ELRC677-22/23GP

IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD IN VIRTUALLY
CASE NO.: ELRC 677-22/23 GP
In the matter between:-

K.O MAKAPELA APPLICANT

and

DEPARTMENT OF EDUCATION- GAUTENG RESPONDENT
ARBITRATOR: MMAMAHLOLA GLORIA RABYANYANA
HEARD: 11 April 2023 and 01 June 2023
CLOSING ARGUMENTS: 09 June 2023
DATE OF AWARD: 19 July 2023
SUMMARY: Labour Relations Act 66 of 1995 –Section 186(1) – Unfair dismissal

ARBITRATION AWARD

DETAILS OF HEARING AND REPRESENTATION
1. A virtual arbitration was held on 11 April 2022 and 01 June 2023.The Applicant was represented by Mr K. Mohlatlole, PEU official. The Respondent was represented by Mr Tania Motalib, its Deputy Chief Specialist. The proceedings were recorded digitally. The parties were given until 08 June 2023 to submit their closing arguments. The proceedings were digitally recorded. The respondent ‘s bundle is marked “R”.
BACKGROUND TO THE ISSUE
2. The Applicant had referred the dispute of unfair dismissal to the Council for Conciliation. The dispute could not be resolved and a certificate of outcome of conciliation to that effect was issued. The Applicant then requested that the dispute be arbitrated.
ISSUE TO BE DECIDED
3. I am required to decide whether the applicant’s dismissal was substantively fair i.e he committed the offences.

AGREED FACTORS
4. The parties agreed to the following factors as being common course:-
4.1 The Applicant started working for the Respondent on 01 July 2002 ;

4.2 Prior to the dismissal he was an educator at Enkanyezini Primary school;

4.3 He was dismissed on 05 November 2022 for four counts of sexual harassment relating to 4 assistant educators as follows:

4.3.1 for conducting himself in an improper, unacceptable and disgraceful manner by touching Ayanda Hlanguza, a Teacher Assistant inappropriately on her waistline towards her buttocks, calling her baby and that she reminds him of his first wife.

4.3.2 for passing remarks to Mamello Lebelonyana, a Teacher Assistant at the school that she is beautiful and tempting and requesting her to visit you after school.

4.3.3 for passing remarks to Nonhlanhla Rikhotso, a Teacher Assistant at the school by asking her to pay him a visit during a long weekend and asking her to kiss him.

4.3.4 for giving Nompendo Gazi, a Teacher Assistant direction to his house to pay him a visit and promising to buy her a new cell phone in December when he got bonus.

4.3.5 The misconduct is in contravention of section 18 (1) (q) of the Employment of Educators Act 76 of 1998 as amended.

4.4 He was aware of the rules, the rules were reasonable and consistent application of same is not in dispute.

4.5 Sanction and procedural fairness are not in dispute.

SURVEY OF ARGUMENTS AND EVIDENCE
5. Ayanda Nhlanhla Hlanguza testified for the Respondent that she was an
assistant educator. Mr Makapela was one of the seniors but she was not
reporting to him. On 11 November 2021, she took examination scripts to
Mr Makapela for moderation. She met him on the hallway, where he touched
her waist. As he was talking to her about the amendments to the papers, he
put his hand around her waist and slid to her buttocks. This made her feel
uncomfortable. He asked her to go to his office, but she did not go.

5. He would make inappropriate utterance to her, like ``honey I am missing you`` He would also comment on how she dressed saying she is killing him when she wore something short. Sometimes she laughed it off. However, she disliked the comments. Eventually, she reported him.

6. During cross examination, she reiterated her evidence in chief. She further stated that it was only the two of them on the hallway when the incident happened. She could not remember which hand he used to touch her inappropriately. She informed Nyuswa about the hallway incident.

7. The utterances happened during the school hours, sometimes in the presence of learners or other assistants. She never informed him that she did not like the utterances. However, in the first phase they informed Sifiso that they were not comfortable around him. Her relationship with him was courteous.

8. Mahigo Nyuswa testified that Ayanda sent her a WhastsApp indicating that Mr Makapela had touched her inappropriately on her waist and buttocks. She also informed her about the inappropriate utterances. She reported this to the Acting Principal who called a meeting with Ayanda, Nhlanhla Masia and herself. Ayanda was asked to write a statement. Ayanda indicated that she was not the only Assistant who experienced Mr Makapelas inappropriate behaviour.

