ELRC551-2223GP

Case Number: ELRC 551-22 23 GP
Part Time Senior Panelist: M.A. HAWYES
Date of Award: 30 May 2023

In the ARBITRATION between

SAOU obo G. van der Westhuizen
(Union/Applicant)

And

Gauteng Department of Education
(First Respondent)

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 arbitration initially online via Zoom but the parties later agreed to an in person hearing at the D.F Malherbe Primary School in Vanderbijlpark. The face to face hearing ran over four days namely the 23rd March 2023, the 2nd and 3rd May 2023 and was finalized on the 4th May 2023.
2. After completion of the arbitration the parties requested the opportunity to submit written closing arguments by the 15th May 2023. The closing arguments from both parties were duly received.
3. I too had been granted an extension for the submission of my award to the 2nd June 2023. My award now follows
4. Mr. Piet Delport, a union legal representative from the South African Onderwys Unie (SAOU) represented the Applicant, G. van der Westhuizen.. Mr. M.P Mudau, a labour relations official, represented the Respondent. , Gauteng Department of Education.

ISSUE IN DISPUTE

5. Whether the Applicant’s dismissal was substantively fair or not. Procedural fairness is not in dispute in this matter.


BACKGROUND TO THE ISSUE IN DISPUTE

6. The Respondent employed the Applicant as a PL 4 educator (Principal) at Frikkie Meyer Primary School at the time of the alleged incidents that led to his dismissal.
7. It is common cause that after an internal disciplinary hearing, the Applicant was dismissed and referred an alleged unfair dismissal dispute to the Council.
8. The parties produced four bundles that were utilized during the course of the arbitration. Bundle ‘A’ was a consolidated bundle utilized by both parties during the course of the arbitration.
9. Bundle ‘B’ contained whats app messages and extracts from the Applicant’s diaries. This bundle was not referred to copiously during the course of the arbitration.
10. Bundle ’C’ contained a series of photos from a learner witness depicting various injuries.
11. Bundle ‘D’ contained Circular 74/2007 dated the 27th September 2007 which dealt with the management of suspension and expulsion of learners in public ordinary schools.
12. The proceedings were digitally recorded and detailed long hand notes were also kept.
13. The Respondent initially leveled eight charges against the Applicant i.t.o various subsections of section 18 (1) of the Employment of Educators Act, no 76 of 1998 (as amended) (EEA).
14. The Applicant was found not guilty of charges 2 and 6 at the disciplinary enquiry and guilty of the rest.
15. The Respondent did not pursue charges 2 and 6 at the arbitration and thus they will not be refereed to again.
16. Allegation 1 alleged that on or about the 11th October 2021 the Applicant conducted himself in an improper, disgraceful and unacceptable manner in that he sexually harassed Ms.Wilkens by slipping her mask and kissed her without her consent. He also allegedly told her that he was the first person to kiss her after she removed her braces. A breach of section 18 (1) (q) of the EEA was alleged.
17. Allegation 3 alleged that on or about the 22nd May 2021 the Applicant conducted himself in an improper, disgraceful and unacceptable manner towards an educator at the school namely Ms. Groenewaldt, in that he smacked her buttocks in front of learners. A breach of section 18 (1) (q) of the EEA was alleged.
18. Allegation 4 alleged that on or around January 2020, the Applicant prejudiced the administration, efficiency and discipline of the department in that he established a G-Force group with the intention of assaulting, victimizing and bullying learners. In the year 2021, a learner known as Henry was assaulted by the Applicant’s established G-Force group. A breach of section 18 (1) (f) of the EEA was alleged.
19. Allegation 5 alleged that during 2021 the Applicant assaulted learners using a pipe that he hid in the toilets. A breach of section 18 (1) (r) of the EEA was alleged.
20. Allegation 7 alleged that on or around the 20th October 2021, the Applicant displayed disrespect or demonstrated abusive behavior towards the Deputy Principal, Mr Schrap, in that he called him a “fucken poes” in front of the SGB Teacher Component. A breach of section 18 (1) (t) of the EEA was alleged.
21. Allegation 8 alleged that between the 2nd and 3rd February 2022, while on duty, The Applicant intimidated or victimized Ms. Pieterse, an employee at the school, by telling her that he was aware that she had reported him, asked her why she reported him and told her to submit the report to him. A breach of section 18 (1) (u) of the EEA was alleged.

