PSES933-18/19GP

IN THE EDUCATION LABOUR RELATIONS COUNCIL

INQUIRY BY AN ABITRATOR

Case Number: PSES933-18/19 GP
Commissioner: Mathabo Makwela
Date of Award: 09 May 2019

In the Inquiry by Arbitrator Proceedings between

David Diholo

(Alleged Offender)

and

Department of Education- GP
(Employer)

Alleged Offender’s representative: JM Mothupi
Alleged Offender’s address: Forest High School
Johannesburg Central District


Telephone: 011 355 1506
Telefax:
E-mail:

Employer’s representative: TL Majola
Employer’s address: 17 Simmonds Street
Hollard Building
Marshalltown
2000
Telephone: 011 355 1506/1038/ 079 690 8907/071 350 3145
Telefax: patrick.selowa@gauteng.gov.za
E-mail: toniya.lyras@gauteng.gov.za


Details of parties and representation

1. This is an arbitration award pursuant to an inquiry by an arbitrator in terms of Section 188A of the Labour Relations Act 66 of 1995 (as amended) (the LRA) under the auspices of the Education Labour Relations Council (the ELRC). The proceedings were held on 11 March 2019 at the Palm Ridge Magistrate Court. The alleged offender, D O Diholo, was in attendance and was represented by J M Mothupi while the employer was represented by T L Majola. The employer submitted a bundle of documents which was marked Bundle A1 while the alleged offender’s bundle of documents was marked Bundle B1. The proceedings were digitally recorded and interpretation services were not required. At the conclusion of the proceedings it was agreed that parties will submit written closing arguments by no later than 25 April 2019.

Background to the dispute

2. The parties are D O Diholo (the alleged offender) and Department of Education- Gauteng (the employer). The employer is a state department of education. The employer had, on 22 February 2019, requested an inquiry by an arbitrator to the ELRC against and the matter was set down for 11 March 2019. The alleged offender, a teacher, is alleged to have sexually harassed a learner at the Forest High School. At the time of the inquiry the alleged offender was placed under precautionary transfer pending the finalisation of this inquiry.

3. In its opening statement the employer stated that a complaint of sexual harassment was lodged with the school principal, Mr Peterson. The allegation was that the alleged offender had hugged and kissed a grade 9 learner, MM, on her forehead and telling her that he loved her. On the other hand, the alleged offender submitted that he was innocent of the charge laid against him.

4. The parties concluded a pre-arbitration minute which was submitted at the proceedings in terms of which it was agreed as common cause that Diholo was employed by the employer since 2016 as an educator at Forest High School. He was on precautionary suspension; was notified of the pre-arbitration and had exercised his right to be represented by a trade union representative. The alleged offender’s salary notch is R388 974.00 per annum. He denied that he had hugged and kissed a grade 9 female learner on her forehead telling her that he loved her.

Issue to be decided

5. The issue to be decided is whether the alleged offender had committed the offence in question, and if so, what an appropriate sanction would be commission of such offence. The alleged offender denied the commission of the offence.
Survey of parties’ evidence and arguments

The Employer’s case
MM’s evidence under oath:

6. MM testified that she is a grade 10 learner in this academic year and was a grade 9B learner in the 2018 academic year. She knows Diholo who was his Natural Science teacher in the 2018 academic year. Her interaction with Diholo started at the beginning of the 2018 academic year but that the incidents leading to the complaint started during the second term. In the first and second term Diholo used a high 5 appreciation to the learners but when it came to her, Diholo hugged her. This was repeated. Diholo would stand by his desk while waiting for her to finish her school work waiting for her and her classmates to exit the classroom. As her friends passed him, he would give them high 5 appreciation but when she passed him he would hug her, squeezing her and saying to her goodbye. Diholo repeated hugging and squeezing her. He would also kiss her on the forehead saying to her that he loved her. She had started feeling uncomfortable.

7. She further testified that prior to that Diholo would tell her that she should come to him during her free periods to visit him in his class. She had agreed out of fear that she will be seen as being disrespectful. On the day that she had requested her to come to his class she had hidden from him because she had not gone to visit him as he had invited him to his classroom. She was afraid that he was going to ask her why she did not visit him. A day before the November examination Diholo had told all other learners to leave the classroom in rows and for her to remain. She thought that he had done that on purpose because she had not gone to his classroom when he had invited her previously. She had stayed and Diholo had said that he wanted to talk to her and had told her that they should go to his classroom as the classroom they were in was not his. She was scared but did not want to show him that she was and followed him until after passing the stairs where she met KM who she begged to come along with to Diholo’s classroom.

