ELRC641-21/22KZN

IN THE ELRC ARBITRATION
BETWEEN:

NATU obo HLANGU S.S “the Applicant”
and

DEPARTMENT OF EDUCATION – KWAZULU-NATAL “the Respondent”

ARBITRATION AWARD

Case Number: ELRC641-21/22

Last date of arbitration: 26 OCTOBER 2022

Date of submission of closing arguments: 02 NOVEMBER 2022

Date of award: 12 NOVEMBER 2022

NTOMBIZONKE MBILI
ELRC Arbitrator

Education Labour Relations Council
ELRC Building
261 West Avenue
Centurion

DETAILS OF HEARING AND REPRESENTATION

1. The arbitration commenced on 12 August 2022 and proceeded on 19 September 2022, and the presentation of evidence was finalized on 26 October 2022. Both parties thereafter requested and were granted permission to submit written closing arguments by no later than 02 November 2022.

2. The arbitration was held at the Ugu District Office of the KwaZulu-Natal Department of Education.

3. NATU, a trade union, referred this dispute on behalf of its member, Sibusiso Samuel Hlangu (hereinafter referred to as the Applicant.) Ms Simangele Shusha, an official of the trade union, initially represented the Applicant. When the case reconvened on 12 August 2022, however, I was advised that Mr. Sibiya, a Union Official from NATU will be representing the Applicant.

4. The Respondent, the Head of the KwaZulu-Natal Department of Education (the Department,) was represented by Ms J Dumisa, employed by the Department as a Deputy Manager.

5. A bundle of documents, marked exhibit A, was submitted on behalf of the Respondent.

6. The proceedings were digitally and manually recorded. The witnesses spoke in their native languages and the services of an interpreter were utilized to interpret the process.
TERMS OF REFERENCE AND ISSUES TO BE DECIDED

7. The arbitration is in respect of a referral by the Applicant of an alleged unfair dismissal as provided for in section 191(5)(a)(i) of the Labour Relations Act 66 of 1995 (LRA).
8. I am required to decide whether the dismissal of the Applicant was unfair and, if so, what relief ought to be granted to him. The Applicant seeks to be reinstated with retrospective effect. There is no challenge on procedure.

BACKGROUND

8. The Applicant was the Departmental Head at Eluphepheni Primary School in the Ugu District.
9. He was dismissed following a formal disciplinary hearing at which he was charged with and found guilty of the following count of misconduct:

9.1 “You committed an act of misconduct in that on or about the period of 2016 at or near Eluphepheni Primary School, Ugu District, you sexually assaulted a learner by the name of Sanelisiwe Mofukeni. You thus contravened section 17 (1) (b) of the Act.”

10. The Applicant was dismissed on 11 October 2021 and lodged an appeal against the outcome of her disciplinary hearing, but he was notified on 30 November 2021 that the appeal had been rejected.

11. It is common cause that at the date of her dismissal, the Applicant’s gross monthly remuneration was R38 665.82.


SUMMARY OF EVIDENCE AND ARGUMENTS

The Respondent’s case

12. The employer led the evidence of three witnesses namely Dumisani Mhlongo, Nelisiwe Ndebele and Sanelisiwe Nolisizwe Mofukeng. Their evidence will be considered below.

1ST WITNESS

13. Mr Mhlongo testified and stated that he is employed at Eluphepheni Primary School as the Principal. He has occupied this position since 2007.

14. Mhlongo stated that on 16 February 2017 he was approached by Sanelisiwe’s grandmother and reported to him that Sanelisiwe was sexually assaulted by the applicant.

15. He stated that he spoke to the Sanelisiwe and according to her, the sexual encounter happened when she passed by the applicant’s cottage on her way to the shop, The applicant was sitting outside the yard. The applicant called her and requested that she buy him airtime at the shop. When she returned with the airtime. The applicant forced her on the bed, undressed her and raped her.

16. Mhlongo further stated that after speaking to the grandmother and Sanelisiwe he reported the matter to the Department. He went on to say that it was his duty to report claims of sexual harassment in the workplace. He stated that he also advised the grandmother to report the incident to the Social Workers.

17. Mhlongo stated that he did not interview the applicant regarding the allegations, he had already left for the day. He stated that the day after the allegations were reported the applicant was on sick leave. He added that he did not receive a medical certificate from the applicant, but the Educators went to visit him in hospital.

