ELRC605-21/22 GP

Case Number: ELRC605-21/22 GP
Panelist : Mathabo Makwela
Date of Award: 05 December 2022

In the ARBITRATION between

SADTU OBO BUSAKWE
(Employee)

And

DEPARTMENT OF EDUCATION: GAUTENG
(Employer)


DETAILS OF PARTIES AND REPRESENTATION

1. This is an arbitration award pursuant to an inquiry by an arbitrator between SADTU obo Busakwe, the employee, and Department of Education: Gauteng, the employer.

2. The arbitration was under the auspices of the ELRC in terms of Section 188A of the Labour Relations Act 66 of 1995 (as amended) (the LRA). Inquiry by Arbitrator.

3. The arbitration hearing took place on 24 February 2022 and 24 October 2022.

4. The employee was in attendance and was represented by Ms. Sindi Mokone, the union representative, while the employer was represented by Mr. John Marakalla, its employee relations personnel.

5. The employer submitted a bundle of documents which was marked as Bundle “R” and was used as a common bundle of documents in these proceedings. The proceedings were digitally recorded and handwritten notes were also taken.

ISSUE/S TO BE DECIDED

6. The issue to be decided is whether the employee is guilty of the sexual harassment allegations proffered against him, and if so, the appropriate penalty should be determined.

BACKGROUND TO THE DISPUTE

7. The parties are SADTU obo Busakwe (the employee) and Department of Education: Gauteng, the employer.

8. This is an inquiry by arbitrator in terms of section 188A of the LRA. The employer has proffered five allegations of sexual harassment against the employee. The alleged acts of sexual harassment were allegedly perpetrated against learners at Voortrekkerhoogte High School, where the employee is working as an educator at PL1. The employee was engaged by the employer on 31 March 2020 and earns R29 400 per month. The essence of the allegations in question are the following:

Allegation 1
It is alleged that between the period January 2020 and May 2021 whilst on duty at Voortrekkerhoogte High School, you sexually harassed LC in that you rubbed your private parts on her whilst she was bent.

Allegation 2
It is alleged that during March 2021 whilst on duty at Voortekkerhoogte High School, you conducted yourself in an improper, disgraceful and unacceptable manner in that you told MM that her legs are hairy, and you wonder how hairy is she on her private parts.

Allegations 3
It is alleged that between the period March 2019 and March 2021 while on duty at Voortekkerhoogte High School, you sexually harassed MM, in that you hugged her and squeezed her butt.

Allegation 4
It is alleged that during the period March 2019 to May 2021, you conducted yourself in an improper disgraceful and unacceptable manner in that you asked MM, when is she going to give you sex.
Allegation 5
It is alleged that during the period March 2019 to May 2021, you told LM that she has grown up and that you needed to take her to your house and that she was sexy.

9. In opening, the employer representative stated that sexual harassment is rife in schools and that the employer has a responsibility to protect learners. The school is affected by the scourge of sexual harassment. The employee was employed in terms of section 17 of the Educators’ Act which provides that:
“serious misconduct
(1) An educator must be dismissed if he or she is found guilty of –
(a) theft, bribery, fraud or an act of corruption in regard to examination or promotional reports;
(b) committed an act of sexual assault on a leaner, student or other employee;
(c) having a sexual relationship with a learner of the school she is employed;…..”

10. There were five charges of sexual harassment proffered against the employee, and the employer was to lead evidence to prove them. The employer sought the dismissal of the employee.

11. On the other hand, the employee stated that he was a dedicated teacher. He acknowledged the high rate of sexual harassment in schools and took note of the fact that other educators were found guilty of sexual harassment. However, teachers should not be painted with the same brush.

PRELIMINARY ISSUES


12. Neither party raised any preliminary point.
SURVEY OF PARTIES EVIDENCE AND ARGUMENTS

The Employer’s Case
Leandra De Villiers (Leandra) ‘s evidence under oath:

13. Leandra testified that she is the principal at the school and her responsibility is to advise and guide learners, ensure academic performance and a professional relationship between learners and educators.

