ELRC24-22/23GP

IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD IN MOROKA (SOWETO) (GAUTENG)

Case No ELRC24-22/23GP

In the matter between

GAUTENG DEPT OF EDUCATION EMPLOYER

and

J TSELE EMPLOYEE

ARBITRATOR: Monde Boyce

HEARD: 31 May 2022, 27 & 28 June 2022 and 31 August 2022

CLOSING ARGUMENTS: 06 September 2022

DATE OF AWARD: 16 September 2022


AWARD

PARTICULARS OF PROCEEDINGS AND REPRESENTATION:

[1] The ELRC scheduled the inquiry in terms of Section 188A of the Labour Relations Act 66 of 1995 as amended (LRA) and the inquiry was held on 31 May 2022, 27 & 28 June 2022 and finalized on 31 August 2022 at the Ndondo Teachers’ Development Centre in the Johannesburg West District in Soweto. The employee appeared in person during all the sittings while Mr Makhubalo, the Department’s Labour Relations Officer, represented the employer.

[2] An interpreter and an intermediary were present because two of the witnesses were learners who were under the age of 18 years and one learner in particular, learner A, did require the assistance of the intermediary. A common bundle of documents was used. I deem it necessary to mention that while the employee ended up representing himself, I had afforded him ample opportunity to arrange a representative. I adjourned the inquiry on 31 May 2022 to, among other things, afford the employee an opportunity to arrange a representative. He however, when the inquiry convened on 27 August 2022, indicated that he could not get a representative and that he was happy to represent himself.

THE ISSUE TO BE DECIDED:

[3] I am required to decide whether the employee is guilty of the two charges preferred against him by the department, and to make the appropriate award.


THE BACKGROUND TO THE DISPUTE:

[4] The employee is employed as an educator at Raymond Mhlaba Secondary School in Tshepisong. He is currently on suspension pending finalization of the inquiry. The following allegations were preferred against him:

Allegation 1:

“It is alleged that during the month of November 2020, you sexually assaulted Learner A in that you touched and caressed her hands, neck and shoulders”

Allegation 2:

“It is alleged that between the month of March and April 2021, you sexually assaulted Learner A in that you massaged her neck and shoulders, while you whispered in her ear that she need (sic) to relax”

Allegation 3:

“It is alleged that during the month of July 2021, you conducted yourself in an improper, disgraceful, and unacceptable manner towards Learner A in that you told her you are looking for love from her.”

[5] The employee pleaded NOT GUILTY to all three charges.

SURVEY OF EVIDENCE AND ARGUMENT:


Employer’s Evidence

[6] The first witness called by the employer was learner A who testified that she is a learner at Raymond Mhlaba Secondary School based at Tshepisong. She is currently a Grade 10 learner. During November 2020, she was doing Grade 8 at the above-mentioned school and was writing her final examination. One of the teachers, Miss Futha, passed away and it was her memorial service. Learners were called upon to each speak on behalf of the grades. She was one of the learners the employee, Mr Tsele, asked to speak for Grade 8 learners. She told the employee that she was not prepared to make a speech at that time. The employee then told her she could do the speech as she was good in English. The employee then asked her to go with him to his office so he could prepare her. When they got to the office, a teacher who shares the office with the employee, Miss Lebotse, was in the office. She had then proceeded practicing her speech. She made a mistake twice and the employee started caressing and massaging her on her neck telling her to relax. She was not comfortable and started moving her shoulder away. She started panicking and took her bag and left the office.

[7] She thereafter told Mr Sithole about the incident, but Mr Sithole took the incident lightly and told her the employee was trying to make her relax. She lives with her grandparents and aunt, and she told her aunt about the incident. The principal became aware of the incident after Mr Sithole reported the incident to her (principal).

[8] Regarding allegation No.2, the employee was at the library, and he told her he was thirsty and asked her to get him some water. When she brought the water to the employee and, when taking the water, the employee touched her hand in a weird way. When walking away towards her friends, the employee looked at her in a weird way. She told her friend, Learner B about the incident and how the employee had looked at her. Learner B then told her about other incidents involving the employee where Learner B told her the employee was dating other learners from Grade 12 and further told her about another learner from Grade 10 that the employee wanted an affair with. She never told anyone else except learner B about this incident.

