ELRC 878-21/22 GP

IN THE EDUCATION LABOUR RELATIONS COUNCIL

HELD ONLINE
CASE NO.: ELRC 878-21/22 GP
In the matter between:-
MOSES SIPHIWE GAMADE APPLICANT

and

DEPARTMENT OF EDUCATION- GAUTENG RESPONDENT
ARBITRATOR: MMAMAHLOLA GLORIA RABYANYANA
HEARD: 19 September 2022 and17 January 2023
CLOSING ARGUMENTS: 24 January 2023
DATE OF AWARD: 06 February 2023
SUMMARY: Labour Relations Act 66 of 1995 –Section 186(2)(b) – Unfair Labour Practice relating unfair sanction of 2 months.

ARBITRATION AWARD

DETAILS OF HEARING AND REPRESENTATION
1. An online arbitration hearing was held on 19 September 2022 and 17 January 2023.The Applicant was represented by Mr M.B Sago, an attorney. The Respondent was represented by Mr Modise, its Labour Relations Officer. The proceedings were recorded digitally. The parties were given until 24 January 2024 to submit their closing arguments. The proceedings were digitally recorded. The respondent ‘s bundle is marked “R”.
BACKGROUND TO THE ISSUE
2. The Applicant had referred a dispute of unfair labour practice relating to an alleged unfair sanction of two months suspension. The dispute could not be resolved and a certificate of outcome of conciliation to that effect was issued. The Applicant then requested that the dispute be arbitrated.
ISSUE TO BE DECIDED
3. I am required to decide whether the Applicant committed the offences and
if the denial of postponement was fair. Furthermore, the appropriate relief should I find in favour of the Applicant. The Applicant seeks compensation of two months’ salary which is equivalent to the period of suspension.

AGREED FACTORS
4. The parties agreed to the following factors as being common cause:-
4.1 The Applicant is an educator at Mohlodi Maritime School;
4.2 He was found guilty of the counts as per the charge sheet;
4.3 He was issued with a sanction of two months’ suspension, which was implemented;
4.4 His salary is R 28 247,47 per month;
4.5 He was aware of the rules, the rules are reasonable and consistent application of same is not in dispute;
4.6 He was represented by SADTU Union official in the hearing and elected not to participate;
4.7 Sanction is not in dispute.

SURVEY OF ARGUMENTS AND EVIDENCE
5. Moses Siphiwe Gamede testified that during the hearing he was not afforded the opportunity to state his case and to challenge the Respondent’ witnesses. On that day there was an incident at school that adversely affected his union representative’s state of mind. When he requested postponement, it was
refused. His representative advised him to sit in the hearing without
participating. He could not present his case as he relied on the representative.

6. He denied committing the offences. The matter was reported in November 2020 after the protection order was granted against him.

7. During cross examination he said his representative advised him not to participate in the hearing after postponement application was refused. He understood that he was found guilty because he did not rebut the Respondent’s evidence and state his case.

8. He did not know the learners because in March 2020 there was a lockdown. He was with them only in January and February. He denied that he told Modiehi that “sex was written on her face”. He further denied that he made the girls to kneel in front of the boys with their bums facing the boys. He is married with two boys. He denied that he told Modiehi that he was married and did not want to see her thighs and moved her to the back. Modiehi knew that he was married perhaps because of a ring on his finger.

9. Kefilwe Mako testified for the Respondent that the Applicant was his Grade 8 and English educator in 2020.When they started Grade 8 with Modiehi, the Applicant did not like them at first sight. He spoke ill of them. He said they liked boys and that sex was written on their forehead, He paraded the boys in the class and said that the boys were too old for Modiehi and her.

10. The other day he chased the girls out of the class and made them stand in the rain. When the rain stopped he called them back and ordered them to sit in front of the boys. He said Modiehi and her were even wearing short skirts. Most of the learners were afraid of him.

11. During cross examination she said the Applicant did not like girls. He treated girls badly. He gave them ugly looks. He told them that sex was written on their faces. It was a day after he saw them walking with the two boys after school. The incidents took place within four months or less since the school opened. The utterances embarrassed and belittled them. They did not report him but informed their parents on the day of the incidents.

12. He made them stand in the rain and told them he wanted them to get wet. When the rain stopped he allowed them in the class but made them kneel in front of the boys. They were not comfortable because their skirts were short and wet. When they realized that he was continuing with his behavior Modiehi’s parents reported him.

13. Buti Reuben Butana testified for the Respondent that he was Modiehi’s father. She was always complaining about the Applicant, that he was harassing her daughter. Further that she was opening legs at school and swearing at her in front of other learners. He reported him to the principal. When he did not hear anything from the principal, he sought an interim protection order. The Applicant challenged it but was not successful as the final order was granted against him.

14. During cross-examination he said Modiehi complained many times before he decided to report him to the principal. He could not recall when he reported. It could be in 2019 or October 2020.

15. Modiehi Leoane testified that the Applicant uttered nasty stuff to them. He did not like them first time he saw them. He treated them badly. At one point he told them that sex was written on their foreheads. He said he could see it because they were teaching other learners about sex. One day he ordered them to stand in the rain. He made them kneel in front of the boys in the class despite their short skirts.