14. She was a witness to an incident on 26 May 2021 and as a result thereof had written a report as it could be seen on R1. On that day, she had heard noise of learners in front of the employee’s class with a dustbin set alight. Learners were demanding that the employee be removed from the school. The learners were complaining about sexual harassment allegedly perpetrated by the employee.

15. One of the learners had said that the employee had come from her backside and rubbed his genitalia against her. The other learner had said that the employee had hugged her and squeezed her butt. The other one said that the employee had said to her that her legs were hairy and was wondering how hairy her private parts were. There was also another learner, LM, who said that the employee said that she has grown up and that he needed to take her to his house. The learners who made allegations of sexual harassment against the employee were asked to come to the hall wherein, in the presence of the HOD Grade 12, Mrs. Maleka, wrote down their concerns. Learning and teaching stopped right then and there as they tried to keep the situation under control.

16. The incident was reported to the Cluster Leader at the Department of Education, Mr. Bodiba and a report to that effect was submitted to him. Counselling was arranged for the learners. Mr. Bodiba contacted the dispute management office and the investigation commenced from that side.

17. The learner, LC on the first allegation against the employee reported the allegation on the day following the incident at the hall. MM raised the two allegations against the employee. MM was initially cooperative but had since indicated that she was not willing to participate in these proceedings and stopped talking to the investigator. R22 is the report written by LC, while R23 is one written by MM and R24 by LM.

18. She has a professional relationship with the educator and holds no grudges against him.


Under cross-examination, Leandra testified that:

19. Learners noise showed that they were unhappy as they sang, burnt a dustbin in front of the employee’s classroom, demanding that action be taken against him and that he be removed from the school. The incident of the employee allegedly rubbing his genitalia against the backside of a learner was on 25 May 2021. On that day learners refused to return to their classes and continued singing loudly. The only complaints against the employee were from those learners in question. Four learners complained of the conduct of the employee and only one learner went for counselling.

LC’s evidence under oath:

20. LC testified that she matriculated in 2021 from the school and knows the employee who taught her Life Orientation from Grade 8 to 10. The employee had rubbed his genitalia against her body without her consent on 25 May 2021. She had, at the school grounds, bent over to pick up her book and to check her next period when the employee approached her backside and rubbed his genitals on her. She had felt his manhood. She felt afraid, sad and depressed at that incident as the employee took advantage of her. She also felt to be of less dignity and value.

21. R22 was the report she had submitted to the principal on 26 May 2021 about the incident. She did nothing to invite what had happened to her. She had viewed the employee as a father and found his conduct unexpected and improper. The employee would look at her as if he was trying to look under her skirt with a creepy stare. The employee has traumatised her. On 26 May 2021 the school rose up against the employee’s actions as learners went on strike burning dustbins. They wanted a solution and learning stopped on that day.

Under cross-examination, LC testified that:

22. The incident happened at the school grounds towards the field gate as the bell had just rung. Approximately 8 learners were the last to leave the field and a teacher would come out to check if all learners had left the field. Her peers were around when the incident happened and they saw what happened. The genitalia grinding happened as she had testified in chief.

23. There were teachers at the grounds, though she cannot remember well, but the employee was the last to go out towards the field gate. The employee never clapped hands for her to rush or said that she was a Grade 12. When put to her that the possibility of the employee grinding himself on her in front of teachers and learners did not happen, she testified that she had just touched the interpreter and the representative did not see because his focus was on something else. She further said teenagers are always focusing on random things, they are either on their cell phones or looking at the trees. Their focus will not be on the next person. Between a student and teachers, the teachers are always focusing on students, it is their job and not learners.

24. The employee did not pass her and did not tell her to go to class. He stared at her lustfully by staring at her lower body parts, private areas creepily. It is not normal for a teacher to stare at a learner as if he wants to sleep with her.

Rijuan Tyrique Crowe (Crowe)’s evidence under oath:

25. Crowe testified that he was a learner at the school, but matriculated in 2021. He witnessed the employee rubbing his genitalia on LC while she had bent at the school sports grounds. He was shocked at the employee’s conduct and he with other learners reported the matter on 25 May 2021. He had written that he was disappointed at the employee who was supposed to act like a father figure.

