issues that he may raise as mitigating circumstance. The learner/ key witness’s absence has nothing to do with the allegations. The right to institute disciplinary rests with the employer and the employer is doing so in the interest of the learner and to correct the employee’s behaviour. Evidence will be led through other available witnesses and it would be up to the arbitrator to decide whether evidence that would be led is sufficient; relevant and admissible.
19. The applicant’s point limine should be dismissed and the inquiry must continue in the interests of fairness, justice and the learners.
20. The ruling in this point limine was reserved and to hear the merits.
WHAT TO BE DETERMINED
21. The employee was charged by the employer and served with a charge sheet on the 25th of May 2021. The charges are as per the charged sheet attached as Bundle A and are outlined as follows:
“Allegation 1.it is alleged that on or around 30 November 2020, you sexually assaulted Learner X, a Grade 7 learner at Thabeng Primary School where you are teaching, by touching and pressing her breast”.
22. The inquiry was to determine whether the employee could be found guilty of this allegation. If found guilty, to determine an appropriate sanction in terms of the Employment of Educators’ Act 78 of 1998
23. The applicant pleaded not guilty to the charge.
SURVEY OF EVIDENCE AND ARGUMENTS
Employer’s case
Evidence:
24. Mr. Mabandla Rhonyuza testified as the first witness of the employer. The summary of his evidence is that he was a Senior Education Specialist: Labour Relations at Sedibeng West District office of the employer. He was an investigator in the alleged incident that led to the inquiry being initiated against the employee.
25. His role was to investigate. He investigated and issued a report. In his investigation, he met with Leaner X through her parent/guardian. In there she told him that on the 20th of November 2020, Mr. Yawa, came and called her from her classroom in the presence of her class teacher. Mr. Yawa outside touched on her breasts (Teatis) and told her that she would be stolen. He then gave her a R4.50.
26. Pages 1 to 5 of B are the statement that he collected during investigation. Page 1 of B is a report that was received from the school; page 1of B is the statement by the learner; page 3 of B is the statement by the educator; page 4 of B is a statement by another educator. Page 8 of B is consent for sent by the Department to parents of the learner seeking a permission to interview the leaner.
27. He also interviewed the accused employee Mr. Yawa. Mr. Yawa confirmed having met the learner but declined to comment on the allegation in the absence of hi trade union. They wrote a letter on page 6 of B requesting him give his side of the story. They received a letter from the trade union SADTU. (Page 9 of B)
28. There was no fabrication. When he went to the school he never anticipated any results. Mr. Yawa also never told him that there was any personal vendetta with anyone at the school. The statements on page 2 to 6 were no written under duress. The employer did not go to the parents and ask the information but the parent came to the school. There was no pressure or duress to the parents or the learner.
29. He spoke to the learner through her parents and informed her about the hearing of the 29th of July 2021 but it does not seem like she would come.
30. Under cross-examination, he confirmed that the statement by the learner was written by the learner herself and front on him. He agreed that statement was not signed and argued that signing and the date were not important. He stated that he does not have a proof that Mr. Yawa gave the learner R4.50 but that Mr. Yawa himself also confirmed. He stated that his understanding of stealing was that Mr. Yawa would come and collect her as it was towards December holidays. He could not tell the distance from Ms. Mfolo; Ms. Gaula and Mr Yawa’s classrooms, however denied that his investigation was not complete. He argued that the distance travelled from senior phase to junior phase at Ms. Mtolo’s class shows how the learner was felt. He stated that the learner said that she was advised to go to Mr. Keeto but chose to go to Ms. Gaula because she felt it would be comfortable to approach the lady as Mr. Mtolo already told her that ‘maybe it was a mistake and it will not happen again.’
31. Mr. Sanele Julius Ntolo testified as the second witness. The summary of his evidence is that he is an educator at Thabeng Primary School. He is the author of the statement in page 5 of B. he gave and signed the statement because of the incident of the 30th of November 2020. He referred the learner Mr. Kuto because he was shocked; didn’t know how to handle. On that day Learner X was in his class. Prior to the incident, the relationship between Mr. Yawa and Learner X was just normal. He does not have any idea as to documents regulating the conduct of educators except SACE which he read about at the University.
32. Under cross-examination, he confirmed having been Learner X’s class-teacher and for about three months. He stated that when Learner X came back she went to the chalkboard and started writing names of male educator. He stated that the words he wrote in his statement, “I will see you in December” where Learner X’s own words and he does not have any interpretation. He stated that he sent her to the HOD because he thought it was the right thing to do. He confirmed that when Mr. Yawa came to the classroom other learners where there. He however declined to comment on why they are not called to the inquiry.