[9] She was doing Grade 9 when the incident of July 2021 occurred. She had gone to the employee’s office to show him her results that she had gotten a distinction in English. The employee then asked her what she wanted since she had passed. She told the employee that she wanted an ice cream. The employee told her that they should go and buy it together, but she told the employee that she could not go then because she had to go home, and her friends were waiting for her. This was just an excuse because she did not want to go with him. The employee then told her it was fine and that they could go together after school the following day. She told the employee she could not go anywhere with him without her grandparents knowing. The employee asked her why she could not ask him what she wanted, and she had in turn asked him what he wanted. The employee first said she did not have what he wanted and on her asking him again what he wanted, he told her that he wanted love. She did not say anything but kept quiet and smiled, and it was then that Miss Lebotse entered the office, and she (learner A) left the office.

[10] She shared what happened with her friend Learner B and told her that she was starting to believe what he (learner B) had earlier told her. When learner B asked her why she was starting to believe him, she told him what had just happened to her. She went to Mr Sithole to inform him about what happened, but Mr Sithole dismissed her saying he did not have time. It was late in 2021 and when writing her final examination that she noticed that the employee was not being professional with her. The employee had asked if he could do anything or maybe increase her grandfather’s salary who was working at the school. The employee also asked her to go to the mall with him, but she refused. On another Friday after school, the employee asked her to get his contact number from Miss Lebotse but told her to text her in the afternoon and not at night. She did not get the employee’s contact details.

[11] The second witness, Mr Simosezwe, Bhekithemba Sithole, testified that he is currently employed as a teacher at Raymond Mhlaba Secondary School and teaches English. He is also the coordinator of all sporting activities at the school. He taught learner A Creative Arts and is teaching her English in 2022. He is aware of the allegations preferred against the employee. He considers all learners at the school his children, and that is what led leaner A to be open to him about the allegations. On 11 October 2021 learner A asked to talk to him. But he noticed that it was difficult for learner A to talk about whatever she wanted to talk to him about, and he told her to leave. Learner A came back the following day and told her about a teacher who asked her for love and that the teacher was behaving inappropriately towards her and that the teacher went further to threaten her to say that if she did not engage in a relationship with him her grandfather’s salary would be threatened. He had told learner A that no one else could do anything about her grandfather’s salary except the principal.

[12] As part of the school-based support team (SBST they are trained to take hid of these incidents. He reported what he was told by leaner A to the SBST Coordinator, Miss Somniso who in turn told him to report the incident to the principal. The principal asked her to relate the incidents in the presence of the learner. The principal thereafter released him. The following day, learner A came to tell him that the same teacher had asked if she had thought about their going out to the mall. Learner A had all the times she reported the incidents, not divulged the name of the teacher. Judging by the type of person learner A is, he did not believe she was lying about the incident. Learner A is one of the best learners academically and one of the obedient learners. He has never witnessed any of the allegations, but they only came to his attention when the leaner reported them.

[13] He did not know learner A’s grandfather and he only came to know learner A’s grandfather when someone told him that they were related after the allegations had been reported. He is also aware of two other learners who were excited to be leaving the school after writing their matric saying they were relieved to be leaving the school and be away from Mr Tsele who kept proposing love to them. The principal had, after he reported the incident, held a meeting where he raised awareness about Section 17 and 18 issues and the dangers of engaging in sexual harassment of learners. Learner A’s marks have dropped, and she is no longer the bubbly leaner she used to be and often isolates herself.

