ELRC716-19/20NC
Text
ELRC716-19/20NC
Award Date:
31 July 2022
Arbitrator: SHIRAZ MAHOMED OSMAN Case Reference No: ELRC716-19/20NC
Date of award: 31 JULY 2022
In the Inquiry by Arbitrator hearing between:
Mr. Niel van den Heever Employee party
and
Department of Education – Northern Cape Employer party
DETAILS OF HEARING AND REPRESENTATION
1. The present dispute between Mr. Niel van den Heever (hereinafter referred to as the employee) and The Department of Education-Northern Cape (hereinafter referred to as the employer) was referred to, Inquiry by Arbitrator, in terms of Section 188A, of the Labour Relations Act no.66 of 1995, as amended (the Act); read with Collective Agreement 3 of 2018. At the Inquiry by Arbitrator hearing, which was held at the Springbok Magistrate Court, in Springbok on, 11 July 2022, the employee was represented by Ms. K Labuschagne, of SAOU, a trade union, and the employer, was represented by Mr. G George.
2. Due to the lateness of the hour and the fact that attendants had to travel, including myself, parties were afforded the opportunity to submit written closing arguments by no later than, 18 July 2022, hence, being the last date of the arbitration.
3. Both parties submitted closing arguments and were considered.
THE CHARGES TO BE DECIDED:
4. I am to decide, whether the employee, is indeed guilty of the following charges:
Charge 1
You have contravened section 18 (1) (q) of the Employment of Educators Act 76 of 1998 at or near Kleinzee Special School during 2017-2019 in the Namakwa District, while on duty you conducted yourself in an improper, disgraceful or unacceptable manner in that you said to the following learners (Ms. X and Ms. Y) on different occasions (individually) in that you told them that you wanted to have relationships (“vry”) with them and they should not tell other learners or anyone while you knew or ought to have known that you were not allowed to do so.
Alternatively
On or about 2017-2019 at or near Kleinzee Special School in the Namakwa District you committed an act of misconduct in terms of Section (18) (1) (f) of the Employment of Educators Act 76 of 1998, that you inter alia, unjustifiably prejudices the administration, discipline or efficiency of the Department of Basic Education, an office of the state or a school in that you asked learners individually on different occasions to have relationships with you, while you knew or ought to have known that you were not allowed to do so.
PLEA
5. The applicant pleaded not guilty to the above charges.
BACKGROUND
6. The employee is an educator and was charged in August 2021, as per the above allegations. He was an educator since 1990. He was promoted to an HOD and a Deputy Principle in January 2019. He was also the hostel Superintendent.
7. He was charged in terms of Section 18 of the Employment of Educators Act no. 78, of 1998 (the EEA). He was charged for suggesting a sexual relationship with two learners, hereinafter referred to as Ms. X and Ms. Y, who are since adults, from the time of the allegations having taken place.
8. The employee is still employed as an educator and is on suspension without pay, since March 2019. I find it prudent to mention that the school in question is a “special needs” school with children with cognitive learning disabilities.
9. The matter was referred to Council by the employer, in terms of Collective Agreement 3 of 2018; read with Section 188A, of the Act, an Inquiry by Arbitrator.
10. Initially, the employee was charged on three counts of misconduct, and two of the three counts of misconduct had since been withdrawn.
SURVEY OF EVIDENCE AND ARGUMENT
11. Both parties were given the opportunity to submit an opening statement; call witnesses and submit written closing arguments.
12. The employer called two witnesses, Ms. X (learner-complainant) and Ms. Y (learner-complainant).
13. The applicant, Mr. Niel van der Heever, (educator) testified on his own behalf.
14. Both parties submitted a common bundle of documents, including the learners’ statements. For the purposes of this award, the complainant learners will be referred to as Ms. X and Ms. Y. Ms. X was at the age of 14 and Ms. Y’s age is not known to me at the time of the incident.
15. An intermediary was used though the second complainant is of adult age, whilst the first complainant, Ms X is 17 years old, by agreement of the applicants’ representative who is thanked for the indulgence.
16. Herewith, brief reasons for my decision, in terms of Section 138 (7) of the Act. Should any of the evidence and argument not be reflected hereunder, then it does not mean that it was not considered.
ANALYSIS OF EVIDENCE AND ARGUMENT
17. Ms. X, the complainant and the respondent’s first witness testified for the main part of her testimony, the statement made by herself, which is on page 7 of the common bundle. Indeed, the statement is in Afrikaans. I am indebted to the interpreter who was competent and reliable as usual.
18. Ms. X testified that she was 14 years old when the alleged incident had taken place. She was alone in his office when she alleged that the educator had asked if she had had a boyfriend. He insisted that the educator had asked her if they could be in a love relationship together. She replied to the educator in the negative.
19. She continued to testify that the educator had enquired from her whether she had had a dated previously. Again, she answered in the negative, indicating to the educator that she was not of age to be in a relationship. In 2016, whilst watching an Afrikaans, television programme, “sevende laan”, Tannie Miller, one of the caretakers of the female hostel students, informed the learner that the educator wanted to see her. She testified that the educator had told her that he wanted to “vry” with her. She under stood that the educator wanted to have a love relationship with her and that he was giving her time to think about it.