SURVEY OF THE PARTIES EVIDENCE AND ARGUMENT

22. I will deal with the evidence lead at the arbitration under the specific allegations or charges laid. The citation and content of the respective witnesses’ testimony may not always be in the order in which the testimony was given.
Allegation 1
23. The complainant Ms. M. Wilkens, a financial administrator at Frikkie Meyer Primary School, testified that on the 11th October 2021, after she had had her teeth braces removed, towards the end of the school day, the Applicant approached her in the passage removed her mask and kissed her. It was not a ‘pik soentjie” as the witness described it, neither was it a French kiss. It was, however, a soft kiss that made her feel uncomfortable as did the words that the Applicant uttered thereafter. He told her to tell her husband that he was the first one to kiss her after her braces were removed.
24. Wilkens testified at some length about the sexual abuse she had suffered at the hands of a family member as a child.
25. Wilkens testified that the Applicant’s conduct reminded her of the “out of control feeling” she had felt as a child.
26. Wilkens admitted to not expressing outrage because she was shocked at the time and the Applicant was also her manager. She did report the incident to the deputy principal, Mr B. Schrap, the next day.
27. According to the testimony of Schrap the Applicant had a habit of making inappropriate sexual comments. Schrap referred to the Applicant also making a comment to another female educator in Scrap’s presence that: “what is more beautiful than a beautiful woman is a beautiful woman who sits ugly” Schrap took this to mean that the Applicant was referring to a beautiful woman sitting with her legs open. The educator in question had been wearing a dress on the day in question.
28. In his testimony the Applicant agreed that he had kissed Wilkens on the lips but stated that the kiss had taken place in the office where Wilkens worked. Everyone was happy that Wilkens braces had finally been removed and Wilkens herself was very happy with the situation and had no objection to being kissed. The kiss had been quick and perfunctory and was given with no sexual intent.
29. Ms. Leanie Hattingh testified about the incident involving the Applicant and Wilkens and the removal of her braces. Hattingh had congratulated Wilkens and stated that she wished that it was time for her braces to come off as well. The Applicant had been present and all were laughing and happy. Wilkens had showed no signs of stress at the time. The Applicant had later left for his office.
30. The Applicant admitted stating the words that Wilkens should tell her husband that he was the first one to have kissed her since the removal of her braces. The Applicant testified that it was all a bit of light hearted banter occasioned by the joy of celebrating Wilkens braces being removed.
Allegation 3
31. Ms. Groenewaldt testified under oath and stated that on or about the 22nd May 2019 she was standing in the doorway of her class. She was a PL 1 educator and had been at the school for approximately four months at the time.
32. The Applicant approached her on his way to his office and smacked her bum, said nothing and continued on walking. As he was about to enter his office he turned back to her and smiled.
33. Groenewaldt testified that she was in shock and speechless by what had just happened. She admitted not protesting because she was relatively new at the school and the Applicant was also her senior manager and principal of the school.
34. Groenewaldt testified that she knew that the Applicant’s conduct was inappropriate and that her boss was not supposed to touch her like that.
35. Groenewaldt also testified about a second incident that had occurred in December 2019 when she was making coffee in the schools kitchen. She was alone in the kitchen at the time. The Applicant approached her and rubbed himself up against her up and down.
