ELRC195-21/22GP

Panelist: Kuvonakala Chavalala
Case No.: ELRC195-21/22GP
Date of Award: 18 August2022

In the ARBITRATION between:

Sydney Charles Wayne Baatjies
(Union / Employee)

and

Department of Education Gauteng
(Employer)

Union/Employee’s representative: Mr. Mahuma

Employer’s representative: Mr. Shiphamele

DETAILS OF HEARING AND REPRESENTATION

[1] This is an award between Sydney Charles Wayne Baatjies (hereinafter referred to as “the employee”) and Department of Education Gauteng (hereinafter referred to as “the employer”). The matter was set down as an inquiry by arbitrator in terms of section 188A of the Labour Relations Act 66 of 1995 as amended (“the LRA”) and also in terms of clause 32 of the ELRC Constitution (as amended). The hearing sat on several occasions and was finalised on the 28 July 2022.
[2] Clause 3 (3.1) Collective Agreement 3 of 2018 of the ELRC provides that in all matters in which an employer wants to take disciplinary action against an educator for alleged sexual misconduct towards any learner, an inquiry by an arbitrator, as intended by section 188A of the LRA, and clause 32 of the Dispute Resolution Procedures of the Education Labour Relations Council (“ELRC”), shall be mandatory. One of the charges the employee faced was sexual misconduct against learners.
[3] The employee was represented by Mr Mahuma, an official from SADTU. The employer was represented by Mr Shiphamele from the employer.
[4] The employer submitted a Bundle of documents which we named Bundle R. The employee submitted a bundle which was marked Bundle A.
[5] Parties had to submit written closing arguments on or before 04 August 2022 and both did so.
[6] The hearing was held in English and it was digitally and manually recorded.

ISSUES TO BE DECIDED

[7] I am required to decide whether the employee committed misconduct as per the allegations levelled against him. If I find that he did commit the misconduct, I have to decide on an appropriate sanction.

BACKGROUND TO THE ISSUES TO BE DECIDED

[8] The employee is currently employed as an educator at Hartzstraat Secondary School. The employee was notified of the allegations on 12 May 2021 and he was placed on precautionary transfer since the notification of the allegations.
[9] The allegations levelled against the employee are as follows:
• Allegation 1
It is alleged that on or around 11 March 2021, while on duty at Hartzstraat Primary School, you committed an act of misconduct in that you sexually harassed Learner HH, Learner TG and Learner LH, Grade 7B girl learners by slapping them on their buttocks.

In view of the above you are thus charged with misconduct in terms of section 17(1)(b) of Employment of Educators Act 76 of 1998 as amended

• Allegation 2
It is alleged that on or around 12 February 2021, while on duty at Hartzstraat Primary School, you conducted yourself in an improper, disgraceful and unacceptable manner in that you put your finger inside Ms I Nimmerhoudt’s pants, laughed and said ‘have a wonderful weekend”

In view of the above you are thus charged with misconduct in terms of section 18(1)(q) of Employment of Educators Act 76 of 1998 as amended.

[10] Allegation 2 was amended at the inquiry, it initially read that the employee had said “we should spend the weekend together’, the employer submitted that the charge should rather read “enjoy your weekend”.
[11] The employee pleaded not guilty to both charges

[12] The parties agreed on the following issues: -

a) The position and the school the employee was stationed.
b) The employee has been precautionary transferred to Randfontein district. Employee was given a notice to attend disciplinary hearing with clear charges and it informed him of his rights.
c) All offences under section 17 of Employment of Educators, Act 76 of 1998 (as amended) (hereinafter referred to as EE Act) prescribe a mandatory dismissal.
d) The employee had a clean disciplinary record.

SUMMARY OF THE PARTIES’ EVIDENCE AND ARGUMENT

This section only records the summary of the evidence that was tendered and not the verbatim testimony of the witnesses. The case was digitally recorded, and such recordings can be provided to the parties upon request.