8. Diholo opened his classroom door and smiled at them. He then asked her what KM was doing there. He told them to sit down and started asking them personal questions about whether they had boyfriends and girlfriends. She told Diholo that she was not interested in boys. He asked KM if she had ever had any sexual relations with a boy and asked her MM if she was sexual active. She could see that KM was very much uncomfortable and she had answered in the negative. She (MM) also answered Diholo’s question in the negative. KM also answered negatively to his question of whether she was sexually active. KM indicated that they had to leave because their transport had arrived and thus left the classroom. She proceeded to leave after KM and Diholo had kissed her on her forehead, hugged and squeezed her. Diholo did not see KM standing by the door. They left and thereafter Diholo would greet her and she would not respond.

9. She did not know if Diholo hugged other learners. However, Diholo did not squeeze other learners or tell other learners that he loved them. She was scared when Diholo said that she should follow him because she was not sure what he was thinking or what he was going to do.

Under cross-examination MM testified that:

10. She was in grade 9B in 2018 academic year and Diholo taught them. Diholo did not hug all learners but gave them high 5’s. He did not know that Diholo will testify that he hugged all learners in his class. Her friends saw when Diholo hugged her prior to examinations. KM had seen Diholo kiss her on the forehead in October last year before they wrote their examinations. Diholo had told her that he loved her and KM had heard while she was at the door. This was the only time that Diholo had told her that he loved her. She had reported the matter to Mrs Ndlovu when her mother realised that she was not herself. The kissing and hugging happened prior to 26 November 2018. She would ask Diholo questions in the classroom and he would explain. She was open with him.

11. On the first occasion that Diholo had hugged her, she had felt that the hug was fatherly. Diholo was the only male teacher that hugged her at the school. However, there were other female teachers who had hugged her. Most girls are attracted to boys but she is attracted to females. It was not necessarily true that she was comfortable in being hugged by female than male teachers. Diholo’s first hug was fatherly. She did not have preferences when people hug her as long as she knew the reason. She would tell people that normally hug her when she was not comfortable. She did not tell Diholo that she was uncomfortable because she took him as a father and did not want to disrespect him as an adult. He should have known as an adult that his hug was uncomfortable.

12. She ultimately told KM when she became uncomfortable with Diholo’s hugs. She told her aunt and Mrs Ndlovu about her uncomfortability with Diholo’s hugs. She had never heard Diholo telling the entire class that he loved them. Learners would get hugs but not kisses in their foreheads and being told that they are loved. She had a witness who saw Diholo kissing her on the forehead. Diholo had once overhead her telling her friends that she was interested in girls. She felt uncomfortable when Diholo hugged and squeezed her. There were no sexual advances from her to Diholo. She did not want to get ahead of herself into thinking that Diholo wanted to have a love affair with her as she just felt uncomfortable when Diholo did all that to her. She could not confirm or deny that Diholo knew that she was interested in girls as she did not know what he was thinking. It was around November when Diholo kissed and hugged her.

KM’s evidence under oath:

13. KM testified that she knew MM and she was with her in grade 9B in the 2018 academic year. Diholo treated them differently when they were leaving the classroom in 2018. He would give all learners high 5’s but hugged, squeezed and kissed MM on her forehead. Diholo has never told her that she loved her. Diholo has never hugged and kissed her. The incident happened around 01 or 02 November 2018 prior to them sitting for examinations. Her four classmates have witnessed the hugs Diholo gave MM. They had witnessed Diholo hugging and kissing MM on the forehead when they left the classroom and she had heard Diholo telling MM that he loved her and that was said to MM when she was leaving the classroom. There is nothing wrong in a teacher telling a learner that he loved her but the manner in which it came across was more than that. He has never witnessed Diholo saying to any other learner that he loved her other than MM.

14. She has never heard Diholo saying to any other learner that he loved her expect to MM. She disagreed that Diholo had said that he loved and hugged MM out of fatherly love. If it was fatherly love, Diholo would have said the same to her and hugged her. Diholo would not have squeezed MM if it was fatherly love.

Under cross-examination KM testified that:

15. She is still MM’s friend and would support her by any means necessary. She has never said that whenever she left the classroom she will get a high 5 and that MM would get a hug and kiss from Diholo only in November. It was not in the whole of the 2018 academic year that MM got hugs and kisses from Diholo but the incident happened frequently and they noticed that in the third term it had gone out of hand. Nobody reported the hugs and kisses to her but she had seen them herself. It was the four of them in their squad of about six who had witnessed what was happening to MM.

