ELRC 553-22 23 GP

SEC 188A-INQUIRY BY ARBITRATOR

Case Number: ELRC 553-22 23 GP
Part Time Senior Panelist: M.A. HAWYES
Date of Award: 13th March 2023

In the ARBITRATION between

Gauteng Department of Education

(Employer)

And

S.Moroke

(Employee)

Union/Applicant’s representative:
Union/Applicant’s address:

Telephone:
Telefax:
E-mail:

Respondent’s representative:
Respondent’s address:

Telephone:
Telefax:
E-mail:

DETAILS OF HEARING AND REPRESENTATION

1. The case was scheduled for an inquiry by arbitrator at the ELRC Head Office at 261 West Street, Centurion on the 20th January 2023, 27th February 2023 and finalized on the 28th February 2023.
2. After completion of the inquiry the parties requested the opportunity to submit written closing arguments by the 7th March 2023. The closing arguments were timeously received and my award now follows.
3. Mr. S.J Mkwanazi, a union official from SADTU, represented the employee.
4. Ms. G.M Mabeta, a labour relations official, represented the employer.
5. The proceedings were digitally recorded and long hand notes were also kept of the proceedings. Both parties each made use of small bundles of documents.
6. An intermediary and interpreter assisted the minor witnesses and the said witnesses testified remotely from the hearing room where the arbitration hearing itself took place.

ISSUE IN DISPUTE
7. The employee pleaded not guilty to three counts of alleged misconduct in terms of section 18 (1) (q) of the Employment of Educators Act, 76 of 1998 (as amended) (EEA).
8. It is common cause that the employer employs the employee as a PL1 educator at Refalotse Primary School.
9. It was alleged firstly that during the period of July 2022 the employee conducted himself in a disgraceful unacceptable and improper manner in that he sexually harassed a Grade 5 (B) learner LK, in that you smeared Vaseline on her lips and subsequently instructed her to kiss her.
10. Secondly, it was alleged that during July 2022 while on duty at Refalotse Primary School, you sexually harassed L K in that you winked an eye at her in class.
11. Thirdly, it was alleged that on the 30th August 2022, whilst transporting learners from Tshwane West District office to their homes in Winterveld, you sexually harassed LK in that you brushed the palm side of her hand and attempted to kiss her.