9. During cross examination when asked that Ayanda never told Mr Makapela that she did not like the utterances, she said he was too old to know that the utterances were inappropriate. They would not lie about serious allegations. Ayanda did not report to Makapela and no one bore grudges against him.

10. Nonhlanhla Faith Rikhotso testified that she was a teacher assistant and reported to Mr Masia. Makapela asked her to visit him at his place around October 2021. She laughed it off as she was not sure if he was joking or not. During November 2021, when she went to his class, he asked her to kiss him. He asked her again to visit him and for her phone numbers. She was not happy and did not give the numbers to him. When Masia assigned her to work with Mr Makapela, she told him that Makapela had asked her to visit him and for her phone numbers. She requested not to be assigned to Mr Makapela.

11. During cross examination she said she did not report him to the Principal because she initially thought it was a joke but later realized he was serious because he was persistent. She was also afraid to report him.

12. Langa Nhlanhla Masia testified that he is the Acting Head of Department. He was in charge of Teacher assistants. Nonhlanhla Rikhotso reported Mr Makapela’s inappropriate requests he made to her. She requested not to be assigned to him. He believed Rikhotso but did not report Makapela because he looked at it from a male perspective. He was in the SMT meeting when Ayanda reported the matter. He was aware of the other girls’ allegations.

13. During cross examination he testified that Mr Makapela’s behavior was inappropriate. He did not report the matter to the Principal, because he wanted to protect Makapela. He conceded that it was his ignorance as a male.

14. Mamello Lebelonyana testified that she was a teacher assistant. Her contract ended in February 2022. She reported the matter with Ayanda and Nonhlanhla. She discussed with the other girls her experiences with Mr Makapela.

15. Mr Makapela approached her while she was walking in the corridor. He told her that she was beautiful and tempting him. She did not report the matter because he was a senior and did not know where to report him. If he only told him that she was beautiful she could have taken it as a compliment. However, “tempting” was sexual as he looked at her differently when he uttered the words.

16. On 03 November 2021, it was her birthday. She was with Mr Matsoso when Mr Makapela told her that he wanted a cake. She thought he meant her birthday cake that she had brought to school. When she told him that she would get him some, he said that he did not want that cake but “ikhekhe la madoda” (cake for men). She realized that he meant her vagina. She and Matsoso did not respond. Mr Matsoso is his friend.

17. In November 2021 when he was with Rikhotso, he asked her to visit him at his place. She never had a fallout with him.

18. During cross examination, she said that she was afraid to report him because he was an HOD. Tempting means he was craving her and this was inappropriate. He is old enough to be her father. She felt offended by his remarks. There was no other definition for tempting than that of sexual intimacy. He was proposing to her, which she found offensive. His actions were inappropriate.

19. He was referring to her vagina when he said he wanted a cake for men. He said he did not want her birthday cake but had clarified which cake he wanted. She could not speak on behalf of Rikhotso, for omitting to mention that Mr Makapela had asked her ( Mamello) to visit him during November 2021.

20. Makapela testified that he never uttered the word “tempting”. He told Mamello that she was beautiful. He asked for a cake and went out. He never mentioned the type of cake he wanted “cake for men”. He denied inviting the girls to his place, as he has daughters coming to him over weekends.He was never with Mamello and Rikhotso at the same time. He was a black sheep at school, hence he was always in his classroom.

21. He denies ever offering Nompilelo Kazi a phone. He denied ever chasing after her. He was never an enemy to anyone, but the teachers and management was against him.

22. He denied inviting Rikhotso to his place, touching and hugging her. He never asked for her cell numbers. if he needed the numbers he would have asked them from the office. He never asked her to kiss him.

23. He denied touching Hlangusa, whenever she brought question papers to him,he would send her to Matsoso. He is surprised by all her allegations because they did not happen.

24. During cross examination he conceded that Hlangusa would give him papers for moderation. However, this would happen in the classroom. He denied touching her buttocks and making comments. He did not know why she would lie about him as they never fought.