16. They became aware that he was married when he said she should stop looking at him like he was her boyfriend because he was married. They reported the incidents to their parents, but was not attended. She could not remember the months in which the incidents took place because it was long time ago in 2020 whilst they were in grade 8. However, it was between January and March. He made them kneel in front of the class following seeing them walking with two boys after school the previous day. She did not remember when exactly she reported him to the parents.

CLOSING ARGUMENTS

17. The Applicant’s representative argued that Modehi did not know which month the incidents took place. Modiehi and Kefilwe ‘s testimony was contradictory. His father was evasive and testified that he reported the incident to the principal in October 2019. Further that the incident took place in October 2020, which was a contradiction because when a version was put to him that the Applicant did not teach grade 8 after lock down he said he did not know.

18. The alleged misconduct could not have persisted because most part of the year 2020 was under lockdown. It is unbelievable that Modiehi’s parents reported the incidents to the Principal and was not attended to. The principal got to know about the issue when the police came to serve the Applicant with the protection order. It was a plot to tarnish the applicant. The Respondent failed to discharge its onus.


19. The Respondent’ representative argued that the Respondent had proved that the Applicant committed the offence of telling Modiehi Leoane and Kefilwe Mako that sex was written on their foreheads and why Modiehi was looking at him as if she was his girlfriend and he is married. It has been proved, further that he made them to stand outside the classroom while it was raining and also made them to kneel down in the classroom in front of the boys.

20. The Applicant was present during the hearing and opted not to testify nor to cross examine witnesses. The offence was very serious such that it went to court and he was issued with warrant of arrest suspended for five years. The learners corroborated each other with no contradictions. His actions were inappropriate and must be condemned. The Respondent prays that the decision of the Respondent be upheld.

ANALYSIS OF EVIDENCE AND ARGUMENT

21. The Applicant bears the onus to prove that the respondent committed an act of
unfair labour practice. The Applicant conceded that he took the advice of his union representative of not participating in the disciplinary hearing proceedings. The Applicant was ill-advised as he had waived his rights to be heard and challenge the Respondent’s witnesses.

22. It is trite law that postponement is not a right but an indulgence. There is no evidence before me proving that a denial of postponement was unjustifiable. The state of mind of the union’s representative is not proven. Therefore, I do not find any flaw in the procedure.

23. The testimony of Modiehi Leoane and Kefilwe Mako that the Applicant told them that sex was written on their foreheads is consistent with no contradiction. The Applicant’s defence is a bare denial and does not assist his case. They further testified without contradiction that he made them to stand outside the classroom in the rain and also made them to kneel down in the classroom in front of the boys, with their bums against the boys.

24. The Applicant’s defence is that the witnesses did not remember the months during which these incidents took place. It became clear from the learners’ testimony that the incidents that are the subject of the sanction that I am determining, took place between January and March 2020. They happened in the beginning of the year, before the lock down which took place in March 2020. There was no contradiction.


25. The contradiction as to Modiehi’s father, Mr Butana in relation to when the incidents took place is immaterial. Such cannot assist the Applicant’s case. The dispute is about whether he committed these offences, not so much about when the learners reported to their parents and when the parents reported to the principal. Same applies to how the parents reported the incidents to the principal.

26. The other incidents which might have persisted do not form part of what the Applicant was sanctioned for. Therefore, are rendered irrelevant and the Applicant’s argument in this aspect is disregarded. Gleaning from the learners’ testimony the incidents that are the subject of this dispute did not take place more than once. Persistency referred to by the learners is in relation to the Applicant’s conduct towards them, as there would be one incident following the other. It is not that these incidents in particular, continued to happen.

27. Modiehi further testified that the Applicant asked her why he was looking at him as if she was his girlfriend and he is married. Further that he did not want to see her thighs and moved her to the back of the class and that they were teaching other learners about sex. The Applicant’s defence is bare denial. The incidents took place in the present of other learners. The Applicant did not provide an explanation why he failed to call some of these learners to testify in his favour, if indeed the Modiehi and Kefilwe are lying.

28. The court in the Bargaining Council for furniture Manufacturing Industry, Kwazulu- Natal v UKD Marketing CC and Others (2013) 34 ILJ 96 (LAC) ruled that an adverse inference should be drawn from a party’s failure to call a witness that the evidence that party faces must have been of such a nature that, at the time the other party closing its case, there was sufficient evidence to enable the court to say, having regard to the absence of any explanation, the other party’s version was more probable than not.

29. The Applicant’s legal representative was aware from the inception of
the proceedings that the issue in dispute is whether the Applicant committed
the offences or not. He elected to not call some of the learners who were present to corroborate his denial.

30. The evidence of these witnesses was important to elucidate the fact that he
did not commit the offences. The only inference I can draw from his failure to
call these witnesses is the fear that their evidence will expose facts
which are unfavorable to his case. Modiehi and Kefilwe’s testimony is
corroborated by the final protection order that was granted against the
Applicant.

31. The Respondent discharged its onus to prove that the applicant committed the
offences. The applicant failed to prove that the respondent committed an act of
unfair labour practice. The sanction is not in dispute.

AWARD

32. The Respondent did not commit an act of unfair labour practice.
33. The dispute is dismissed.

Signed and dated at Pretoria on this 06th day of February 2023.

M.G Rabyanyana
ELRC Panellist