ELRC496-21/22KZN
Text
ELRC496-21/22KZN
Award Date:
05 August 2022
IN THE ELRC ARBITRATION
BETWEEN:
SADTU obo MSOMI, EUGENE SBUSISO “the Applicant”
and
DEPARTMENT OF EDUCATION – KWAZULU-NATAL “the Respondent”
DEFAULT AWARD
Case Number: ELRC496-21/22KZN
Last date of arbitration: 28 JULY 2022
Date of award: 08 August 2022
NTOMBIZONKE MBILI
ELRC Arbitrator
Education Labour Relations Council
ELRC Building
261 West Avenue
Centurion
Tel: 012 663 0452
Fax: 012 643 1601
E-mail: gen.sec@elrc.co.za
Website: www.elrc.org.za
DETAILS OF HEARING AND REPRESENTATION
1. The matter was set down before me on 28 July 2022 for an arbitration process online.
2. The Applicant was present at the hearing of the matter and was represented by Mr Martin Dhlamini, a union official, from SADTU. The Respondent was not present.
3. The Council provided proof that an email was sent to the Respondent informing the Respondent that the matter was set down for Arbitration. I was satisfied that proper service of the notice of the hearing was sent to the Respondent, and I proceeded with the hearing in the Respondents absence.
4. The proceedings were conducted in English and were recorded digitally and manually.
TERMS OF REFERENCE AND ISSUES TO BE DECIDED
8. The Arbitration is in respect of a referral by the Applicant of an alleged unfair dismissal as provided for in section 191(5)(a) of the Labour Relations Act 66 of 1995 (LRA.)
9. I am required to decide whether the dismissal of the Applicant was unfair and, if so, what relief ought to be granted to him. The Applicant seeks to be reinstated with retrospective effect.
BACKGROUND
10. The Applicant was employed as a Departmental Head at Sondelani Full-Service School. The Applicant was earning R31700.00 monthly.
11. He was dismissed on 16 September 2021, following a formal disciplinary hearing at which he was charged and found guilty of an act of misconduct framed in the charge sheet as follows:
11.1. Count 1- On or about 15 May 2019, at or near Sondelani Full-Service School, Mr Msomi committed an act of sexual assault in that he forcibly kissed and grabbed the buttock of Nomonde Mayaya, a minor girl enrolled at the school. Contravening section 17(1(b) of the Employment of Educators Act 76 of 1998.
SUMMARY OF EVIDENCE AND ARGUMENTS
The Applicant’s case
12. The Applicant stated he knew the learner, Nomonde Mayaya, very well. He taught her for one of the subjects she did and that she was also a prefect.
13. He went on to say that he never sexually assaulted the learner. He gave her a hug to comfort her and that he did not kiss her and gab her buttock.
14. He stated that on the day of the incident, the learner came to his office to report one of the teachers he supervised. He further stated that the learner stated that the teacher consistently mocked her and insulted her, saying that she could not count, in front of other learners, when she was sent to count learners who were present at school.
15. The Applicant stated that he consoled the learner by hugging her and tapping her on her back and said, “sorry girl this will never happen again”. He stated that the hug lasted for less than a second and that it was a minor hug just to console the learner.
16. The Applicant added that he told the learner that he would address this issue with the teacher. He went on to say that he did address the issue with the teacher and that the teacher apologized to the learner.
17. In respect of procedural fairness, the Applicant stated that he was verbally suspended on 17 May 2019. He stated that the internal disciplinary hearing enquiry was held after lengthy suspension period, which he believed was unfair and prejudiced him. He went on to say that he applied for an appeal, and the appeal was never addressed. The Appeal was rejected in August 2021, but he was only informed of the outcome of the appeal on 16 September 2021.
Respondent’s Case
18. The Respondent was not in attendance, as stated above.
ANALYSIS OF EVIDENCE AND ARGUMENT
19. In terms of section 192 of the LRA the onus is on the Respondent to establish that the dismissal was procedurally and substantively fair.
20. The Applicant was dismissed for contravening section 17(1)(b) of the Employment of Educators Act, which states the following: (1) 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.
21. The Applicant stated that he hugged the learner as a gesture to console her, because of being mocked and insulted by a teacher in front of other learners. This version is undisputed. It does not appear from the evidence that there was something sexually connected to his conduct. This in my view is not the prohibition that is sought to be outlined by section 17(1)(b) of the Employment of Educators Act. I accordingly find that the Applicant did not commit the misconduct outlined in the charge sheet.
22. In respect of the procedure, nothing was said about the conduct of the disciplinary hearing. It appears that the Applicant was unhappy about the lengthy suspension period. The Applicant should have referred an Unfair Labour Practice dispute to address his unhappiness. Further to that he stated that he was informed about the appeal outcome a month after it was issued. I believe that the Applicant was treated fairly in respect of the procedural aspect of his dismissal.
23. Section 193 of the LRA states that if an arbitrator finds that a dismissal is substantively unfair, may reinstate the employee from any date not earlier than the date of dismissal. Having regard to the way the Respondent handled the matter and the time the Applicant has been employment with the Respondent. I believe the Applicant must be reinstated in line with section 193 as stated above. The reinstatement must operate retrospectively. The backpay that must be paid to the Applicant, must be calculated as follows; (Annual basic salary(R31700x11months) =R348700.00).
AWARD
24. The Applicant’s dismissal was procedurally fair and substantively unfair.
25. The Respondent, The Department of Education KZN, is directed to reinstate the Applicant, Mr Eugene Sbusiso Msomi, to the position that he occupied immediately prior to the dismissal. The Applicant must resume employment on 22 August 2022.
26. The Respondent is directed to pay the Applicant an amount of R348700.00 as back pay 14 days of being notified of this award.