20. She testified that the educator had called her on another day and suggested to her that he wishes that she could fall in love with him. Since then, she had been afraid of the educator whilst being in the same building with him. These incidents had happened during 2015-2016. She reported the incidents to her mother in, 2019. She withheld from telling anyone about the incidents immediately as he was afraid that the educator would do something to her. She is scared of the educator.
21. Indeed, the time lapse the applicant took in reporting the incident to her mother is questionable, but for now she suggests that that she was scared that he would have done something” to her. The applicant attempted to suggest other motives for the learner, in delaying to tell her concocted version in 2019. I shall comment on that as the award progresses in the testimony before me.
22. At cross-examination, she confirmed that she was class captain, whilst the educator was the head of discipline at the school. The applicant attempted to suggest that the educator had a good relationship with all the learners at the school. She confirmed that the educator was helpful and cared for learners at the school. I believe that indeed the educator was helpful and caring, as he had also suggested same, in his testimony and I am inclined to believe him.
23. She reiterated that the truth that she had told her mother, was that the, educator had specifically called her to his office. In 2016, the learner thought that the educator had been joking. When the educator was persistent with his innuendos is when she had begun to become afraid. I find this plausible in the circumstances and the probabilities that she was becoming scared due to the educators’ persistence is plausible. After all, it was not only a once off incident according to the learner. Seemingly, the educator’s persistence was so persistent that the learner could not remember how many times it had happened, where the educator suggested sexual innuendos.
24. A worthy contradiction emerged from the cross-examination of the learner. In her testimony in chief, she informed the educator that she was not in any relationship with a person of the opposite sex, whilst now she conceded that she was indeed in a relationship with a Keegan Jacobs. This suggests that the learner is not entirely honest. The relevance of the contradiction has to be assessed with the entire conspectus of the learner’s evidence.
25. She conceded that she was aware of the educator’s task, in that it is to keep the children disciplined. She denied that she was unruly about her conduct with her boyfriend, as averred by the educator. She clarified her earlier contraction that she had not had a boyfriend in 2016, and that Keegan was her boyfriend since, 2017. This version is plausible since indeed it is not disputed that the educator had asked the learner whether shad had had a boyfriend in or around, 2016. She was friends with Keegan, for a while, but developed into a relationship in, 2017.
26. The learner could not remember how long after the initial allegation of the sexual innuendo did the educator repeat the allegation. It was the applicant’s assertion that the educator said to the learner that she must love because learners would be agitated with the educator for disciplining them, therefore the educator was mending their relationship. I am not quite sure that this is in fact plausible, as many other reconciliatory words could be used to mend the relationship.
27. She confirmed that she told her mum about the relationship and that no one had had asked her to do so. Since the educator’s conduct towards another learner was similar, she saw the incident no longer as a joke in 2019.
28. Ms. Y, the second learner and the respondent’s second witness, testified that she had indeed lived at the school hostel. She testified that the applicant was friendly and helpful. In fact, both complainants spoke highly of the educator’s helpfulness. He would buy the children toiletries when they did not have money.
29. Last year, the educator called her into his office, gave her a side hug and slapped her on her lower back. He was wishing the complainant “happy birthday”. He had also told the complainant to sleep well. He told her that when she was done with her meal then she should come to his office. When she got to his office, he informed her that the chocolates and sweets were for her, as birthday gifts. She took the candy and gave the educator a side hug, he turned her and kissed her on the mouth. It was the educator who had asked for a side hug.
30. On that night, she reported the incident to her friends, and Aunt Bertha, and they all went off to confront him. She felt uncomfortable. She was also angry and unhappy. In 2018, she insisted that he had told her that he loved her and she had told Aunt Bertha about it. The educator had apparently asked her if she was in a relationship and whether she had had a boyfriend.
31. Though she felt sorry for the educator and his family, she insisted that this behaviour should not happen to other children.
32. At cross-examination, Ms. Y Conceded that she was the educator’s “right hand” at school. Ms. Y insisted that the educator had kissed her on her mouth and not her cheek as suggested by the educator. It is also not in dispute that the learner was patted on her lower back. The learner left with her chocolates and sweets. She denied that when returned with Bertha to the educators’ office, she denied that the educator had asked her if he had touched her on various parts of her body. He talked in the office whilst the learner, her three friends and Ms. Bertha were present that he had given the learner the sweets; kissed her on her cheek and put his hand on her back. These innuendos are definitely not in dispute. It is the educator’s case as shall be seen hereunder that he had no attempt to sexually molest the learners and that his conduct was out of his leave for his students, as an elder.
33. Indeed, in 2019, she helped clean the educator’s feet but that she did not feel afraid since she was surrounded by her friends and caretakers. A plausible notion of a safe environment but not a task that should be allocated to learners in a school by a deputy principle, in any event. The learner did not waive from her testimony that she had been kissed on the lips and not the cheeks.
