PSES166-23/24WC

Commissioner: Jacques Buitendag
Case No.: PSES166-23/24WC
Date of Award: 22 August 2023

In the INQUIRY between:


MR L J ROMAN
(Union/Respondent)

and


DEPARTMENT OF EDUCATION – WESTERN CAPE
(Applicant)

Respondent’s representative: Mr. R Ahmed
Applicant’s representative: Ms. V Phillips


PARTICULARS OF PROCEEDINGS AND REPRESENTATION

1. This inquiry, in terms of section 188A of the Labour Relations Act, 66 of 1995 as amended (LRA), took place under the auspices of the Education Labour Relations Council (ELRC) on 28 July 2023 at the premises of Western Cape Education Department (WCED) in Cape Town.

2. The proceedings were digitally recorded.

3. Mr. R Ahmed, Executive Officer of NAPTOSA, represented the educator, Mr. L Roman. The WCED was represented by its Senior Labour Relations Officer, Ms. V Phillips.

4. Ms. S Marks attended the proceedings as the intermediary and Ms. J Biko attended as interpreter.

5. At the conclusion of the proceedings it was agreed that the parties will submit written closing arguments. I received Ms. Phillip’s heads of arguments on 7 August 2023 and Mr. Ahmed’s heads of arguments on 14 August 2023.

THE ISSUE IN DISPUTE

6. Mr. Roman pleaded guilty to the allegations levelled against him. I must determine the appropriate sanction.

BACKGROUND

7. On 25 September 2018 the parties to the Education Labour Relations Council (ELRC) entered into Collective Agreement 3 of 2018 which provides for compulsory inquiries by arbitrators in cases of disciplinary action against educators charged with sexual misconduct in respect of learners.

8. The WCED received allegations of misconduct of a sexual nature against Mr. Roman and on or about 6 June 2023 the WCED requested the ELRC to appoint an arbitrator for an inquiry into the alleged sexual misconduct allegations.

9. Mr. Roman is employed as a level 1 educator at the Sid G Rule Primary School and teaches mathematics and social science. He has more than 30 years of experience as an educator.

10. At the Inquiry Mr. Roman acknowledged that he understands the allegations levelled against him. He pleaded guilty to the following allegations:


“Charge 1
It is alleged that you are guilty of misconduct in terms of section 18(1)(q) of the Employment of Educators Act, no. 76 of 1998 (hereinafter referred to as the Act), in that during January 2023 / February 2023, while on duty, you conducted yourself in an improper, disgraceful or unacceptable manner towards Leaner A, a leaner associated with Sid G. Rule Primary School by touching / tickling the learner underneath her breast.

Charge 2
It is alleged that you are guilty of misconduct in terms of section 18(1)(q) of the Employment of Educators Act, no. 76 of 1998 (hereinafter referred to as the Act), in that during January 2023 / February 2023, while on duty, you conducted yourself in an improper, disgraceful or unacceptable manner towards Leaner B, a leaner associated with Sid G. Rule Primary School by touching / tickling the learner underneath her breast.

Charge 3
It is alleged that you are guilty of misconduct in terms of section 18(1)(q) of the Employment of Educators Act, no. 76 of 1998 (hereinafter referred to as the Act), in that during January 2023 / February 2023, while on duty, you conducted yourself in an improper, disgraceful or unacceptable manner towards Leaner C, a leaner associated with Sid G. Rule Primary School by touching the learner underneath her breast.

This charge was amended to exclude the word “rubbing”.

Charge 4
It is alleged that you are guilty of misconduct in terms of section 18(1)(q) of the Employment of Educators Act, no. 76 of 1998 (hereinafter referred to as the Act), in that during January 2023 / February 2023, while on duty, you conducted yourself in an improper, disgraceful or unacceptable manner towards Leaner D, a leaner associated with Sid G. Rule Primary School by tickling the underside of the side of her breast.

This charge was amended to excluded the word “touching”.

Charge 5
It is alleged that you are guilty of misconduct in terms of section 18(1)(q) of the Employment of Educators Act, no. 76 of 1998 (hereinafter referred to as the Act), in that during January 2023 / February 2023, while on duty, you conducted yourself in an improper, disgraceful or unacceptable manner towards Leaner E, a leaner associated with Sid G. Rule Primary School by touching her upper arm.”


SUMMARY OF EVIDENCE AND ARGUMENT

11. I have considered all the evidence and arguments presented, but because section 138(7) of the Labour Relations Act, 66 of 1995 (LRA) requires an award to be issued with brief reasons for the findings, I shall only refer to the evidence and argument that I regard as necessary to substantiate my findings in the determination of this matter.

12. The following facts were established as common cause:
• Learners A, B, C, D, and E are in Grade 7 at Sid G. Rule Primary School.
• Mr. Roman taught these learners mathematics and social science.
• Mr. Roman has not been found guilty of similar allegations in the past.

The WCED’s evidence and arguments in aggravation
13. The WCED called the principal of the school and two of the learners in aggravation. The identity of the leaners that testified during the Inquiry were disclosed but their identity is protected for the purposes of this award.