[14] Miss Angelina, Maphaphayi Mokete was called as the employer’s third witness. She testified that she is currently employed as the principal of the Raymond Mhlaba Secondary School. The employee is employed at the school as the English Head of Department (HOD). She knows Mr Sithole and Mr Sithole was appointed after interviews were conducted at the school. She has a good working relationship with the employee but there would be instances where they had differences regarding the school curriculum. She also knows learner A who is a Grade 10 learner at her school. She became aware of the allegations of sexual harassment when Mr Sithole came to inform her about the allegations reported to him by learner A. She reported the allegations to the Department’s Labour Unit. Although she was not supposed to discuss the allegations with anyone since she had already reported them, she took it upon herself to conduct an awareness session to sensitize educators at the school about Section 17 and 18 offences. Learner’s A’s grandfather is employed as a night patroller at the school. Learner A’s grandfather had approached her about the allegations, but she had refused to discuss the allegations with him because she had already reported them to the district office. She would have no reason not to believe learner A about the allegations. The employee does not teach the learner and she would not understand why learner A would pick the employee and not any of the other teachers.

[15] She had on many occasions cautioned teachers about sending learners on errands. She is not aware of the occasions that the employee had called leaner A to his office. Earlier in 2022, learner A had approached her requesting that she be transferred to another school. She had advised learner A against such a move since Raymond Mhlaba Secondary School is the best school in the area. She discouraged her from taking a transfer out of the school. Leaner A did not state her reasons for wanting to be transferred out of the school.

[16] Miss Refiloe, Marry-Jane Seakane was the employer’s fourth witness and testified that she is the aunt to learner A. Around October 2021 learner A told her that there was a teacher at school that she was not comfortable with, and that the teacher would call her to the office and would talk about things that had nothing to do with her school work. She gave the name of a Mr Tsele as the teacher who she was not comfortable with. She had told learner A to inform her father (learner A’s grandfather) who was working at the school. She had asked why she only reported the incidents only in 2021 when they started in 2020. When Mr Tsele came to the house saying he wanted her father to paint for him, learner A said that the employee did not want her grandfather to go and paint but that he had actually gone to see her (learner A) since he had asked her to go out with her to the mall the previous week. It was when learner A told her that Mr Tsele told her she wanted love that she told learner A to tell her class teacher or the principal.

[17] Her father initially did not believe what learner A told her because her father had interactions with Mr Tsele and had thought of him to be a father figure. He however, of late, feels guilty because he believes he is the one who may have led Mr Tsele to see learner A as a woman.

[18] Learner B, was called as the employer’s fifth witness. He testified that he is sixteen (16) years old and is a learner at Raymond Mhlaba Secondary School. He started his Grade 8 at the above school in 2019.and is currently doing Grade 10. He knows learner A as she is his friend and he and learner A have been friends since they both started high school. Learner A had told him that she was not happy because there was an educator at school who was sexually harassing her. He had asked her who the educator was, and learner A told him that it was Mr Tsele. He had then asked if this was the reason why she was always going to the library and if it was the employee who was calling her to the library, and learner A answered in the affirmative. He asked learner A how the employee was harassing her, and she told him that the employee would caress her hands and neck and, at some point, told her he was looking for love. She specifically made mention of an incident that occurred during a memorial service of Miss Futha, an educator who had passed on. The memorial service happened around 2020 or 2021 where the employee had asked her to make a speech during the service. He had asked learner A to tell Mr Sithole about these incidents, and learner A had later told him that she had reported Mr Tsele’s conduct to Mr Sithole.

[19] Since the incidents of sexual harassment, he could see that learner A was not happy and while learner A used to wear skirts, she started wearing pants. He noticed these changes because he was very close to her and knows when she is happy or not. He could see that she started isolating herself and was quite most of the time. Mr Tsele was not their teacher when they were in Grade 8 and 9 with learner A. When learner A started being called by the employee, he initially thought nothing of it because it was not uncommon for teachers to call learners. But he noticed that everytime she came back, she would not be as happy as she was when the classes started in the morning. Learner A initially told her there were projects she was attending to, but learner A only disclosed that it was the employee who was calling her but only disclosed this after a while. He had friends who were in matric, and these friends also told him about allegations of sexual harassment by Mr Tsele. Learner A had become close to the employee because learner A knew the employee as the friend of her grandfather.

[20] He would, after school, go and visit learner A at her home and came to know that learner A’s aunt knew about the allegations.