33. Ms. Ivy Mpho Gaula testified as the third witness. The summary of her evidence is that she was an educator at Thabeng Primary School. She wrote a statement on page 3 of B. (statement read). In her explanation of the statement she stated tha it was on the 30th of November 2020 when Learner X came to her crying. She at first wanted to tell her later but realized that she was crying. She then called her; calmed her down and asked her to explain. Learner X in explaining, she told her that Mr. Yawa came to her classroom and called her. And while at the stairs, he touched her, pressed her breasts and told her that he is going to steal her in December.
34. She took her with her to Ms. Fokozi and asked her to demonstrate how she was touched and she did. She then realized that it was inappropriate and too her with Ms. Fokozi to the principal where she repeated the same to the principal.
35. She denied having had personal vendetta with Mr. Yawa and testified that she was SATT coordinator where Mr. Yawa was a chairperson and was always having good relationship with him.
36. Under cross-examination, she stated that she did not know that Learner X was from Mr. Ntolo before coming to her. He stated that the distance from Mr. Ntolo’s classroom was about a block away. He stated that she took her to Ms. Fokozi because it was her first time to experience such and did not know what to do. She needed a second opinion. She said that by saying he would steal her in December Mr. Yawa meant that he would be seeing her in December.
INTERLOCATARY RULING
37. Just before the fourth witness could take a stand, the employee party requested for the adjournment of the proceedings. The application was opposed by the employer party. I then gave the employee party to address its request formally, gave the employer party an opportunity to respond and then made a ruling
EMPLOYEE Party’s SUBMISSION
38. The employee submitted that the reason he is requesting for the adjournment of the proceedings is that he had an appointment with the doctor. He could not mention whether the reason for adjournment was for deteriorating health condition or an appointment and only said that it was both. He could not produce a proof of the appointment with the doctor and stated that it was only telephonic conversation.
EMPLOYER Party’s SUBMISSION
39. In opposing the employer party submitted that the application should be refused. It submitted that the employee party firstly said that he had an appointment with the doctor and later said that he health condition is deteriorating and later said that he is traumatised.
40. He could not produce proof appointment and later want to rely on trauma. That should be rejected as everyone is traumatised, witnesses; learners; administrators all equally traumatised. He failed to communicate with the Council about his doctor’s appointment; and want to argue that his appointment and health are more important than the proceedings. The ELRC proceedings are equally important and must be taken serious.
Ruling
41. In coming to my conclusion I considered that the employee failed to provide proof of the appointment with doctor; he also failed to alert the ELRC or proceedings prior to the commencement that he would not stay for the full or that he was going to ask to be released. I also considered his submission that the proceedings were traumatizing him and making his health more deteriorating. It was however argued by the employer party that the proceedings are making everyone equally traumatised and the employee should not think that he is the only one. I considered that the process is adversarial process and affecting both parties equally and psychologically.
42. The absence of proof of the doctors’ appointment; non explanation of the kind of deteriorating health condition; rejection of the trauma argument, costs of the proceedings; all led to weighed against the employee’s adjournment request.
43. The proceedings were ordered to continue until the close of the day.
44. Ms. Ntolokazi Alfnsina Fokazi testified as the fourth witness. The summary of her evidence is that she was an educator at Thabeng Primary School teaching Grade 3. In page 4 of B is her statement which she wrote about Learner X’s incident. She was never forced to write the statement.
45. On that day she was approached by Ms. Gaula and the leaner, Learner X. Ms. Gaula came to her class explain what Learner X told her. Learner X also explained and demonstrated how she was allegedly touched by Mr. Yawa. She found it difficult to deal with and advised that the learner be taken to the principal. At that time Learner X was not crying but she was emotional and with red eyes.
46. During cross-examination she stated she never thought of taking Learner X to another teacher except to the principal. She did not know if Learner X had first went to any other. She only knew after that Learner X was given money when it was counted in the principal’s office. Her class is just next to Ms. Gaula’s class.
47. Mr. Frans Shikuto Popo Hlokwane testified. The summary of his evidence is that he was a Principal at Thabeng Primary School. In page 1 of C it is circular 1/2016 which he received at the principal meeting. It comes from the Department and deals with management of discipline. In that meeting new principals were also given a workshop managing Labour relations. They were told to cascade the same to the educators. Upon his arrival at the school, he gathered the educators and conducted a workshop dealing specifically with the document.