34. Mr. Niel, the implicated educator, testified on his own behalf that, he has taught for approximately 30 years. He was promoted to Head of Department (HOD) and Deputy Principal (DP) in, January 2019. He suggested that there was a lot of controversy about his appointment in January 2019. The Governing Body (GB) had preferred a white female candidate on the first and second occasion, however the department had chosen him into the position. In March 2019, he was suspended, two months after his appointment. He has had a clean disciplinary record. Mr. Niel was appointed by the principal to deal with discipline in the school as well as the hostel. He was the hostel superintendent.
35. He had to adopt a way of dealing with discipline with children that were intellectually impaired. He had to adopt a certain way to deal with these children.
36. The educator went on to respond to the first complainant’s complaint, and testified that the reason that Ms. X was called to his office was because there was a concern about Ms. X and her boyfriend would “vry” in the hostel and the bus. This version was not put to Ms. X. Ms. X denied that she had not had a boyfriend in 2016 and that she got into a relationship with Keegan in 2017. Neither, was this disputed by the employee’s representative. Therefore, I am obliged to accept the version of the employer over that of the educator.
37. The other version that not put to Ms. X was that a learner would not be called into the office of the employee during the viewing of “sevende laan”, a popular Afrikaans soap programme. Mr. Niel was emphatic about this but it was not canvassed at Ms. X’s cross-examination. He denied that he asked her to “vry” with him. He insisted that he had asked Ms. X whether she was “vrying” with her boyfriend. He had counselled Ms. X since she was too young and informed her that she would tell her parents. The educator further insisted that Ms. X did not raise this issue in 2016, but only in 2019, Ms. X chose to tell her parents about Mr. Niel. This was the employee’s contention that there was a plot against him since he had had got the position of DP. The educator failed to recognise the fact that during his own representative’s cross examination, it emerged that Ms. X was not in a relationship in 2016. She got into a relationship in 2017, with Keegan.
38. Mr. Niel insisted that his relationship with Ms. X was none other than an educator-learner relationship. He insisted that the learner was 14 years old at the time and that these children were always in the presence of caregivers, day and night. This version that the learners were in the custody of care givers day and night is not consistent with Mr. Niel’s version that he had called Ms X into his office in 2016, in the presence of a care giver. Not even the care giver who had complained that the learner was “vrying” in the hostel and the bus. This is an important element in the employee’s defence as it would have given his version more credibility that he had had to handle these learners with care when it came to disciplining them, given the fact that the learners were cognitively and mentally challenged.
39. The educator again emphasised that he was addressing the issue of “vrying” and smoking with the learner, but nothing had surfaced until March/April 2019, in an attempt trying to suggest that a conspiracy was being led against him because he had been awarded the position of DP, against the GB’s wishes. He had spoken to the learner about the issues with which he was concerned with care and love for the learner. He admitted that he did not know how the learner had interpreted it. This is precisely what the issue is in my opinion since one is dealing with learners with special needs one has got to take an approach that is with caution when one is attempting to treat and discipline the learners with “care and love” which, by the educator’s own admission was that he did not know how the learner had taken it. Maybe, since the learners were constantly under the watch of the care givers, Mr. Niel ought to have had a care giver present on each occasion that he was disciplining a learner after all the learners were always in the custody of care givers. Negligence, on the part of the educator even if his version had to be believed.
40. It was only in 2019, that all these allegations surfaced and not before. It was strange to him as parents would raise issues with him immediately. What the educator fails to remember is that Ms. X had only brought the allegation of the incident to her parent’s attention in 2019 and not in 2016.
41. In regard to the allegation of Ms. Y, Mr. Niel testified that the learners would ordinarily inform him of their birthdays. So, he would buy the learners a “little something”. For Ms. Y, he bought her three Kit Kat chocolates, chips and some sweets. He insisted that Ms. Y, was never alone and that she was always in the company of two friends. On his way from the dining room, he asked Ms. Y to collect her gift. Ms. Y came into his office and fetched her chocolates. He explained that he had also had a daughter that age, and that they were in fact friends. He gave her a hug from the side and kissed her on her cheek. This was his character, being a Capetonian, his character was open and friendly. He would generally kiss the girls on their cheek and hug the boys. Immediately, it emerges that though Mr. Niel insisted that Ms. Y was always accompanied by her two friends, he did not explain why Ms. Y was on her own in his office to collect her gift. I can understand that the educator may have had an open and friendly character, but to kiss girls, even on their cheeks is inappropriate conduct on the part of an educator.
42. The educator claimed that he was caught off guard when Ms. Bertha approached him and said to him that he had kissed Ms. Y. He summoned Ms. Y and her friends to his office along with Ms. Bertha. Mr. Niel’s earlier version that learners were always in the care of care givers, he failed to explain why, when Ms. Y collected her gift from his office, she was not in the company of a care giver. When Ms. Bertha, another caregiver, Ms. Y and her friends were at the educator’s office, the educator confronted her about him kissing her on her mouth. When he asked her about being touched inappropriately, the learner dropped her head and said no. This version was not put to Ms. Y when she had taken the stand. Without it being tested with the learner, I am inclined not to accept the educator’s version.
