ELRC382-22/23EC

IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD IN EAST LONDON

Case No ELRC382-22/23EC


In the matter between

NATU obo S Kos Applicant

and

Department of Higher Education Respondent
and Training

ARBITRATOR: AW Howden

HEARD: 9 February 2023

DATE OF AWARD: 20 February 2023

SUMMARY: Labour Relations Act 66 of 1995 – Alleged unfair dismissal in terms of Section 191 (1) [191 (5) (a)] – Dismissal related to misconduct.

ARBITRATION AWARD

DETAILS OF PROCEEDINGS AND REPRESENTATION

1. The dispute was scheduled for arbitration in terms of Section 191 (1) [191 (5) (a)] of the Labour Relations Act 66 of 1995 as amended (the LRA) read with Clause 17 of the ELRC Constitution: Dispute Resolution Procedure Annexure C (As amended 26 May 2021). The arbitration commenced on 3 November 2022 and was concluded on 9 February 2023 and was held at Buffalo City TVET College in East London.

2. The Applicant, Mr S Kos, was present and was represented by Mr SB Shakwana from the National Teachers Union (NATU).

3. The Respondent, the Department of Higher Education and Training, was represented by Mr Z Chola from the Corporate Services Department at Buffalo City TVET College.

4. On the last day the parties requested that Closing Arguments be submitted in writing. It was agreed by the parties that Closing Arguments would be submitted by close of business on 16 February 2023.

5. Both parties submitted their Closing Arguments timeously and were taken into consideration when finalising the award.

ISSUES IN DISPUTE

6. I am required to determine whether or not the Applicant’s dismissal was both substantively and procedurally fair.


BACKGROUND TO THE DISPUTE

7. The Applicant was employed by the Respondent as a Lecturer at Buffalo City TVET College in July 2018. The Applicant was dismissed on 26 June 2022 after a disciplinary hearing was held for the charges:

Charge 1: Commits an act of sexual harassment: In that during the month of July 2020 you forcefully kissed a female student of Buffalo City TVET College by the name of Ms Bukho Mbangi at your place of residence, and in so doing you further contravened Clause 3.2.7 of the Code of Conduct of the Department of Higher Education and Training which provides that an employee refrains from any form of sexual relationship with any student at the college where they are employed.

Charge 2: Discriminates against others on the basis of race, gender, disability, sexuality or other grounds outlawed by the Constitution: In that during the month of July 2020 you forced a student of Buffalo City TVET College by the name of Ms Bukho Mbangi at your place of residence to take selfie photos with you that reflects you kissing her, and you were using your cell phone, thereby contravening Clause 3.3.2 of the Code of Conduct of the Department of Higher Education and Training, which provides that a lecturer behaves in a way that enhances the dignity and status of the lecturing profession and does not bring the profession into disrepute.

8. The Applicant seeks re-instatement.

SURVEY OF EVIDENCE AND ARGUMENT

9. The parties have agreed that the following is common cause:
- That the Applicant was employed by the Respondent as a Lecturer at Buffalo City TVET College in July 2018.
- That the Applicant earned R23 686.50 per month.
- That the Applicant was dismissed on 26 June 2022 after a disciplinary hearing for the charges mentioned in paragraph (8) above.
- That the Applicant did not attend the disciplinary hearing.
- That there is a Rule/The Applicant is aware of the Rule/It is a fair Rule and the Rule is consistently applied.
- That the Applicant was only dismissed for Charge (1) and Charge (2). (Page 1 of the Bundle).

10. The issue in dispute is the substantive fairness of the Applicant’s dismissal. The Applicant initially challenged the procedural fairness of the dismissal. During these proceedings the procedural fairness of the dismissal was never challenged by the Applicant and it was then accepted that the Applicant’s dismissal was procedurally fair. The onus to prove shifts to the Respondent.

11. The Respondent submitted a bundle of documents. The Applicant’s Representative challenged the veracity of the documents on pages 10 to 19 of the bundle. None of the other remaining documents were in dispute and it was agreed that these documents’ contents were what they purported to be.

12. At the outset I must point out that this is a brief summary of the evidence which is relevant to the central issues and that I have taken all evidence submitted into account when making my decision.

