ELRC20-22/23 KZN

IN THE ELRC: INQUIRY BY ARBITRATOR BETWEEN:

THE HEAD OF THE
DEPARTMENT OF EDUCATION – KWAZULU-NATAL The Employer
and
C T GWAMANDA The Employee

Inquiry by arbitrator-finding

Case Number: ELRC20-22/23 KZN

Dates of arbitration: 20 June & 18 August 2022

Date submission of written closing arguments: 25 August 2022

Date of award: 2 September 2022

J KIRBY
ELRC Arbitrator

Education Labour Relations Council
ELRC Building
261 West Avenue
Centurion

DETAILS OF HEARING AND REPRESENTATION

1. The inquiry by arbitrator was held on 2 June and 18 August 2022 at the Durban Teachers’ Centre. Written closing arguments were due on 25 August 2022.
2. The Employee, C Gwamanda (the Employee,) was represented by Mr Mthimkhulu, a trade union official.
3. The Employer, the Head of the KwaZulu-Nata l Department of Education was represented by its employee, Mr Pillay. A bundle of documents, marked exhibit A, was submitted on behalf of the Employer.
4. Three learners testified. All of them are children and they testified with the assistance of an intermediary, Ms Phakati.
5. I shall refer to the learners as Learner 1, Learner 2 and Learner 3 respectively.
6. The proceedings were digitally recorded and interpreted.

EXPLANATION OF THE EMPLOYEES’ RIGHTS

7. At the commencement of the hearing, I explained the following rights to The Employee, who confirmed that he was aware of and understood these rights:
7.1. The rights to question witnesses of the Employer and to dispute any documentary evidence. In particular, the need to ensure that any evidence with which he did not agree was disputed by his representative and the need to ensure that his version was put to each witness; and
7.2. The right to give evidence and to call witnesses.
8. The Employee confirmed that he had been given written notice of the alleged misconduct and that he had appointed his trade union to represent him.
9. It was explained to both parties, who indicated that they understood that:
9.1. A separate hearing in respect of sanction in event of a finding of guilty, would not be held. Evidence in mitigation and aggravation of sanction would be presented prior to a finding on the merits of the case having been given;
9.2. They could make closing arguments after all evidence had been heard; and
9.3. In terms of section 120 of the Children’s Act I, as the arbitrator, acting on my own or on application of the Employer may make a finding that The Employee is unsuitable to work with children. It was further explained in this regard that a separate hearing would not be held.

THE CHARGE, PLEAS AND PLEA EXPLANATIONS

9. The Employee was charged as follows:
“Charge 1
It is alleged that that om or about 07th of March 2022 you sexually assaulted Learner 1, a learner at Avoca Secondary School, Umlazi District. It is alleged that you touched her thigh and said inappropriate words and when she refused your advances; you retaliated by throwing a book at her. It is alleged that you therefore committed an offence in terms of Section 17(1)(b) of the Employment of Educators Act, 1998 (the Act.)

Alternatively
It is alleged that that om or about 07th of March 2022 you inappropriately touched Learner 1aulted Learner 1, a learner at Avoca Secondary School, Umlazi District. It is alleged that you touched her thigh and said inappropriate words and when she refused your advances; you retaliated by throwing a book at her. It is alleged that you therefore committed an offence in terms of Section 18(1)(q) of the Employment of Educators Act, 1998 (the Act.).

Charge 2
It is alleged that during the period of March 2022 you committed an act of sexual assault on Learner 2, a learner at Avoca Secondary School, Umlazi District. It is alleged that, during a class you inserted your hand into her shirt pocket and groped her chest area. You thus committed an offence in terms of section 17(1)(b) of the Act.

Alternatively
It is alleged that during the period of March 2022 you inappropriately touched Learner 2, a learner at Avoca Secondary School, Umlazi District. It is alleged that, during a class you inserted your hand into her shirt pocket and groped her chest area. You thus committed an offence in terms of section 18(1(f) and (18(1)(q) of the Act.

Charge 3
It is alleged that during the period of March 2022, you committed an act of sexual assault on Learner 3, a learner at Avoca Secondary School, Umlazi District. It is alleged that you said inappropriate things and then touched her chest area and said that you would like to take inappropriate pictures of her when she had torn her skirt in the previous year. You thus committed an offence in terms of Section 17(1)(b) of the Act.