14. Mr. A Yon, the Principal of Sid G Primary testified that three learners approached him on 27 January 2023 saying that Mr. Roman has pocked or tickled them under the arm. They were visibly upset. Mr. Yon testified that educators are not allowed in the space of leaners. He did not probe the learners about the incidents but referred it to the WCED for investigation.

15. Mr. Yon explained that he is wearing two hats. Mr. Roman is a competent mathematics teacher and one of the best educators at that the school and he is a valuable asset to the school. Mr. Roman was not placed on precautionary suspension. He is a colleague and friend, and he does not want anything bad to happen to Mr. Roman.

16. On the other hand he must enforce the policies and rules of the WCED and create a safe environment for the learners. Mr. Roman should not be allowed in the space of the learners based on the allegations to which he has pleaded guilty.

17. Leaner A testified that she is 13 years old and in grade 7. She explained that Mr. Roman was checking her mathematics work when he tickled her under her breast. She said “no Sir”. Leaner A testified that it is her body and her private parts and that she felt uncomfortable. No one has ever before touched her in such a manner before. Leaner A confirmed that Mr. Roman did not touch her again after this incident.

18. Leaner C testified while she was busy with her mathematics homework Mr. Roman approached her and touch her under her arm and next to the left side of her breast. She did not like it and she felt uncomfortable. I happened in the first term during February 2023. At first she thought that he touched her in a friendly manner, but this has changed when she heard that he has also touched other girls in the same manner.

19. The heads of arguments of Ms. Phillips is on record. I have considered it. I will only provide a brief summary. If a specific argument is not referred to it does not mean that I have not considered it. Ms. Phillips argued that Mr. Roman is aware of the rules and betrayed the trust placed in him. He should have created a safe environment of the learners instead he became a threat and abused the victims for his own pleasure. Violence and harassment of any form is worrying and an escalating problem in schools. Mr. Roman cannot be given another opportunity and his conduct cannot be tolerated. For an educator with more than 30 years of experience he ought to have known what is expected of him and this his conduct was inappropriate. Mr. Roman has destroyed the trust and confidence that the WCED has placed in him, and he ought to be dismissed.

Mr. Romans’s evidence and arguments in mitigation
20. Mr. Roman acknowledged that he is aware of the rule that he cannot touch the leaners. He testified that the incidents happened during the first few weeks of 2023. He wanted to make the leaners feel more comfortable in his class and tickled them. Mr. Roman demonstrated how he ticked the leaners. Mr. Roman said that he has done it in previous years and that there were no complaints. He cannot recall that anyone of the leaners said that they felt uncomfortable.

21. Mr. Roman testified that after a parent of one of the learners approached him in February 2023 he stopped tickling the girls.

22. Mr. Roman said that he had no intention to do anything untoward to the leaners. He is 56 years old and does not want this to end his career.

23. The heads of arguments of Mr. Ahmed is on record. I have considered it. I will only provide a brief summary. If a specific argument is not referred to it does not mean that I have not considered it.

24. Mr. Ahmed referred to Collective Agreement 3 of 2018 and pointed out that Mr. Roman was not charged with sexual misconduct, and that it cannot be assumed that his conduct amount to sexual misconduct in the absence of such evidence. Mr. Roman should thus not have been subjected to a pre-dismissal Inquiry in terms of Section 188A of the LRA.

25. Mr. Ahmed argued that Mr. Roman immediately stopped with his conduct when it was pointed out to him that it was inappropriate. He pleaded guilty to the allegations, acknowledged his wrongdoing and has shown genuine remorse. The main objective of the disciplinary action is correct behaviour. Pursuing a path of remorse constitutes a commitment of maintain the trust of the WCED. Mr. Roman has a clean record, was not suspended and Mr. Yon regards him as a valuable asset to the school. Not suspending Mr. Roman shows that the WCED did not deem him to be a threat to learners. Mr. Roman was charged in term of section 18 of the EEA which means that dismissal is not automatic.

ANALYSIS OF EVIDENCE AND ARGUMENTS

26. In his closing arguments Mr. Ahmed argued Mr. Roman was not charged with sexual misconduct and that the provision of Collective Agreement 3 of 2018 thus does not apply. Mr. Ahmed argue that Mr. Roman should thus not have been subjected to a pre-dismissal Inquiry in terms of Section 188A of the LRA.

27. This challenge was not brought to the attention of the ELRC or to the attention of the WCED and it was also not raised by Mr. Roman or Mr. Ahmed on the day of the Inquiry, being 28 July 2023. If Mr. Roman or NAPTOSA held the view that Mr. Roman should not be subjected to a section 188A Inquiry they should have raised it with the ELRC or at the latest with the commissioner at the commencement of the Inquiry on 28 July 2023. It should not be raised in closing argument for the first time.

28. I do accept as far as charge 5 is concerned, that touching Leaner’s E’s upper arm does not raise an allegation of sexual misconduct. This charge fall outside the purview of this Inquiry and I will not deal with it any further, other than recording that Mr. Roman has pleaded guilty to conducting himself in an improper, disgraceful, or unacceptable manner by touching Learner E’s upper arm. Mr. Roman is aware that he may not touch leaners.