43. The educator testified that the learner is a very shy person and was regretful that he had been implicated for inappropriate behaviour when in fact he was being friendly. He attempted to suggest that he had tapped the learner’s lower back to suggest that she could leave and since he was much taller than the learner, his hand touched the learner on her lower back. Indeed, the applicant does not deny his conduct apart from him kissing the learner on the mouth instead of on the cheek, he gives an explanation for his conduct. Indeed, the educator conceded that he would have to turn Ms. Y’s head to kiss her on her mouth and not her cheek. This is exactly the testimony as presented by Ms. Y that the educator had indeed turned her head and kissed her on the mouth.
44. At cross-examination, Mr. Niel explained that sometimes the caretakers/caregivers would not be present when he would discipline learners in his office. This contradicts his earlier testimony that learners were always in the sight of care givers. He explained that Ms. X ‘s interpretation that he must love her was misunderstood by her and that he generally speaks like that to learners that they should love him as he loved them. This is not a satisfactory explanation of a disciplinarian at any school let alone a school for special learners. There must be no misunderstandings as the educators are aware that they are dealing with learners of a lesser intellectual capacity than other children. Hence, everything ought to be properly explained so as not to leave any gap for any misrepresentation or misunderstanding.
45. The educator continued to testify that he could not afford to but all the learners birthday gifts, hence he had called Ms. Y alone to his office. This is plausible had it not been for the educator’s own admission that he would buy all learners a “little something” for their birthdays. Therefore, I am inclined to concluded that he had bought the learner more than what he would ordinarily buy other learners, therefore he called her alone to his office. The educator saw no problem with giving female learners side hugs. Indeed, the situation at schools require a more formal approach and physical touching must be minimal for precisely the same reason that others could not welcome it and that would tantamount to sexual harassment. Ms. Y is a twenty year adult, she was approximately 18 years old at the time of the incident.
46. Mr. Niel went on to contradict his earlier testimony by now stating that the fact that the learner had assisted him in cleaning his office, he therefore felt it appropriate to give her a present. This testimony is inconsistent with his earlier testimony where he would buy gifts for most if not all learners. Or, can a safe assumption be made that he was buying birthday gifts not for all learners, but particularly, for female learners. Ms. Y’s allegations had shocked him at the time of his suspension. He insisted that she was not afraid of him, and on one occasion she cleaned the educator’s leg. Earlier, Mr Y emphasised that she has cleaned the educator’s leg as her friends were all around her, so there was no need to be afraid.
47. He alleged that Ms. Y was under pressure from Ms. Bertha, but he could not say what that pressure was, and what was it used for, and how did that pressure, have anything to do with the allegations against him. It is an established principle of law that he who alleges must prove. He then gave an explanation that four female learners jumped out of the school windows. Since, Ms. Berta responsible, she was disciplined. The incident was referred to a disciplinary committee and in that, time, he was suspended.
48. Seemingly, the educator is alluding to very complex plan to get rid of him, first by the GB and then by Ms. Bertha. I do not believe that the SG would concoct such an elaborate plan to get rid of the educator. The educator’s version is hardly plausible if both versions were weighed, the employer’s version has more creduinbility and therefore on a balance of probability must be accepted.
49. As I have alluded to before, Mr. Niel disputes kissing Ms. Y on the mouth. However, he gave the exact position that Ms. Y presented that Mr. Niel kissed her on the mouth. Ms. Y said that the educator turned her head and kissed on the mouth. Mr. Niel said exactly the same thing, therefore the likely hood that that had happened, is very real. Mr. Niel was in fact confirming Ms. Y ‘s method of how the kiss took place.
50. From the brief but compelling reasons tendered above, I am persuaded on a balance of probabilities that the educator is guilty as charged.
51. For the reasons above, I find the applicant guilty of attempting to extrapolate a sexual relationship with the learners, and for the sexual assault of Ms. Y.
SANCTION
52. The employee in the present circumstance was charged under Section 18 – which provides for misconduct whilst the evidence suggests that the applicant is guilty of acts of sexual misconduct as per Section 17- serious misconduct.
53. Indeed, the conduct lapses over both the sections equally, I therefore must apply the serious sanction which fits the misconduct and that is Section 17.
54. In terms of Section 17 (1) of the EEA, an educator must be dismissed if he or she is found guilty of –
(b) committing an act of sexual assault on a learner, student or other employee
(c) having a sexual relationship with a learner of a school where he or she is employed
55. There is no discretion for the Arbitrator to consider any other alternative sanction, short of dismissal.
56. Therefore, dismissal is the statutory sanction.
57. However, the employee in the present circumstance was charged under Section 18 – which provides for misconduct whilst the evidence suggests that the applicant is guilty of acts of sexual misconducts as per Section 17- serious misconduct.
58. Indeed, the conduct lapses over both the sections equally, I therefore must apply the serious sanction which fits the misconduct and that is Section 17.