18. Under cross examination Mhlongo stated that he had a cordial relationship with the applicant. The applicant was a good worker. He went on to say that when the applicant was absent without reporting, he sent the applicant a message, enquiring about his whereabouts. He received a response from the applicant’s phone, stating that “you are taking advantage of our father”

19. Mhlongo confirmed that the signature on the statement on page 24 of the employer’s bundle was his. The statement was read to him by the Investigator handling the criminal case. He stated that according to the statement Sanelisiwe said that the sexual assaults started in November 2016.
2ND WITNESS
20. Ms Ndebele testified and stated that she was currently employed by the Department of Education as a Head of Department. She previously held the position of an Educator. She stated that she knew the applicant, he was employed as the Head of Department. The applicant was also her cousin.

21. She stated that she knew Sanelisiwe, she was her class teacher in 2016 and 2017. She further stated that the Sanelisiwe was reserved, and other learners normally took advantage of her.

22. Ndebele stated that on 14 February 2017, after 2pm a group of learners came to her, Sanelisiwe was also present. The group of learners knew that she was very protective over Sanelisiwe because of her circumstances. She stated that the learners reported that they were going to physically assault Sanelisiwe, because she accused them of saying that she slept with the applicant. She further said that the learners stated that Phathenhle, which is one of the learners, was the one spreading the rumors. She said that Phathehle was not at school that day and therefore told the learners that once she speaks to Phathenhle she will revert to them.

23. Ndebele said that the following day after the lunch break, she heard Sanelisiwe crying. She said that when she questioned her about why she was crying, she said that Minenhle assaulted her. Minenhle said that Sanelisiwe was involving her in her business with the applicant.

24. Ndebele stated that she asked Phathenhle why she was ruining the applicant’s reputation by spreading false rumors about him. Phathenhle answered and said it was not a rumor, because Sanelisiwe confided in her and told her that the applicant raped her. Ndebele and Ms Mqadi (Educator) spoke to Sanelisiwe, and she confirmed that the applicant raped her.

25. Ndebele stated that Sanelisiwe narrated the incident to her and Ms Mqadi and said that her grandmother asked her to go buy food for the pigs and on her way there, the applicant requested her to buy him airtime. When she returned, he asked her to come inside the cottage. He then asked her to show him the burn wound that she had on her thigh. She first refused but showed him the wound. The applicant then told her to lie on the bed. He had sexual intercourse with her, from the front and the back. Ms. Ndebele then told Sanelisiwe to return to the classroom.

26. She further stated that she confronted the applicant about the allegations. He denied it. She said that she told the applicant that she was with Ms. Mqadi when Sanelisiwe told them about the sexual encounter. The applicant went searching for Ms Mqadi. She met Ms. Mqadi and the applicant at the applicant’s office, and they continued to question him about the allegations. She added that the applicant asked them to help him. He was not specific with what, but they assumed that it was regarding the allegations. They told him that it was difficult not to tell the principal, as the rumor had already spread amongst the learners.

27. She stated that at about 2pm, the principal requested to see her. On her way to the principal’s office, she saw Phathenhle leaving the principal’s office. She said that when she arrived at the office the principal told her that Phathenhle told him that Sanelisiwe had been sexually assaulted by the applicant. The principal continued to say that Phathenhle also told him that she informed her and Ms Mqadi about the incident. She said that she confirmed to the principal that this was true.

28. Ndebele said that when she left the principal’s office, she received a call from the applicant. He asked her what was happening. She told him that the learners told the principal everything. The applicant said that Sanelisiwe will speak the truth. She told the applicant that Sanelisiwe confirmed everything to the principal.

29. Ndebele added that on 16 February 2017 she contacted the applicant because he was not at work. She stated that the applicant said that he was unwell and was consulting the doctor. She went on to say that on 17 February the applicant contacted her and asked her if the Circuit Manager visited the school, she said answered no. The applicant then asked if Sanelisiwe grandmother visited the school. She told him that she saw Sanelisiwe and a man standing outside the school gate. The applicant replied and said that Sanelisiwe stays with her granny and that was the last time she spoke to him.

30. Under cross examination Ndebele stated that she had a good relationship with the applicant, and he would normally confide in her when he had problems. She stated the Investigator captured some of the dates incorrectly on her statement, but she rectified this error during the court proceedings. The Investigator only took down statements a month after the incident was reported. She stated that Sanelisiwe initially denied everything.

3rd WITNESS

31. Sanelisiwe Nolisizwe Mfokeng testified and stated that she stayed at Ophepheni with her grandmother. In 2016 and 2017 she attended Eluphepheni Primary School. She further stated that she knew the applicant, as he was an Educator.

