ELRC976-21/22GP

Panellist: Themba Manganyi
Case No.: ELRC976-21/22GP
Dates of Hearing: 01 September 2022 & 05 October 2022
Heads of Arguments: 07 October 2022
Date of Award: 12 October 2022

In the Inquiry by Arbitrator Hearing between

GAUTENG DEPARTMENT OF EDUCATION EMPLOYER

and

SADTU OBO GODFREY TSIRI EMPLOYEE

Employer’s representative: Mr Musawenkosi Ndlovu


Employee’s representative: Mr Guilty Maaga


Details of hearing and representation

1. This is an arbitration award in terms of section 138(7) of the Labour Relations Act 66 of 1995 (“the LRA”), as amended, emanating from an Inquiry by Arbitrator process (s188A of the LRA). The arbitration proceedings were conducted on 10 August 2022 and 05 October 2022 under the auspices of the Education Labour Relations Council (“the Council”). The proceedings were held at the Council’s Offices in Centurion.

2. Mr Musawenkosi Ndlovu (“Ndlovu”), the Labour Relations Officer, represented the Employer, Gauteng Department of Education and Mr Guilty Maaga (“Maaga”), a SADTU Official, represented the Employee, Mr Godfrey Tsiri (“Tsiri”). The parties relied on a common bundle of documents. At the end of the proceedings, the parties agreed to submit their heads of arguments in writing on 07 October 2022. Both parties duly submitted their heads of arguments. The proceedings were digitally recorded and I also took handwritten notes. The recordings thereof were retained by the Council.

Issue/s to be decided

3. I am required to determine whether Tsiri has misconducted himself or not as alleged by the Employer. In the event that I find him guilty of the allegation levelled against him, I will be required to determine the appropriate sanction.

Rights and the procedure

4. All the rights commensurate with a fair process and the nature of the process were explained to the parties. Tsiri confirmed that he was afforded all the rights that are commensurate with a fair process. Parties were invited to address me in terms of section 120(3) of the Children’s Act 38 of 2005 during the proceedings in the event that I return a guilty finding.

5. The Employer preferred the following charge against Tsiri:

Allegation one:
• It is alleged that you conducted yourself in an improper, disgraceful and unacceptable manner towards Learner X, a learner at the school, in that you have been making inappropriate advances and proposing love to her since 2018, when she was still in Grade 10, till to date. You have also been sending inappropriate WhatsApp messages to her.

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

NB: The name of the learner is concealed to protect her identity.

Pleadings

6. Tsiri pleaded NOT GUILTY to the allegation levelled against him.

Summary of evidence and arguments

Employer’s case

7. Ms Yrillia Mataboge (“Mataboge”) testified under oath and in summary she stated that she was Learner X’s aunt. She confirmed that the statement on page 4 was her statement that she wrote to the principal after Learner X informed her that Tsiri was proposing love to her. She stated that she did not know Tsiri. She stated that Learner X told her that she was not comfortable with Tsiri’s advances. She testified that Learner X did not report the incident earlier because she was afraid of Tsiri and that Tsiri might fail her (cause her to repeat a grade). Learner X first reported the allegations to her father and the father was very angry to an extent that he wanted to go to the school to fight Tsiri. She stated that she advised Learner X’s parent to write a letter on page 6. After the delay in the finalization of the case, Learner X’s father advised Learner X not to testify in these proceedings.

8. Under cross-examination, she reiterated that she did not know Tsiri and that she was Learner X’s father’s half-sister. She stated that she was not sure who created the WhatsApp group, but she believed that Tsiri created it. She testified that Learner X informed her that Tsiri was part of the WhatsApp group that was created to share the curriculum. She stated that she saw the contents of the WhatsApp and Facebook conversations between Tsiri and Learner X. However, that evidence could not be provided because Learner X lost her phone in December 2020. She mentioned that Learner X was fearful of testifying in these proceedings because if something was to happen to Tsiri, she could be blamed.

9. I find it prudent to indicate at this juncture that the Employer intended to call Learner X and the school Principal to testify in these proceedings. However, it was submitted that Learner X was prohibited by his father not to come and testify and it was said that the Principal was indisposed. Thus, the Employer closed its case.

Employee’s case

10. Tsiri testified under oath and stated that he knew Learner X and that he taught her Sepedi from Grade 10 until Grade 12. He stated that he had a teacher – learner relationship with Learner X. He submitted that he never had a social media contact with Learner X and that he did not create a WhatsApp group for his learners and that he only knew of the WhatsApp group that was created by a Ms Sephiri – a Sepedi Educator who taught from home because of her comorbidities. That WhatsApp group was created only for her learners.

11. Under cross-examination, he confirmed that he taught Learner X from Grade 10 to 12. He disputed that he has ever texted Learner X. He confirmed that he had social media platforms in his cellphone. He disputed that he had any intentions of having a sexual relationship with Learner X. He stated that he has not met Learner X since his precautionary suspension and that he never met any of his learners during his suspension. He stated that the conditions of his precautionary suspension barred him from making any contact with the anyone from the school.

Analysis of evidence and arguments

12. It is trite law that he who alleges must prove. In this case, the Employer must prove, on a balance of probabilities, that the allegation levelled against Tsiri is true. Ordinarily, proving that an allegation is true requires oral evidence and in some instances, documentary evidence. It is crucial that the witness/es that presents evidence is/are subjected to cross-examination by the opposing party. Equally important, the author/s of document/s must be subjected to cross-examination to test the authenticity of the document/s unless if the parties agree that the contents of the document/s are not in dispute.

13. As stated herein above, the Employer relied on the evidence of only one witness (Mataboge) and documentary evidence to prove its case. Mataboge testified on what she was told by Learner X and her father. She claimed that she has seen some of the contents of the WhatsApp and social media conversation between Learner X and Tsiri. However, she did not have tangible proof of those conversations, allegedly because Learner X lost her cellphone in December 2020.

14. It should be noted that Learner X’s parents authored their letter on page 6 on 14 October 2022 and Learner X authored her letter on page 19 on 30 October 2020. Surely, at that stage the evidence could still be accessed from her phone. However, for reasons best known to them (Mataboge, Learner X and her father), this important information was not collected whilst Learner X still had her cellphone.

15. Tsiri’s evidence that he did not create any WhatsApp group for his learners could not be rebutted. In my view, it was prudent for the Employer to at least bring any other learner to testify on this critical evidence. However, the Employer failed to do that to its own peril. Maaga submitted an affidavit deposed to by Sephiri and I have indicated during the proceedings that I might not attach any weight to it in the absence of the deponent, because it remained hearsay evidence. True to my indication, I am not attaching any weight to it. However, I cannot ignore the fact that Mataboge’s evidence in this regard was not corroborated. Therefore, I am not persuaded that there was a WhatsApp group that Tsiri created for his learners. Equally, in the absence of tangible evidence in the form of any WhatsApp messages or any other social media platform messages between Tsiri and Learner X, the evidence tendered by Mataboge stand to be dismissed. Consequently, I find that the Employer did not succeed to discharge its burden of proof.

Award

I make the following award:
16. I find Mr Godfrey Tsiri NOT GUILTY of the allegation that was preferred against him.

Arbitrator: Themba Manganyi