ELRC 333-21/22 NC

Arbitrator: SHIRAZ MAHOMED OSMAN Case Reference No: ELRC 333-21/22 NC
Date of award: 3 April 2023

In the Enquiry by Arbitrator between:

Department of Education-Northern Cape Employer party

and

Mr. J Barties Employee party


DETAILS OF HEARING AND REPRESENTATION

1. The present dispute between Department of Education-Northern Cape (hereinafter referred to as the employer) and Mr. J Barties (hereinafter referred to as the employee) was referred to, Inquiry by Arbitrator, in terms of Section 188A of the Labour Relations Act no.66 of 1995, as amended (the LRAA); read with Collective Agreement 3 of 2018. At the Inquiry by Arbitrator hearing, which was held at the Children’s Court, in Colesberg, on, 22 March 2023, the employee failed to attend, and the employer, was represented by, Mr. Dombo.
2. I was satisfied that the employee was aware of the date; time and venue of the said hearing, however failed to attend. The notice of set down was sent to the employee, as well as his representative on record, Mr. Pule, of SATAWU
3. The employer’s representative called the employee’s representative, of record. He indicated to Mr. Dombo that he was not informed by the employee of the hearing. This is not acceptable, as it is recorded that both, the employee, and his representative were notified via email, at barties472@gmail.com and mogopodip@gmail.com.
4. Moreover, the employee, nor, his representative, were present on the previous occasion, that the matter was scheduled to be heard, on, 28 July 2023. By agreement, the employer and, I decided not to proceed, in order to give the employee another opportunity to present himself, at the arbitration.
5. I proceeded with the arbitration, in default as per Council Rules.

THE CHARGES TO BE DECIDED:

6. I am to decide whether the employee, is guilty of the following charge:

Charge 1

During February 2021 at or near Noupoort (Eureka Intermediate School) you committed a misconduct in terms of Section 18 (1) (dd) of the Employment of Educators Act, 76 of 1998, in that you inter alia, whilst on duty sexually harassed a learner Ms X (grade 7 learner) at the school where you teaching in that you proposed a loving relationship to her and thus committed a statutory offence, whilst you knew or ought to have known that you were not allowed to do so.

There were also two alternative Charges, which I am not going to regurgitate, since, I found that the applicant is indeed, guilty of the main charge.

BACKGROUND

7. The employee is an educator and was charged, as per the above allegation, as the main charge, with two alternative charges. He is presently, on paid suspension.
8. He was charged in terms of Sections 18 of the Employment of Educators Act no. 78, of 1998 (the EEA). He was charged for proposing a loving relationship to, a learner.
9. For the purposes of this award, the learner, being under aged, shall be referred to as Ms. X, so as to protect her identity.
10. The matter was referred to Council by the employer, in terms of Collective Agreement 3 of 2018; read with Section 188A, of the Act, an Inquiry by Arbitrator.
11. As stated above, in paragraph 4, I have outlined as to why this matter did not proceed, in the absence of the employee, giving him a further opportunity, to present himself at this date, and he still failed, to do so.

SURVEY OF EVIDENCE AND ARGUMENT

12. As per paragraphs 2; 3 & 4 above, I proceeded in the employee’s absence.
13. The employer was given the opportunity to submit an opening statement; call witnesses, and submit, a written closing argument, as per his request, and since he chose not to call three further witnesses, who in any event would have presented second hand evidence, though not hearsay, in my opinion, as the conversations were directly between the three witnesses, and the complainant, immediately after, the alleged incident, had happened.
14. The employer called one witness, Ms. X, (the learner).
15. The employer submitted the charge sheet, into record.
16. Herewith, brief reasons for my decision, in terms of Section 138 (7) of the Act. Should any of the evidence, or argument not be reflected hereunder, then, it does not mean that, it is not considered.
17. In any event, I am required to deal with the substantive merits of the case.