16. Diholo asked MM if she was dating and whether she was sexually active and things like that. At the time that Diholo asked MM such questions, it was only the three of them. MM had told him that she was interested in girls and not boys. Diholo had not overheard them when he asked MM about her sexual preferences. It would be a lie that prior to that Diholo had talked to MM and did not know that MM was interested in girls. Diholo talked to both of them about affairs and had asked them whether they were dating and were sexually active. He did not talk to her first but it was the three of them in the conversation and it was an awkward moment. She thereafter left the classroom and MM left after her leaving Diholo behind.

17. Diholo hugged and squeezed MM and at that time she was not far from the door. On the day of the discussion she did not witness any kiss but had seen Diholo hugging and squeezing MM.

Majabulile Ndlhovu (Ndlhovu)’s evidence under oath:

18. Ndlhovu testified that she was the deputy principal at the Forest High School having joined in 1997. MM’s mother had reported at the school to complain that MM was harassed by Diholo. She called MM and asked her questions on the issue. MM explained the high 5s and the hugs she got from Diholo. As she was explaining, Z MM’s cousin came in the office to inform MM that the school transport had arrived, what is interesting is that when Z arrived she said Oh! MM are you talking about Diholo. MM and Z then left the office. Later on, Diholo was given an opportunity to explain his side of the story. Diholo wrote back to the school principal and said that the conversation she he had with MM was about her interest in dating other girls. She found it difficult to say that what Diholo had done was appropriate. The conversation about dating is inappropriate unless if Diholo had witnessed something.

19. Diholo taught learners Natural Science. She had not seen Diholo hugging and giving high 5 to learners. When they moved classes she witnessed other learners giving high 5 to Diholo but had never witnessed kisses and hugs.

Under cross-examination Ndlhovu testified that:

20. MM did not tell her about the frequent hugs from Diholo and the frequent talks of being loved by Diholo. She did not see Diholo kissing MM on the forehead. It was not normal for teachers at the school to hug learners. Teachers would give hugs during special events as in awards if it was the teacher’s subject and the learner had performed well. Ordinarily, teachers do not hug learners. It is inappropriate for a teacher to hug a learner even if it was to comfort the learner if the learner feels uncomfortable with the hug. She hugs female learners and has never heard anyone of them complaining. As a professional she hugs learners when they have done well and when they are in distress to lift their spirit. The hugs were inappropriate to MM as she felt uncomfortable.

21. Although Diholo was a Natural Science teacher, the question posed to MM about dating had nothing to do with the curriculum. For Diholo to ask MM about dating other girls showed that he had an interest in what MM was doing. Reproduction is taught in the first term but she does not see the link between reproduction and what Diholo was asking MM. She had seen other teachers hugging learners during ceremonies.

22. It was argued on behalf of the employer in closing that Diholo hugged, squeezed and kissed MM on the foreheard.


The Alleged Offender’s case

Diholo (Diholo)’s evidence under oath:

23. Diholo testified that he had a conversation with MM on 26 November 2018 or prior thereto and it was for her being in a company of a group of boys. He had told MM to be careful and MM had told him to relax as she was dating girls and not boys. She had asked MM to educate him on what she was talking about and that they will continue with the conversation at some later stage when he would have had time.

24. On 26 November 2018 he invigilated MM’s class and had asked MM for a continuation of their earlier conversation and that she will find him in his classroom. MM came with her friend to his classroom and had asked her if she was dating, had a girlfriend and how she was choosing the person whom had the same interest as her. The conversation did not last for long as he was sensitive about her preferences. He told MM that he loved her for her to being brave and honest about his status. He then locked his class and walked away.

25. As he arrived at the parking lot his learners would greet and hug him. When he walked through the corridors he will be hugged and given high 5 by his learners. It was for the first time that heard of squeezing and kissing. He has never kissed MM or any other learner. He has been a teacher for a long time and knew the teachers code of conduct. He knows how to treat a girl child. He did not kiss MM and that was the reason why MM and KM were not consistent about when the kiss happened.

26. MM told him that she was interested in girls and not boys. He would have asked the same question to her girls. He hugs his own daughter and would have had the same conversation with her if she was dating girls. He would have refrained if MM had told him that she was making her uncomfortable. MM was not the only child he had told he loved. He had told all learners in his class.