48. All were given a copy, signed and a copy put in the educators’ file. Mr. Yawa is also an educator at Thabeng Primary School. He is also a Sports Coach and Sadtu representative. He was also in a meeting; received a copy and made contribution from Sadtu’s perspective as received from the shop stewards council. Serious and Less serious misconduct; SACE Code of Conduct were discussed.
49. Sexual assault is serious misconduct. Page 1 of B is a report from the school written and signed by him. What prompted the statement is that there was an incident on the 30th of November 2020, where Ms. Fokazi and Ms. Gaula came with a learner in his office. Ms. Gaula asked the learner to relate a story to him. Tears started rolling down her face and she calmed down. She then started telling the story. She said that Mr. Yawa came and called from the class. He walked her down the steps and walking down the steps, Mr. Yawa hugged her, pressed his hand against her breasts. She said she felt uncomfortable with the advances and touching and went to report.
50. He then called Mr. Ntolo asked if any teacher came and called the learner from the classroom. Mr. Ntolo confirmed that Mr. Yawa came and called Learner X. The following a lady who said that she was the learner guardian came to the school and said that Learner X reported to her about the incident and only wanted to be assured her safety and the educator also called her (learner) after school and she ran away. He then reported the incident to the District office. A district officer came to the school for investigation. He only gave him an office, where conducted his duty. He (witness) does not know how each wrote their statements.
51. To him, relationship between the educator should only be a cordial and professional one. He is not aware of any personal vendetta against the Mr. Yawa. If there was any, he expected Mr. Yawa to have reported it to him or deputy or through his trade union.
52. Under cross-examination, he stated that the proof of attendance of the workshop is available in his office and that if it was required, he could make it available. He said that the incident was the first of that kind and Labour relations only advised him to write a report. He could not write in the report that when Learner X came back she wrote on the chalkboard, “Male teachers are dangerous as it was brought to his attention after a report. He never investigated and all statement were written and given to the investigator. Learner X reported about the money, she took it out from her pocket and counted it. He is not aware of any animosity between her and Mr Yawa. His (witness’s) relationship with Mr Yawa was a cordial and work related. Even as a shop steward, he was allowed to perform his duties without any interference. He never heard of any other incident in his school where educators are in sexual relationships with the learners.
53. The inquiry was adjourned and reconvened on the 15th of October 2021. On that day, the employer party requested for adjournment in order to be allowed an opportunity to subpoena the learner Learner X. The employee party was not opposed to the application and the inquiry was adjourned.
54. The inquiry was reconvened for the 20th and 21st of January 2022. The subpoena was submitted and Learner X, appeared as a subpoenaed witness. She testified virtually in camera through the assistance of an intermediary Ms. Erna Shibisi.
55. The summary of her evidence is that she was a learner at Thabeng Primary School. At the time of the alleged incident, she was in Grade 7 and 13 years of age. On the 30th of November 2020, she was in the class and just shortly before a short break, Mr. Yawa entered the classroom and spoke to Mr. Mtolo. After that, Mr. Yawa called her to follow him. She asked another learner, to accompany her and she refused. Mr. Yawa hurried her and she went out. They went down the first step and before descending the second step to the second floor, Mr. Yawa took left his hand around her middle body, touched her left breast and started pressing it and said that during December he is going to fetch her. He then took R4.80 from his pocket and gave it to her.
56. She then returned to the class and could not know what he meant when he said during December, he is going to fetch her. She then told Mbali and also Mr. Mtolo of what happed outside. Mr. Mtolo said that it was mistake and that it would not happen again. After realizing that Mr. Mtolo did not belief her, she said that she is going to tell Ms. Gaula. When trying to go out Mr. Mtolo order another learner, to close the door. She forced it open and went to Ms. Gaula. Ms. Gaula said that she could not handle and suggested that they must together go to Ms. Fokazi. Ms. Fokazi asked to demonstrate how it happed and she showed them. She then also suggested that they must go to the principal. They three went to the principal and she explained to the principal. The principal told her to take out the money. She took out the money and counted it in front of the three.
57. The principal told her that she must not use the money and went back to classroom. After school when descending down the steps, Mr Yawa called her and she ran to Ms Gaula. Ms Gaula told to go home and to report the incident at parents when reaching home. Upon her arrival at home, she narrated the store to her aunt.