Employer’s case

[13] In one of the sittings, Mr Shiphamele indicated that he had wanted to call five learners but two boy learners were intimidated by the other teachers at school and subsequently withdrew their testimony. Mr Mahuma stated that the alleged intimidators are not part of the inquiry because he is not calling them as witnesses. I addressed the intimidation allegations on record.

[14] The employer called seven witnesses who testified as follows:

First witness: Learner TG, whose identity is withheld due to the fact that she is a leaner who was at the time of incident and testimony a minor. She understood what taking an oath is. She is 13 years old and testified under oath with the assistance of an intermediary, Ms Edna Shibisi who also took an oath. She testified in camera. The summary of the evidence is as follows
[15] She was at grade 7 at the time of the incident. She explained that employee arrived in their class in the morning to give technology lessons. He gave them some papers to cut and paste in their books. She stood up to go get paper glue from her friend. The employee went to her and slapped her on her buttocks and the whole class laughed. Her friends who were at the bathroom at the time of the incident found her crying and asked why she was crying. She explained that the employee had slapped her on her buttocks. She did not want to report the matter because she was heartbroken and hurt. They sat in class during break with her friends and the employee arrived to apologise but she did not forgive him. The friends that were consoling her were learner LH, learner HH, learner L, learner N and learner C. Learner A-A was with them also. Her friends even advised her to report the incident to the school Principal, Mr Butler but she refused. Learner LH and HH are the ones who reported it.
[16] After school , while at the taps washing her hands, the employee slapped her buttocks again.
[17] When she got home, she told her grand mom who advised her to report to her parents. She told her dad and he said he would report the matter to school. He did not report the matter but only went to school after he received a call from school.

Second Witness: Learner LH, whose identity is withheld due to the fact that she is a leaner who was at the time of incident and testimony a minor. She understood what taking an oath is. She is 13 years old and testified under oath with the assistance of an intermediary, Ms Edna Shibisi who also took an oath. She testified in camera. The summary of the evidence is as follows:
[18] On the day of the incident, the employee gave them papers to cut and her and learner HH stood up to go to the dustbin. While walking to the dustbin, the employee asked then where they are going and they told him. He slapped them on the buttocks and the whole class laughed. The dustbin was situated at the corner inside the class. She was traumatised and surprised because he was like a father figure to them. This happened in the morning during the employee’s technology period which was the fourth period. There are 6 periods before break time.
[19] She reported the issued to Mr Butler the same day before getting home and to her parents at home. When she reported the matter, Mr Buttler was with Ms Puleng, SGB chairperson and Ms Hannah. She was with Learner HH when she reported to Mr Butler.
[20] She was present when Learner TG was slapped also, she denied learner TG’s version that they were out when learner TG was slapped. She stated they found learner TG in the bathrooms and consoled her after the employee’s period was over.

Third Witness: Learner HH, whose identity is withheld due to the fact that she is a leaner who was at the time of incident and testimony a minor. She understood what taking an oath is. She was 14 years old and testified under oath with the assistance of an intermediary, Ms Edna Shibisi who also took an oath. She testified in camera. The summary of the evidence is as follows:

[21] On the day of the incident, the employee gave them papers to cut and her and learner LH stood up to go to the dustbin. The employee walked over to them and slapped them on the buttocks with his hand and asked why they are standing without asking. He acted as if nothing had happened and they went out of the class crying and decided they will not go back to class. She was angry and sad about the incident.
[22] They were aware not to go to office during school hours so they went to principal’s house after school. His house is not far from school. They found Ms Puleng at the principal’s house and they explained what happened. The principal told them to come to his office the following day to write down what had happened. He explained also informed their parents. They would normally walk out when it was the employee’s class and go to Ms Kock and tell her they cannot even concentrate properly.
[23] She saw TG being slapped by the employee as she was in class when it happened. They never went to the principal’s office to report the matter because they thought the securities would ask them what they wanted at the office and they did not want to tell anyone, they went to his house.
Fourth witness: Shadean Butler, testified under oath and the summary is as follows:

[24] He is the principal of Hartzstraat Primary School.
[25] Learner LH and learner HH arrived at his house on 11 March 2021 while he was in the presence of Ms Puleng Chabane (SGB Chairperson) and Ms Hannah Johnson (SGB Treasurer). They tearfully reported an incident which had occurred. He told them to come to his office the following day. He also requested the SGB members to be present. The following day, he arranged an educator, Ms Kock who is also a qualified social worker to assist them emotionally. He got the learners statements and asked them to bring their parents which they did. The parents told him to report the matter. Learner TG was also at the office when the matter was reported the following day.
[26] He did not collude with the learners to lie against the employee, he has no intention of getting anyone into trouble. He and the employee were actually good friends and he reported the matter as part of his roles and responsibilities.
[27] He knows Ms Ivanna Nimmerhoudt, she was employed under the PYEI (Presidential Youth Empowerment Initiative) as an assistant teacher. She reported to him that she was sexually harassed by the employee. He reported this matter as well.
[28] He is aware of the email on page 1 of Bundle A, the employee sent it to him requesting for an investigation about false rumours being spread about him having an affair with an educator. This email was written on 2 July 2020. He did not immediately attend the request and the employee lodged a formal request for intervention at the department. The IDSO got involved and a meeting was ultimately set-up. He conceded that following this, a matter was subsequently reported against him at SACE. He denied that this was the motive behind the allegations against the employee.
[29] He authored the letter on page 1 of R wherein he was reporting the incidents leading to the allegations against the employee. He wrote the letter on 23 March 2021 as per stamp. He notes that the letter has a typed in date of 10-02-2021 and he reckons it must have been the date he last wrote a letter and forgot to change it when he authored the letter to the district director.

Fifth Witness: Ivana Nimmerhoudt testified under oath and the summary is as follows
[30] She was an assistant teacher at Hartzstraat primary school. An incident as per allegation 2 occurred on Friday,12 March 2021. The employee put a finger in her pants on her back side and said “enjoy your weekend”. She was wearing a jean and when she bent over, the waist of the pants lifted a bit and the employee put a finger on her back area and touched her skin and said ‘have a wonderful weekend’. She went to the principal and she reported the matter. She felt very disrespected.
[31] Mr Michaels and Ms Holien were in the vicinity when this happened. Ms Holien stated that she does not want to testify. She never wanted things to get this far, she never wanted the employee to be suspended but he disrespected her.
[32] She was responsible for the attendance register so she would fetch it from the principal’s office and put it on the white table near the office. The teacher’s assistants would knock off before the teachers and they had their own separate attendance.
[33] Hervan, Ferron and other teacher assistants were on the couch waiting and the employee touched her while they were in the vicinity. Hervan, who is her ex-boyfriend is willing to come and testify. She denied that Ms Prins was in the vicinity.
[34] She stated that she owned two jumpsuits that she never wore to school. She insisted she was wearing denim pants and a pink shirt. The waist part of the denim pants she wore lifted when she bent down and this happens depending on the make and fit. She denied that she stood to get a job if the employee was to be dismissed. She is still a student only doing her second year of studies.

Sixth witness: Hervan Michaels testified under oath and the summary is as follows:
[35] He was a teacher’s assistant at Hartzstraat Primary School.
[36] On the day of the incident, Ms Nimmerhoudt was bending down on the table. Mr Mackay was walking in front of the employee and when the employee got near Ms Nimmerhoudt, he put his finger inside her pants. She was shocked, she turned around and said ‘Meneer’! (meaning ‘Sir’)
[37] The teacher assistants and teachers sign different attendance registers but for Covid-19 screening, they used to sign in one file. The teacher assistants used to sign attendance registers in the staffroom.
[38] Ms Nimmerhoudt was wearing denim pants on the day of the incident. He recalls this because an incident took place. He does not know what she would generally wear on any day. That day, she was wearing black jean and a white top.