Under cross-examination Diholo testified that:

27. His learners rely on him for many things like those coming from broken homes. They have 1400 learners in the school. He did not know why out of 1400 learners a single learner would accuse him, a teacher of his caliber, of hugging and kissing her on the forehead. He has never forced a hug on a learner. It was a standard practice to hug a learner and is a norm to have learners give them high 5 or hug them.

28. There was a masked person who conspired against him even though he could not prove it. There might be a third force and it seemed like there was a third force. If he puts a name to it, it will be a witch-hunt. He cannot name someone based on suspicions. They had a conversation the three of them with KM. After finishing the conversation he had told MM that he loved her and the love was love of life.

29. Upon questions of clarity, Diholo testified that he had conceded that he hugged the two learners and had told MM that he loved her. He did not concede to squeezing MM while hugging her.

30. It was argued in closing on behalf of the alleged offender that MM and KM are the best of friends and that the latter had vowed to defend her by all means necessary. KM testified that she did not see the kissing but MM testified that she did. MM testified that KM heard Diholo telling her that she loved her yet KM denied it. MM testified that other learners were not there when Diholo told her that he loved her yet KM stated that all their friends were there as it was happening on a daily basis. KM denied the fact that MM reported to her stating that there was no need to report as she was always there to see for herself and this was contradiction.

31. The employer chose not to rebut KM’s evidence because they did not re-examine her evidence despite the fact that her evidence was nullifying almost everything said by MM. Failure to re-examine a witness despite such contradictions should lead to the tribunal to infer that the re-examining party accepts evidence from both witnesses and it should be difficult to suggest that the allegation ever took place.

32. The other witnesses presented by the employer were not at the scene where the alleged incident took place. Diholo disputed that he kissed MM on the forehead which was corroborated by KM’s evidence that she never saw Diholo kissing MM. Diholo’s version was also corroborated by MM, KM and Ndlhovu that he conducted himself as a father and disciplinarian at school.

33. MM testified that Diholo had no intentions of having a romantic affair with her. He hugged all his learners and told them that he loved them. MM is an outspoken and very assertive girl who when she felt uncomfortable would have reported to KM and her aunt. Diholo would not be penalised but only told that his hugs were uncomfortable. There is no policy at the school prohibiting any hugging in the school especially between parents (educators) and children (learners) indicating that Diholo had contravened any law. It is accordingly prayed that Diholo not be found guilty of the charge.

Analysis of parties’ evidence and arguments

34. The employer has requested an inquiry by an arbitrator in terms of Section 188A of the LRA with an allegation against the employee that he had committed an offence of sexually harassing a learner. The employer bears the onus to prove that the employee has committed the offence that had been proffered against him. The allegation against the employee was that he had hugged and kissed a grade 9 learner and telling her that he loved her.

35. Sexual harassment is an unwelcome conduct of a sexual nature and includes physical, verbal or non-verbal conduct. Physical conduct of a sexual nature includes all unwelcome physical contact ranging from touching to sexual assault and rape as well as strip search by or in the presence of the opposite sex. Verbal conduct includes unwelcome innuendos, suggestions, hints, sexual advances, comments with sexual overtones, sex-related jokes or insults, graphic comments about a person’s body made in their presence or to them, inappropriate enquiries about a person’s sex life, whistling of a sexual nature and the sending by electronic means or otherwise of sexually explicit text.

36. Section 17(1)(b) of the Employment of Educators Act, No 76 of 1998 (herein after the “EEA”)regulates misconduct of a sexual assault towards learners by educators . The misconduct in section 17(1)(b) is committed when an educator sexually assaults any child who is a learner at any school; It is not confined to a learner of the school where the educator is employed. The elements of sexual assault are (a) conduct of a sexual nature (b) which results in the victim's sexual integrity being impaired (or inspiring the belief that it will be impaired) (c) unlawfulness — meaning that there must not be a justification ground for the action, such as for example consent by the victim (d) intention to commit the misconduct — in other words accidental unintentional bodily contact is excluded from the definition. Misconduct of a sexual nature that does not constitute misconduct in terms of section 17, would generally constitute misconduct in terms of section 18. Examples may include kissing a learner with her consent, proposing love to a learner, having a sexual relationship with a learner of another school, grooming a learner.

37. MM testified that Diholo had hugged and squeezed her in a manner that she felt uncomfortable. This amounted to physical contact and the squeezing in the process of hugging her represented conduct of a sexual nature and not to be equated to an innocent and casual hug. It is a representation of deeper feelings of affection and amounts to a sexual advance in itself. The evidence of MM was corroborated by KM who testified that she had witnessed such hugs of a sexual nature by Diholo against MM. She clearly, in corroboration to MM, testified when the actions by Diholo had become frequent. She also corroborated MM’s evidence that on the day that Diholo had called MM to his classroom that the hugging and squeezing had happened.