AWARD
59. The employee is found guilty of Charge 1.
60. Dismissal is an appropriate sanction.
Signed at Kimberley on this 31 day of July 2022
ELRC PANELLIST
SHIRAZ MAHOMED OSMAN
Date of award: 31 JULY 2022
In the Inquiry by Arbitrator hearing between:
Mr. Niel van den Heever Employee party
and
Department of Education – Northern Cape Employer party
DETAILS OF HEARING AND REPRESENTATION
1. The present dispute between Mr. Niel van den Heever (hereinafter referred to as the employee) and The Department of Education-Northern Cape (hereinafter referred to as the employer) was referred to, Inquiry by Arbitrator, in terms of Section 188A, of the Labour Relations Act no.66 of 1995, as amended (the Act); read with Collective Agreement 3 of 2018. At the Inquiry by Arbitrator hearing, which was held at the Springbok Magistrate Court, in Springbok on, 11 July 2022, the employee was represented by Ms. K Labuschagne, of SAOU, a trade union, and the employer, was represented by Mr. G George.
2. Due to the lateness of the hour and the fact that attendants had to travel, including myself, parties were afforded the opportunity to submit written closing arguments by no later than, 18 July 2022, hence, being the last date of the arbitration.
3. Both parties submitted closing arguments and were considered.
THE CHARGES TO BE DECIDED:
4. I am to decide, whether the employee, is indeed guilty of the following charges:
Charge 1
You have contravened section 18 (1) (q) of the Employment of Educators Act 76 of 1998 at or near Kleinzee Special School during 2017-2019 in the Namakwa District, while on duty you conducted yourself in an improper, disgraceful or unacceptable manner in that you said to the following learners (Ms. X and Ms. Y) on different occasions (individually) in that you told them that you wanted to have relationships (“vry”) with them and they should not tell other learners or anyone while you knew or ought to have known that you were not allowed to do so.
Alternatively
On or about 2017-2019 at or near Kleinzee Special School in the Namakwa District you committed an act of misconduct in terms of Section (18) (1) (f) of the Employment of Educators Act 76 of 1998, that you inter alia, unjustifiably prejudices the administration, discipline or efficiency of the Department of Basic Education, an office of the state or a school in that you asked learners individually on different occasions to have relationships with you, while you knew or ought to have known that you were not allowed to do so.
PLEA
5. The applicant pleaded not guilty to the above charges.
BACKGROUND
6. The employee is an educator and was charged in August 2021, as per the above allegations. He was an educator since 1990. He was promoted to an HOD and a Deputy Principle in January 2019. He was also the hostel Superintendent.
7. He was charged in terms of Section 18 of the Employment of Educators Act no. 78, of 1998 (the EEA). He was charged for suggesting a sexual relationship with two learners, hereinafter referred to as Ms. X and Ms. Y, who are since adults, from the time of the allegations having taken place.
8. The employee is still employed as an educator and is on suspension without pay, since March 2019. I find it prudent to mention that the school in question is a “special needs” school with children with cognitive learning disabilities.
9. The matter was referred to Council by the employer, in terms of Collective Agreement 3 of 2018; read with Section 188A, of the Act, an Inquiry by Arbitrator.
10. Initially, the employee was charged on three counts of misconduct, and two of the three counts of misconduct had since been withdrawn.
SURVEY OF EVIDENCE AND ARGUMENT
11. Both parties were given the opportunity to submit an opening statement; call witnesses and submit written closing arguments.
12. The employer called two witnesses, Ms. X (learner-complainant) and Ms. Y (learner-complainant).
13. The applicant, Mr. Niel van der Heever, (educator) testified on his own behalf.
14. Both parties submitted a common bundle of documents, including the learners’ statements. For the purposes of this award, the complainant learners will be referred to as Ms. X and Ms. Y. Ms. X was at the age of 14 and Ms. Y’s age is not known to me at the time of the incident.
15. An intermediary was used though the second complainant is of adult age, whilst the first complainant, Ms X is 17 years old, by agreement of the applicants’ representative who is thanked for the indulgence.
16. Herewith, brief reasons for my decision, in terms of Section 138 (7) of the Act. Should any of the evidence and argument not be reflected hereunder, then it does not mean that it was not considered.
ANALYSIS OF EVIDENCE AND ARGUMENT
17. Ms. X, the complainant and the respondent’s first witness testified for the main part of her testimony, the statement made by herself, which is on page 7 of the common bundle. Indeed, the statement is in Afrikaans. I am indebted to the interpreter who was competent and reliable as usual.
18. Ms. X testified that she was 14 years old when the alleged incident had taken place. She was alone in his office when she alleged that the educator had asked if she had had a boyfriend. He insisted that the educator had asked her if they could be in a love relationship together. She replied to the educator in the negative.
19. She continued to testify that the educator had enquired from her whether she had had a dated previously. Again, she answered in the negative, indicating to the educator that she was not of age to be in a relationship. In 2016, whilst watching an Afrikaans, television programme, “sevende laan”, Tannie Miller, one of the caretakers of the female hostel students, informed the learner that the educator wanted to see her. She testified that the educator had told her that he wanted to “vry” with her. She under stood that the educator wanted to have a love relationship with her and that he was giving her time to think about it.