26. On 26 May 2021 learners went on strike angrily demanding action against the employee and that he be removed from the school. He had also heard about MM’s incident in which the employee was said to have told her that her legs were hairy and wondering how her private parts looked. The girls had told her how the employee was harassing them and he had encouraged them to report the employee. He was very disappointed and disgusted at the employee’s behaviour.

Under cross-examination, Crowe testified that:

27. He was never touched by the employee. The employee has a dodgy character and is not to be trusted. He was about three to five feet away when he witnessed the incident with Lucinda at the sports ground. The employee rubbed his genitalia against LC while bent down. They were a group of approximately eight learners when the incident occurred. He was in front on LC’s left-hand side. LC had stopped and when he looked at her, he witnessed the incident. He saw everything vividly. LC had bent down and the employee brushed her back with his genitalia.

28. He further testified that they reported the incident. He also confronted the employee and asked him to step out of the classroom. He asked the employee why he did the act to LC and the employee had tried to silence him and said that they should deal with the matter privately. The attempt to silence him was a sign of guilt on his part. He could not look at him in the eyes, but he looked like a child that has been caught doing something wrong. He may not be remembering the exact words he had told the employee but he had told him that he was going to expose him.

29. LC was her best friend. He was a member of the Learner Representative Council. Learners that reported the incident were included him, Phindile, Buhle and Amanda. He had encouraged them to speak out. He heard of MM’s incident but did not witness it, though he was present when MM wrote her statement. He had a cousin in Grade 8 who would tell her how the employee looked at girls and touched them. He did not do anything about that because he had not witnessed anything and the employee did not do anything to his cousin. He only heard about three or four incidents relating to allegations against the employee, but had never witnessed those incidents.

The Applicant’s Case:

Busakwe (the employee)’s evidence under oath:

30. The employee testified that he works at the school and for the last five years he has been teaching English and Technology. He also taught Life Orientation in Grades 9 and 10. He knows LC whom she taught Life Orientation at Grade 9. They had a learner-teacher relationship. He knew about the allegation against him involving LC.

31. On 25 May 2021 Crowe confronted him during his last period wanting to talk to him. He was causing a stir and was loud. He asked him what he had done to his friend. He inquired who the friend was. After he told him the name of the learner, he told him that he had sexually harassed her and that he was going to expose him. Crowe was with other learners when he approached him, and after they left, the school was out.

32. He denies the allegation in question, as it did not happen as Crowe had put it. It was after break and learners were already directed to return to their classes. He was with other teachers. One teacher went to the left and the other one went to the right, while the other one went straight.

33. As he moved into the school yard, he saw one learner who had bent down fiddling with her bag and not bothered that the bell had rung. He clapped his hands signaling that it was time to return to class and the learner just stood up and looked at him. He told her that she was a Grade 12 learner but was still at grounds after the bell had rung. He passed her and went to the other group. The group was two or more meters away and moved when they saw him walking towards them. LC went to her class and he continued to his class as well. The group of learners at the sports ground in front and at the stairs could see him and LC depending on where they were looking.

34. He was surprised why LC would accuse him of this allegation. He heard when LC was testifying that something happened to her in the past and had vowed to punish someone who was to do something similar. He denies the allegation and thought he is being used as a punching bag. Crowe accused him because he knows what happened to LC before this allegation. He thought that the allegations were a plot to punish him. He was surprised why only him was accused and not the other teachers. He has never been charged of the same or similar offence in his teaching career.

35. Regarding MM, he knows her as a learner he taught in one of his classes. He does not know anything about the allegations. He only got to know about the allegation when Marakalala gave him the charge sheet. He had a learner-teacher relationship with MM. He has never called MM to assist him with anything. He could have spoken to MM at the field asking her to return to class. He was surprised of this allegations levelled against him as he had never touched and squeezed MM’s private parts and never said to her that he was wondering how hairy her private parts were.

36. He has never touched MM in any form. He thought that when Mr. Crowe said that he has a dodgy character that he was the influencer because of a grudge he had arising from his cousin. The allegations makes him feel emotional as he is a father with the youngest daughter of ten years. He has never conducted himself in a disgraceful manner towards the children that are accusing him of these allegations.