32. She narrated the incident and said that: The applicant slept with her in 2016. She stated that she was sent by her grandmother to the shop to collect food for the pigs. The route to the shop goes past the applicant’s cottage. When she passed his cottage, he was sitting outside the yard. The applicant greeted her and asked her where she was going, she said that she was going to the shop, he requested her to buy him airtime. She waited for him outside the door of the cottage. The applicant asked her to come inside. She said that she had a burn wound on her thigh of which the applicant knew about because she was burnt by boiling water at school. The applicant requested to see the wound and she refused. He begged her and she showed him, he closed the door and told her to lay on the bed. The applicant removed her skirt and underwear. The applicant then raped her. She told him that it was painful, he turned her over and continued to rape her. He then stopped and that’s when she dressed herself and left his cottage and proceeded to the shop.

33. She did not tell her grandmother because the applicant told her not to tell anyone. She told her friends at school Nosipho and Phathenhle about the incident. Phathenhle told the principal about incident. She informed Educator Ndebele and Educator Mqadi about the incident. She informed her grandmother about the incident on 15 February 2017, following advise to do so from the principal. She said that her grandmother, Uncle and Uncle’s wife went to the school the following day and spoke to the principal. They thereafter took her to the police station and opened a criminal case against the applicant

34. Under cross examination the witness stated that she was not sure if the sexual encounters happened 18 times. The witness was referred to her statement and the contradiction on how many times the sexual encounters happened, whether it was every day at 15:00 or June to December or three times a month as per her statement, she responded and said that the sexual encounters happened numerous times and not every day. She confirmed that she gave a statement in court.

35. She stated that she was assaulted by Minenhle and not Aphiwe and that she did not tell Aphiwe about the sexual encounter. She further stated that she opened the criminal case against the applicant. She said that her grandmother did not testify or play any part at the criminal case.

The Applicant’s case

36. The applicant called two witnesses, Nokwanda Nzimande and Siyanda Percival Mhlangu.

1ST WITNESS

37. Ms. Nokwanda Nzimande testified and stated that she knew the applicant from 2011. He was the father of her 8-year-old daughter. She stated that she stayed with the applicant from August 2015. She then stated that she stayed with the applicant from August 2016 to November 2016. This was after the applicant had a house break-in and he asked her to move in. She said that during the school holidays the applicant would go home to Durban.

38. Nzimande stated that in the evening they would cook, watch tv and have sex. In the morning she would prepare for the applicant to go to work. She either would stay behind or would go to her place or would go whenever she needed to be somewhere. When the applicant knocked off from work, he would first pick her up from her place and they would go to his place together.

39. She stated that she moved out in November 2016, the applicant’s son came to live with him, to obtain a driving license. She said that in her opinion the applicant did not sexually assault Sanelisiwe, he had no reason to, she was staying with the applicant full time, and they had a healthy sex life. He was never aggressive with her during sex.

40. She also confirmed that it was possible that the applicant would be sitting outside the yard at 15:00. She added that if someone screamed from the inside of the applicant’s cottage, the neighbors would hear.

41. Under cross examination Nzimande confirmed that the applicant financially supported their daughter, and that if the applicant is not reinstated, she will lose that financial support. Nzimande argued that it was not true that she agreed to be the applicant’s witness because she wanted to protect the benefit of her child to get financial support from the applicant.

42. She confirmed that the applicant sold airtime and electricity, and that it was possible that the applicant would run out of airtime. She continued to say that there was no need for the applicant to send Sanelisiwe for airtime, the applicant’s route back home goes pass the shops.

43. Nzimande argued that the sequence of events happened a while back and that’s why she was mistaken about the year she moved in with the applicant. She said that she never left the cottage, the applicant did not rape Sanelisiwe. It was put to the Nzimande that her crucial version was never put to Sanelisiwe, she answered and said it was not easy for the applicant to defend himself and put the version to Sanelisiwe.

2nd WITNESS

44. Siyanda Percival Mhlangu testified and stated that the applicant was his father, and they had a healthy relationship. He stated that his mother is married to the applicant. He went on to say that he was staying at Isipingo Durban with his mother and only stayed with his father when he finished matric in November 2016. He stayed with him because he needed to obtain his driving license. He obtained his learners in November 2016.

45. He said while staying with his father in the morning he would drive him to work and go to driving school. He confirmed that the applicant was selling airtime and electricity. He denied that the applicant sexually assaulted Sanelisiwe. He said that the applicant was a helpful person in the community, He had a good character and was not aggressive.