Alternatively
It is alleged that during the period of March 2022, you inappropriately touched Learner 3, a learner at Avoca Secondary School, Umlazi District. It is alleged that you said inappropriate things and then touched her chest area and said that you would like to take inappropriate pictures of her when she had torn her skirt in the previous year. You thus committed an offence in terms of Section 18(1)(f) and 18(1)(q) of the Act.
10. The charges are set out on pages 1-2 of exhibit A.
11. The Employee pleaded not guilty to all main and alternative charges. His pleas amounted to a bare denial to all counts save for count 1 in respect of which he submitted that he might have mistakenly touched Learner 1 with a book to wake her up.

SUMMARY OF EVIDENCE AND ARGUMENTS

The Employer’s case

12. Learner 1 turned 15 on 1 July 2022 and she is in grade 9 at Avoca Secondary School (the School.) The Employee had been her technology teacher throughout 2021 and in 2022 until his suspension.
13. She usually sat at the back of the classroom for her technology lessons. On 7 March 2022, however, she was late for class and took up a seat in the front. During the lesson but after he had given instructions to the class, the Employee approached her whilst she was seated at her desk and placed his hand on her thigh. She was wearing a skirt with stockings. He knelt on a bar of the desk when he did this.
14. Learner 1 immediately removed his hand. The Employee appeared upset and struck her on the head with an exercise book that she had on her desk.
15. After the incident she felt uncomfortable with her body and similarly she felt uncomfortable should a male sit next to her in class.
16. Under cross-examination it was put to her that she had sat in front of the class on this day as she had wanted to expose her thighs to the Employee, who denied having touched Learner 1 with his hands. This version was denied by Learner 1. She had removed his hand immediately without saying anything. She did not know what to say but had immediately started to cry. She had cried immediately and not just after she had been struck with the exercise book.
17. On the advice of her friend, Learner 3, she had reported the incident to Ms Bele, an educator with whom she felt most comfortable, who in turn had reported to the acting principal, Mr Sullivan. She had later that day reported the incident to her parents.
18. She had not been forced by anyone to lay a false complaint against The Employee.
19. Under re-examination she testified that Learner 3 had advised her to report the incident saying that if she did not, it would haunt her for the rest of her life.
20. As with Learner 1, the Employee had been Learner 2’s technology educator during 2021 and 2022. She is also in grade 9.
21. During 2021 the Employee would refer to Learner 2 as his girlfriend when she was in his class. She did not like it. He had also asked her for her contact number during 2021 and into 2022. She had not provided it.
22. Before the incident involving Learner 1, Learner 2 had called the Employee requesting his assistance with a drawing. He approached Learner 2 and put his hand in her shirt pocket and thereby touched her breast. Learner 2 had said, “Sir what are you doing. You are touching my breast.” The response of the Employee had been that he was “just playing.” Learner 2 had accepted this and not reported the incident until the incident involving Learner 1. She had also been scared that the Employee would fail her were she to report the incident and hence she had not done so immediately.
23. She had seen Learner 1 crying after she had been hit by the Employee.
24. Under cross-examination it was put to Learner 2 that her version that she had called the Employee to assist with a drawing could not be true as drawings were only taught by the Employee in January and February and not in March. This was disputed by Learner 2 who stated that they were still doing drawing now (August.) Further, it was put to her that her version was a fabrication as the Employee had big hands that would not be able to fit in her shirt pocket. Learner 2’s response was that his hand had fitted. At the time she was sitting at the back of the class and there were no witnesses to the incident. Learner 2 (as did the other learners) testified in her school uniform. In re-examination, Learner 2’s shirt pocket was measured and found to be 12 cm across and 13,5 cm in depth.
25. She had not initially reported the Employee’s conduct to anyone as she was afraid that he would then fail her. When she saw that she was not the only learner suffering at the hands of the Employee, she decided to lodge a complaint.
26. It was put to her that her entire version was a fabrication concocted as part of a plan with Learner 1 to falsely implicate the Employee as they did not like him. This was denied.