Seventh Witness: Puleng Chabane testified under oath and the summary is as follows:

[39] She is the elected chairperson of SGB. Around March 2021, the SGB met at the principal’s house to discuss the functioning of the SGB . As they were busy, two girls arrived at the principal’s house requiring to see the principal. The two girls said that the employee had slapped them on their buttocks and that did not sit well with them. They said they were afraid to go to the principal’s office to for fear of victimisation.
[40] She demonstrated how the children demonstrated how they were touched. They advised the children to formally report this issue at school the following day. They students indicated that its actually three of them but the other one was uncomfortable. The following morning the students reported the matter at school and she, Ms Chabane was there. She did not take the matter lightly and told the learners that this is not a matter to lie about and they insisted that they were telling the truth. Principal requested Ms Scott to assist the learners because she is a qualified social worker.
[41] She sees nothing wrong with holding the meeting at the principal’s home, especially if it’s only the three of them. It was merely a coincidence that the learners arrived and found them there.
[42] She has nothing against the employee, they actually had a great working relationship. The employee is one person who goes all out for the school, he is handy. The employee always greets with a smile and she has absolutely nothing against him She has no reason to concoct this and she finds it unfortunate that such aspersions are cast on her.

THE EMPLOYEE’S CASE
First witness: Sydney Charles Wayne Baatjies, the employee testified under oath and the summary is as follows:-
[43] He confirmed he did give a lesson on the said date but the allegations against him are false. He remembers that after the date mentioned on the allegation, the said learners and the other two boys by the name of Learner K and Learner T would leave his class whenever he entered to teach, he had no idea why. It made him angry and felt disrespected. He later heard that they were with Ms Kock for counselling. He did not report to the principal because their relationship was already not so good.
[44] He never gave learners any pictures to paste because they had done that already around February 2021.
[45] He also denies commission of allegation 2. He is always in the company of Mr Mekgwe and McKay whom he travels with on a lift club. He never put his finger inside Ms Nimmerhoudt’s pants. Ms Nimmerhoudt made them get accustomed to a light blue jumpsuit that she used to wear every Friday; she was wearing that jumpsuit on that Friday. He would only see Ms Nimmerhoudt on Friday because they dismiss at the same time. He saw her in the morning that day and she was wearing that jumpsuit.
[46] In 2020, Mr Butler spread a wrong rumour about him that he was having an affair with a young girl. He did not like it at all and he lodged a complaint against Mr Butler at the district office and the district intervened. The case was subsequently reported to SACE and Mr Butler appeared before the ethics committee. This is one reason why Mr Butler is out to get him. Again, the employee, is aware that Mr Butler was using his company to supply goods to the school while he is not permitted to. Mr Butler had asked the employee to rather be the supplier but he refused. He suspects that his refusal is also one of the reason Mr Butler wants to get rid of him.

Second Witness: Deon Wilfred George testified under oath and the summary is as follows:

[47] He is an educator at Hartzstraat primary school and a site steward of SADTU. He has been an SGB member from 2015. Ms Puleng Chabane is an SGB Chairperson. Anytime there will be an SGB meeting, the principal will send notices to educators also informing the educators about the agenda.
[48] He is not aware of an SGB meeting that was held at the principal’s house, if there was any such a meeting, it was not a valid meeting. There are ten SGB members and such a meeting did not even form a quorum if it was attended to by only three people.

Third witness: Peter Mekgwe testified under oath and the summary is as follows:

[49] He travels with the employee on his car to and from work. On 11 March 2021, he went to the employee’s class to collect his stuff that he had put there. The employee did not have class on the last two periods of the day. He saw Ms Nimmerhoudt and she was wearing a sky-blue jumpsuit on the day.