20. She testified that the educator had called her on another day and suggested to her that he wishes that she could fall in love with him. Since then, she had been afraid of the educator whilst being in the same building with him. These incidents had happened during 2015-2016. She reported the incidents to her mother in, 2019. She withheld from telling anyone about the incidents immediately as he was afraid that the educator would do something to her. She is scared of the educator.
21. Indeed, the time lapse the applicant took in reporting the incident to her mother is questionable, but for now she suggests that that she was scared that he would have done something” to her. The applicant attempted to suggest other motives for the learner, in delaying to tell her concocted version in 2019. I shall comment on that as the award progresses in the testimony before me.
22. At cross-examination, she confirmed that she was class captain, whilst the educator was the head of discipline at the school. The applicant attempted to suggest that the educator had a good relationship with all the learners at the school. She confirmed that the educator was helpful and cared for learners at the school. I believe that indeed the educator was helpful and caring, as he had also suggested same, in his testimony and I am inclined to believe him.
23. She reiterated that the truth that she had told her mother, was that the, educator had specifically called her to his office. In 2016, the learner thought that the educator had been joking. When the educator was persistent with his innuendos is when she had begun to become afraid. I find this plausible in the circumstances and the probabilities that she was becoming scared due to the educators’ persistence is plausible. After all, it was not only a once off incident according to the learner. Seemingly, the educator’s persistence was so persistent that the learner could not remember how many times it had happened, where the educator suggested sexual innuendos.
24. A worthy contradiction emerged from the cross-examination of the learner. In her testimony in chief, she informed the educator that she was not in any relationship with a person of the opposite sex, whilst now she conceded that she was indeed in a relationship with a Keegan Jacobs. This suggests that the learner is not entirely honest. The relevance of the contradiction has to be assessed with the entire conspectus of the learner’s evidence.
25. She conceded that she was aware of the educator’s task, in that it is to keep the children disciplined. She denied that she was unruly about her conduct with her boyfriend, as averred by the educator. She clarified her earlier contraction that she had not had a boyfriend in 2016, and that Keegan was her boyfriend since, 2017. This version is plausible since indeed it is not disputed that the educator had asked the learner whether shad had had a boyfriend in or around, 2016. She was friends with Keegan, for a while, but developed into a relationship in, 2017.
26. The learner could not remember how long after the initial allegation of the sexual innuendo did the educator repeat the allegation. It was the applicant’s assertion that the educator said to the learner that she must love because learners would be agitated with the educator for disciplining them, therefore the educator was mending their relationship. I am not quite sure that this is in fact plausible, as many other reconciliatory words could be used to mend the relationship.
27. She confirmed that she told her mum about the relationship and that no one had had asked her to do so. Since the educator’s conduct towards another learner was similar, she saw the incident no longer as a joke in 2019.
28. Ms. Y, the second learner and the respondent’s second witness, testified that she had indeed lived at the school hostel. She testified that the applicant was friendly and helpful. In fact, both complainants spoke highly of the educator’s helpfulness. He would buy the children toiletries when they did not have money.
29. Last year, the educator called her into his office, gave her a side hug and slapped her on her lower back. He was wishing the complainant “happy birthday”. He had also told the complainant to sleep well. He told her that when she was done with her meal then she should come to his office. When she got to his office, he informed her that the chocolates and sweets were for her, as birthday gifts. She took the candy and gave the educator a side hug, he turned her and kissed her on the mouth. It was the educator who had asked for a side hug.
30. On that night, she reported the incident to her friends, and Aunt Bertha, and they all went off to confront him. She felt uncomfortable. She was also angry and unhappy. In 2018, she insisted that he had told her that he loved her and she had told Aunt Bertha about it. The educator had apparently asked her if she was in a relationship and whether she had had a boyfriend.
31. Though she felt sorry for the educator and his family, she insisted that this behaviour should not happen to other children.
32. At cross-examination, Ms. Y Conceded that she was the educator’s “right hand” at school. Ms. Y insisted that the educator had kissed her on her mouth and not her cheek as suggested by the educator. It is also not in dispute that the learner was patted on her lower back. The learner left with her chocolates and sweets. She denied that when returned with Bertha to the educators’ office, she denied that the educator had asked her if he had touched her on various parts of her body. He talked in the office whilst the learner, her three friends and Ms. Bertha were present that he had given the learner the sweets; kissed her on her cheek and put his hand on her back. These innuendos are definitely not in dispute. It is the educator’s case as shall be seen hereunder that he had no attempt to sexually molest the learners and that his conduct was out of his leave for his students, as an elder.
33. Indeed, in 2019, she helped clean the educator’s feet but that she did not feel afraid since she was surrounded by her friends and caretakers. A plausible notion of a safe environment but not a task that should be allocated to learners in a school by a deputy principle, in any event. The learner did not waive from her testimony that she had been kissed on the lips and not the cheeks.