27. Learner 3 is also a grade 9 learner at the School doing technology. The Employee has been her technology educator. She is 14 years old.
28. During a technology lesson she had called the Employee to assist her with a drawing. Her pens were in her shirt pocket. He had come to her desk, which was in the middle of the classroom, and put his hand in her shirt pocket in which her pens were and touched her breast. She immediately called out. The response of the Employee had been that he was “just playing.” She had responded, “Ok sir.”
29. Sometime during 2021 Learner 3 had torn her skirt on a desk as she had entered the Employee’s class. She indicated to the hearing that the tear was approximately 10 cm in length. She had approached the Employee to report the incident. The Employee had then taken out his cellular phone to take a photograph of the tear. She had initially held the tear closed but the Employee had told her to open the tear, which she had done. He then took a photograph. At the time she was not wearing tights under her skirt. He had then said that she can continue with the lesson. He did nothing to assist her with her skirt.
30. She had been in class on 7 March 2022 when she had seen the Employee leaning on Learner 1’s desk. She had then noticed that she was crying. The class had then begun to chant the Employee’s name. When she had initially asked Learner 1 what had happened, she had not said anything but had just cried. Later when asked by Learner 2 she had explained what had occurred. She and learner 2 had then accompanied Learner 1 to the office of the acting principal. On the way they had met up with Ms Bele. At the office of Mr Sullivan learner 1 had explained what had happened to her and Learner 2 and she also took the opportunity to disclose what the Employee had done to them. Sometime later, but before his suspension, the Employee had approached the three learners in the School parking lot and asked them if they had reported him. They said that they had not.
31. Under cross-examination it was put to Learner 3 that the Employee could have touched her breast in error when trying to remove a pen from her shirt pocket. Learner 3 disagreed.
32. She was asked to explain why she had elected to show a torn skirt to a male educator. Learner 3’s response was that she was in his class when the skirt had been torn and she did not want to be rude and simply leave the classroom without providing him with an explanation. She did not want to provide a ruse for needing to leave the classroom as previously she had been menstruating and she had said to him that she needed to go to the restroom and he had refused her request and she felt that she could not then give the real reason why she had wanted to leave the classroom. As such, she had thought it best to approach the Employee and that by showing the tear to him he would at least try and fix it temporarily with a stapler even, so that she did not have to expose her body.
33. The evidence of Learner 3 was briefly interrupted as she was crying and needed time to compose herself.
34. Nonhlanhla Fortunate Bele (Bele) has been an educator at the School for approximately 21 years. She teaches Zulu.
35. She was walking in the corridor on the way to the restroom when she was approached by three girls. They had said to her that they had a problem with the Employee as he touches them in ways that they do not like. Learner 1 had said that when she had refused to allow him to touch her, he had hit her. She had initially intended to approach the Employee about the allegations but on her way to his classroom she had passed the office of the acting principal and saw that the Employee was in the office.
36. As she had not wanted to confront the Employee with the allegations in front of the acting principal, she had approached them and given a hint for the Employee to step outside momentarily with her. The hint was not taken and she had proceeded to the toilet. On her return the girls had left and the Employee was still with the acting principal. She had then relayed the complaint of the girls to both the Employee and the acting principal.
37. Under cross-examination she said that one of the girls had been crying when they had approached her and that their emotions had been running high. There had been no response from the Employee when she had relayed the girls’ complaints.
38. She was aware of instances where learners had been used by educators to get at other educators. She was, however, not aware of any such incident at the School.
39. Under re-examination Bele stated that after the Employee had been suspended she had been approached by another educator alleging that the girls might have been put up by someone to falsely implicate the Employee. She was not informed who might be behind the plot.