25. He denied asking a cake for Men. He asked for the birthday cake. He did not know why the girls would make up the allegations despite their good relationship. He denied asking Kazi to visit him.

26. He believed that the girls were set up by the school SMT because they did not want him to be the Principal. The teachers, administrators and the principal hated him. He reported the adverse behavior of the management to Mr Valley Moosa who supported him.

27. He was aware of the grievance procedure but did not lodge the grievance as he believed Moosa would resolve the situation. He was shortlisted for the position of principal when the allegations surfaced. Perhaps the plan was to prevent him from being the principal. was never tested nor reported by him.

CLOSING ARGUMENTS

28. The respondent’s representative argued that all its witnesses corroborated each other and have no reason to lie about Makapela. Mr Makapela in his testimony conceded some of the allegations. He did not have witnesses proving that he did not commit the offences.

29. Hlangusa did not report to Makapela. It is not in dispute that their relationship was good. There was no reason for her to fabricate her version. She stood by her testimony long after she had left the environment and would gain nothing. The other girls testified about their own experiences. Thus, corroborating the probabilities of Hlangusa’s testimony.

30. Makapela’s defence that he could get Rikhotso’s numbers from the office is weak. It is improbable that he would need her numbers for when she was absent because she was not reporting to him.

31. Masia corroborated Ayanda and Nonhnhla’s testimony and that he believed the girls as there were rumours about Malapela` s behaviour. The respondent has proved that Makapela committed the offences.

32. The applicant’s representative argued that the only reason the allegations was advertised post of principalship at the school. Many teachers were against him running into the recruitment process. It is trite in law that he who alleges must prove.

33. The respondent is well resourced to conduct full investigation into any allegations levelled against employees. The alleged meeting between TAS and Ms Nyuswa to discuss allegations on the 11th and 22nd November 2021 did not prove the allegations.

34. The complainants were influenced by his colleagues. That’s why they did not write letters as their alleged sexual harassments occurred. Victims of alleged sexual Harassment must immediately report to their employers for protection. In this matter, they appeased the interests of Madam Nyuswa and the Principal. Therefore, dismissal was based on shallow evidence that was not properly tested.

ANALYSIS OF EVIDENCE AND ARGUMENT

35. Section 192(2) of the Labour Relation Act 66 of 1995 as amended provides
that the Respondent bears the onus to prove on a balance of probability
that the dismissal was fair.

36. In determining if the Respondent had successfully discharged its onus, I
will take Item 7 of Schedule 8 of Code of Good Practice into account. The Item provides us with guidelines in cases of dismissal for misconduct as follows :-
Any person determining whether a dismissal for misconduct is unfair should
consider :-
(a) whether or not the employee contravened a rule or standard regulating conduct in, or relevance to, the workplace; and
(b) if a rule or standard was contravened, whether or not-
(i) the rule was a valid or reasonable rule or standard;
(ii) the employee was aware, or could reasonably be expected to have been aware of the rule or standard;
(iii) the rule or standard has been consistently applied by the employer; and
(iv) dismissal was an appropriate sanction for the contravention of the rule or standard.

37. The issue that I must determine is item (a), whether the applicant has committed the
offences. Ayanda Hlanguza`s testimony is that when she met Mr Makapela on the hallway, he put his hand around her waist and slid his hand to her buttocks. Further that he would make inappropriate utterances that he was missing her and on how she was killing him when she wore something short.

38. Mr Makapela`s defence is bare denial of Hlanguza `s testimony. Hlanguza`s testimony is consistent with what she informed Mahingo Nyuswa on WhatsApp and corroborated by Nyuswa’s testimony during this arbitration. The question is why Hlangusa would lie about this despite their good relationship, which is undisputed. I accept that it is not uncommon for people in a good relationship to betray each other.

39. Makapela`s contention is that Hlanguza and the other assistant teachers who lodged complaints against him were influenced by the school management and all other educators at school because they hated him. Further that the plot was to prevent him from being appointed as the principal of the school. This version was not put to Nyuswa who is the HOD at the school and the complainants.

40. The version that it was plot and the link between the incidents and contestation for the principalship as created by Makepela during his examination in chief and cross examination is not tested. His version that he always exchanged scripts with Hlanguza was not put to her to be tested. Therefore, I do not find the untested version probable.