46. He confirmed that he knew Ms. Nzimande, she had a child with the applicant and that Nzimande stayed with the applicant after there was a break in at the applicant’s place. He said that if someone screams from the applicant’s cottage, the neighbors will hear that person.

47. Under cross examination he stated that he was not aware if a case was opened for the house break in. He stated that the applicant was supporting him financially. He denied that he was a witness because he needed the financial support from the applicant. He went on to say that if the allegations against the applicant were true, the applicant would be arrested. It was put to the witness that the version that he was staying with the applicant was not put to Sanelisiwe, he answered and said “My dad did not rape her. Even I cannot date Sane because she is in junior primary”. He said he does not have proof that he obtained his learners while living with his father.

3RD WITNESS
48. The Applicant testified and stated that he knew Sanelisiwe, he was her grade 5 class teacher. His relationship with her was the same as other learners. The applicant stated that it was painful being falsely accused of rape.

49. He stated that he was friends with most of his relatives, although he is questioning their loyalty, because one of his relatives testified against him in this case.

50. The applicant stated that his relationship with the principal was once good, as the principal’s child stayed with him for seven years. The relationship changed in 2016. He stated that: In September 2016 there were two learners who did not write the exam. It was reported to him that during the exam the learners were playing snooker at the shop. He went to look for the learners and they ran away. When the academic reports were generated, the two learners failed. The principal said that he should pass the learners. He refused and the principal said that he is disregarding his authority. The relationship went sour from that time. He said that another incident which soured the relationship was when the principal accused him of not locking the door of the Admin Department. He was defended by one of the Educators, who said that they witnessed him locking the door.

51. He stated that the allegations against him were a plot. The statement given by the witnesses were contradicting. At the hearing Sanelisiwe stated that he raped her five times, but at the court case she said the encounters happened from June to December three times a month.

52. He confirmed that on 16 February 2017, he reported sick. The following day he received a call from the principal informing him that the investigator contacted him regarding Sanelisiwe’s matter. He stated that he spoke to the investigator, and the investigator advised him to consult an attorney. He went with his attorney to the police station to hand himself over to the police. He stated that he was detained for one day and granted bail.

53. He stated that Ms. Ndebele and Ms. Mqadi approached him after they heard about the matter. Mqadi was his uncle’s wife. The applicant stated that his relationship with Ms. Mqadi was bad. They fought over marks when Mqdi did not submit the learner’s marked tests and all the learners in grade six failed. She accused him of telling the other Educators and exposing her.

54. Under cross examination the applicant was questioned about why he did not put his version to the principal about the incident that soured their relationship, especially since the principal stated that their relationship was good, the applicant answered and said, “He was lying”.

55. It was put to the applicant that most of his evidence was not put to the witnesses and that the only evidence that he has is that this was a plot against him and if so why was Sanelisiwe involved, he answered and said, “These things happen, where a child is used as a tool to fight battles, Sane is lying”. He denied that the evidence given by his witnesses was manufactured. He further denied that when Ndebele and Mqadi spoke to him, he asked them for help. He said that Ndebele wanted to get rid of him to get his position.

56. He denied that he sexually assaulted Sanelisiwe from June to December 2016. He said that during the school holidays in June, September, and December he goes home to Durban. He denied that he threatened Sanelisiwe to not tell anyone about the sexual encounters.

ANALYSIS OF EVIDENCE AND ARGUMENT

57. In disputes such as the present where an employee is dismissed on allegations of misconduct. The onus is on the applicant to establish that there was a dismissal, once the dismissal has been established it is then for the respondent to demonstrate that the dismissal was both substantively and procedurally fair. In the present case, it does not occur to me that there is a challenge on the procedural aspect of the dismissal. The challenge is focused on the substantive aspect. The applicant disputes having committed the misconduct at all. The respondent on the other hand led evidence of witnesses that testified on the misconduct.

58. The applicant was charged for contravention of section 17(1)(b) of the Employment of Educators Act as outlined above. The section states the following:
“An educator must be dismissed if he or she is found guilty of-
(a)…
(b) commiting an act of sexual assault on a learner, student or other employee.”
59. The allegations are that the applicant had sexual relations with a learner. In this regard the evidence must demonstrate on a balance of probabilities that the applicant is guilty of the misconduct for him to have been found guilty on this serious misconduct. Once found guilty it follows from the scheme of the legislative provision that dismissal must follow.

