ELRC 621-22/23 GP

IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD AT JOHANNESBURG

CASE NO.: ELRC 621-22/23 GP
In the matter between:-
MEYERS S. EMPLOYEE
and
GAUTENG DEPARTMENT OF EDUCATION EMPLOYER


ARBITRATOR: MMAMAHLOLA GLORIA RABYANYANA
Heard: 05 December 2022
Mitigating / Aggravating Factors: 12 December 2022
Date of Award: 18 January 2023


SUMMARY: Labour Relations Act 66 of 1995 –Section 188A : Enquiry by Arbitrator.

AWARD


DETAILS OF HEARING AND REPRESENTATION

1. The enquiry was held on 05 December 2022 at the Employer’s Marshalltown offices in Johannesburg.

2. The Employee,Mr Steven Reuben Meyers was represented by Ms R. Visagie a union official of NAPTOSA. The Employer was represented by Ms E.Ramaru from the department. The proceedings were recorded digitally. The parties were given until 12th 2022 to submit aggravating and mitigating factors.

CHARGES PROFFERED AGAINST THE EMPLOYEE
3. The employer had levelled the following charges against the employee:

Allegation 1

3.1 It is alleged that on 20 July 2022,or anytime incidental thereto, as an educator at E.P. Baumann Primary School,you sexually assaulted learner a learner, RTA,a learner at Roosevelt High School,by touching his thighs and penis at his home.
In view of your actions,you are thus charged with misconduct in terms of Section 17(1) (b) of the Employment of Educators,Act 76 of 1998 as amended.

4. The Employee voluntarily without duress pleaded guilty to the charge with full understanding of the seriousness of the offence.I cautioned him about the seriousness of the offence and its sanction. I satisfied myself that he understood the charge, its seriousness and the sanction it carries. I was satisfied that his sexual conduct which was unlawful, resulted in victim’s sexual integrity being impaired and that his conduct was intentional. Therefore, I found him guilty as charged. He apologized to the victim and his parents for his deeds on record.

5. It is common cause that the Employee is the uncle of “RTA”, the victim and a teacher at E.P Baumann Primary School. RTA is a learner at Roosevelt High School. The victim was 15 years when the incidents took place.

6. It is common cause that Mr Meyers committed the four offences on on separate occasions.Mr Meyers was the victim’s maths tutor. During the lessons at the victim’s home,Mr Meyers would put his hand on the victim’s thighs and moving it slowly to his private part and grabbing his penis hard.When the victim’s dad walks into the room, he would immediately stop and continued with the lessons.

7. The victim would push his hand away, until one day he reported the incidents to his brother.The brother informed the father, who reported a criminal case with SAPS.

ISSUE TO BE DECIDED
8. I am required to determine the appropriate sanction.

MITIGATING FACTORS:

9. Mr Meyers’ representative submitted that he has been a dedicated educator for 5 years with a clean record. He has been a loyal employee who would not intentionally bring the name of the Department of Education into disrepute. His unblemished disciplinary record shows that he has a very high regard for authority and values for his profession.

10. He has shown a great deal of genuine remorse, through his words and actions. He admitted guilt and did not waste this Council’s time and placed the minor child and his parents in more anguish. He diligently complied and cooperated with the district in a professional and dignified manner. This exhibits that there has been introspection from his side and remorse. He intends on pleading the same in the criminal proceedings.

11. As one of his bail conditions he is only allowed to attend work and has no contact with the minor child. He was placed on a precautionary transfer to the Johannesburg North District on 20 September 2022 from EP Baumann Primary.

12. He is a passionate educator who is highly respected by learners, teachers and the broader school community.He was very committed to his learners teaching them innovative ways to do mathematics, a subject most struggle with.
13. He completed his Honours in education and was busy with his Masters in education.The incident halted his studies. His goal in furthering his studies was to gain more knowledge and research in how to effectively teach the African child to be global citizens. He believes in making a difference in the lives of his learners, teachers, parents and members of the school community.

14. He assists his single parent father financially tosupport his family.His salary is his only source of income and depends on it. He was diagnosed with Biopolar mood disorder in 2016 and has been on treatment since then. He needs his medical aid in order to continue his treatment. The diagnosis was made after the death of his mother wherein he suffered a manic psychosis.He lost touch with reality for nine (9) days and was in a treatment facility for five (5) months.

15. Prior to the offence he suffered from major depression for which he was hospitalised in a psychiatric facility. He was discharged from the psychiatric facility one week prior to the incident. He is still undergoing psycho - therapy as part of his treatment.

