ELRC175-22/23 KZN

IN THE EDUCATION LABOUR RELATIONS COUNCIL

Case No ELRC175-22/23 KZN


In the matter between

Department of Education KZN Employer
And
P.G. Sikhosana Employee


ARBITRATOR: R. Shanker

DELIVERED: 16 November 2022




DEFAULT AWARD



DEAILS OF HEARING AND REPRESENTATION
1. This matter was referred to the Education Labour Relations Council (ELRC) in terms of section 188A of the Labour Relations Act 66 of 1995, as amended, and was set down for an Enquiry by Arbitrator process on 08 November 2022 at the Department of Education in Ladysmith.
2. The employer, Department of Education KZN, was represented by M. Mtetwa.
3. The employee, P.G. Sikhosana (“Sikhosana”) did not attend the process. I was satisfied that notice to attend this process was sent timeously to the employee and his union by email. In the absence of any application for postponement, I proceeded to arbitrate the dispute.
4. The matter relates to the sexual harassment of a learner who is a minor. In accordance with the protection of the rights of minors, the identity of the learner will not be disclosed. I will refer to her as “the Learner”. Evidence was given via an intermediary an interpreter.
ISSUES TO BE DECIDED
5. The issue to be determined is whether Sikhosana committed the misconduct as per the charges set out below and, if so, to determine an appropriate disciplinary sanction.
Charge 1: It is alleged that on or about 2020 to February 2022 school terms, you allegedly committed an act of sexual assault on the learner, a Grade 9 learner at the school, in that you summoned her to your office where you lifted her skirt and touched her private part, you unzipped your trouser and showed her your penis. You thus committed an offence in terms of Section 17(1)(b) of the Act.
Charge 2. On or about 2020 to February 2022, you allegedly intimidated the learner by showing her your gun (firearm) and telling her that if she reports you, she will find herself repeating the grade and she will lose her life and lives of her family members. You thus committed an offence in terms of Section 18(1)(u) of the Act.
Charge 3. You allegedly whilst on duty carried or kept a firearm or other dangerous weapon on State premises, without the written authorisation of the employer. You thus committed an offence in terms of Section 19(1)(x) of the Act.
6. For the purposes of this process, the employer proceeded with the sexual misconduct set out in the charges above and the threats that the employee had made on the learner.
BACKGROUND TO DISPUTE
7. The employer called one witness, the learner, in support of its version that the employee committed acts of sexual misconduct as set out in the charges above. The employee was not present and therefore did not testify.
8. As relief, the employer requested that the employee be dismissed.
SURVEY OF EVIDENCE AND ARGUMENT
9. The Learner testified that Sikhosana was the principal at the school. She is currently a grade 9 learner at another school. She left her previous school because of various incidents of sexual harassment and intimidation by the principal.
10. In 2020, she first met Sikhosana when she was in the car park when he called her and ask her who she was, where she stayed and various other questions. Before leaving, he told her she must come to his office.
11. The following day he sent another person to call her to his office. When she went to his office, he switched off the overhead camera and ask her to sit next to her. He got close to her, unzipped her skirt and put his hand inside her skirt and on her thighs. He also put his hand on her chest but did not touch her breasts.
12. The following week, he called her to his office again. He again put his hand on her thighs. He was seated on a wheelchair. He lifted himself and pulled his pants off to reveal his penis. As he did so, he pulled a gun from behind him and placed it on his lap. He asked her to come and touch his penis. She refused. He then told her that if she reported this matter at home, she will find herself repeating the same grade or that she and her parents would lose their lives. She went out and ran away.
13. She was going to tell the teacher that normally gives her a lift but before she arrived at that teacher’s door, a tall man carrying a gun stopped her and told her that if she talks at home or to anyone else, she will find herself dying. He then left. She did not tell the teacher what had happened to her.
14. The following day, another learner told her that a teacher wanted to see her at the principal’s office. She went to his office, entered and sat down. There was no teacher there. The principal came in behind her and closed the door. He got close to her and unzipped her skirt. He again put his hand on her thighs but this time, he reached up until he touched her private part. He then asked her when she was going to come to his home. She zipped her skirt and ran out of his office.
15. In 2021, he called her to his office again. He put his hand on her thighs and told her very soon he would be teaching her. Some days later, he came to her class to teach creative art. She was seated at the back of the class. He approached her and put his hand on her thighs (over her skirt). When the class was over, he asked her to collect the books and take it to his office. When she got there, he told her that she can’t run away from him.