ANALYSIS OF EVIDENCE AND ARGUMENT

18. The applicant is charged, in terms of Section 18 (1) (dd) of the EEA which provides “sexually harassed a learner of the school where he is employed in and proposing a loving relationship”. The allegation of sexual misconduct is not tolerated between an educator and a learner. Hence, the Collective Agreement provides of an Inquiry by Arbitrator, instead of an internal disciplinary hearing, to avoid the learner from retelling her sequence of events repeatedly.
19. Ms. X, testified that at the time of the alleged incident, she attended Eureka Intermediary School. She has since moved to Noupoort Combined School. She testified that on a Tuesday morning, before break, she had attended a math class, at which Mr. Barties was the educator. During the lesson he called her out of the classroom. He Barties apparently asked the learner “how old she was and whether she had had a boyfriend”. After that he had told her to go back to the classroom. Before the math class had ended, he asked the learner to come back to class, after the period had ended. She took her bag and asked her fried, another learner, Ms Y, to accompany her. Mr. Barties told Ms. Y to go outside, and close the door behind her. Indeed, Ms. Y was available to testify, however since the learner proved to be an honest, and therefore a credible witness, I did not think it necessary to call Ms. Y, who was to corroborate Ms. X’s version, that she had accompanied her to the class, and was told to go outside. That according to the employer’s witness would have been Ms. Y’s testimony.
20. Ms. X testified that, Mr. Barties had told her that he would like a relationship with her, and that they did not have to do “anything funny”, but they would just kiss, and be in a “loving” relationship. The learner immediately went and informed her friend. The learner then went to Ms. Van Vuuren, a relative of the educator’s spouse. Unfortunately, Ms. Van Vuuren was busy in a telephonic conversation. The learner then proceeded to Ms. Gouws, but she was not available. The learner, then went to the office, and informed Noby that she was not feeling well, and was going home. Of course, after such a traumatic event, any child would be psychologically be affected, and not feel well, after such proposals from a person of authority, who is much older, notwithstanding that, she would have to face the educator every day, and that she had known him, as her math teacher. The learner confirmed that she was “shocked”. When the learner got him, she informed her mother and the following day, they approached the school Principal. Both the mother, and Principal were available, to testify. They both had included their statements, and were available on the employer’s bundle. This was sufficient for me.
21. Ms. X went home, and reported the incident to her mother, who had then approached the school principal the next morning, to lodge the complaint, of the incident that happened with the math teacher, the day before.
22. In the absence of any evidence to the contrary, I am obliged to accept the learner’s testimony. I don’t believe that the learner had any reason to be dishonest, or to fabricate such an episode. The learner was clearly distraught, but was composed enough to accept her testimony as compelling. Indeed, the learner was shocked, after the “incident”.
23. I am satisfied that Ms. X, the learner was indeed, invited by the educator to engage in an unwanted sexual/loving relationship, with the educator.
24. The attached statements on the complainant’s mother, and the school principal, suggest that the learner had indeed reported the incident to them.
25. From the above, it is evident that the learner had been subject to an unwanted sexual advance.
26. I am persuaded that the educator, Mr. Barties, is indeed guilty of sexual assault.
27. In the present instance, the educator is charged with a serious allegation of a sexual assault on a learner, a child still. Children have a Constitutional Right to be protected from maltreatment; neglect; abuse or degradation. See Section 28 (1) (d) of the Constitution of the Republic of South Africa. Moreover, Section 28 (2) provides that: a child’s best interests are of paramount importance in every matter concerning the child. I am bound by this Constitutional imperative, in view of the employer’s responsibility, to provide education to children, in a safe environment.
28. The conduct of the educator, is gross and cannot, and must, not be tolerated. He is loco parentis of the child, whilst she is at school. Educators are trusted by parents and the community to provide their children with quality education, and to do so in safe and conducive environment. The educator’s conduct has impeded on this trust, and has breached the code of ethics that is expected of an educator.

SANCTION

29. Section 18 of the (EEA) provides for serious misconduct and reads that If, after having followed the procedures contemplated in subsection (2), a finding is made that the educator committed misconduct as contemplated in subsection (1), the employer may, in accordance with the disciplinary code and procedures contained in Schedule 2, impose a sanction of –
(a) counselling;
(b) a verbal warning;
(c) a written warning;
(d) a final written warning;
(e) a fine not exceeding one month’s salary;
(f) suspension without pay for a period not exceeding three months;
(g) demotion;
(h) a combination of the sanctions referred to in paragraphs (a) to (f); or
(i) dismissal, if the nature or extent of the misconduct warrants dismissal.
30. In terms of Section 17 (1) of the EEA, an educator, must be dismissed if he or she is found guilty of -
(c) having a sexual relationship with a learner of a school where he or she is employed
31. There is no discretion if found guilty of a Section 17 dispute, and dismissal is the only sanction, whereas Section 18 provides for progressive discipline, but also suggests that in the instance of grave or serious charges an educator may be dismissed.
32. It is accepted and established law that the allegation of sexual advances; inuendoes or relationships by educators, with learners, is not tolerable in the schooling environment. The fundamental right of a child to be educated in a safe environment is impeded. And these types of misconduct are not only intolerable, but also presents as a safety hazard to young vulnerable learners.
33. In view of the educators conduct, as outlined herein above, the educator cannot be trusted in a schooling environment, or being in the presence of children alone.

AWARD

34. The employee, Mr. J Barties, is found guilty of Charge 1, in the main count.
35. The employee, Mr. J Barties is dismissed, with immediate effect.
36. The employer, The Department of Education must inform the employee, Mr. J Barties of his dismissal immediately, upon receipt, of this award.
37. The Education Labour Relations Council, as the administrator of this Section 188A enquiry, is therefore entitled to:
o In terms of section 122 of the Children's Act, 38 of 2005, to notify the Director General: Department of Social Development, in writing, of the findings of this Arbitration.
o To send a copy of this arbitration award to the South African Council for Educators (SACE), for the revoking of Mr. J Baarties, SACE certificate, though they indeed have their own processes, before they do same.

Signed at Kimberley on this 4 day of April 2023

ELRC PANELLIST
SHIRAZ MAHOMED OSMAN