[21] The employer called its sixth witness, Mr Solomon Difako Ntsakisi. He testified that leaner A is her granddaughter and attends school at Raymond Mhlaba Secondary School. One other day, his granddaughter told him about a teacher who touched her in an inappropriate manner and that she was unhappy about that. His granddaughter told him that the incidents occurred on two occasions He used to have a good relationship with Mr Tsele, but the relationship is no longer good because of what her granddaughter told her about what happened at school. There was a time when he was told that Mr Tsele had been to his house, and he was told about Mr Tsele’s presence at his house by his daughter, Refiloe. Mr Tsele however never told him that he (Tsele) had been to the house. Mr Tsele had his contact details but had never called him to say he was at his house or had visited his house.

[22] He believed that her granddaughter was telling the truth because she was not in the habit of lying about things.

[23] The employer’s seventh witness, Miss Thandiwe Portia Somniso, testified that she is currently employed as an educator at Raymond Mhlaba Secondary School and is also School Based Support Team (SBST) and Head of Department for Life Orientation. As the SBST Coordinator, she deals with learner issues including psycho social issues of learners, counselling as well as finding help for learners. Mr Tsele is her colleague. She is aware of the allegations preferred against Mr Tsele. The complaints were brought to her attention by another teacher, a Mr Sithole, who told her that a learner had told him that an educator had touched her inappropriately. She told Mr Sithole to get the leaner to write a statement of what she told him and take the statement to the principal. The next day, Mr Sithole and the learner came and told her that the learner was crying because the teacher she was complaining about had approached her and told her that if she did not cooperate with her, her grandfather would lose his job at school. She had asked leaner A to write a statement and give the statement to the principal and not to her, and that in the statement, she must include the name of the teacher involved. They then left for the principal’s office.

[24] Leaner A had said the concerned teacher wanted a relationship with her and told her that the teacher promised her good life. A week or two later, Mr Sithole came back to tell her that it was Mr Tsele who was being complained of and expressed surprise that it was Mr Tsele, who he worked under in the English department. The incidents were reported to her towards the time of final year exams where she received a report from learners that there was a teacher who was harassing them and who wanted a relationship with them and was promising them things. They further informed her that they had reported the incidents but that nothing had been done. She approached the principal to enquire as to whether she had attended to the complaints. The principal called a meeting restating the policy on sexual harassment of learners. One of the learners came to inform her that it was Mr Tsele who was sexually harassing the learners and that he had wanted to buy tekkies for a learner who had performed well during awards, but that the learner refused the offer.

Employee’s Evidence

[25] Mr Jacob Toboho Tsele testified that he is currently employee as an educator at Raymond Mhlaba Secondary School. He has worked for twenty-seven years as an educator in various school and this is the first time he is charged of any allegations of misconduct. He loves his job and is passionate about education and had been promoted twice in his career. He was had-hunted by the principal of Raymond Mhlaba Secondary School to teach at the school. The allegations against him come at a time when gender-based violence is prevalent, and since the allegations were levelled against him, he has had little sleep because he could not understand why these allegations were levelled against him. He has assisted learner A when she came to him for assistance and had regarded her as her own child.

[26] He is happy that he was given a fair hearing despite him not having a representative. He however disputes the allegations and had never committed any act of sexual misconduct towards learners, and in particular learner A. Regarding charge No. 1 he did not in any way sexually molest learner A. On countless occasions, leaner A had come to him, and he had never done any of the things he is said to have done. Regarding charge No. 2 he never had an opportunity of being closer to learner A except for when learner A hugged him after she had done well in her exams. Learner A had been with him several times and there had been no issues. Regarding the allegation that he had threatened learner A that her grandfather would lose his job at the school if he did not agree to his advances, he has no powers to appoint employees at the school and was rather puzzled by this allegation. He believes that there are people who had a hand in these allegations and does not believe that they emanate from any unbecoming conduct towards the learner. Learner A had seen him and been to his office many times after the allegations were levelled.