The Employee’s case

40. The Employee was his sole witness.
41. With regards to count 1 he submitted that Learner 1 along with others had arrived approximately 20 minutes late for his technology class. As he had already given his instructions to those learners who had been on time, he repeated these instructions for the latecomers as and when they arrived. He noticed that Learner 1 had taken up a seat in the front of the class whereas she normally sat at the back. He also noticed that she was just sitting at her desk and not doing the task assigned to the class. Whilst he continued with the lesson, he asked her on a number of occasions why she was not doing anything but he did not get a response. He then thought that if he touched her with her exercise book, this would bring her mind back to the present so that she could respond. Instead, all she did was look down. He had touched her right shoulder with the exercise book. As he thought that she was looking down as she might have been crying, (he had, however, not seen any tears) he had asked her what was wrong and if it was because he had touched her with the exercise book, he apologized. He had done so from the front of the classroom so that all could see that he was showing remorse. It was then that the class had started to make a noise. He had not leant down at her desk and had not touched her thigh.
42. With regards to count 2 the Employee stated that he was walking around the classroom monitoring the class. He had approached Learner 2, who was seated two from the back, to instruct her what to do. She had not called him for assistance. He had not taken a pen from her pocket and had not touched her.
43. As a result of the interruption to teaching brought about by the COVID lockdowns, educators had created WhatsApp groups with learners to assist them with their schoolwork. It had not been compulsory for learners to participate and Learner 2 had not given her cellular phone number to him.
44. With regards to count 3 there had been no need for Learner 3 to show him her torn skirt. He had not taken a photograph of the torn skirt. It had been an error for this denial not to have been put to Learner 3 when she had testified.
45. When Bele had come to the acting principal’s office she had said that the girls had complained that he dealt with them in an inappropriate way. He had replied that “inappropriate” is ambiguous and asked her to explain further. Bele had then said that Learner 1 had complained that he had touched her with an exercise book. She had not mentioned anything about him having touched her thighs. The acting principal had then asked them to call the girls to the office and they had left to look for the girls.
46. Under cross-examination the Employee stated that at the acting principal’s office he had explained that Learner 1 had not been participating in the class by not following instructions on a number of occasions. Only her issue had been raised and he had only learnt of the other complainants when he had received his notice of the disciplinary hearing.
47. He had not spoken to Learner 1 after the lesson as he had a pre-arranged meeting with the acting principal. He had not raised the incident with him prior to Bele having done so. He would have done so at the end of the meeting if she had not intervened.
48. The Employee made general comments about there being people at the School who had not accepted him when he had been transferred to the School and who would have wanted to have prevented him from getting the principalship post. No details were provided by him in this regard.

SUMMARY OF ARGUMENTS
49. The Employer did not submit any written closing arguments.
50. The submissions made on behalf of the Employee may be summarized as follows:
50.1. The learners were mere pawns used to by other educators to prevent the Employee from contesting for the post of principal;
50.2. The Employee had only touched Learner 1 on her shoulder as she had not been following instructions. He would never have knelt at her desk;
50.3. There was a discrepancy between the evidence of Learner 1 who had stated that she had cried immediately after the Employee had allegedly touched her thigh whereas Learner 3 had said that she had cried after being hit by the Employee;
50.4. Learner 2 had falsely accused the Employee as he had caught her friend having sex on the School premises and had reported her to the School’s principal;
50.5. It had not been established that the Employee’s hand could fit into the shirt pocket of Learner 2;
50.6. The evidence of Learner 3 should not be believed as she had testified that the Employee had inserted his hand in her shirt pocket to get a pen with which to measure. This was clearly a fabrication as pens are not used to measure;
50.7. There had been no need for Learner 3 to show her torn skirt to the Employee;
50.8. Bele was motivated to falsely implicate the Employee so as to rule him out from applying for the post of principal at the School;
50.9. The Employee ought to be found not guilty and the Department and School should work together to resolve disputes that may exist amongst the educators at the School.