38. On the other hand, Diholo denied that he had squeezed and hugged MM. However, his evidence is not corroborated by any witness in this regard. The version of Diholo is implausible and improbable. At his age, I do not know why he would have wanted to be educated by a minor like MM on her sexual preferences. If it were to be true, which version was not put to MM, that they had had an earlier conversation in which Mbali had told him that she preferred girls to boys that he would have seen the need for further engagement on the matter. MM and KM testified that they felt uncomfortable at the questions of a sexual nature that were asked to them. The moment could not have been awkward if MM had anticipated a further discussion on what had previously been discussed and not finalised. If this matter or conversation involved only her and MM about the latter’s sexual preferences, he would not have allowed KM to be part of that discussion let alone ask KM about her sexual preferences and whether she was sexually active. The questions that she posed to the two girl learners were inappropriate inquiries on their sex life and amounted to sexual harassment in a verbal form. Diholo did not dispute that she had inquired on the learners’ sex life and that on its own amounted to sexual harassment. Diholo never put any version to MM and KM that he had hugged them on either side as they exit the classroom on that day in question. This he only said in his version.

39. Nothing in the evidence as led in these proceedings that pointed to MM having problems or challenges regarding her sexual preference that she required to be congratulated for disclosing her sexual preference. It, therefore, is absurd of Diholo to testify that he had to tell MM that he loved her for being brave and honest about his status. Nothing requires anything from MM about her sexual preference. In fact, Diholo had known as per his testimony that when he had seen MM with a group of boys and warning her, which I don’t believe as this version as well was not put to MM, that he knew at that stage that she preferred girls. There was absolutely no reason for any further inquiries in that regard. If he had said that he loved MM for disclosing her sexual preference to him, he would have done the same with KM. It is for this reason that I find his version implausible and that he sought to give his utterance of “I love you” another false face and meaning in these circumstances. This is in keeping with his response to my clarification question that he had told MM that he loved her. The same was not said to KM. This corroborates MM and KM’s evidence that MM was treated differently from the rest of the other learners. This also showed itself in the conversation he had with MM and KM that at the end he only told MM that he loved her.

40. MM testified that Diholo kissed her on the forehead when he told her that he loved her and that KM had witnessed same. However, under cross-examination KM testified that she did not witness any kiss on the day that they had a conversation with Diholo. KM had left the classroom first and it is probable that she may not have seen Diholo kissing MM on her forehead. The evidence of the employer is contradictory in this regard and I do not find it probable that Diholo had kissed MM on her forehead on that day.

41. In the premises I find that Diholo had committed the misconduct of sexual assault in terms of section17(1)(b) of the EEA by hugging MM intensely; another misconduct in terms of section 18(1)(g) of the EEA by making inappropriate enquiries about MM’s sexual life and another misconduct by telling MM he loved her. The inappropriate sexual conduct of Diholo was both physical and verbal. This offences are very serious in all respects especially in the school environment involving teachers who are adults and learners who are minors and mostly underage. These offences have serious implications for the learner’ learning environment which may have detrimental effects on the learner and thus affecting her learning and well-being as both a learner and human being. Sexual assault and or harassment leaves deep scars and an employer in the learning environment cannot be expected to put up with an employee who sexually assaults learners. Sexual assault destroys the employment relationship irretrievably. Also, the Constitutional court has held that section 28(2) of the Constitution imposes an obligation on all those who make decisions concerning a child to ensure that the best interests of the child enjoy paramount importance in their decisions. Courts and arbitrators are bound to give consideration to the effect their decisions will have on the lives of children; not only the life of the child who is the victim of sexual misconduct, but also the lives of learners in general who have a right to be protected against sexual abuse from educators. I therefore, find that the appropriate sanction for such misconduct is dismissal.

Award

42. Diholo had committed the following misconducts:

- Acts of sexual assault in terms of section 17(1)(b) of the Employment of Educators Act, No 76 of 1998; and
- Misconduct of a sexual nature in terms of section 18(1)(g) of the Employment of Educators Act, No 76 of 1998 against a girl child learner, MM .

43. David Diholo’s employment with the employer is to be terminated with effect from the date of this award.

Commissioner: Mathabo Makwela
Sector: Education