58. Her aunt said that she would be going to the school the following day and confront Mr Yawa. Learner X suggested to her aunt not to confront Mr Yawa but rather to speak to Mr Kutu. Since the incident, Mr Yawa never came to her to talk about it. She was not hurt but was uncomfortable about it. He lifted he breast but not press it hard.
INTERLOCATORY RULING
59. Just after a break, the employee party raised a concern that the intermediary is hostile to the applicant as she was heard during break that she must not ask questions for longer time. It was submitted that the intermediary must be recused from the proceedings as she came with an impartial mind as she said that Mr. Yawa would be taken to another school. It was also submitted that the interpreter must be substituted as he is not interpreting Zulu language correctly.
60. In response the employer party submitted that it does agree with what the employee was alleging. It submitted that the intermediary is not an interpreter and therefore did not need to be impartial.
Ruling
61. In issuing out the ruling, it was considered that from at the start it was agreed that the interpreter is not a Zulu first language speaker, and arrangement made for him to be assisted by a first language speaker.
62. It was also noted that the intermediary was also assisting in giving and explaining the witness statement in Zulu and where there are disagreement, then the second person would then assist the proceeding and interpreting.
63. It was explained that the only person who is bind by the impartiality is the commissioner. The intermediary cannot be expected to be totally impartial as she is assisting the minor and in her role in trying to put the minor at ease, she may be required buy some amount of trust and reliance by the learner. However the issue relating the interpreter was taken serious. It was also noted that since the proceedings where to be held for two days, the inquiry could be adjourned to the following day to allow the Council to organize an interpreter who is first language speaker.
64. The inquiry was adjourned to the following, the 21st of January 2022.
65. On the 21st of January 2022, before resuming with the inquiry, the intermediary reported that Learner X, a minor was not not in attendance. It was reported that the vehicle was sent to fetch her and the guardian at home; there were both found at home; however refused to be taken to inquiry.
INTERLOCARY RULING
66. The employer party submitted that it request the inquiry to postponement. The reason for postponement was that because the witness was testifying under subpoena; the subpoena is still in place and the witness decided to leave the inquiry before conclusion of her evidence and also without being released, then the employer must be allowed to enforce the subpoena.
67. It was submitted that a contempt ruling be issued so as to enable the employer to enforce subpoena. The application was opposed, ex tempore ruling was issued, written ruling with reason followed and served to the parties by the council.
68. On the 7th of April 2022 the inquiry reconvened. The employer representative submitted that the contempt ruling was received however due to financial reasons, the employer could not proceed to the Labour Court for enforcement. He submitted that the employer had no further witnesses and therefore closing its case.
69. The employer party was reminded that the evidence of the witness was never cross-examined and that the possible adverse inference may be drawn when applying of the Law of Evidence. The employee party was then called upon to present its evidence.
EMPLOYEES’s CASE
70. The applicant submitted that they have an application to make before proceeding with the inquiry. The applicant submitted that it applies for an order of strucking off the matter from the roll. The reason it said so is that it would be unfair for the employee to proceed with his evidence before cross-examining the key witness in the matter. The contempt ruling was issued for the employer party and the employee party cannot be expected to enforce the ruling that it had not requested.
71. In responding the employer party submitted that it is the prerogative of the employer to initiate a disciplinary hearing. The employer still insisted in continuing with the inquiry. If the employee feels that he would be prejudiced by the absence of the witness, the employee party may as well enforce the contempt ruling and compel the witness to attend. As to what must happen to her evidence that was not cross-examined, is legal argument that can be advanced by the parties at the conclusion of the inquiry.
Ruling
72. The ruling was issued ex tempore during the proceedings and parties were informed that a written ruling with reasons would be contained in the award. In arriving at the decision, I considered that the application tabled by the employee party is for having a matter struck off the roll, meaning that arbitrator must dismiss the application/referral.
73. I considered that the Inquiry by the Arbitrator is in simple terms, a disciplinary hearing conducted by the arbitrator of the Council. It is conducted in terms of arbitration guidelines and Rules of conduct of the proceedings before the ELRC. The rules of the Council are contained in the collective agreements and binds the employers and employees together with their unions.
74. Firstly, it should be understood that an Inquiry by the Arbitrator, remains the employer initiated process. It is prerogative of the employer to initiate and continue with the process or to abandon it.