[27] Miss Dorothy Lebotse was called as the employee’s witness. She testified that Mr Tsele told her about the allegations. She shares the office with Mr Tsele and they have been close at school. He told her that a learner had made allegations him. She does not believe that the allegations are true insofar as she knows Mr Tsele. She became close to Mr Tsele when they shared the office, and they would be based at the library most of the time. She came to know learner A on the occasions she would come to the office looking for Mr Tsele. She would come to the office asking for musk or money to buy lunch. She was shocked when she heard that learner A had made the allegations against Mr Tsele. They do not close the office doors and there is a window that is so big that no one could do anything without anyone seeing. In 2021, learner A came to the office many times and she was surprised why the learner A would frequent the office after the allegations had been levelled.

[28] She remembers an incident during the market day when Mr Tsele bought food from other learners and learner A had come to the office to ask for some money. There was a point where she saw learner A hugging Mr Tsele and she had asked learner A what she was doing because Mr Tsele was her teacher. Learner A and another learner had come to the office and told Mr Tsele that he was their father.

ANALYSIS OF THE EVIDENCE AND ARGUMENT

[29] The Constitution protects the rights and dignity of children. Section 28 of the Constitution provides that: “A child’s best interests are of paramount importance in every matter concerning the child” . Against this background, the Employment of Educators Act, 76 of 1998 as amended (the EEA), and in particular Section 17 sets out offences that are viewed as very serious and must lead to dismissal where an educator is found guilty. Educators professional regulatory body, the South African Council of Educators (SACE) introduced its own Code of Professional Ethics aimed at keeping educators conduct in check. This Code provides that educators:

“respect the dignity, beliefs and constitutional rights of learners and in particular children” and that educator must: “refrain from any form of sexual harassment (physical or otherwise) of learners, and to refrain from any form of sexual relationship with learners from any school.”

[30] The Code of Conduct, read with Section 17(b) of the EEA, points to the seriousness that any inappropriate sexual behaviour by educators towards learners is viewed. The charges against Mr Tsele fall in the category of serious misconduct as provided for in Section 17(b) of the EEA. The employee pleaded not guilty to all the three charges. Having heard evidence, I am persuaded that the allegations against the employee do, on a balance of probabilities, have merit.

[31] In the first place, Mr Tsele is placed at the scene of all the incidents that occurred as per learner A’s testimony. Regarding the three charges, Mr Tsele not so much disputed the encounters he and learner A had. Where he appeared to differ with leaner A was to the extent she mentioned inappropriate conduct on his part. For an example, Mr Tsele did not dispute that learner A had been to his office where he had asked the learner to bring him water. Where he differs with leaner A insofar as this encounter is concerned is where learner A alleged that he had touched her hand in a weird way. The same goes for the second encounter where leaner A had gone to his office for assistance with practicing her speech for the memorial service. Learner A’s version was that she was reluctant to prepare for the speech but that it was Mr Tsele who encouraged her to make the speech.

[32] Leaner A’s version was that it was during this time when she was practicing for the speech that she made mistakes twice that the employee massaged her neck and shoulder, whispering in her ear to relax. Mr Tsele denied that his conduct had any sexual connotations and further argued that such inappropriate act could not have happened in the presence of his colleague, Miss Lebotse. But leaner A maintained that the incident occurred and that when the employee massaged her neck and shoulder, she never checked to see if Miss Lebotse was looking her way. Miss Lebotse also did not testify that she witnessed this incident and saw what happened. She thus could not dispute that the inappropriate act happened as testified by learner A.

[33] Mr Tsele, in respect of the third allegation, is again placed at the scene. He did not dispute that he had given leaner A money and neither did he deny that he knew learner A’s grandfather and did not dispute that leaner A’s grandfather had done some odd jobs at his home. He also did not dispute that he had been at leaner A grandfather’s house and that he did not leave his contact numbers or a message when he found learner A’s aunt at the house. Where Mr Tsele disputed the witnesses’ version, that is the version of learner A, her grandfather, Mr Ntsakisi and learner A’s aunt, Miss Seakane insofar as allegation 3 was only to the extent any inappropriate behaviour was suggested.