36. Groenewaldt related a third incident where the Applicant had come into the office where she was making photocopies. This was during January 2021 and the Applicant had pressed her down from behind and rubbed her arms and shoulders. She immediately grabbed her things and left. Groenewaldt testified that she felt uncomfortable as she could feel his whole body pressed against her as he massaged her shoulders and arms.
37. She reported the incidents in late 2021 to a Mrs. Pieterse at the school and was asked to make a statement which statement was later sent to the district office.
38. Groenewaldt also testified that she had witnessed another incident involving the Applicant and other female educator at the said female educators baby shower. When the Applicant came in he sat on top of the educator, lap danced her and then got up and went on about his business.
39. The Applicant gave a detailed explanation which reduced to its essence was the following; He had walked past Groenewaldt’s classroom and observed that the children were very quiet. He noticed Groenewaldt standing in the doorway of her class and he patted her out of the way as he wanted to pass to complement the children for their good behaviour. The Applicant denied that he had slapped Groenewaldt on the buttocks.
Allegation 4
40. In respect of the establishment of the G-Force a number of witnesses testified from both sides.
41. It is common cause that the G-Force was an attempt on the part of the Applicant to curb ill-discipline at the school. It is also common cause that the school had been classified as a redline school for drugs and discipline.
42. It is also common cause that the Applicant created a group of learners (mostly from severely disadvantaged backgrounds) to assist in maintaining order at the school. It is also common cause that the learners reported directly to the Applicant as principal.
43. A senior circuit (DCES) official from the district office, Mr P. Morake, had testified, inter alia, on behalf of the Respondent that he started receiving complaints from parents about the so-called G-Force and how members of the group were bullying and assaulting learners.
44. He also testified how the existence of the G-Force had been leaked to the press and an article had appeared in the Huisgenoot magazine on the 24th February 2022 showcasing the behaviour of the G-Force and the Applicant.
45. Morake had referred to Circular 74 of 2007 contained in Bundle ’D’ that he described as the departments bible on how to deal with discipline at schools. Morake testified that no RCL structures were allowed at primary schools and even a body of prefects was not allowed. The existence of the G-Force was not a legitimate structure at the school i.t.o Circular 74 of 2007.
46. Morake also testified that he started receiving reports from female staff that the Applicant was touching them inappropriately. Mention was also made of photos of the Applicant dancing in the school bus without his shirt during an educator team-building exercise and the alleged lap dance incident referred to by Groenewaldt.
47. The Respondent also led the evidence of Schrap who gave his perspective on the legitimacy of the G-Force. Learner minor witnesses LM and HR gave testimony for the Respondent on being assaulted by G-Force members for alleged infractions at the school.
48. Ms. A. Pieterse also testified for the Respondent that after the establishment of the G-Force she noticed that these learners ignored her and laughed in her face. She felt that the G-Force learners had power over educators because they had a direct line to the Applicant.
49. Ms. Leanie Hattingh testified as a witness for the Applicant and described being caught in the middle of an altercation with LM and one of the G-Force members. Despite being slapped in the face by the G-Force learner member Hattingh and the Applicant did not press misconduct charges against the said learner because they felt that the incident had occurred in the heat of the moment and there was no need to make a mountain out of a mole heap. The Respondent argued that this was a prime example of the G-Force members being given special treatment.