75. The other factor that was looked into and taken into consideration is the principle of absolution from instance. This being a principle under which a court may dismiss a matter or case in court because the state or plaintiff has failed to make up a prima facie case in court. The principle does not apply under Labour relations Act matters. For that reason I found that the matter cannot be dismissed following that principle.
76. I also considered that the arbitration is held in terms of the Labour Relations Act. Section 138 of the Act provides for arbitrations in general. Section 138(5)(a) specifically provides for instances under which a commissioner may dismiss the matter. One of those instances is the absence of the referring party at the commencement of the arbitration proceedings. In this instance a person who is absent is a witness. The referring party is the employer party. Therefore, this cannot apply as it is not one of the statutory reasons. The inquiry by arbitrator are statutory proceedings. Meaning that statutory provision applies
77. The instances under which matter may be dismissed or struck of the roll provided by LRA. LRA do not provide for any exceptions to the Rule. Therefore the matter cannot be dismissed for that reason. As to what must happen to the evidence that was led and not cross-examined the Rules of Evidence will apply. Therefore, it is an argument that can be advanced at the conclusion of the proceedings.
78. For that reason, the inquiry cannot be dismissed or struck off the roll solely because the witness who was still at the stand decided to abstain from the inquiry or run away from cross-examination. The inquiry was ordered to continue.
79. After issuing out of the ruling, the employee party indicated that it was not satisfied with the ruling. For the reason that Learner X is not available; that her audio recordings were not made available to the applicant party and that her testimony remains unchallenged, the employee party will not take a stand or lead any evidence.
CLOSING ARGUMENTS and MITIGATING AND AGGRAVATING CIRCUMSTANCES
80. Parties were then requested to submit their closing arguments together with aggravating and mitigating circumstances that they might submit in the event the employee is found guilty. The parties requested and agreed that both closing arguments and mitigating and aggravating circumstances would be submitted in writing on or before the 20th of April 2022.
81. The employer and employee parties submitted their written statements. The statements were filed with the Council and the arbitrator and form the records of the proceedings. For the brevity of the award, I found it not necessary to repeat them.
FINDINGS
The employee was charged with one act of alleged misconduct and as follows: “Allegation 1.it is alleged that on or around 30 November 2020, you sexually assaulted Learner X, a Grade 7 learner at Thabeng Primary School where you are teaching, by touching and pressing her breast”.
82. It is common cause that this charge arises out of an alleged incident where it is alleged that Mr. Yawa appropriately handled and touched a Learner X. The onus rested with the employer party to prove on balance of probabilities that the employee is guilty of the alleged offence.
83. I considered the evidence of the employer led by Ms. Ivy Mpho Gaula that on the 30th of November 2020 Learner X came to her crying and told her that Mr Yawa came to her classroom and called her from the classroom and while at the stairs, Mr Yawa touched her, pressed her breasts and told her that he is going to steal her in December.
84. I also considered that Mr Ntolo was present in the classroom. I also considered evidence by Mr. Rhonyuza that during investigations, he interviewed Mr Yawa who confirmed having called the applicant from the classroom but declined to state whether he touched her or not in the absence of his trade union. I also considered Mr Ntolo’s evidence that he was in the classroom and that Mr Yawa came and called Learner X. I also considered his evidence that upon her return, Learner X went to the chalkboard and wrote names of the male teachers. His further evidence is that he referred the learner, Learner X to Mr Kuto because he was shocked; didn’t know how to handle it. This evidence was never challenged by the employee during cross-examination or rebutted in evidence- in –chief. It then viewed proved that Mr Yawa went to the classroom and called Learner X.
85. As to what happened and the reason why he went to call her depends upon the Learner X and Mr Yawa. The evidence by Learner X is that they went through the steps from level three to two and in between, Mr Yawa took his hand around her, touched her breasts and told her that he is going to fetch her in December. Her evidence was never tested through cross-examination as she absconded from the proceedings. Evidence was given and not tested at cross-examination.
86. I also considered that the employee did not take and stand to testify or call witnesses. The evidence given by Ms. Gaula is that she took Learner X to Ms. Fokozi, asked her to demonstrate how she was touched which she did. I considered that Ms. Fokozo also confirmed having heard and seeing how she was touched. I also considered her evidence that she realized that it was inappropriate and took together with Ms Gaula they took her to the principal where she repeated the same to the principal. The principal Mr. Hlokwane also stated that Learner X told her that she was improperly touched; she produced money that she alleged was given by Mr Yawa.