41. Nonhlanhla Rikhotso`s testimony is that Makapela invited her to visit him over the long weekend at his place. He also asked for her cell numbers. At one point he asked her for a kiss in the classroom. His defence against this witness is bare denial. However, Rikhotso `s testimony is corroborated by Masia, an educator who conceded that Rikhotso informed him that Makapela requested her to visit him over the weekend.

42. It is not in dispute that Rikhotso requested Masia to assign her another educator not Makapela as she was not comfortable working with him on account of the sexual advances, he was displaying towards him.

43. Masia testified that though he took Rikhotso `s concerns seriously and believed her, he felt it necessary to protect him as a male counterpart, by not reporting him. He assigned Rikhotso another educator. He holds no vendetta against Makapela. He was aware of the other cases against Makapela. Makapela did not challenge Masia`s testimony. Therefore, I am inclined to accept and find Masia`s testimony to be probable.

44. Mamello Leselonyane`s testimony is that Makapela told her that she was beautiful and tempting him. This meant that he was craving her sexually.Therefore, he was looking at her in a sexual manner. On her birthday he requested her to give him a cake for men (`` khekhe la madoda``) not her birthday cake that she had brought to school. She construed the cake for men to mean her vagina. This was said in the presence of Matsoso.

45. The other day he requested her to visit him where he lived. She never had a fall out with Makapela. She did not report him because she was afraid and lacked courage as she was new and just matriculated. His utterances convinced her that he was proposing to her. He defined the cake that he wanted to her, which was that of men not her birthday cake.
46. Makapela did not deny that he asked for a cake for men. Instead in cross examining Lebelonyana, he only challenged the interpretation of the utterance i.e. cake for men (`` khekhe la madoda``). I am persuaded by his failure to deny that he asked for a cake for men that indeed it is what he asked from Lebelonyana.

47. The interpretation of “the cake for men” within the context of the events taking place at the time is that of sexual connotation, that he wanted her private parts. The reason behind is that she offered the birthday cake, which is edible. However, he distinguished the one that he wanted from the birthday cake that was offered. There cannot be any other special cake for men that was edible on the day. It was only when he was cross examined that he denied mentioning the type of cake he asked for i.e cake for men ( ikhekhe la madoda).

48. It is not in dispute that Lebelonyana was with Mr Matsoso when Makapela asked for the cake and that Matsoso is his friend. Beside failing to put his version to Lebelonyana to be tested, I find it strange that he did not call his friend Mr Matsoso to corroborate his contention. I do not find same against the respondent, because Makapela did not dispute Lebelonyana’ testimony that he asked for a cake for men. Therefore, it was not necessary for the respondent to call Matsoso to corroborate the undisputed testimony.

49. The court held in the Bargaining Council for Furniture Manufacturing Industry, Kwazulu- Natal v UKD Markeparty closinghers (2013) 34 ILJ 96 (LAC) that an adverse inference should be drawn from a party’s failure to call a witness that the evidence that party faces must have been of such a nature that, at the time the other party closing its case, there was sufficient evidence to enable the court to say, having regard to the absence of any explanation, the other party’s version was more probable than not.

50. The only inference I could draw from Makapela’s failure to call Matsoso to corroborate his untested version is the fear that the testimony will expose facts unfavourable to his case.

51. He did not deny that he told Lebelonyana that she was tempting him, meaning he was craving her. He only challenged the meaning of “tempting”. The context of the utterances that she was beautiful, accompanied by that she was tempting him is sexual. The utterances were not appropriate.

52. Makapela did not challenge her testimony that he invited her to his place, which I find to be more probable. In considering the testimony of the respondent collectively I am persuaded that Makapela ‘s utterances and behavior constitute sexual harassment. Therefore, the respondent has proved on the balance of probabilities that Makapela committed sexual harassment offences against the three assistant teachers, thereby violating Section 18(1) (q) of the Employment of Educators, Act 76 of 1998 as amended. The sanction is not in dispute. I find that the dismissal is substantively fair.

AWARD

53. The dismissal is substantively fair.

54. The dispute is dismissed.

Signed and dated at Pretoria on this 19th day of July 2023.


MG Rabyanyana
M.G Rabyanyana

ELRC Panellist