Under cross-examination, the employee testified that:
37. He got to know in this inquiry that one of his colleagues was accused of sexual harassment. On 25 May 2021 he was at work. He knows LC whom she taught at some stage. He had found her at the grounds bent and fiddling with her bag. He clapped his hands and Lucinda raised her head and looked at him. He told her that she should be exemplary as a Grade 12 learner. There were other teacher at the ground. One of the teachers he was with went to the left side , the other went to the right and others went straight.

38. Crowe’s allegations were untrue that he witnessed him rubbing his manhood on LC and that he was 3-5 feet from LC. He denied touching LC’s private parts. The rubbing did not happen. LC did not invite him to approach her inappropriately. He denied that he looked at girls lustfully.

39. A learner being 3-5 feet away can see what was happening between him and LC. Crowe testified that he was 3-5 meters in front of LC. Though, he did not see Crowe on the grounds. LC, also did not testify that Crowe was in front of her. It did not cross his mind to cross examine Crowe on a lot of things.

40. Crowe also testified that he had read the stories of the girls who alleged that the employee had sexually harassed them, and not that the girls had told him (Crowe) stories about him.

41. He denied that he ever hugged MM let alone squeezing her butt. He did not sexually assault her. There was never a day in which he was with MM alone, but has always been with her in the presence of other learners. He has not put undue pressure on MM not to testify in this proceedings. He has never told MM that he wanted to have sex with her. It was creativity at its best from the two witnesses who testified about MM.

42. The learners went on strike on 26 May 2021 and according to the principal, they were unhappy about him. The principal described learners as being unhappy. Learners were coming to his class and the principal advised him to leave the class and to go to her office. He was removed from the situation and the principal and the SMT attended to the learners. He was sent home after the principal had informed him that the leaners were unhappy about him.

43. He learned of the allegations against him when the principal called him to her office to receive the letter on 09 June 2021. A3 and A4 is confirmation to effect cautionary transfer that he received. He has never told MM that she is hairy when wearing a skirt. MM’s statement was false. There was creativity in writing her statement.

44. In closing the applicant’s representative submitted that the first witness Mrs. De Villiers, clearly outlined the applicant’s character and conduct at school. Mrs. De Villiers submitted the following facts:
The applicant has never been charged with any misconduct or a similar misconduct. She never received complaints about the applicant from learners prior to these allegations. The applicant is a disciplined and dedicated teacher. She further outlined the events that happened on the 26th of May 2022 at the school when the learners were on strike.

45. Regarding the testimony of LC, it is not possible that the applicant can sexually harass LC in the presence of other learners who were not far from the alleged incident. Both LLC and Crowe testified that there were other learners around who could vividly see LLC and the applicant when they were at the grounds. They do not believe that the applicant could be that naïve and sexually harass LC in the presence of other learners.

46. LLC did not tell the truth in these proceedings. She is still angry at the person who sexually assaulted her before, and maybe she has anger towards male figures. She thinks that all males are the same, and she is also sensitive and does not feel safe around male figure. They also feel that she has not healed from the trauma of the previous incident.

47. Crowe cannot be trusted as a reliable eyewitness to the alleged incident based on the following reasons:
47.1 He claimed to be LC’s best friend, but he was not mentioned anywhere by LC when she testified.
47.2 We believe that if he was there when the alleged incident happened, LC could have
indicated in his testimony that there was an eyewitness, especially because they are best of friends
47.3 We also note the exact words that was uttered by the third witness when he confronted the
employee saying “What did you do to my friend during break, she told me”.

48. It is clear from this statement that he was not there, he is only trying to strengthen his friend’s case by saying he witnessed the alleged incident.

49. Therefore, we would like the Commissioner to disregard his testimony, because he cannot be trusted as a reliable witness.
50. There was no witness to corroborate MM’s statement. As such, the alleged incident did not happen.

ANALYSIS OF PARTIES EVIDENCE AND ARGUMENTS

51. The issue I am to decide is whether the employee had committed the acts of sexual harassment he is accused of, and if so, to determine an appropriate penalty. In any dismissal proceedings the employer bears the onus to prove that the employee has committed the offence(s) proffered against him. On the other hand, the employee must put a plausible explanation in response to the allegations against him/her.