16. The following day he came in with an angry face and called her to his office. When she got there, he closed the door and asked her to sit down. He got close to her and said “you beautiful” and he referred to her as “love”. He took out R200.00 and gave it to her. She didn’t take it and he told her “You full of yourself”. She left.
17. After a long time, he called her to his office again. She sat down and he put his hand on her thigh. At that time, a teacher nocked at the door. He removed his hand and called the teacher in. He told the teacher that she was no longer doing her schoolwork. She was then asked to leave his office.
18. On another occasion, he called her to his office and brushed her thighs (over her skirt). As she opened the door to leave, he put his hand on her bum. On another occasion, the teacher that normally gives her a lift was not available and the teacher asked the principal to give her a lift. The principal asked to sit at the front seat. Whilst driving, he put his hand on her thighs and asked her when she was going to visit him. He also asked her if she had ever slept with a male person. She didn’t respond to his questions and they eventually reached the bus stop.
19. She didn’t go to school for the next two days thereafter. The teacher that normally gives her a lift called her grandmother and asked why she was not coming to school. When her grandmother asked her why she did not go to school, she told her grandmother that she took a bus to school. When she went to school the next day, the same teacher asked why she didn’t come to school, why her eyes were swollen, why she was losing weight and why she was not doing her schoolwork. She did not respond. The principal called her to his office and asked her why she was not coming to school. He reminded her that if she told her grandmother, she would repeat the grade.
20. A week later, he called her to his office again. He came close to her and tried to kiss her. She turned her head. He took off his pants and asked her to come and sit on top of him. She looked at him. He said everything he asks her to do, she doesn’t do. She then left.
21. In 2022, students were making noise in class. She met the principal whilst she was going to find the teacher. He told her to go and fetch his stick from the office. She went to his office but could not find a stick there. He followed her to his office but before she could leave, he put his hand under her skirt and touched her bum.
22. She fainted at school on one day and found herself in the sick room when she awoke. Sometime thereafter she decided to tell her friend. They went and reported the matter to Ms Khumalo who called her grandmother to school. They thereafter opened a case with the police.
ANALYSIS OF EVIDENCE AND ARGUMENT
23. In this matter, I have heard the evidence of the Learner only. She was a credible and reliable witness. She gave a precise and detailed account of what had happened and there was absolutely no reason to believe that she was not being honest and truthful. There was also nothing inherently improbable in her version. I accept her version that she was sexually assaulted by the principal, Sikhosana.
24. I find that Sikhosana committed the misconduct in terms of Charge 1 and 2 and thereby contravened section 17(1)(b) of the Employment of Educators Act. The employer did not pursue Charge 3 at this hearing.
25. Any misconduct of a sexual nature by an educator on a learner is regarded by the Act as serious misconduct for which dismissal is a mandatory sanction. Having regard to the egregious nature of the sexual misconduct, the repeated and sustained harassment of the learner over a two year period, the nature of the threats she was subjected to, the emotional and psychological impact such conduct had and will continue to have on the learner for years to come, this is one of the worst possible forms of sexual misconduct that an educator could inflict on such a young learner.
26. I find that dismissal is an appropriate sanction and that Sikhosana should never be allowed to work with learners and/or children in the future. Educators are employed in a position of trust and work closely with learners. Section 28(2) of the Constitution imposes a duty on all of those who make decisions concerning a child to ensure that the best interests of the child enjoy paramount importance in their decisions. Courts and arbitrators are bound to consider the effect their decisions will have on the lives of children, not only in the life of the child who is a victim of sexual misconduct but also the lives of children in general who have the right to be treated with dignity, respect and without emotional and/or physical abuse.
AWARD
27. In the circumstances I make the following award:
27.1. The employee, P.G. Sikhosana, contravened section 17(1)(b) of the Employment of Educators Act, 76 of 1998.
27.2. The employer, Department of Education KZN, must immediately impose the sanction of dismissal on P.G. Sikhosana in terms of section 17(1) of the said Act.
27.3. The ELRC General Secretary must forward this award to the Department of Social Development for P.G. Sikhosana’s name to be included in the National Child Protection Register as unsuitable to work with children and to the SA Council for Educators (SACE) for appropriate action.


______________________________ Raj Shanker
Senior ELRC Arbitrator
Kwazulu Natal