Ntombizonke Mbili
Arbitrator 08 August 2022
ELRCKZN
BETWEEN:
SADTU obo MSOMI, EUGENE SBUSISO “the Applicant”
and
DEPARTMENT OF EDUCATION – KWAZULU-NATAL “the Respondent”
DEFAULT AWARD
Case Number: ELRC496-21/22KZN
Last date of arbitration: 28 JULY 2022
Date of award: 08 August 2022
NTOMBIZONKE MBILI
ELRC Arbitrator
Education Labour Relations Council
ELRC Building
261 West Avenue
Centurion
Tel: 012 663 0452
Fax: 012 643 1601
E-mail: gen.sec@elrc.co.za
Website: www.elrc.org.za
DETAILS OF HEARING AND REPRESENTATION
1. The matter was set down before me on 28 July 2022 for an arbitration process online.
2. The Applicant was present at the hearing of the matter and was represented by Mr Martin Dhlamini, a union official, from SADTU. The Respondent was not present.
3. The Council provided proof that an email was sent to the Respondent informing the Respondent that the matter was set down for Arbitration. I was satisfied that proper service of the notice of the hearing was sent to the Respondent, and I proceeded with the hearing in the Respondents absence.
4. The proceedings were conducted in English and were recorded digitally and manually.
TERMS OF REFERENCE AND ISSUES TO BE DECIDED
8. The Arbitration is in respect of a referral by the Applicant of an alleged unfair dismissal as provided for in section 191(5)(a) of the Labour Relations Act 66 of 1995 (LRA.)
9. I am required to decide whether the dismissal of the Applicant was unfair and, if so, what relief ought to be granted to him. The Applicant seeks to be reinstated with retrospective effect.
BACKGROUND
10. The Applicant was employed as a Departmental Head at Sondelani Full-Service School. The Applicant was earning R31700.00 monthly.
11. He was dismissed on 16 September 2021, following a formal disciplinary hearing at which he was charged and found guilty of an act of misconduct framed in the charge sheet as follows:
11.1. Count 1- On or about 15 May 2019, at or near Sondelani Full-Service School, Mr Msomi committed an act of sexual assault in that he forcibly kissed and grabbed the buttock of Nomonde Mayaya, a minor girl enrolled at the school. Contravening section 17(1(b) of the Employment of Educators Act 76 of 1998.
SUMMARY OF EVIDENCE AND ARGUMENTS
The Applicant’s case
12. The Applicant stated he knew the learner, Nomonde Mayaya, very well. He taught her for one of the subjects she did and that she was also a prefect.
13. He went on to say that he never sexually assaulted the learner. He gave her a hug to comfort her and that he did not kiss her and gab her buttock.
14. He stated that on the day of the incident, the learner came to his office to report one of the teachers he supervised. He further stated that the learner stated that the teacher consistently mocked her and insulted her, saying that she could not count, in front of other learners, when she was sent to count learners who were present at school.
15. The Applicant stated that he consoled the learner by hugging her and tapping her on her back and said, “sorry girl this will never happen again”. He stated that the hug lasted for less than a second and that it was a minor hug just to console the learner.
16. The Applicant added that he told the learner that he would address this issue with the teacher. He went on to say that he did address the issue with the teacher and that the teacher apologized to the learner.
17. In respect of procedural fairness, the Applicant stated that he was verbally suspended on 17 May 2019. He stated that the internal disciplinary hearing enquiry was held after lengthy suspension period, which he believed was unfair and prejudiced him. He went on to say that he applied for an appeal, and the appeal was never addressed. The Appeal was rejected in August 2021, but he was only informed of the outcome of the appeal on 16 September 2021.
Respondent’s Case
18. The Respondent was not in attendance, as stated above.
ANALYSIS OF EVIDENCE AND ARGUMENT
19. In terms of section 192 of the LRA the onus is on the Respondent to establish that the dismissal was procedurally and substantively fair.
20. The Applicant was dismissed for contravening section 17(1)(b) of the Employment of Educators Act, which states the following: (1) 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.
21. The Applicant stated that he hugged the learner as a gesture to console her, because of being mocked and insulted by a teacher in front of other learners. This version is undisputed. It does not appear from the evidence that there was something sexually connected to his conduct. This in my view is not the prohibition that is sought to be outlined by section 17(1)(b) of the Employment of Educators Act. I accordingly find that the Applicant did not commit the misconduct outlined in the charge sheet.
22. In respect of the procedure, nothing was said about the conduct of the disciplinary hearing. It appears that the Applicant was unhappy about the lengthy suspension period. The Applicant should have referred an Unfair Labour Practice dispute to address his unhappiness. Further to that he stated that he was informed about the appeal outcome a month after it was issued. I believe that the Applicant was treated fairly in respect of the procedural aspect of his dismissal.
23. Section 193 of the LRA states that if an arbitrator finds that a dismissal is substantively unfair, may reinstate the employee from any date not earlier than the date of dismissal. Having regard to the way the Respondent handled the matter and the time the Applicant has been employment with the Respondent. I believe the Applicant must be reinstated in line with section 193 as stated above. The reinstatement must operate retrospectively. The backpay that must be paid to the Applicant, must be calculated as follows; (Annual basic salary(R31700x11months) =R348700.00).
AWARD
24. The Applicant’s dismissal was procedurally fair and substantively unfair.
25. The Respondent, The Department of Education KZN, is directed to reinstate the Applicant, Mr Eugene Sbusiso Msomi, to the position that he occupied immediately prior to the dismissal. The Applicant must resume employment on 22 August 2022.
26. The Respondent is directed to pay the Applicant an amount of R348700.00 as back pay 14 days of being notified of this award.
Ntombizonke Mbili
Arbitrator 08 August 2022
ELRCKZN