Respondent’s Submissions

13. The Respondent’s first witness, Ms Bukho Mbangi – Student at the College, after being sworn in stated the following after questions were put to her by the Respondent’s Representative:
- That the Applicant was her English Lecturer in 2020.
- That on 22 July 2020 the Applicant had texted her privately and asked her again to come to his apartment, however she had refused.
- That the Applicant had then said that he would post her medical report and pictures on Facebook.
- That she then went to the Applicant’s apartment where the Applicant had told her she must sleep with him.
- That she had not allowed this and wanted to leave.
- That the Applicant had then said he wants to take pictures of them kissing on his phone which she then did and after that left.
- That the Applicant got her number from the Whatsapp group created for the class.
- That the Applicant had made use of Bolt to get her to his apartment.
- That the pictures were taken in the flat and the Applicant had locked the door.
- That the pictures on pages 11/12 were taken by her with the Applicant’s phone.
- That it was the Applicant in the pictures.
- That the Applicant sent these pictures to her boyfriend who then sent them to her.
- That pages 21, 22 and 23 of the Bundle is her affidavit concerning the incident.
- That she had reported the incident to Cindy (SRC) the following day and a Social Worker, Mr Ndabeni.
- That she then had attended counseling sessions with Mr Ndabeni.

14. The Respondent’s third witness, Mr Samkeno Ndabeni – Social Worker at the College, after being sworn in stated the following after questions were put to him by the Respondent’s Representative:
- That the student Mbangi had visited his office in August 2020 and she had believed that she had been assaulted by her lecturer, the Applicant.
- That he had intervened by offering counseling sessions for the trauma. (Four counseling sessions).

Applicant’s Submissions

15. After being sworn in, the Applicant testified to the following, after questions were put to him by his Representative:
- That the student and her friends were failing his subject and that they had devised a plan to damage his name as a lecturer.
- That he had no knowledge of the Facebook content and that this was a false Facebook page made to look real to sabotage him.
- That he was not in possession of her report, although she had shown him the report.
- That he never used the student’s cell number on the Whatsapp group to send the student private messages.
- That he would never have placed anything on social media with regards to the student, as it would have jeopardized his own job.

ANALYSIS OF THE EVIDENCE AND ARGUMENT

16. It is common cause that the dismissal was procedurally fair.

17. Looking at the substantive fairness of the dismissal.

18. When looking at dismissal for misconduct, one needs to take the Guidelines in Item 7 of Schedule 8 in the LRA into consideration. The aforementioned guidelines are as follows:
(a) whether or not the employee contravened a rule or standard regulating conduct in, or of relevance to, the workplace; and
(b) if a rule or standard was contravened, whether or not-
(i) the rule was a valid or reasonable rule or standard;
(ii) the employee was aware, or could reasonably be expected to have been aware, of the rule or standard;
(iii) the rule or standard has been consistently applied by the employer; and
(iv) an appropriate sanction for the contravention of the rule or standard.

19. It is common cause that there was a rule/standard, the Applicant was aware of the rule/standard, that it was a fair rule/standard and that the rule/standard has been consistently applied.

20. The issues I need to determine is whether or not the Applicant contravened the rule(s) or standard(s) and whether or not the dismissal sanction was appropriate under the circumstances.

21. Looking at whether the Applicant contravened the rule or standard.

22. With regards to the second charge which relates to discrimination.

23. Discrimination is the unfair or prejudicial treatment of people and groups based on characteristics such as race, gender, age, or sexual orientation*.
(*Emphasis added).

24. During these proceedings no evidence in this regard was submitted by the Respondent.
25. I am therefore unable to find the Applicant guilty on this charge and find that the dismissal of the Applicant for Charge (2) cannot be substantiated.

26. With regards to the first charge.

27. In McGregor v Public Health and Social Development Sectoral Bargaining Council and Others (CCT 270/20) [2021] ZACC 14; (2021) 42 ILJ 1643 (CC); [2021] 9 BLLR 861 (CC); 2021 (5) SA 425 (CC); 2021 (10) BCLR 1131 (CC) (17 June 2021) the court held:
“Sexual harassment [1] is the most heinous misconduct that plagues a workplace.”[2] Although prohibited under the labour laws of this country, [3] it persists. Its persistence and prevalence “pose a barrier to the achievement of substantive equality in the workplace and is 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”.[4] Not only is it demeaning to the victim, [5] but it undermines their dignity, integrity and self-worth, striking at the root of that person’s being.[6] Writing in 1989, in its first reported case of sexual harassment, the erstwhile Industrial Court, sounding the alarm that sexual harassment cannot be tolerated, highlighted that “[u]nwanted sexual advances in the employment sphere are not a rare occurrence” and it is “by no means uncommon”.[7] Unfortunately, that truth rings as loudly today as it did then. The only difference between now and then is that today we hold in our hands a Constitution that equips us with the tools needed to protect the rights that are violated when sexual harassment occurs.