ANALYSIS OF EVIDENCE AND ARGUMENT

51. The Employer is required to prove on a balance of probabilities that the Employee is guilty of the alleged misconduct with which he has been charged.
52. The Employer relied upon the evidence of the three complainants and Bele, being an educator to whom Learner 1 had first complained.
53. The three complainants are all teenagers being aged in the 14-15 age bracket. They all testified in a clear manner. They gave clear answers to questions posed to them when being led and whilst under cross-examination. They clearly understood the proceedings and questions being put to them.
54. For all practical purposes they are also single witnesses in respect of the respective alleged assaults on them. As such and in order for me to find the Employee guilty of any of the three counts, I need to satisfy myself that each of the complainants’ evidence was reliable and trustworthy.
55. This inquiry was triggered by the alleged misconduct of the Employee on 7 March 2022 when he is alleged to have placed his hand on the thigh of Learner 1. Learner 1 testified that she had immediately removed his hand without saying anything and that the Employee had then hit her on her head with her exercise book. She had cried immediately. After the lesson she had told both Learner 2 and 3 that the Employee had put his hand on her thigh. She had been advised to report this and she had been accompanied by Learners 2 and 3 to the acting principal’s office. This version is supported by Learners 2 and 3 and Bele.
56. The evidence of Learner’s 2 and 3 is similar in many respects. They both allege that whilst sitting in class the Employee had approached them, on the pretext of helping them with their work, and placed his hand in their shirt pockets and thereby touched their breasts. They had both immediately voiced their objection and the response of the Employee had on both occasions been that he was only “playing.” Neither of them had reported the alleged incidents until after the incident involving learner 1. Both learners testified that they had accepted his explanation and not complained although learner 2 had also said that she was afraid that if she did complain it could have an adverse effect on her passing technology. It was only after the incident involving Learner 1 that they had realised that they were not alone and decided to join her in bringing their complaints to the attention of the acting principal. Their evidence was simple and consistent. They were not swayed in any way whilst being cross-examined. Their respectful character is perhaps exemplified by them referring to the Employee throughout their evidence as “sir.”
57. Learner 2 further testified that over a period of time the Employee had referred to her as his girlfriend and had also asked her for her contact number.
58. Learner 3 testified to an earlier incident when she had approached the Employee for assistance as she had torn her skirt. The Employee had insisted that she hold her skirt open when he took a photograph of the tear.
59. Bele testified that she had been approached by the three complainants and that she had relayed their complaints to the acting principal in the presence of the Employee. The Employee had not responded when she had done so.
60. On the other hand, the Employee denies the allegations made by the three complainants save that he admits to having struck Learner 1 with an exercise book. I do not find these bare denials to be believable and accept the evidence of the Employer’s witnesses for the following reasons:
60.1. It was the unchallenged evidence of Bele that when she had informed the acting principal of the girls’ complaints in the presence of the Employee, he had not responded. Allegations of such a serious nature would surely have elicited an immediate response from an innocent person?
60.2. Contrary to the unchallenged evidence of Bele, the Employee maintained that the only complaint of which she had informed the acting principal was that he had struck Learner 1 yet he did not challenge the evidence of Learner 3 that prior to his suspension he had approached the three complaints and asked them whether it was they who had complained. It is evident from this unchallenged evidence that the complaints of Learners 2 and 3 were not mere fabrications to bolster the complaint of Learner 1 as alleged by the Employee but that they had all complained together as testified by the three learners and Bele;
60.3. Despite having not challenged the evidence of Bele that he did not respond on hearing of the complainants’ allegations, the Employee testified that he did respond by asking her to describe what she meant by “inappropriate touching.” This is not the response one would expect from a person wrongfully accused;
60.4. The Employee concedes that Learner 3 had torn and shown her torn skirt to him. He did not challenge her evidence that he had taken a photograph of the tear. He said that he had not done so in error;
60.5. It was submitted on behalf of the Employee that the evidence of Learner 1 could not be believed as she had testified that she had cried immediately after the Employee had placed his hand on her thigh whereas Learner 2 had testified that she had noticed Learner 1 crying immediately after she had been hit. I do not believe that any weight should be attached to this apparent contradiction. Learner 2 had not seen the Employee allegedly place his hand on her thigh but she had seen him hit her. Learner 1 had testified that immediately after she had removed his hand, the Employee had hit her. In such circumstances, it is perfectly understandable that Learner 2 had associated Learner 1’s crying with her having been hit by the Employee;
60.6. It was submitted on behalf of the Employee that the evidence of Learner 2 in respect of count 2 ought to be rejected as it had not been proven that the Employee’s hand could fit in her shirt pocket. I do not agree. The issue that is to be determined is whether he touched her breast. Similarly, it was submitted that the evidence of Learner 3 ought to be rejected as there would be no reason for the Employee to have removed a pen from her pocket to assist her with her work as she had testified. Learner 3 would not know the ostensible reason for the Employee having reached for her pocket but she did know that he had touched her breast;
60.7. Further in respect of count 1, it was put to Learner 1 on the Employee’s behalf that she had intentionally sat in the front of the class on the day in question (whereas she normally sat at the back) so as to expose her thighs to the Employee. This was denied. I do not know why this was put to Learner 1 as when he testified the Employee did not give any evidence in this regard.
60.8. A different tact was then followed when it was put to Learner 2 that she and Learner 1 had colluded with one another to falsely implicate the Employee as they did not like him. A different averment was then put to Bele; namely, that the complainants were being used by unnamed educators at the School to falsely accuse him so as to prevent him from contesting for the post of principal. Lastly, a further submission that had not been put to any witness and in respect which he did not present any evidence was made in the Employee’s closing argument; namely, that he had caught a friend of Learner 2 having sex at the School and hence Learner 2 had falsely implicated the Employee in wrongdoing. There is no onus on the Employee to establish a motive for any of the complainants to falsely implicate him but the different submissions made on his behalf are indicative of him clutching at straws in attempts to challenge the Respondent’s evidence.
61. Learner 1 (as with the other complainants) in no way tried to embellish her evidence. No possible reasons for Learner 1 to have falsely implicated the Employee have been placed before me and I find her to have been a reliable and credible witness. I am satisfied that the Respondent has established on a balance of probabilities that The Employee placed his hand on Learner 1’s thigh without her consent. The Employee had placed his hand on her thigh whilst Learner 1 was sitting at her desk wearing a skirt. The incident caused Learner 1 to feel uncomfortable with her body and to want to avoid being near boys. I am satisfied that the action of the Employee was of a sexual nature.
62. I am similarly satisfied that the Respondent has established that the Employee had touched Learner 2’s breast and also that he had touched learner 3’s breast and a separate occasion had taken a photograph of her torn skirt. The taking of the photograph while inappropriate does not amount to a sexual assault.