52. It is not worth reiterating that sexual harassment is a serious offence warranting a dismissal and whether there should be a rule in the workplace regulating conduct in that regard. Simply put, sexual harassment is a horrible act that takes away the dignity of its victim. It can and should not be tolerated in society. Both parties acknowledge that it is rife and that its not an act that should be promoted.

53. Sexual harassment is behaviour characterised by the making of unwelcome and in appropriate sexual remarks or physical advances in a workplace or other professional or social institution. It is an unwelcome sexual advance, unwelcome request for sexual favours or other unwelcome conduct of a sexual nature which makes a person feel offended, humiliated and/or intimidated, where a reasonable person would anticipate that reaction in the circumstances.

54. The Constitutional Court in McGregor v Public Health and Social Development and Others [2021] (10) BLLR (CC) 1131 remarked that sexual harassment has a negative impact on the victim in a variety of ways. Not only is it demeaning to the victim, but it also undermines their dignity, integrity and self-worth, striking at the root of the that person’s being. It strips away at the core of a person’s dignity and promotes a culture of gender-based violence that dictate the lived experiences of women and men within the public and private spaces and across personal and professional latitudes.”

55. Item 3(2) of the Code of Good Practice on Handling Sexual Harassment Cases provides that sexual attention becomes sexual harassment if (a) the behaviour is persisted in, although a single incident of harassment can constitute sexual harassment; and/or; (b) the recipient has made it clear that the behaviour is considered offensive; and/or; (c) the perpetrator should have known that the behaviour is offensive regarded as unacceptable.

56. Item 4 of the Code provides the following as examples of forms of sexual harassment:

(1) Sexual harassment may include unwelcome, physical, verbal, or non-verbal conduct, but is not limited to the examples listed as follows:
(a) Physical conduct of a sexual nature includes all unwanted, physical contact, ranging from touching to sexual assault and rape, and includes a strip search by or in the presence of the opposite sex.

(b) Verbal forms of sexual harassment include unwelcome innuendos, suggestions and hints, sexual advances, comments with sexual overtones, sex-related jokes or insults, or unwelcome graphic comments about a person’s body made in their presence or directed toward them, unwelcome and inappropriate enquiries about a person’s sex life, and an unwelcome whistling directed at a person or group of persons.


(c) Non-verbal forms of sexual harassment include unwelcome gestures, indecent exposure, and the unwelcome display of sexually explicit pictures and objects.

(d) Quid pro quo harassment occurs when an owner, employer, supervisor, member of management or co-employee, undertakes or attempts to influence the process of employment, promotion, training, discipline, dismissal, salary increment or other benefit of n employee or job applicant, in exchange for sexual favours.

57. Section 17of the Employment of Educator’s Act, No 76 of 1998 (herein after “EEA) regulates the misconduct of sexual assault towards learner by educators. The misconduct in section 17 (1) (b) is committed when an educator sexually assaults any child who is a leaner at any school, it is not confined to leaner of the school where the educator is employed. The elements of sexual assault are (a) conduct of a sexual nature (b) which resulted in a victim’s sexual integrity being impaired or inspiring the belief that it will be impaired (c) unlawfulness – meaning that there must not be a justification ground for the action, such as for example consent by the victim (d) intention to commit the misconduct – in other words accidental unintentional bodily conduct is excluded from the definition. Misconduct of sexual nature that does not constitute misconduct in terms of section 17, would generally constitute misconduct in terms of section 18.
58. The employee has been charged with five counts of sexual harassment. I intend to deal with the allegation where direct evidence was led by the respondent. This is in the allegation of sexual harassment against the employee. It emerged in common cause that both LC and the employee were at the sports ground on the day in question at the time of the alleged incident. It also emerged as common cause that the employee had found LC in position where she had bent down and doing something on her bag. It is also common cause that there were other learners in the vicinity of the incident who, by virtue of their distance would have been able to see what happened between LC and the employee.

59. The evidence of LC is corroborated by that of Crowe. Both witnesses’ testimony was consistent in terms of what had transpired on the day. They all testified, as did the employee, that LC was in a bent position. Their testimony, therefore, makes sense that the only place that the employee may have rubbed his genitalia against LC would have been from her backside. The employee has not given a version that he had approached LC from a different side. I, therefore, find it probable that he had approached LC from her back side and thus the consistent testimony that he had rubbed his genitalia against LC’s back is the most probable. As such, committing the misconduct of sexual assault. I cannot see how learners would have risen against the employee for these acts that he did not commit.

