ELRC496-21/22KZN

IN THE ELRC ARBITRATION
BETWEEN:

SADTU obo MSOMI, EUGENE SBUSISO “the Applicant”
and

DEPARTMENT OF EDUCATION – KWAZULU-NATAL “the Respondent”

ARBITRATION AWARD

Case Number: ELRC496-21/22KZN

Last date of arbitration: 10 MARCH 2023

Date of submission of closing arguments: 17 MARCH 2023

Date of award: 28 MARCH 2023

ELRC Arbitrator : NTOMBIZONKE MBILI

Education Labour Relations Council
ELRC Building
261 West Avenue
Centurion
Tel: 012 663 0452
Fax: 012 643 1601
E-mail: gen.sec@elrc.co.za
Website: www.elrc.org.za

DETAILS OF HEARING AND REPRESENTATION

1. The arbitration commenced on 28 July 2022 and proceeded on 28 February 2023, and the presentation of evidence was finalized on 10 March 2023. Both parties thereafter requested and were granted permission to submit written closing arguments by no later than 17 March 2023. The arbitration process was held online.

2. SADTU, a trade union, referred this dispute on behalf of its member, Eugene Sbusiso Msomi (hereinafter referred to as the Applicant.) Mr Martin Dhlamini, an official of the trade union, represented the Applicant.

3. The Respondent, the Head of the KwaZulu-Natal Department of Education (the Department,) was represented by Mr Itumeleng Makhooe, employed by the Department as an Assistant Director.

4. The proceedings were digitally and manually recorded.

TERMS OF REFERENCE AND ISSUES TO BE DECIDED

5. The arbitration is in respect of a referral by the Applicant of an alleged unfair dismissal as provided for in section 191(5)(a)(i) of the Labour Relations Act 66 of 1995 (LRA).

6. I am required to decide whether the dismissal of the Applicant was unfair and, if so, what relief ought to be granted to him. The Applicant seeks to be reinstated with retrospective effect. There is a challenge on procedure.

BACKGROUND
8. The Applicant was the Departmental Head at Sondelani Full-Service School.
9. He was dismissed following a formal disciplinary hearing at which he was charged with and found guilty of the following count of misconduct:

9.1 “On or about 15 May 2019, at or near Sondelani Full-Service School, you committed an act of sexual assault in that you forcibly kissed and grabbed the buttocks of Nomonde Mayaya, a minor girl learner enrolled at the said school, thereby contravening section 17 (1) (b) of the Act.”

10. The Applicant was dismissed on 12 October 2021 and lodged an appeal against the outcome of her disciplinary hearing, but he was notified on 16 September 2021 that the appeal had been rejected.

11. It is common cause that at the date of his dismissal, the Applicant’s gross monthly remuneration was R31 700.00.

SUMMARY OF EVIDENCE AND ARGUMENTS

The Respondent’s case

12. The Respondent’s representative, Mr Makhooe, stated that the employer had no witness and no evidence, because the main witness had become incorporative. The Respondent closed it case.


The Applicant’s case

13. The Applicant testified on his behalf and did not call any further witnesses.

1ST WITNESS

14. Mr Eugene Sbusiso Msomi testified and stated that he was employed by the Respondent as a Departmental Head for grade nine.

15. He stated that he knew, Nomonde Mayaya, she was a grade nine learner and that she was also a prefect.

16. He testified and said that he gave Mayaya the responsibility of collecting statics from each class every day. He went on to state that on 14 May 2019, during an assembly at school he was approached by Mayaya, who requested to see him. He said that he told her to come and see him after the assembly.

17. He stated that Mayaya came to see him and that she said that she wanted to report Mr Ngiba, an Educator, who mocked her in front of other learners when she collected statics. The Applicant stated that Mayaya said that Mr Ngiba mocked her and said that she could not count.

18. He added that he approached Mr Ngiba and that he did not deny the allegation made by Mayaya. He said that Ngiba agreed to apologize to Mayaya.

19. He further stated that he called Mayaya into his office, to tell her that Ngiba agreed to apologize. He went on to state that Mayaya was teary and emotional, he gave her a hug and told her that Mr Ngiba would never mock her again.

20. He stated that the following day he was told to see the Manager and that the Manager verbally put him on precautionary suspension. He said that he only received the formal suspension letter four months after he was suspended. He added that his salary was cut off in August 2021, but received the letter of termination on 16 September 2021.

21. Under cross- examination the Applicant stated that a hug is not intimate, but it can be depending on the kind of hug and the nature of the hug. He disputed that he kissed Mayaya and grabbed her buttocks. He stated that it was possible that someone who he is not in good terms influenced Mayaya to lie against him. He continued to state that he is a politician and had many enemies.

22. He disputed that he is a sexual predator. He further disputed that he bribed the Mayaya family, by apologizing to them. He said that he is not aware where the Mayaya family resides.