FINDING

63. The Employee, C T Gwamanda (persal number 12389404,) is guilty of:
63.1. Count 1
Contravening section 17(1)(b) of the Employment of Educators Act 76 of 1998 in that on or about 7 March 2022 he sexually assaulted Learner 1, a learner at Avoca Secondary School, by touching her thigh with his hand;
63.2. Count 2
Contravening section 17(1)(b) of the Employment of Educators Act 76 of 1998 in that during or about March 2022 he sexually assaulted Learner 2, a learner at Avoca Secondary School, by touching her breast;
63.3. Count 3
Contravening section 17(1)(b) of the Employment of Educators Act 76 of 1998 in that during or about March 2022 he sexually assaulted Learner 3, a learner at Avoca Secondary School, by touching her breast.
64. Having found the Employee guilty on three counts of having contravened section 17(1)(b) of the Employment of Educators Act 76 of 1998, I am obliged in terms of section 1 of the said Act to impose the sanction of dismissal for each and every count, which I hereby do.
65. The Employee, C T Gwamanda, is dismissed.

INQUIRY IN TERMS OF SECTION 120 OF THE Children’s Act 38 Of 2005, AS AMENDED
66. Section 120(1)(c) of the Children’s Act provides that a finding that a person is unsuitable to work with children may be made by any “forum established or recognized by law in any disciplinary proceedings concerning the conduct of that person relating to a child.” This inquiry by arbitrator is such a forum established in terms of section 188A of the Labour Relations Act 66 of 1995.
67. At the commencement of this hearing the parties were informed that such an inquiry would be held and that they should submit evidence and make submissions in this regard during the hearing. At the closure of the Employee’s case the parties were again reminded of this.
68. As already indicated the Employer did not make any closing arguments and similarly no submissions were made in respect of this Children’s Act inquiry.
69. Whilst the Employee’s representative did submit closing arguments, these are silent in respect of the persona circumstances of the Employee.
70. I thus have no evidence or submissions before other than that received in respect of the three counts on which the Employee has been found guilty.
71. I do not believe that I have sufficient evidence before me to consider declaring the Employee to be unfit to work with children and I accordingly make no order in this regard.

J Kirby
Arbitrator 2 September 2022
ELRC20-22 KZN