50. The Applicant testified that it was not his intent that the G-Force learners should assault other learners in fact quite the contrary was true.
51. The Applicant testified that he had observed a similar group being affirmed in another High School.
52. Considering the redline status of the school (drugs and weapons) the Applicant had wanted to establish a system whereby some of the worst affected learners from the most challenged back grounds, were affirmed outside of the established RCL’s and would act as a buffer against external and sometimes dangerous influences and successes were recorded in tracing drugs and weapons.
53. The Applicant’s testimony additionally was that this worked in respect of the learners growing as humans and performing better academically.
54. The Applicant testified further that the aggregated claims of especially Schrap tried to cast these efforts in a negative light only.
55. Whilst conceding that the incident involving G-Force member and HR was unfortunate it was argued that it was impossible to say that happened because of the existence of the G-Force.
Allegation 5
56. Schrap testified that on a certain date in 2021 he saw learners queuing outside the male toilet in the admin foyer and going in one by one. They each came out crying or holding their buttocks in pain.
57. The Applicant denied that he was in the male toilets on that day but during a question in clarity by myself during cross-examination that Applicant admitted that he had previously kept a plank in the school hall to discipline learners in the past.
Allegation 7
58. This evidence by the Respondent on this charge was a mix of hearsay and hearsay on hearsay. Schrap testified that he heard that the Applicant had called him a “fucken poes” from one Du Preez who in turn had heard it from one Rheeder. It was argued on behalf of the Applicant that the hearsay evidence should be rejected altogether.
59. The Respondent argued that the Applicant in his testimony had admitted swearing at Schrap.
Allegation 8
60. It is common cause that the Applicant came to know of the various reports that were being compiled against him by various staff members. It is common cause that PL 1 educator Ms. A. Pieterse took responsibility for accumulating these reports and forwarded same to the district office.
61. It is common cause that the Applicant found out about the existence of the reports and spoke to Pieterse a number of times and wanted to see the compiled report.
62. Pieterse testified that the Applicant demanded to see the report and she felt uncomfortable when he reminded her in public to meet with him in this regard.
63. Pieterse testified that the report was confidential and she had no desire, indeed was not compelled to disclose the contents of the report to the Applicant. The situation was awkward because the Applicant was her senior manager.
64. Pieterse testified about other incidents (not mentioned by the witnesses in this case) involving the Applicant which are clearly hearsay and will not be repeated here.
65. Pieterse also testified generally that based on the reports she had received many of the female educators felt uncomfortable with the touchy feely conduct of the Applicant. They realized over time that the Applicant likes touching women.
66. Pieterse also testified about the Applicant played with her hair on one occasion as she worked at her computer. She felt uncomfortable with this conduct as well.
67. Pieterse testified that she and all of the other women that made reports to her were scared and initially kept quiet. Later they gained confidence and submitted written reports and communicated with the district office.
68. The Applicant testified that he had no intention to intimidate or victimize Pieterse. It was argued on behalf of the Applicant that Pieterse had subjectively perceived that the Applicant was intimidating her. It was argued that the Panelist would have to decide whether Pieterse’s subjective feelings could be deemed reasonable in the circumstances.