34. Mr. Niel, the implicated educator, testified on his own behalf that, he has taught for approximately 30 years. He was promoted to Head of Department (HOD) and Deputy Principal (DP) in, January 2019. He suggested that there was a lot of controversy about his appointment in January 2019. The Governing Body (GB) had preferred a white female candidate on the first and second occasion, however the department had chosen him into the position. In March 2019, he was suspended, two months after his appointment. He has had a clean disciplinary record. Mr. Niel was appointed by the principal to deal with discipline in the school as well as the hostel. He was the hostel superintendent.
35. He had to adopt a way of dealing with discipline with children that were intellectually impaired. He had to adopt a certain way to deal with these children.
36. The educator went on to respond to the first complainant’s complaint, and testified that the reason that Ms. X was called to his office was because there was a concern about Ms. X and her boyfriend would “vry” in the hostel and the bus. This version was not put to Ms. X. Ms. X denied that she had not had a boyfriend in 2016 and that she got into a relationship with Keegan in 2017. Neither, was this disputed by the employee’s representative. Therefore, I am obliged to accept the version of the employer over that of the educator.
37. The other version that not put to Ms. X was that a learner would not be called into the office of the employee during the viewing of “sevende laan”, a popular Afrikaans soap programme. Mr. Niel was emphatic about this but it was not canvassed at Ms. X’s cross-examination. He denied that he asked her to “vry” with him. He insisted that he had asked Ms. X whether she was “vrying” with her boyfriend. He had counselled Ms. X since she was too young and informed her that she would tell her parents. The educator further insisted that Ms. X did not raise this issue in 2016, but only in 2019, Ms. X chose to tell her parents about Mr. Niel. This was the employee’s contention that there was a plot against him since he had had got the position of DP. The educator failed to recognise the fact that during his own representative’s cross examination, it emerged that Ms. X was not in a relationship in 2016. She got into a relationship in 2017, with Keegan.
38. Mr. Niel insisted that his relationship with Ms. X was none other than an educator-learner relationship. He insisted that the learner was 14 years old at the time and that these children were always in the presence of caregivers, day and night. This version that the learners were in the custody of care givers day and night is not consistent with Mr. Niel’s version that he had called Ms X into his office in 2016, in the presence of a care giver. Not even the care giver who had complained that the learner was “vrying” in the hostel and the bus. This is an important element in the employee’s defence as it would have given his version more credibility that he had had to handle these learners with care when it came to disciplining them, given the fact that the learners were cognitively and mentally challenged.
39. The educator again emphasised that he was addressing the issue of “vrying” and smoking with the learner, but nothing had surfaced until March/April 2019, in an attempt trying to suggest that a conspiracy was being led against him because he had been awarded the position of DP, against the GB’s wishes. He had spoken to the learner about the issues with which he was concerned with care and love for the learner. He admitted that he did not know how the learner had interpreted it. This is precisely what the issue is in my opinion since one is dealing with learners with special needs one has got to take an approach that is with caution when one is attempting to treat and discipline the learners with “care and love” which, by the educator’s own admission was that he did not know how the learner had taken it. Maybe, since the learners were constantly under the watch of the care givers, Mr. Niel ought to have had a care giver present on each occasion that he was disciplining a learner after all the learners were always in the custody of care givers. Negligence, on the part of the educator even if his version had to be believed.
40. It was only in 2019, that all these allegations surfaced and not before. It was strange to him as parents would raise issues with him immediately. What the educator fails to remember is that Ms. X had only brought the allegation of the incident to her parent’s attention in 2019 and not in 2016.
41. In regard to the allegation of Ms. Y, Mr. Niel testified that the learners would ordinarily inform him of their birthdays. So, he would buy the learners a “little something”. For Ms. Y, he bought her three Kit Kat chocolates, chips and some sweets. He insisted that Ms. Y, was never alone and that she was always in the company of two friends. On his way from the dining room, he asked Ms. Y to collect her gift. Ms. Y came into his office and fetched her chocolates. He explained that he had also had a daughter that age, and that they were in fact friends. He gave her a hug from the side and kissed her on her cheek. This was his character, being a Capetonian, his character was open and friendly. He would generally kiss the girls on their cheek and hug the boys. Immediately, it emerges that though Mr. Niel insisted that Ms. Y was always accompanied by her two friends, he did not explain why Ms. Y was on her own in his office to collect her gift. I can understand that the educator may have had an open and friendly character, but to kiss girls, even on their cheeks is inappropriate conduct on the part of an educator.
42. The educator claimed that he was caught off guard when Ms. Bertha approached him and said to him that he had kissed Ms. Y. He summoned Ms. Y and her friends to his office along with Ms. Bertha. Mr. Niel’s earlier version that learners were always in the care of care givers, he failed to explain why, when Ms. Y collected her gift from his office, she was not in the company of a care giver. When Ms. Bertha, another caregiver, Ms. Y and her friends were at the educator’s office, the educator confronted her about him kissing her on her mouth. When he asked her about being touched inappropriately, the learner dropped her head and said no. This version was not put to Ms. Y when she had taken the stand. Without it being tested with the learner, I am inclined not to accept the educator’s version.