SURVEY OF THE EMPLOYER’S EVIDENCE AND ARGUMENT

12. The employer led the evidence of three minor witnesses namely the complainant LK and her two best friends and grade 5 classmates TZ and NN. The Respondent also led the evidence of various educator witnesses namely Mr. S. Mhlanga (Social Sciences and English PL1 educator at Refalotse Primary School), Mr. Victor Nyathikazi, PL2 HOD for Languages and Social Sciences at Refalotse, Mrs. N.E Ngidi, Deputy Principal and at the time of the events in question Acting Principal at Refalotse and Mrs. M.J Motsepe PL 2 HOD for Mathematics and Social Sciences.
13. Mrs. Portia Khanye, LK’s mother also testified under oath. Mrs. Khanye testified with the assistance of a Zulu interpreter.
14. LK commenced her testimony by relating the events that pertained to the third allegation of misconduct. LK that she formed part of a play called Sarafina as part of the Segarona District Competition at the local District office. The event took place on the 30th and 31st August 2022.
15. The employee was the one driving the pupils to the District office and back to their homes on both days.
16. LK testified that they were mistakenly taken to the District office on the 30th August 2022 only to be told that their group was only performing on the next day. They were immediately taken back to school and caught their normal transport back home.
17. The following day the employee transported LK and the other minor witnesses to the District office and they only returned home late in the evening.
18. The employee began dropping the learners off in order where the road was closest to their homes. This included learners Nomalange, Lihle and herself.
19. LK asked to be dropped off at Randwater which meant that she would have been dropped off sooner than some of her friends.
20. The employee refused and announced that he would drop LK last. After Nomalange and Lihle had been dropped off the employee asked her to come and sit up front with him.
21. Whilst on the journey the employee took her hand and began stroking her palm. LK testified that she pulled her hand back and said: “please sir stop touching me”. LK testified further that she did not like the way that the employee had grabbed and rubbed her hand.
22. The employee let go of her hand and immediately commenced pulling her closer to him and asked LK to kiss him. LK refused and told the employee that she was going to tell her mother. The employee released her and a short while later she was dropped off.
23. NK then related two earlier events that form the subject matter of the first and second allegations of misconduct.
24. During July 2022 Mr Mhlanga, her grade 5 class teacher, asked her to fetch some books from his car. NK battled to open the car with the car remote and the employee was in the vicinity and assisted her.
25. As she was about to take the bag containing the books the employee opened the front door of the car and took some Vaseline out, opened the jar and proceeded to smear a small amount on her lips. He then announced to her that he wants to kiss her but not in the presence of people.
26. LK testified that she went quiet and left as soon as she was able.
27. In respect of the second incident LK testified that on a date in July 2022, after the first incident, she was in class with her fellow learners and they were making a noise. The employee was not one of their teachers but he was known for enforcing discipline at the school and the learners were afraid of him.
28. The employee entered the classroom and reprimanded the learners for making a noise. LK testified that she was sitting in the second row. The employee stood in front of her, looked her in the eyes and winked at her. LK testified that she felt uncomfortable, ignored the employee and looked at her books.
29. TM testified that in 2022 she was in grade 5 and LK was her best friend and they played together. TM gave a detailed account of the events relating to the third allegation. TM confirmed the evidence of LK concerning the events of the 30th August and confirmed being in the car when they were dropped off after performing Sarafina on the evening of the 31st August 2022.
30. TM also confirmed that LK had wanted to be dropped off at Randwater and the employee, who was the driver of the car, had refused. Shortly thereafter, TM got out and she did not know what had happened thereafter.
31. Learner witness NN gave similar testimony relating to the third allegation of misconduct and it is not necessary to conduct a detailed review of her testimony.
32. Thereafter, the evidence of the three educator witnesses was led. Mhlanga confirmed being one of the teachers for LK who was in his English and Social Sciences Grade 5B classes in 2022.
33. Mhlanga confirmed that the employee was one of his PL1 colleagues who taught English and that they had a cordial professional collegial relationship. There had never been any trouble between them.
34. Mhlanga confirmed sending LK to fetch some books for him. He also confirmed having a small bottle of Vaseline which he kept near the gear lever of his car.
35. At the 11h00 break on the same day LK came to him and explained what had happened between her and the employee at Mhlanga’s car. LK had related that the employee had smeared her lips with Vaseline and had wanted to kiss her. LK told him that she had walked with the employee back to class and on the way they encountered one of the cleaners at the school and the employee stopped to talk to her. It was at this point that NK was able to take her leave and return to class.
36. Mhlanga testified that he felt it was more appropriate that LK speak to a female educator and he referred LK to Mrs. Nguni, LK’s class teacher in Grade 5B. It is common cause that these two incidents were not reported to the school management team (SMT) at this time.
37. Under cross-examination Mhlanga testified that he believed LK and her account of events did not seem fabricated.
38. Mhlanga also gave a corroborated version of what transpired when LK’S mother reported the details of the third allegation to the Acting Principal, Mrs. Nguni and the details of the first two allegations came to light for the first time.
39. Educator, Mr Victor Nyathikazi, testified and inter alia, verified LK’s version that the Sarafina event took place over two days and that LK and other learners were not required to perform on the 30th August 2022 and that the employee was asked to assist in transporting the children and that he took the learners home early on the 30th August but dropped them off late after performing on the 31st August 2022.
40. Nyathikazi testified that he was part of the SMT when LK’S mother reported the details of the third allegation to Mrs. Ngidi and the details of the first two allegations came to light for the first time.
41. Ngidi (Acting Principal) testified that the mother of LK came to the school in September 2023 emotional and crying and reported the details of the third set of allegations that LK had reported to her. The events of the first two sets of allegations were also narrated for the first time to the SMT.
42. LK and later the employee were called to make their submissions. It was later decided to report the incident to the District office.
43. Ngidi also testified that the employee at the same meeting asked to have a bilateral with LK’S mother which was vehemently refused.
44. Ngidi also testified that the employee commenced employment at the school in 2014. She described the employee as a nice somebody, extraordinary and filled with compassion for people. She stated that she did not initially believe LK’s mother but after hearing the child she believed her. This sentiment was shared by the entire SMT.
45. The next witness was LK’s mother, Portia Khanye, and the latter explained that her daughter had related the events of all three allegations to her when she arrived home as she was watching TV late on the evening of the 31st August 2022. As LK related the events she described her daughter as shaking with emotion and she insisted that her mother hug her while she spoke.
46. Khanye described her daughter as a playful child, not troublesome. After the incidents LK began to isolate herself, wanted to be alone and became jumpy and easily frightened.
47. On the next day she had reported the events to the Acting Principal and the SMT at Refalotse. Her daughter was later called in to explain her side of events as was the employee.
48. Khanye testified that the employee had wanted to speak to her alone but being upset she had refused to do so. She also suspected that the employee was also trying to influence the course of events.
49. The final witness was Mrs. M.J Motsepe who basically corroborated the version of the other educators as far as she was able. Motsepe recalled that when the employee was called to the SMT meeting to give an account he said that he did not remember anything.
50. During cross examination Motsepe stated that she was shocked about the allegations against the employee. She described the two of them as friends and further described the employee as passionate and caring.