60. In the case of Stellenbosch Farmers’ Winery Group Ltd and Another v Martell et Cie and Others [2003] (1) SA 11 (SCA) the court held that a decision maker faced with two conflicting versions before him, must make a finding on the credibility of witnesses and on the probabilities of the two versions to determine where the truth lies.
61. There are mutually destructive versions that I will have to consider determining whether the dismissal was substantively fair. This will involve the assessment of the evidence tendered before me. I will not repeat the evidence that served before me but will highlight the salient aspects as and when I deem it appropriate to do so.

62. It is important as a starting point to comment on the evidence that was led by the respondent in its endeavor to prove that the dismissal was substantively fair. The respondent led the evidence of three witnesses as outlined above. These witnesses corroborated each other on material aspects, especially on how they became aware of the incident and how the complainant came about to divulging the allegations, as they were at the time. The witnesses appeared to be sincere and were accepting of their shortcomings when they were pointed out. Their evidence was believable and not challenged in material aspects. It was only after the witnesses had left the stand that some contradictory versions then came to light, they unfortunately could not respond to those contradictory aspects as they had come and gone by then.

63. The applicant on the other hand, called two witnesses and testified in person. The applicant’s evidence can be described as wholly defensive and calculated. The witnesses were financially dependent on the applicant for maintenance. They claimed to have been occupying the applicant’s cottage at the time that the incidents are alleged to have taken place. This version was not put to the respondent’s witnesses, crucial as it was, it was not tested and remains doubtful.

64. Section 188 provides that a dismissal is fair if it is effected for a fair reason and in accordance with a fair procedure. A fair reason implies a dismissal for the employee’s misconduct, capacity, or the employer’s operational requirements. An inspection into the reason for the applicant’s dismissal is that he committed acts of misconduct as outlined in the charge sheet.

65. I have not been given enough evidence to doubt that the allegations that were contained in the charge sheet were not true. On the contrary, I find no reason to doubt that the applicant committed the misconduct for which he was charged. He could not explain with sufficient evidence why the complainant would finger him on such serious allegations of misconduct. He further, by conduct, demonstrated some elements of attempting to evade liability by attempting to influence the witnesses of the respondent prior to the internal disciplinary enquiry, but that was unsuccessful. He further challenged the witnesses’ evidence once they had left the stand. This is typical of an individual who creates a version as he hears the evidence. His evidence was wholly unbelievable and left more questions than offered explanations. In this regard, I find that the respondent’s version is more probable and that it has been able to discharge the onus upon it.

66. In the case of McGregor v Public Health and Social Development Sectoral Bargaining Council & Others (2021) 42 ILJ 1643 (CC) the Constitutional Court held as follows:
“…sexual harassment is the most heinous misconduct that plagues a workplace. Its persistence and prevalence pose a barrier to the achievement of substantive equality in the workplace and are inimical to the constitutional dream of a society founded on the values of human dignity, the achievement of equality and the advancement of human rights and freedoms and non-sexism. Not only is it demeaning to the victim, but it undermines their dignity, integrity and self-worth striking at the root of that person’s being.”

67. The context from which the circumstances of this case arose are a typical demonstration of sheer abuse of power and authority. The self-worth and the dignity of the victim was shattered. She clearly will suffer the effect of this experience for some time in the future. I believe that the applicant’s dismissal was appropriate for the misconduct that he committed especially considering the further and lasting effects it potentially has on the victim and on the reputation of the education sector.

68. In Sidumo and Another v Rustenburg Platinum Mines Ltd and Others [2007] 12 BLLR 1097 (CC) the following was held:
“In approaching the dismissal dispute impartially, a commissioner will take into account the totality of circumstances. He or she will necessarily consider the importance of the rule that had been breached. The commissioner must of course consider the reason the employer imposed the sanction of dismissal, as he or she must consider the basis of the employee’s challenge to the dismissal. There are other factors that will require consideration. For example, the harm caused by the employee’s conduct, whether additional training and instruction may result in the employee not repeating the misconduct, the effect of dismissal on the employee and his or her long-service record. This is not an exhaustive list.”
65. I am not satisfied that the applicant laid any foundation in demonstrating that dismissal was not an appropriate sanction for the proven misconduct. In this regard I find that the dismissal was appropriate and fitting for the misconduct that he was found guilty on.

AWARD

I accordingly make the following award:-

1. The dismissal of the applicant was substantively and procedurally fair;
2. The referral is dismissed.

NTOMBIZONKE MBILI
Arbitrator 12 NOVEMBER 2022
ELRC641-21/22