43. The educator testified that the learner is a very shy person and was regretful that he had been implicated for inappropriate behaviour when in fact he was being friendly. He attempted to suggest that he had tapped the learner’s lower back to suggest that she could leave and since he was much taller than the learner, his hand touched the learner on her lower back. Indeed, the applicant does not deny his conduct apart from him kissing the learner on the mouth instead of on the cheek, he gives an explanation for his conduct. Indeed, the educator conceded that he would have to turn Ms. Y’s head to kiss her on her mouth and not her cheek. This is exactly the testimony as presented by Ms. Y that the educator had indeed turned her head and kissed her on the mouth.
44. At cross-examination, Mr. Niel explained that sometimes the caretakers/caregivers would not be present when he would discipline learners in his office. This contradicts his earlier testimony that learners were always in the sight of care givers. He explained that Ms. X ‘s interpretation that he must love her was misunderstood by her and that he generally speaks like that to learners that they should love him as he loved them. This is not a satisfactory explanation of a disciplinarian at any school let alone a school for special learners. There must be no misunderstandings as the educators are aware that they are dealing with learners of a lesser intellectual capacity than other children. Hence, everything ought to be properly explained so as not to leave any gap for any misrepresentation or misunderstanding.
45. The educator continued to testify that he could not afford to but all the learners birthday gifts, hence he had called Ms. Y alone to his office. This is plausible had it not been for the educator’s own admission that he would buy all learners a “little something” for their birthdays. Therefore, I am inclined to concluded that he had bought the learner more than what he would ordinarily buy other learners, therefore he called her alone to his office. The educator saw no problem with giving female learners side hugs. Indeed, the situation at schools require a more formal approach and physical touching must be minimal for precisely the same reason that others could not welcome it and that would tantamount to sexual harassment. Ms. Y is a twenty year adult, she was approximately 18 years old at the time of the incident.
46. Mr. Niel went on to contradict his earlier testimony by now stating that the fact that the learner had assisted him in cleaning his office, he therefore felt it appropriate to give her a present. This testimony is inconsistent with his earlier testimony where he would buy gifts for most if not all learners. Or, can a safe assumption be made that he was buying birthday gifts not for all learners, but particularly, for female learners. Ms. Y’s allegations had shocked him at the time of his suspension. He insisted that she was not afraid of him, and on one occasion she cleaned the educator’s leg. Earlier, Mr Y emphasised that she has cleaned the educator’s leg as her friends were all around her, so there was no need to be afraid.
47. He alleged that Ms. Y was under pressure from Ms. Bertha, but he could not say what that pressure was, and what was it used for, and how did that pressure, have anything to do with the allegations against him. It is an established principle of law that he who alleges must prove. He then gave an explanation that four female learners jumped out of the school windows. Since, Ms. Berta responsible, she was disciplined. The incident was referred to a disciplinary committee and in that, time, he was suspended.
48. Seemingly, the educator is alluding to very complex plan to get rid of him, first by the GB and then by Ms. Bertha. I do not believe that the SG would concoct such an elaborate plan to get rid of the educator. The educator’s version is hardly plausible if both versions were weighed, the employer’s version has more creduinbility and therefore on a balance of probability must be accepted.
49. As I have alluded to before, Mr. Niel disputes kissing Ms. Y on the mouth. However, he gave the exact position that Ms. Y presented that Mr. Niel kissed her on the mouth. Ms. Y said that the educator turned her head and kissed on the mouth. Mr. Niel said exactly the same thing, therefore the likely hood that that had happened, is very real. Mr. Niel was in fact confirming Ms. Y ‘s method of how the kiss took place.
50. From the brief but compelling reasons tendered above, I am persuaded on a balance of probabilities that the educator is guilty as charged.
51. For the reasons above, I find the applicant guilty of attempting to extrapolate a sexual relationship with the learners, and for the sexual assault of Ms. Y.
SANCTION
52. The employee in the present circumstance was charged under Section 18 – which provides for misconduct whilst the evidence suggests that the applicant is guilty of acts of sexual misconduct as per Section 17- serious misconduct.
53. Indeed, the conduct lapses over both the sections equally, I therefore must apply the serious sanction which fits the misconduct and that is Section 17.
54. In terms of Section 17 (1) of the EEA, an educator must be dismissed if he or she is found guilty of –
(b) committing an act of sexual assault on a learner, student or other employee
(c) having a sexual relationship with a learner of a school where he or she is employed
55. There is no discretion for the Arbitrator to consider any other alternative sanction, short of dismissal.
56. Therefore, dismissal is the statutory sanction.
57. However, the employee in the present circumstance was charged under Section 18 – which provides for misconduct whilst the evidence suggests that the applicant is guilty of acts of sexual misconducts as per Section 17- serious misconduct.
58. Indeed, the conduct lapses over both the sections equally, I therefore must apply the serious sanction which fits the misconduct and that is Section 17.
AWARD
59. The employee is found guilty of Charge 1.
60. Dismissal is an appropriate sanction.
Signed at Kimberley on this 31 day of July 2022
ELRC PANELLIST
SHIRAZ MAHOMED OSMAN