[34] I which of the versions should be believed. The employer called a number of witnesses, seven (07) witnesses to be precise. I find learner A’s version to be credible. I battled to understand throughout the inquiry, and the educator did not advance a plausible explanation on why learner A singled him out as the perpetrator. In her testimony and that of the witnesses called by the employer, learner A was adamant that Mr Tsele engaged in the sexual inappropriate acts she alleged. Learner A did not point out or testify to any involvement of other male teachers in the sexual inappropriate acts. All of the witnesses called corroborated her version. Looking at each of these witnesses’ testimony, I found it highly likely that their versions could have been manufactured. I could not find, and Mr Tsele had not pointed to any plausible reason that could have influenced the witnesses to falsely implicate him insofar as they backed learner A’s version.

[35] Starting with Mr Sithole, I could not find him not to be a credible witness or that his version was informed by malice or any vendetta against the educator if one has regard to his initial reaction when leaner A reported the incidents. His attitude, as stated by learner A and B, appears to have been dismissive of the allegations. He did not even know who the perpetrator was and only became aware of the identity of the educator concerned later. If Mr Sithole intended any malice and if he had any ulterior motives as Mr Tsele suggested, claiming that Mr Sithole was the principal’s favourite and suggested impropriety on the process leading up to his appointment as the educator at the school, he would not have behaved or responded in the manner that he did. If what Mr Tsele is suggesting was true, Mr Sithole’s initial reaction would be that of seeing an opportunity and used the reports he received as the opportunity to smear Mr Tsele and would have immediately acted on them. But his initial scepticism does not suggest, in my considered view, that he intended any malice in reporting the allegations to the principal. It appears to me, that it was persistence, and especially learner B entering the fray and encouraging learner A to report the allegations that Mr Sithole finally acted. Mr Sithole also gave evidence about the threats Mr Tsele made to leaner A about her grandfather’s salary likely to be affected. He only became aware of this when leaner A told him and had not even known that Mr Ntsakisi who was employed at the school was leaner A’s grandfather. I believe that leaner A reported the threat strongly believing that her grandfather’s job, who she was staying with at the time, was in jeopardy. In that regard, Mr Sithole’s version cannot be dismissed as far-fetched and misplaced.

[35] I also find Miss Somniso, the school’s SBST coordinator to be a credible witness. I cannot find that she set out to falsely implicate the educator or that she had any vendetta or a score to settle against the educator for that matter. When the allegations were first reported to her by Mr Sithole, she had told Mr Sithole and leaner A to write a statement. It was only the next day when Mr Sithole came back to tell her that the learner was crying stating that Mr Tsele had threatened that leaner A’s grandfather would lose his job if she (learner A) did not cooperate with him (Tsele). She again did told Mr Sithole and the leaner to report the allegations to the principal. Her testimony effectively corroborated the testimony of leaner A and that of Mr Sithole. If she had any vendetta against the educator as he (educator) suggested, she could actively have taken up the opportunity to herself engage the learner and directly take up the allegations to the principal as the SBST coordinator. I thus find her behaviour not to be that of someone who, in telling Mr Sithole and the leaner to report the allegations to the principal, intended any malice against the educator.

[36] The steps taken by the principal of the school after the allegations were reported suggest the likelihood that the incidents of sexual impropriate against learner A did happen and seriousness that she viewed the allegations. The awareness session she conducted on Section 17 provisions appear not to be ill-informed but by her seriously believing that teachers needed to be made aware, in view of the reported allegations, of the seriousness of engaging in inappropriate sexual conduct towards learners. I could not pick up any malice intended in the action she took. I thus could not find her not be a credible witness. Important to mention is the point she alluded to in her testimony which suggested that leaner A’s claims may not have been unfounded. She related an instant where learner A approached her in early 2022 to request that she be moved to another school where she advised leaner A against such a move. Such a request cannot be divorced from the claims made by leaner A against the employee.