ANALYSIS OF EVIDENCE AND ARGUMENT

69. The first task at hand requires an evaluation of the various witnesses that testified.
70. It was argued that Schrap and the Applicant have strong feelings of animosity towards one another and on that basis I should approach his evidence with caution.
71. I noticed a definite vibe of dislike that reverberated between the two persons. However, I find that any dislike that Schrap may have against the Applicant is motivated by the different management styles of the two and the incident that Schrap had observed and the complaints he had received from various women staff.
72. This is not a case of the testimony of only Schrap squaring up against the testimony of the Applicant. Schrap’s observations and views are supported by the testimony of PL 1 educators Wilkens, Groenewaldt and Pieterse. After careful consideration I found the aforementioned female educators to be good reliable witnesses who remained consistent in their versions despite pinpointed cross examination designed to attack their credibility.
73. Despite being a likeable person I did not find the Applicant to be a good witness. The Applicant often gave detailed answers replete with unnecessary information and in so doing he often never answered the questions directly put to him relying instead upon the trusty ally of obfuscation in excess detail. His version was also not always consistent.
74. Unwanted attention takes many shapes and forms and if the witnesses depose as they have that they did not want the inappropriate physical touching, smacking buttocks, kisses, massages etc. then they should be believed because this conduct perpetuated frequently is not appropriate in a professional workplace and has an unavoidable sexual import about it. It is also often the precursor for more serious forms of sexual and other harassment.
75. The fact that complaint reports were not made immediately and distaste likewise was not expressed immediately has been adequately explained by the witnesses. The Applicant was their principal and senior manager and they did not want to be seen to be raising unnecessary complaints with him. Secondly, they were scared for their jobs and were also not quite sure where to report the matter. As time went by courage came in the safety of numbers and Schrap, their ally assisted them in contacting the district office.
76. It might be argued that the Applicant is a touchy feely person by personality and that his conduct was innocuous and justified on this basis. I find that his behaviour was not justified and in fact the Applicant demonstrated a measure of unjustified power over the witnesses (all women) and seemed to take delight in ignoring their feelings of discomfort and continued his behaviour.
77. I find that the Respondent has proven on a balance of probabilities that the Applicant is guilty of Allegations 1 and 3.
78. As I have indicated earlier it is common cause that the Applicant created the G-Force. I find that he probably did so with the best of intentions to resolve the ongoing discipline and drug challenges at the school. Clearly the experiment did not work and abuses occurred as has been highlighted by the testimony of learners LM and HR. I find that the Respondent has not proven on a balance of probabilities that the Applicant established the G-Force with the intention of victimizing and bullying learners as the charge reads. I also make no finding about whether the Applicant could have foreseen the possibility of abuses occurring and reconciled himself with this behaviour. (the so called form of intent called dolus eventualis used in criminal law and made famous in the Oscar Pistorious trial).
79. I note the argument by the Respondent and their reference to the case of EOH Abantu (Pty) Ltd v CCMA & Others (JA 4/18) [2019] ZALAC 57; (2019) 40 ILJ 2477 (LAC) 15 where the LAC introduced something akin to the criminal law concept of “competent verdicts” into labour law.
80. Whilst finding that the Respondent has not proven the detail of allegation 4 I find that the evidence has proven on a balance of probabilities that the Applicant’s conduct is in breach of the provisions of Circular 74 of 2007, in that the Applicant had no authority to establish a body such as the G-Force i.t.o the Respondent’s prevailing policies and procedures and that in so doing he prejudiced the administration, efficiency and discipline of the Respondent. The Applicant is accordingly found guilty of this competent verdict to the main charge of misconduct.
81. In respect of Allegation 5 I accept the testimony of Schrap that he saw learners lining up outside the toilets and that when they left the toilets they showed signs of having received corporal punishment. The Applicant admitted to administering corporal punishment to learners contrary to the Respondent’s policy in the past. On the basis of similar fact evidence I find that the Applicant had a propensity to administer corporal punishment contrary to the rules in the past and that it is probable that he did so on this occasion as well. It is also highly improbable that anyone other than the Applicant would engage in this open and defiant display of the Respondent’s policies regarding corporal punishment. I find that the Respondent has likewise proven the allegations of Charge 5 (Assault) on a balance of probabilities.
82. In respect of Allegation 7 I find that the Respondent’s evidence is based on unreliable hearsay and hearsay on hearsay. I find that the Respondent has not proven on a balance of probabilities that the Applicant called Schrap a “fucken poes” in the presence of persons who were never called as witnesses at this arbitration.
83. Finally, in respect of Allegation 8 it is common cause that the Applicant became aware of the various reports that were being compiled against him and were kept in the custody of Pieterse. It is common cause that the Applicant approached Pieterse on numerous occasions and attempted to persuade her to hand over the report and/or reveal the contents to him.
84. I find it proven that the report contains confidential information and that the Applicant was not entitled to the information since it was sub iudice before the district office.
85. Being a PL 1 educator who was thwarting/defying the wishes of her principal I find it highly probable that Pieterse felt intimidated and/or threatened that there could be adverse consequences for her to disobey her senior’s instructions by failing to reveal the contents of the report to him. The Applicant should have stopped insisting in the way he did for the reports to be revealed to him and his failure to do so constitutes an act of misconduct.

AWARD

86. The dismissal of the Applicant, G. van der Westhuizen was fair
87. The Applicant’s dispute referral is dismissed.