60. There is no evidence that suggest that the learners, approximately 100-200 as testified to by Leandra, would demand that action be taken by the school to remove the employee from the school. I also cannot see how Crowe would have approached an innocent employee and blame him for acts of sexual harassment that he did not commit. He could not take his testimony of being used as a punching bag further. I do not comprehend why these learners would only pick on him and not the other teachers that he testified was with on the day at the sports ground.

61. The employee’s denial of the offence on the basis that the learners were creative is rather flimsy, to say the least. His initial vacillation on the question about his knowledge of why the learners had gone on strike and ultimately conceding that learners were angry about him is a concerning factor. A truthful person would have immediately agreed that the learners were unhappy about him but that their unhappiness could not have been founded on the allegations as they put forth.

62. It could not be that it was according to Leandra that the learners were angry about him when he had to be removed from class, was approached by Crowe and that he had to be on cautionary suspension. A truthful and reasonable person would have known and given a clear answer when such question was asked from him in the first place and not to wait for persistent asking of such question to later accept that the learners were angry about him.

63. Crowe was a truthful witness who did not hesitate to answer questions on whether she was a witness to other incidents as alleged in the charges. In instances where he had heard stories, he truthfully stated so and never pretended to have been a witness to an incident in which he was not present. The same cannot be said about the employee who vacillated when asked a simple question as to why the learners were on strike.

64. LC was the victim in this instance and the employee testified that they had a teacher-learner relationship. The latter testimony points to a cordial relationship where nobody holds a grudge against the other and that there is mutual respect between them. I cannot imagine LC making up these stories of her teacher rubbing his genitalia against her butt. No evidence was tendered by the employee or put to LC that she was making all this up for some other mala fide reason.

65. This allegation alone is a classic example of forms of sexual harassment as listed in the Code of Good Practice above. It is a physical conduct of a sexual nature that involved physical contact with the learner. It is, not that any other form of sexual attack belittled, so horrendous when it was perpetrated by what learners regarded as father figure on a child. It brings into sharp focus the vulnerability and protection of female learners against gender-based violence. As remarked by the Constitutional Court, it was not only demeaning to the learner but undermined her dignity, integrity and self-worth. It hit at the root of the learner ‘s being and stripped away the core her dignity.
66. In Liberty Group Limited v M [2017] 38 ILJ (LAC) the accused had touched the complainant, rubbed his manhood against her body and forced a kiss, dispute clear approval from her and this was held to be an act of sexual harassment warranting dismissal. In this inquiry, the employee had rubbed his genitalia against a learner and this is an offence warranting dismissal.

67. The employee was also charged with other acts of sexual misconduct in relation to other learners as in MM and LM. The employer did not secure the attendance of these learners to give evidence in these proceedings. Neither did it call the investigator who would have testified to the interactions with the learners during the investigation and to seek that his evidence be admitted to the extent of its probative value after indicating why the learners in question could not testify. I regard sexual harassment offences as serious and I am inclined not to rule on whether the employee had committed the offences in question or not in the absence of direct oral evidence that has been tested through cross-examination.

68. Based on the foregoing, I find that the applicant has committed an act of sexual harassment against LC. This act of sexual harassment is serious in nature and on its own irretrievably breaks down the employment relationship between the parties. The employee cannot be trusted to be in the vicinity of female learners at school given his conduct.

69. Dismissal with immediate effect is an appropriate sanction in the circumstances. The employer has proven that the employee has committed the offence of sexual harassment against a learner, LC.

AWARD

70. Busakwe had committed the following misconduct:
70.1 Act of sexual assault in terms of section 17(1)(b) of Employment of Educator’s Act, No 76
of 1998 against a child learner, LC.
71. Busakwe’s employment with the employer is to be terminated with effect from 20 December 2022.
72. Busakwe is to be removed and be deregistered as an educator from the Department of Education with effect from 20 December 2022.

Mathabo Makwela
ELRC Panelist