ANALYSIS OF EVIDENCE AND ARGUMENT

23. In disputes such as the present, where an employee is dismissed on allegations of misconduct. The onus is on the applicant to establish that there was a dismissal, once the dismissal has been established it is then for the respondent to demonstrate that the dismissal was both substantively and procedurally fair. In the present case, it does not occur to me that there is a challenge on the procedural aspect of the dismissal. The challenge is focused on the substantive aspect. The applicant disputes having committed the misconduct at all. The respondent on the other hand did not lead evidence of witnesses that testified on the misconduct. Instead, the respondent simply asked questions to challenge the evidence tendered by the applicant. I shall reflect on this aspect further in the analysis below.

24. The applicant was charged for allegations of contravening section 17(1)(b) of the Employment of Educators Act as outlined above. The section states the following:
“An educator must be dismissed if he or she is found guilty of-
(a)…
(b) commiting an act of sexual assault on a learner, student or other employee.”
25. The allegations are that the applicant had sexual relations with a learner. In this regard the evidence must demonstrate on a balance of probabilities that the applicant is guilty of the misconduct for him to have been found guilty of this serious misconduct. Once found guilty it follows from the scheme of the legislative provision that dismissal must follow.

26. Section 188 provides that a dismissal is fair if it is effected, for a fair reason and in accordance with a fair procedure. A fair reason implies a dismissal for the employee’s misconduct, capacity, or the employer’s operational requirements. An inspection into the reason for the applicant’s dismissal is that he committed acts of misconduct as outlined in the charge sheet.

27. In the case of Stellenbosch Farmers’ Winery Group Ltd and Another v Martell et Cie and Others [2003] (1) SA 11 (SCA) the court held that a decision maker faced with two conflicting versions before him, must make a finding on the credibility of witnesses and on the probabilities of the two versions to determine where the truth lies.
28. There are mutually destructive versions that I will have to consider in determining whether the dismissal was substantively fair. This will involve the assessment of the evidence tendered before me. I will not repeat the evidence that served before me but will highlight the salient aspects as and when I deem appropriate to do so.

29. It is important as a starting point to comment on the evidence that served before me. The respondent, on whom the onus rested in demonstrating that the dismissal was substantively fair did not lead evidence. The respondent sought to rely solely on challenging the evidence of the applicant without laying any evidentiary basis in its endeavor to prove that the dismissal was substantively fair.

30. The applicant on the other hand gave evidence in defense of the allegations that were leveled against him. His version was clearly given, he was able to respond to the questions that were raised against him. His evidence can generally be described as reasonably probably true. In this regard the evidentiary burden that was upon the respondent is toppled by the applicant’s evidence. I accordingly find that the respondent has failed to demonstrate that the dismissal of the applicant was substantively fair.

31. Traditionally and in the normal cause of assessing evidence, the onus rested on the respondent to demonstrate that the dismissal was fair. Without evidence there is nothing left for the applicant to rebut as no evidentiary basis has been laid to require a rebuttal. It follows from this logic that the respondent fails on the score that there was no evidence presented to establish that the dismissal was substantively fair.

32. The respondent in this case, instead waited to challenge the applicant’s version without producing any evidence. This approach is bad for various reasons but importantly on the basis that the applicant had no evidentiary obligation to demonstrate that his dismissal was unfair in circumstances where the onus is on the respondent to establish that the dismissal was fair, absent evidence of fairness of the dismissal the applicant is not even expected to tender any rebuttal evidence.

33. What remains to be determined is what is the appropriate remedy under these circumstances. I have already found the dismissal of the applicant to have been unfair. The applicant sought to be re-instated and retrospective backpay. No arguments were advanced in this regard by the respondent.

34. In the case of Booi v Amathole District Municipality and Others [2021] ZACC, the Constitutional Court cited its earlier authority in the case of Toyota SA Motors (Pty) Ltd v CCMA [2016] 37 ILJ 313 (CC), where the Constitutional Court held that a court should consider the intolerability of the working relationship prior to making an order of reinstatement and the LC therefore did not error when considering that aspect. Where a dismissal has been found to be substantively unfair, reinstatement is the primary remedy and, therefore, a court or arbitrator must order the Employer to reinstate or re-employ the Employee unless one or more of the circumstances specified in section 193(2)(a) to (d) of the LRA exists, in which case compensation may be ordered depending on the nature of the dismissal.

35. In this case I have not been given any evidence to demonstrate that the working relationship has been rendered intolerable. In this regard I am forced, in line with the above decision, to find that the primary remedy is the one prayed for by the applicant in this case. I accordingly find that reinstatement is the appropriate remedy in the present case. Such back pay to be calculated from August 2021 to the date of this award, this equates to the equivalent of 19 months (R31 700 x 19 = R602300.00).

AWARD

I accordingly make the following award:-

36. The dismissal of the applicant was substantively unfair;
37. The Respondent, the Department of Education KZN, is directed to reinstate the applicant, Eugene Sibusiso Msomi, to the position that he occupied immediately prior to the dismissal. The applicant must resume employment on 10 April 2023.
38. The respondent is directed to pay the applicant an amount of R602 300.00 as back pay by no later than 28 April 2023.


NTOMBIZONKE MBILI
Arbitrator 28 MARCH 2023
ELRC496-21/22 KZN