SURVEY OF THE EMPLOYEE’S EVIDENCE AND ARGUMENT

51. The employee testified that he was currently a PL 1 educator at Refalotse and had offered English and Technology in Grade 6 and one class of English in Grade 5 prior to his precautionary transfer.
52. The employee throughout the course of his testimony emphasized the irregularity of the LK’s first two allegations not being reported to the SMT earlier by Mhlanga and Nguni.
53. The employee testified that he had not taught LK during 2022 or at all. He did not know her at all.
54. In respect of the first allegation the employee recalled assisting LK to open Mhlanga’s car so that she could his books for him. He denied smearing Vaseline on her lips and encouraging her to kiss him.
55. In respect of the second allegation the employee stated that he was known for enforcing discipline at the school and he would often walk into an unruly class and tell the learners to sit down and get on with their work.
56. The employee denied winking at LK and emphasized that he was there to reprimand the learners. He stated that he was harsh with the learners and they were afraid of him.
57. In respect of the third allegation the employee confirmed that he assisted in conveying learners to the cultural pageant at the District office on the 30th and the 31st August 2022. He categorically denied that LK was part of the learners that he conveyed on the 30th August 2023.
58. The employee testified that he dropped off the learners along the way on the31st August 2023 and that included LK.
59. The employee explained that LK stayed at a new development which was quite far. He joked with the employee that he would drop off the others first and her last. LK got upset knowing the distance she would travel but later calmed down. The employee stated that he recalled asking LK to sit in the front of the vehicle so that she could give him directions.
60. The employee specifically denied that LK had asked him to drop her off at Randwater.
61. The employee denied brushing his hand over her palm or trying to kiss her.
62. The employee testified that when he was called into the SMT meeting on the 1st September there was chaos in the meeting. Everyone was speaking over each other. When he asked why he had been called to the meeting the Acting Principal told him to be quiet.
63. Since he did not know what was happening he spoke to the parent and asked if he could speak to her. She denied him the opportunity to do so.
64. The employee recalled being contacted by one of the members of the School Governing Body (SGB) and was advised that the SGB had threatened to close the school and mobilize the community. They had even asked him for money which he had refused to pay.
65. The employee stated that the Respondent later placed him on a precautionary transfer for 90 days.


ANALYSIS OF EVIDENCE AND ARGUMENT

66. The onus rests on the employer to prove all allegations of misconduct against the employee on a balance of probabilities.
67. An important aspect is the credibility findings in respect of the various witnesses. I was impressed with all the witnesses for the employer. All the evidence provided one detailed and comprehensive flow of the sequence of events.
68. LK’s evidence is crucial because it is the only direct evidence and it lays the basis for the other witnesses’ evidence that followed. She was a single witness to the three separate incidents. Despite her youth LK performed well during cross examination and she remained firm and consistent in her convictions. I find that her evidence is satisfactory in all material respects. All the other witnesses, educator, minor or her mother supported her general testimony.
69. The fact that LK’s first two allegations were not reported to the SMT at the time when LK made the complaints does not detract from the general credibility and veracity of her evidence.
70. It is clear that LK was offended and alarmed by the unwanted and unsolicited actions of the employee.
71. No attempt was made during the employer witnesses cross examination to put the many aspects of the employee’s version to the respective employer witnesses. I can only deduce that the employee did not properly give his version to his representative during consultation and/or is guilty of recent fabrications to counter the various allegations against him.
72. The version of the employee amounts to a bare denial of the charges of misconduct against him.
73. The evidence of the employer witnesses are accepted as fact and truth and the employee’s bare denial is rejected.
74. The last question is whether the employee’s conduct amounted to sexual harassment. It is evident that LK had caught the eye of the employee and the employee engaged in overt conduct of a sexual nature by his actions. The employee clearly enjoyed the dynamic of power over a learner who had not yet reached puberty. The first incident was an act of pure opportunism and the third incident was an orchestrated attempt on the part of the employee to get LK alone. Attempting to kiss LK can be classified as nothing other than sexual behavior on the part of the employee. I find that the employee was trying to groom and manipulate LK into his way of thinking for possible later and more overt sexual interventions.
75. The second incident may seem trivial but it demonstrated that the LK had been selected for different treatment than her noisy classmates. LK proved herself to be intelligent, alert and observant and did not imagine or fabricate a version that the employee had winked at her. A wink generally has a furtive sexual connotation and is often one of the first indicators of sexual attraction on the part of the giver of the wink.
76. I find that the employee’s actions were clearly unwanted and created confusion and distaste in the mind of a young learner. LK did not waste time in revealing the actions of the employee and her reaction when telling her mother of the events of the third allegation, speaks volumes about how she was adversely affected by the actions of the employee.
77. The incident also came as a shock to many of his educator colleagues who henceforth had held the employee in high regard and probably initially disbelieved LK’s mother.
78. No evidence was led that LK or her mother or indeed the other learners or educator witnesses had any grudge against the employee that might account for the unified version of sexual misconduct against him.
79. I find that the Applicant acted in a disgraceful, improper and unacceptable manner in the way he conducted himself (as an adult educator) towards LK (as a minor learner), on three separate occasions.

AWARD

80. The employee is found guilty of all three counts of misconduct in terms of section 18 (1) (q) of the EEA.
81. The parties are required to submit their written submissions in aggravation and mitigation by no later than midnight on Friday the 17th March 2023. Parties must submit their submissions to the CMO Mr. Lebohang Mogotsi and to me at mark@advocare2.com. No late submissions will be accepted.

MARK HAWYES
PART TIME SENIOR PANELIST