Fourth Witness: Learner XM, whose identity is withheld due to the fact that he is a leaner who was at the time of incident and testimony a minor. He understood what taking an oath is. He was at the time of testimony 14 years old and testified under oath with the assistance of an intermediary, Ms Edna Shibisi who also took an oath. He testified in camera. The summary of the evidence is as follows:

[50] The employee taught him technology. During the beginning of the first term, the employee gave learners already cut papers which they had to paste on their books.
[51] On 11 March 2021 when employee arrived in class, the three learners, HH, LH and TG went out. They were not in when he entered the class. They came back after few minutes and the employee said they must go back to where they were. They came back with Ms Kock and the employee allowed them in. They then sat at the back and started making noise. He told them to keep quite but they did not listen.
[52] After school, the witness saw the three learners together with two boy learners, walking to the office.

Fifth Witness: Learner TM, whose identity is withheld due to the fact that he is a leaner who was at the time of incident and testimony a minor. He understood what taking an oath is. He was 13 years old and testified under oath with the assistance of an intermediary, Ms Edna Shibisi who also took an oath. She testified in camera. The summary of the evidence is as follows:

[53] On the day of the incident, the three learners, HH, LH and TG left class without permission and they later came back when the employee was busy teaching and he sent them back. They came back with Ms Kock. Learner TG was not listening and the employee sent her out of his class. The employee did not even touch them.

Sixth witness: Learner AA whose identity is withheld due to the fact that she is a leaner who was at the time of incident and testimony a minor. She understood what taking an oath is. She was 14 years old and testified under oath with the assistance of an intermediary, Ms Edna Shibisi who also took an oath. She testified in camera. The summary of the evidence is as follows:

[54] One day, the three learners, HH, LH and TG left after the Afrikaans class and were not present when the employee went to class. When he was halfway with lessons, they came with Ms Kock and the employee allowed them in. They started talking and the employee told them to keep quiet. They were disrespecting every teacher because Mr Butler always protects them. She does not know of an incident where the employee touched or slapped their buttocks. She also found the three learners and other two boys discussing about a case against the employee. She told them she would witness for the employee because they were lying.

Seventh Witness: Sherylee Dickson, testified under oath and the summary is as follows:

[55] She was a teacher assistant at Hartzstraat Primary School. They used to sign the register at the staff room. Ms Nimmerhoudt was the one keeping record of the register.
[56] Ms Nimmerhoudt used to wear one jumpsuit each and every Friday that they even made fun of her behind her back because of this. The colour of the jumpsuit was navy blue. She did not find it surprising because they do not come from well-off community. She also repeated her clothes often on Fridays. She admitted that it is not normal for one make fun of a person in the same circumstances as them.

Eighth witness: Mareldia Priscilla Prins testified under oath and the summary is as follows:

[57] She isa grade R educator at Hartzstraat Primary School. She is also an SGB member and has been since 2018. She is not aware of the meeting that was held at the principal’s house in March 2021. The SGB meetings were supposed to be held at school at all times.
[58] She knows Ms Nimmerhoudt and she remembers her light blue jump suit. It used to be her Friday special. People used to make fun of her even calling her ‘cat woman’. She insisted that Ms Nimmerhoudt wore this jumpsuit without fail through the coldest months of winter, sometimes with a jacket.
[59] She conceded that the executive of SGB could meet without other members and nothing prohibited SGB executive to meet anywhere else than the school.

ANALYSIS OF THE PARTIES’ EVIDENCE AND ARGUMENT

[60] The employee was charged under sections 17 (1) (b) and 18 (1) (q) of the Employment of Educators Act which provide as follows:
17(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;
18(1) Misconduct refers to a breakdown in the employment relationship and an educator commits misconduct if he or she –
q) while on duty, conducts himself or herself in an improper, disgraceful or unacceptable manner;