[36] The testimony of leaner B to the effect that other leaners had reported incidents of sexual inappropriate conduct against the educator. Not only did leaner B became aware of other leaners complaining about Mr Tsele’s behaviour, but Mr Sithole also alluded to his being aware of two Grade 12 learners who expressed their relieve at leaving the school to be rid of Mr Tsele who kept proposing love to them. This version was further corroborated by Miss Somniso who testified that towards the final year matric examinations, she became aware of leaners who complained about an educator who wanted to have a relationship with them and promised them good things and that they had reported these incidents and that nothing was done.

[37] There is also another issue of the testimony by leaner A that Mr Tsele had asked her to go to the mall with him and promised. When Mr Tsele visited Mr Ntsakisi’s house where learner A was staying, he (Tsele), according to leaner A’s aunt, had said he was looking for leaner A’s grandfather to paint for him. But according to Miss Seakane, leaner A told her that Mr Tsele was actually looking for her (leaner A) and not her grandfather since he (Tsele) had asked her to go with him to the mall the previous week. I cannot find leaner A’s suspicion of the true nature of Mr Tsele’s visit to the house to be misplaced. This especially so if one has regard to the fact that during cross examination of Miss Seakane, it came out that Mr Tsele did not ask for the contact numbers of her father. It is also a bit puzzling that Mr Tsele, who Mr Ntsakisi’s contact numbers, did not contact him to let him know that he was at the house or, if it was because of Covid-19 regulations that he could not see Mr Ntsakisi, he did not contact him telephonically. Mr Ntsakisi’s version to the effect that Mr Tsele had his contact numbers and that he never received any call or was made aware by Mr Tsele that he had been to his house looking for him. The only reasonably conclusion I draw is that Mr Tsele possibly went to the house to look for leaner.

[38] On the basis of the totality of evidence before me, it is my finding that the employer’s witnesses had nothing to benefit from falsely implicating Mr Tsele. Mr Tsele himself battled to explain why he was singled out as a culprit and not the other teachers. He threw all sorts of claims suggesting malice on the part of the witnesses, but he did not prove this. He contradicted himself when he suggested that there was animosity between him and the principal, but later changing to say that they had a professional working relationship. There was no indication on the part of all the witnesses called as to any animosity they had against Mr Tsele. Some of the witnesses actually spoke good of him and pointed to the good working relationship they had. Miss Somniso in particular, was initially not aware that the culprit was Mr Tsele when the allegations were reported to her. This was possibly why she asked leaner A to also include the name of the teacher against whom the allegations were made.

[39] While Mr Tsele outrightly denied the allegations, it is my finding that he did commit the acts of sexual misconduct against leaner A. He may not think much of his actions towards the leaner, but if the conduct of leaner A after the acts of sexual misconduct occurred is looked at, the negative impact is apparent. Leaner B testified that while leaner A used to wear skirts to the school, she later changed to wear only pants to the school and that she became reserved and isolated herself. Furthermore, leaner A must have believed that Mr Tsele possibly would act or make good on his threat of getting her grandfather possibly losing his job at the school. And the request by leaner A to be moved to a different school may have been caused by this threat and Mr Tsele’s overall inappropriate conduct towards her. Miss Seakano testified that her father (learner A’s grandfather) was now blaming himself believing that he may have been the cause of Mr Tsele looking at her granddaughter as a woman and not a child. I find Mr Tsele guilty of all the allegations preferred against him.

[40] As I often state, acts of sexual misconduct against leaners can never be treated lightly and the severest or harshest of sanction should be a consideration where a teacher or an educator is found to have engaged in same. In the present case, Mr Tsele’s conduct was totally inappropriate and not becoming of an adult at whose hands parents entrust their children. Evidence does show that he took advantage of his position as a teacher and exploited the naivety of leaner A. This kind of behaviour cannot be tolerated and should be frowned upon.

[41] I accordingly deem it proper to make the following award:

AWARD

[42] The sanction of dismissal is imposed effective from 16 September 2022.

[43] The General Secretary of the ELRC must, within 14 days of receipt of this award, report or refer the award to the educators’ professional body, SACE for its consideration of appropriate action to be taken.

[44] The employee has the right to take this award on review to the Labour Court as envisaged in Section 145 of the LRA and to do so within the prescribed timeframe.

Monde Boyce
Panelist: ELRC