28. The witness Mbangi has provided compelling evidence with regards to the treatment she received at the hands of the Applicant, which included threats and sexual harassment.

29. The version of Mbangi was corroborated by the witness Ndabeni, who as a Social Worker, had accessed Mbangi as a person who was struggling with trauma after the incident and even went on to council Mbangi for the trauma.

30. The Applicant has alleged that everything was fabricated and a conspiracy against him by the students who were allegedly failing his class The Applicant however did not provide any evidence in this regard.

31. This would also have had to have been a very elaborate and well planned conspiracy as what reasonable person in their right mind would even think up a “cover story” that included seeing a Social Worker and receiving counseling for trauma.

32. The student Mbangi would also have had to have been a very good actor to fake trauma and to continue faking trauma on an ongoing basis while attending counseling sessions.

33. The credibility of Mbangi as a witness was never really placed in question by the Applicant. Her demeanor and ability to remain consistent with her version, even when compared with her earlier affidavit, did not place her credibility in question during these proceedings.

34. It is further noted that the Applicant’s Representative did not ask the Applicant to comment as to whether it was him, the Applicant, in the photos (Page 11/12 Of the Bundle). The Applicant however did deny it being him under cross-questioning.

35. Looking at the photos which Mbangi had confirmed was in fact the Applicant and herself kissing in the photos.

36. The Applicant’s face is somewhat covered by the text block, however the following observations were made:

- The facial features/nose, etc were the same/very similar to that of the Applicant.
- The beard in the photo is the same/very similar to that of the Applicant.

37. The Applicant made the comment that social media was very easy to manipulate and made to look real. The Applicant however did not provide any evidence in this regard and these comments remain just that, mere comments, which are insufficient at this juncture.

38. The Code of Ethics of the South African Council for Educators (Lecturers) (SACE) where the Applicant would have had to have registered to be a lecturer is also very clear on this point.

39. Based on the above, the submissions of the parties and on the balance of probability, it is my finding that the Applicant had contravened the rule or standard with regards to the first charge.

40. Looking at whether the dismissal sanction was appropriate under the circumstances.

41. In these proceedings the Applicant chose to merely deny everything. Not once did the Applicant accept responsibility for his actions. Not once did the Applicant show any remorse for his actions. It is further my finding that the Applicant has been dishonest in these proceedings.

42. In Department of Labour v GPSSBC (2010) 31 ILJ 1313 (LAC) the Labour Appeal Court confirmed the principle that a sanction aimed at correction and rehabilitation* is of no purpose when an employee refuses to acknowledge the wrongness of his/her conduct. (Emphasis added*).

43. In Department of Home Affairs & another/Ndlovu & others (2014) ILJ 3340 (LAC) it is said that in order to prove that the sanction of dismissal was appropriate, the employer must present evidence to prove breakdown in the employment relationship. Such evidence is not necessary where the breakdown is apparent from the nature of the offence and the circumstances.

44. In this matter the Respondent did not lead any evidence in this regard, however looking at the circumstances surrounding the incident and the serious nature of the misconduct, I believe this is not necessary.

45. In Sidumo and Another v Rustenburg Platinum Mines Ltd & Others [2007] 28 ILJ 2405 (CC); [2007] 12 BLLR 1097 (CC) in terms of the LRA a commissioner has to determine whether a dismissal is fair or not. A commissioner is not given the power to consider afresh what he or she would do, but simply to decide whether what the employer did was fair. In arriving at a decision a commissioner is not required to defer to the decision of the employer. What is required is that he or she must consider all the relevant factors and circumstances.

46. It is not the Arbitrator’s role to determine whether the Applicant should have been dismissed for the misconduct or not, as that is the Respondent’s prerogative. The Arbitrator’s role is to decide whether what the Respondent did was fair under the circumstances. It is my finding that the Respondent had acted fairly under the circumstances when dismissing the Applicant.

47. Taking all this into account, and based on the balance of probability, it is my finding that the Respondent has proven that the dismissal of the Applicant was substantively and procedurally fair.

AWARD

48. The dismissal of the Applicant, S Kos, by the Respondent, the Department of Higher Education and Training, was both substantively and procedurally fair. The application is dismissed.

Panellist: AW Howden
ELRC