[61] The first allegation against the employee is that he committed an act of sexual assault on three learners by slapping them on their buttocks. The employee denied that this took place. The employer relied on the evidence of the learners who gave version of events regarding this incident. From the testimony and the charges themselves, this incident allegedly took place in one day, the 11 March 2021.
[62] The learner TG testified that her friends (the other alleged victims) were not present when this was perpetrated against her. She testified that she told them what had happened when they saw her crying and they consoled her. The other learners (other alleged victims) testified that they were actually present when the employee slapped learner TG’s buttocks. They also testified that they were slapped on the buttocks by the employee and they felt hurt and traumatised. What is surprising is that these two learners who were also slapped testified they were consoling learner TG after she had been slapped. The versions of the three learner witnesses are riddled with contradictions and improbabilities which I find to be material. I am alive to the cognitive skills of the learners based on their ages, however, the nature of contradictions is in my view not as a result of their age-based cognitive capabilities. They all testified that this happened in front of the whole class and the whole class laughed. Three learners testified in support of the employee’s versions and they stated that the employee has never slapped the learner victims on their buttocks. They all testified as to how the learners would just leave class when the employee arrived. None of the victim learners demonstrated how the slapping actually happened. Ms Chabane demonstrated how the learners had demonstrated the slapping to her and I deal with the admissibility of her evidence in this regard hereunder. We all viewed the demonstration and it was nothing to laugh about. The demonstrated slapping was in fact groping in nature. If it did happen in the manner demonstrated, it is improbable that the whole class would find it funny. Further, a good number of learners would also have come through to support their versions. I do note that there were two learners who withdrew themselves from the case due to an allegation of intimidation by people external to the case which I addressed. Other learners over and above those two would have witnessed this also. Further, if indeed the learners themselves were groped as they say they were and had reported to their parents on the day of incident, it is likely that the parents of the learners or at least one parent of the learners would have themselves went to the school and not wait for the school to call them. It is also improbable that the employee went and apologised to learner TG for him to slap her again few hours after tendering an apology. Learner TG testified that the apology was given in front of the other victim learners but they never mentioned it on the stand.
[63] The demonstration itself was hearsay and it is rejected. This is because its probative value depended on the credibility of persons who were called as witnesses but those persons never gave that testimony.
[64] It must be noted that no evidence was given regarding what the learners’ motive for telling lies would have been, it seemed that the employee and the learners enjoyed a normal teacher and learner relationship. Evidence was however brought to the effect that the person to whom this incident was reported to had a vendetta against the employee. The employee testified that this was concocted against him by the principal because he had lodged a complaint against him that escalated to the principal being called to account by SACE ethics committee. This was put to the principal and he admitted knowledge of the complaint but denied that this was an issue. He testified that him and the employee were good friends. The other version was that the employee had refused to do business with the principal but this version was not put to the principal and subsequently not tested.
[65] A trail of emails was submitted at the hearing in support of the allegation that the employee lodged a complaint against the principal. Looking at the content and tone of the emails on bundle A, it supports a version that the principal and the employee’s relationship became dented. Although the principal testified that they were good friends, I find that the most probable version is that their relationship had been strained because of this complaint. The back and for the regarding this email escalated to the department and to SACE and it had been going on from early October 2020 and was continuing even in March 2021 and beyond.
[66] The reason that was given by the learner for going to reporting the matter at the principal’s house is that students were not allowed at the office during school hours and also that security would ask questions. How the learners knew the principal would be home and not the office is a mystery. According to their testimony, they went to the principal’s house immediately after school. They did not say they went to his office first and found he was not there. They coincidentally found that that there were three SGB members who were there to attend a meeting. This meeting has been challenged by the employee through 4 of its witnesses. The witnesses alleged that the principal’s home is not the ideal place for a meeting and that such a meeting was not known to other SGB members. There were also no documents in support of this meeting, (agenda, minutes or invite). There was also no explanation as to why only 3 people were in this meeting.