16. He pleads for a progressive discipline which emanates from the rehabilitative approach to sentence or sanction.

AGGRAVATING FACTORS:

17. The Employer’s representative submitted that Mr Meyers pleaded guilty to the charges of sexual assault of a of learner.The employer takes the offence in a very serious light as it carries a mandatory sanction of dismissal. It is a violation of the SA Constitution, EEA and SASA in terms of how learners are to be treated.

18. Parents send their children to school with the belief that they will be in the safe hands of educators. The general public adopts the same view, that schools are places of safety for learners. The Department is entrusted to restore the public’s faith where breaches occurred. A dismissal is an appropriate sanction in such serious misconducts.

19. Mr Meyers showed remorse and accepted that his conduct of sexually assaulting the learner was wrong.However, I should not consider the guilty plea in determining the sanction. Consistency must be applied with regard to the delinquency of this nature. Other educators who committed the same or similar offence were dealt with accordingly and dismissed.

20. The Employer’s plea is that a clear message should be sent out to all employees who might want to emulate his action. It must serve as a lesson to Mr Meyers and other Educators.Therefore the Employer request that the appropriate sanction is dismissal.

ANALYSIS OF MITIGATING AND AGGRAVATING FACTORS


21. In terms of Section 17 (1) (b) of the Employment of Educators Act of 1998 “Act”, an appropriate and mandatory sanction for a sexual assault of a learner is dismissal. Therefore, the offences that Mr Meyers committed carry a mandatory dismissal sanction.

22. In the light of the seriousness of the offence and the mandatory sanction it carries, I have no discretion to impose any other sanction, despite Mr Meyers’s mitigating factors. He committed the offences against a young adolescent boy. He was looking upon Mr Meyers as an uncle and a tutor. RTA and his parents had vested their trust on him, to take RTA through the challenges he had in Maths and was hoping to excel or do better in the subject. However, the outcome did not only destroy the trust relationship.However,it had injured the victim emotionally and psycholically. His actions are seriously harmful and destructive.

23. He had ashamedly violated the victim’s constitutional right to dignity and education. He exposed the young man in a way that no mitigating factor would stand the test of time.He abused his position and skill as a Maths educator to prey on the innocent child.

24. A single offence is sufficient for dismissal. However, it happened on four separate occasions, not once. He pleaded guilty to four incidents. He made it a habit to prey on this young boy to satisfy his lustful needs.Had the victim not report the incidents to his brother, it would have perpetuated.Therefore, the seriousness of the offences and the damage caused outweigh the remorse that he showed by pleading guilty and apologising.

25. Indeed he did not waste the employer’s and Council’s time and averted further emotional torture on the victim by pleading guilty. The victim and his parents had to attend the enquiry,at the time his peers are preparing for school holidays. This had make him replay the incidents, to a certain extend in preparation for the hearing. This could have been averted if Mr Meyers behaved in the manner he was expected as an educator.

26. Mr Meyers’ alleged psychological condition and history, even if proven would not justify his actions and would not change the mandatory sanction. He committed the offences whilst in sound mind, that his actions were wrong.This is supported by the fact that when the victim’s father walked in the room’he would immediately stop the sexual assault and continued with the lessons.

27. His actions negate what his alleged goal of furthering his studies to gain more knowledge and research in how to effectively teach the African children to be global citizens and his beliefs of making a difference in the lives of his learners, teachers, parents and members of the school community. In essence,the difference he is making, is adverse.

28. Mr Meyers should have thought about his financial situation before he committed this horrendous action. The damage caused to the victim cannot be weighed against his financial loss.I accept and appreciate his co-operation with the Employer. However, the Act and the seriousness of the offence, which is prevalent in society dictate that the appropriate sanction is dismissal.


29. I agree with the Employer that I must send a strong message that should deter potential transgressors from committing this horrendous act.The objective is to protect and saveguard the future and dignity of young learners.

30. Mr Meyers had committed the offences on four separate occasions with no intention of refraining from same,until the victim reported the incidents. The victim pushing of his hand away from the private parts failed to deter him from repeating the act. It was not an isolated incident but a habit. In my view, Mr Meyers as an habitual offender, I find him unsuitable to work with children. I invoke Section 120(2) of the Children’s act No 38 of 2005 to declare him on my own accord, unsuitable to work with children. Therefore,Mr Meyers’ name must be entered in Part B of the National Child Protection Register, in terms of Section of 122 of the children’s Act.


FINDING

31. The Employee is found guilty of sexually assaulting a learner
and the appropriate sanction is dismissal.

32. Steven Reuben Meyers is not suitable to work with children. His name must be entered in Part B of the National Child Protection Register.

Signed and dated at Pretoria on this 18th day of January 2023.


MG Rabyanyana
ELRC Panellist