29. In as far as Learners A, B, C and D are concerned Mr. Roman did not touch or tickle their arms. Mr. Roman chose to touch or tickle these four 13 years old female leaners (who are in their early adolescence), underneath or side of their breasts. I am of the view that the alleged sexual misconduct referred to in paragraph 3.1 of Collective Agreement 3 of 2018 is wide enough to include disciplinary action where such allegations are leveled against an educator.

30. It is trite that mitigating factors such as the personal circumstances of an employee should normally be considered before deciding the appropriate sanction. In this regard I took into account that Mr. Roman is employed as a level 1 educator and has been at the school for more than 30 years. I have also considered the testimony of Mr. Yon that Mr. Roman is an excellent mathematics teacher and a valuable asset. I have taken into account that Mr. Roman has a clean disciplinary record, except for the incidents that happened during January to February 2023. And as was testified by leaners A and C, Mr. Roman has also not touched or tickled them again after these incidents. I have further taken into account that Mr. Roman has acknowledged and admitted his wrongdoing and that he is showing remorse for his conduct. I have further considered that he will probably find it difficult to secure employment in the education sector if he is dismissed.

31. Mr. Roman submitted that he tickled or touched these leaners to create a comfortable atmosphere in his class. Whilst Mr. Roman may have found it comfortable, it clearly had the opposite effect on these female learners. I cannot accept that a male educator could have ever consider touching or tickling 13 year old female leaners underneath or at the side of their breasts would be okay. Mr. Roman has admitted, by pleading guilty, that his conduct was improper, disgraceful, or unacceptable. I find his conduct being far removed from acting in the best interest of the learners. It was also not an isolated incident as it happened to four female learners and on four separate occasions between January and February 2023.

32. I have considered that the South African Constitution stipulates that every person has the right to human dignity (section 10) as well as freedom and security, including the right to bodily and psychological integrity (section 12). And that a child has the right to be protected from maltreatment, neglect, abuse, or degradation (section 28(1)(d)) and should not be required to commit acts that i) are inappropriate for a person of that child’s age; or ii) place at risk the child’s well-being, education, physical or mental health or spiritual, moral or social development (section 28(1)). The Constitution also states that the best interest of the child shall be paramount in any matters affecting the child (section 28(2)). In this regard the Constitutional Court in Governing Body of the Juma Musjid Primary School v Essay 2011 (8) BCLR 761 CC, held that section 28 of the Constitution impresses an obligation on all those who make decisions concerning children to ensure that the best interest of the children enjoy paramount importance. Courts and administrative authorities are constitutionally bound to give consideration to the effect their decision will have on children’s lives.

33. According to the Code of Professional Ethics contained in section 3 of the South African Council for Educators (SACE), Act 31 of 2000, an educator must inter alia a) respects the dignity, beliefs and constitutional rights of learners and in particular children, which includes the right to privacy and confidentiality; b) ..; c) strives to enable learners to develop a set of values consistent with the fundamental rights contained in the Constitution of South Africa ; d) ..; e) avoids any form of humiliation, and refrains from any form of abuse, physical or psychological; f) refrains from improper physical contact with learners; g) promotes gender equality; h)..; i). refrains from any form of sexual harassment (physical or otherwise) of learners; j) … k) …; l) uses appropriate language and behaviour in his or her interaction with learners and acts in such a way as to elicit respect from the learners. I find that Mr. Roman has failed dismally to conduct himself in accordance with the ethical standards expected from an Educator.

34. n terms of section 18(1)(q) of the Employment of Educators Act, it constitutes misconduct if an educator “while on duty,
35. Educators are entrusted with the care of children and they must act with utmost good faith in the conduct towards leaners because society must be able to trust educators unconditionally with their children. Mr. Roman has breached this trust. I find dismissal to be the only appropriate sanction in this instance.

36. Lastly, I have informed the parties at the commencement of the inquiry that section 120(1) of the Children’s Act, No 38 of 2005 provides that a finding that a person is unsuitable to work with children may be made by “any forum established or recognised by law in any disciplinary proceedings concerning the conduct of that person relating to a child.” Section 120(2) of the act provides that a finding that a person is unsuitable to work with children may be made by such forum on its own volition or on application by an organ of state or any other person having sufficient interest in the protection of children.

37. Having regard to the seriousness of Mr. Roman conduct, I find him unsuitable to work with children.

AWARD
1. Mr. Roman has pleaded guilty to the allegations levelled against him. On charges 1, 2, 3 and 4 I find summary dismissal the appropriate sanction.
2. The WCED must inform Mr. Roman of the date of his dismissal.
3. I find Mr. Roman unsuitable to work with children in terms of Section 120(4) of the Children’s Act 38 of 2005. The General Secretary of the ELRC must, in terms of section 122(1) of the Children’s Act 38 of 2005, notify the Director-General: Department of Social Development in writing of the findings of this forum for the Director-General to enter his name as contemplated in section 120 in Part B of the register
4. The ELRC must also send a copy of this award to the South African Council for Educators (SACE) to consider revoking Mr. Roman’s SACE certificate.


ELRC Commissioner: Jacques Buitendag