[67] Looking at the totality of evidence, material contradictions, scanty testimonies given which raises more questions than answers, the possibility of a motive by the principal, it is my finding that the probabilities favour the version of the employee. It is my finding that the employer has not proven on balance of probabilities that the employee is guilty of allegation 1.
[68] I now turn to allegation 2.
[69] It was alleged that the employee put his finger inside Ms Nimmerhoudt’s pants on the waist part on her back as she bent down and said ‘enjoy your weekend’. The employee denied having committed this misconduct. Ms Nimmerhoudt testified in support of this allegation and stated that she bent down on the white table to sign out and when the waist part of her pants lifted, the employee put his finger on her skin where the pants had lifted as she bent over.
[70] In rebuttal, the employee stated that on that specific Friday, Ms Nimmerhoudt wore a sky-blue jumpsuit. When asked how he took special notice of the clothes of Ms Nimmerhoudt and how he could recall with such particularity what she wore, he stated that she had made them accustomed to the jumpsuit because she would wear it most Fridays. If she wore this jumpsuit, it obviously would be impossible to insert a finger inside her back area as she be and touch the skin because a jumpsuit covers the whole top to bottom areas. Ms Nimmerhoudt stated that she wore denim pants and t-shirt.
[71] The employee’s witnesses testified that Ms Nimmerhoudt wore the jumpsuit every Friday. Ms Prins stated that Ms Nimmerhoudt wore it every Friday without fail, other teacher’s assistant would even make fun of her and call her cat woman. She stated that Ms Nimmerhoudt would wear this jumpsuit even through the coldest months of winter, at times with a denim jacket. Ms Dickson also testified that Ms Nimmerhoudt wore this jumpsuit every Friday without fail and they would even talk behind her back about it. If this was so, all the witnesses should have testified on one same colour of the jumpsuit. Surprisingly, Ms Dickson stated that the colour of the jumpsuit was blue, when asked which blue she stated that it was navy-blue. She even indicated an item in the room that was a similar navy blue and it was a very dark shade. The employee stated the jumpsuit was sky-blue and Mr Mekgwe stated it was light blue. Ms Dickson confirmed that Ms Nimmerhoudt did not wear various jumpsuits on Friday but it was actually just that one jumpsuit. This contradiction is very material to the defence of the employee. The two blue shades are totally different from one another that one would not mistake one for the other. This makes the version of the employee improbable in this regard. If she wore this item without fail and everyone who saw her should have seen the same colour. It is clear that the witnesses were rehearsed and did not rehearse to the sufficient detail.
[72] I do note that Mr Michaels testified Ms Nimmerhoudt was wearing a white t-shirt while Ms Nimmerhoudt herself stated that she was wearing a pink T-shirt. The shades of these colours were not examined even during cross examination. The likelihood of them being very similar is there. Again, this was not an item which was said to have been worn each and every Friday so the level of expectation of recollection in terms of the colours is not the same as that of the jumpsuit. For this reason, I find the contradiction between Ms Nimmerhoudt and Mr Michaels minor and I prefer their version in terms of what Ms Nimmerhoudt was wearing.
[73] Clearly, the version that Ms Nimmerhoudt was wearing a jumpsuit was postulated to deny the allegation that the employee put a finger inside her pants on her back area.
[74] The employee also argued that they did not sign in the same area. Ms Nimmerhoudt and the employee both testified that they dismissed at the same time on Friday. I view the question of where the educators were supposed to sign as background noises. The fact that they do not sign at the same area does not mean that the employee did not or could not have passed where Ms Nimmerhoudt was for whatever reason. Ms Dickson testified that all assistant teachers would wait for each other before and check if they are all present before they could sign. No reason was given for this procedure. She stated that no one would count but they would check and look around if all were around and they would start signing. This version was not even put to Ms Nimmerhoudt or Mr Michaels who are the only teacher assistants who testified in the hearing. This version was not tested and is rejected. I find that it was postulated in order to create an idea that there would be many people around during signing out time.