87. Mr Yawa in closing stated that all these witnesses’ evidence is not true; that it was fabricated as the two educators who took the leaner to the principal had personal vendetta against him. I considered Mr. Rhonyuza’s testimony that he interviewed Learner X, and that she also wrote a statement in her own handwriting. The authenticity of the statement and its admissibility was never disputed by the employee party.
88. I considered that Mr Yawa did not take a stand and testify. He therefore did not rebut the evidence already put against him. It was his chance to take a stand, lead evidence to the effect of alleged personal vendetta; lead evidence as to why Learner X would possibly make such statements against him.
89. I also considered Mr. Yawa’s arguments that all had personal vendetta and coerced Learner X to give false statement against him and this evidence was denied. Mr Gaula denied having had personal vendetta with Mr Yawa and testified that she was SATT coordinator where Mr Yawa was a chairperson and was always having good relationship with him. This evidence was never denied by Mr Yawa. Mr Yawa also failed to put his versions to the witnesses. He also failed to take a stand give probative testimony upon whom an inference should be drawn that indeed there was common purpose of all the witnesses to give false evidence against him.
90. All the evidence above pointed to the effect that there was a prima facie against Mr. Yawa. He had a case to answer. In Bargaining Council for the Furniture Manufacturing Industry KwaZulu- Natal v UKD Marketing cc and others (2013) 34 ILJ 96, it was held that an inference may be drawn against a party for failing to testify only if the evidence of the other party calls for a reply. It is a prerequisite to the application of the rule that an inference that the party faces must have been of such nature that, at the time the other party closing the case, there was sufficient evidence to enable the Court to say, having regards to the absence of any explanation, the other parties version was more probable. In this matter, even if it were argued that the evidence of Learner X should be ignored, the evidence given by other witnesses called upon Mr. Yawa to give an explanation as to why he called the learner, where did go with her and what happened. Failure to do so will render the other parties evidence more probable.
91. In Tshishonga v Minister of justice and Constitutional Development and another (2007) 28 ILJ 296 (LC) it was held that the failure to call witness is reasonable in certain circumstances, such as when the opposition fails to make out a prima facie case. However, an inference must be drawn if a party fails to testify or place evidence of a witness who are available and able elicit the fact as failure leads naturally to inference that he fears that such evidence will expose facts unfavourable to him or damage his case.
92. Lastly in De Beers v Trudon (Pty) Ltd (1994) 15 ILJ 1067 (LAC) the Court held that evidential foundation had to be laid and that a party could not merely rely on arguments only as arguments without an evidential basis would be no more than speculation. The employee did not appreciate and understand the nature of the proceedings against him. I turn to agree with the employer representative’s argument that Inquiry by the Arbitrator, like disciplinary hearing imposes to the employer nothing but an opportunity to give to employee to respond on allegations. Failure by the employee to utilize such opportunity, will give employer a free ride to terminate employment relationship.
93. Having found that there was interaction between the employee and Learner X, that all evidence pointed to a more probable version that Mr Yawa has inappropriately touched the learner, I effectively find that Mr Yawa is guilty of sexually assault to a learner.
SANCTION
94. The charge sheet states that Mr Yawa was charged in terms of section 17(1) (b) of the Employment of Educators Act. Evidence that was submitted by the principal he brought circular 1/2016 and conducted a workshop. His evidence is that it also provided for serious misconduct and less serious misconduct.
95. Section 17(1) provides for serious misconduct. Neither the employee nor the employer party provided for circumstances which I must consider before arriving at the sanction. Section 17 (1) provides for serious misconduct upon which if the educator is found guilty. The only appropriate sanction would be a dismissal. For that reason, I do not find any reason to deviate from the provision of the Act.
As to whether dismissal will be an appropriate sanction.
96. In the Department of Home Affairs & another v Ndlovu & others (2014) ILJ 3340 (LAC) the issue of appropriateness of sanction was dealt with by the LAC which stated that “in order to prove that sanction of dismissal was appropriate, the employer must present evidence to prove a breakdown in the employment relationship. Such evidence is not necessary where the breakdown is apparent from the nature of the offence and/or circumstances.”
AWARD
58. Mr. Monwabisi Victor Yawa is guilty of committing an act of sexual assault on a learner.
59. He is effectively dismissed from employment with effect from the of 18th of May 2022
60. The Employer to deliver a letter of termination stating this reason on or before the 18th of May 2022
Ramadimala Jacky Mateta
Sector: Education