[75] I found Ms Nimmerhoudt’s evidence to be reliable and convincing. She was not hesitant or evasive. She stated that she never wanted the employee to even be suspended but she felt very disrespected. It is undisputed that the employee and Ms Nimmerhoudt had a good working relationship prior to this incident. This kind of relationship between them does not support a version that she had any motive to harm the employee. It was argued that she stood to get a job if the employee was fired and this was disputed. Ms Nimmerhoudt stated that she was just still a student and did not stand to get the employee’s job. I find that there is no merit in this assertion as we know what requirement and processes there are in getting employed in a vacant funded post in the department of education.
[76] Weighing the totality of the evidence and probabilities in both parties version, it is my finding that the probabilities favour the version of the employer. It is my finding that the employee did in fact put his finger inside Ms Nimmerhoudt’s pants and said enjoy your weekend. This conduct is improper, disgraceful, and unacceptable.
[77] I now turn to the question of sanction.
[78] It was argued by the respondent that this improper conduct also amounts to sexual assault on Ms Nimmerhoudt. Having heard the evidence of Ms Nimmerhoudt, she found the conduct to be disrespectful towards her. I do note that the employee was not charged with sexual assault but with improper, disgraceful, and unacceptable.
[79] In terms of schedule 2, in dealing with misconduct contemplated in section 18, the employer must assess the seriousness of the alleged misconduct by considering
(a) the extent to which the misconduct impacts on the work of the Department of Education or provincial department of education, or the public school, public further education and training institution or public adult learning centre;
(b) the nature of the educator’s work and responsibilities; and
(c) the circumstances in which the alleged misconduct took place
[80] Schedule 8, Code of Good Practice: Dismissals, item 4 and 5 provides a follows:-
(4) Generally, it is not appropriate to dismiss an employee for a first offence, except if the misconduct is serious and of such gravity that it makes a continued employment relationship intolerable. Examples of serious misconduct, subject to the rule that each case should be judged on its merits, are gross dishonesty or wilful damage to the property of the employer, wilful endangering of the safety of others physical assault on the employer, a fellow employee, client or customer and gross insubordination. Whatever the merits of the case for dismissal might be, a dismissal will not be fair if it does not meet the requirements of section 188.
(5) When deciding whether or not to impose the penalty of dismissal, the employer should in addition to the gravity of the misconduct consider factors such as the employee’s circumstances (including length of service, previous disciplinary record, and personal circumstances), the nature of the job and the circumstances of the infringement itself.
[81] We live in a day in age where women are subjected to different kinds of abuse from the opposite gender and this continues to be in the rise. There are unfortunately men in society who believe that they are entitled to infringe on the bodily integrity of women and that cannot be tolerated or accommodated. A work environment like a school, should without question harbour safety and utmost respect for all people within it, especially women and children. The employee as an elderly to Ms Nimmerhoudt and as a senior to her professionally, had the obligation not only to respect but to ensure a safe working environment for her and he failed to do so. The employee had no right to touch Ms Nimmerhoudt in a manner that he did. For these reasons, the offence the employee committed is viewed in a very serios light.
[82] The employee pleaded not guilty to the offence against him and did not show any remorse for his actions. In De Beers Consolidated Mines Ltd V CCMA And Others (2000) 21 ILJ 1051 (LAC) at paragraph 25 the court stated: - Where as in this case an employee over and above having committed gross misconduct (own emphasis) falsely denies having done so an employer would, particularly where a high degree of trust is reposed in an employee, be legitimately entitled to say to himself that the risk of continuing to employ the offender is unacceptably great.
[83] I have noted the employee’s long service, unblemished track record and good rapport with other colleagues as mitigation. There is a high premium placed on honesty and presence of dishonesty tilts the scales to an extent that even the strongest mitigating factors, like long service and a clean record of discipline are likely to have a minimal impact on the sanction to be imposed. In other words, whatever the amount of mitigation, the relationship is unlikely to be restored once the offence committed is very serious and dishonesty has been established, in particular in a case where the employee shows no remorse.
[84] In these circumstances based on the evidence and my conclusions above, the employee must be dismissed with immediate effect.

[85] Award

[86] The employee is found not guilty of allegation 1 but guilty of allegation 2.
[87] The employee must be dismissed with immediate effect.
[88] I make no order as to costs

Dated on the 18 day of August 2022


Kuvonakala Chavalala
ELRC Panellist