ELRC24-23/24FS

Panellist: Khuduga Tlale
Case Reference No.: ELRC24-23/24FS
Date of award: 27 September 2023

In the matter between:

Department of Education – Free State Employer

And

Sello Tlotlanang Matsididi Educator

ARBITRATION AWARD

Details of hearing and representation

1. This matter was set down as an inquiry by arbitrator in terms of section 188A of the Labour
Relations Act 66 of 1995 as amended (“the LRA”) between Department of Education – Free
State (“Employer”) and Mr. ST Matsididi (“Educator”) in Bloemfontein on 03 August 2023, and concluded on 18 September 2023. Ms. L Cweba, Labour Relations Officer, represented the Employer and, an Educator appeared in person and Mr. M Frans, SADTU Provincial Organizer, represented him.

2. These proceedings were manually and digitally recorded. The Employer submitted a bundle of document, which was marked bundle “A”.

3. In all matters in which an Employer wants to take disciplinary action against an Educator for an alleged sexual misconduct towards any learner, an inquiry by an arbitrator, as intended by section 188A of the LRA, and clause 32 of the Dispute Resolution Procedures of the Education Labour Relations Council (“ELRC”), shall be mandatory. In this regard, I have noted section 3.3.1 of Collective Agreement 3 of 2018 of the ELRC.

Issue to be decided

4. I have to decide whether an Educator committed misconduct as per the allegation levelled against him. If I find that he did commit the misconduct, I have to decide on an appropriate sanction.

Background to the dispute

5. The Educator is currently employed as an educator (PL1) at SS Paki Secondary School in Vredefort, Fezile Dabi District. The Educator acknowledged receiving the allegation against him well in advance on 02 March 2023. The notice of set down was served to the Educator, and he confirmed that he had adequate time to prepare for the proceeding. I explained to the Educator his rights during the proceeding, and he confirmed on record that he was comfortable to be represented by Mr. M Frans. The ELRC appointed Mr. S Skhasa, and Ms. P Nyezi as interpreters, and Ms. TP Mokgwamme as an intermediary.

6. The allegation levelled against the Educator is as follows: Charge one- “You have contravened section 18(1)(q) of the Employment of Educators Act 76 of 1998 (“EEA”) in that on 22 November 2022, you conducted yourself in an improper, disgraceful, or unacceptable manner when you closed a grade 8 learner in the storeroom, and asked her to kiss you”. For the purpose of this award, the name of the learner will be kept confidential and the learner will simply be referred to as “the learner”. The Educator registered a plea of not guilty to the charge levelled against him.

Survey of Evidence

Employer

First witness: Learner

7. The witness testified under oath that she was at school on 22 November 2022. She was fourteen (14) years old, doing Grade 8 in the year 2022. On the day in question, they were writing EMS final examination. The Educator came to her, and he gave her the key of his classroom. She went to the classroom, and she was not aware that her classmate, Khauhelo, was following her.

8. She entered the classroom, and an Educator arrived. The Educator stood next to the table. He asked her to fetch the file at the cupboard inside the storeroom. She fetched the file of grade 12, and gave it over to him. After he finished working on it, she returned the file back to the cupboard, but the Educator followed him unaware. She placed the file inside the cupboard, and when she stood up, the Educator was behind her. She turned towards him, and he was closed to her face.

9. He lifted his hands towards her, as if he was hugging her, but she blocked his hands with her hands. The Educator firstly asked her to kiss him, and he stretches his hands towards her, but she blocked his hands. She screamed, and the learner who followed entered. All this incident occurred inside the storeroom, and there were no learners inside the classroom. When she screamed, the Educator moved as if nothing happened, and they left the storeroom. She informed her parents about this incident after school.

10. She did not inform any educator at the school because she did not trust them. She did not tell Khauhelo everything because she was scared. She demonstrated by her hands how the Educator was closed to her. The Educator did not give her the scripts as promised. He did not say a word about the scripts. He only asked her what she was writing on that day. The door of storeroom was not locked, but it was slightly closed.

11. Under cross-examination, she confirmed that she was at school on the day in question. The Educator came to her alone. There were other learners, and educators around. The learners saw Educator gave her the key. She informed her mother about what had happened over the telephone. She did not cry, and she did not show wrong sign. She was scared, and avoided to be taken to other educators to be asked questions. It was the first time this thing happened to her, and she did not want to embarrass herself.

12. The Educator never conducted himself this way previously. When he gave her the key, he mentioned the scripts, not the file. The issue of the file only came while they were inside the classroom. The storeroom door was slightly closed. The door was opened, and after she entered the storeroom, it was closed. She confirmed that she did not see the Educator closed the door. She did not notice her friend following her. If her friend did not follow her, how did she hear her screaming?

13. She maintained that she screamed, and Khauhelo arrived. There were other learners outside the classroom, but they were far away from the classroom. She confirmed that she did not see the Educator entering the storeroom. When she stood-up after putting back the file to the cupboard, the Educator was standing next to her. He first asked her to kiss him, and afterwards he stretches his arms. She would not dispute the Educator’s version by saying he did not ask her to kiss him.

14. It would be him who was going to say those words. She confirmed that Khauhelo was not present when the Educator asked her to kiss him. When Khauhelo entered the storeroom, the Educator moved away from her. She had no knowledge how Khauhelo witness the incident. There was a sound when Khauhelo entered the storeroom like someone kicking the door. She would not respond on behalf of Khauhelo. It was Khauhelo who told her how she entered the storeroom. On the day in question, she did not trust a male person. There were female educators at the school, but she did not trust them because they were colleagues of the Educator. She only trusted her parents.

15. Under re-examination, she confirmed that she was with the Educator at the storeroom. The Educator asked her to kiss him, and he tried to hug her. She kneel down when putting the file back to the cupboard, and she did not realize the Educator was behind her.

16. Under clarity question, she stated that the Educator did not lock the door. The door was slightly opened. She confirmed that she was not closed inside the storeroom.

Second witness: Ms. Ntswaki Maria Serifi

17. The witness testified under oath that she was the mother of the learner. She received a telephone call from the learner. She heard from her voice that she was crying. She told her that something happened at the school. The Educator done something improper to her. She told her that the Educator sent her to the classroom, and she must wait for him because he wanted to give her the scripts. She went to the classroom, and she waited.

18. The Educator arrived, and he sat on the table while going through the scripts. He asked the learner to fetch the file inside the storeroom. She went to fetch the file, and he made some notes on the file. He requested her to return back the file. She had to kneel down in order to put the file back to the cupboard. When she stood-up, the Educator was next to her. He asked the learner how was the examination, and the family.

19. He later asked her to kiss him. The Educator was getting closure to her, she screamed, and her friend came to push the door in order to come in. She had no knowledge whether the friend kicked the door, or what. She was crying over the phone when narrating the incident. The Educator was unknown to her, and she was aware the learner was a class representative. She worked in Kroonstad, and the Father was in Vredefort. The Father was the one who reported this matter to the school.

20. Under cross-examination, she confirmed that she was not present when the incident happened. She was told by the learner. She had no knowledge of the classroom, and the storeroom. She believed that the incident happened because the learner told her. The fact that Khauhelo pushed the door, it means that the door was closed. The learner had no knowledge whether the door was closed because she kneeled down when she put back the file. She believed the learner’s version by saying the door was closed. Her testimony was about what the learner told her.

21. Under re-examination, she stated that the versions of the learner, and the Educator differ about the scripts, and the file. Khauhelo was not featuring in their versions. She stated that Khauhelo told her that she opened the door after hearing the learner’s screamed. The learner told her that the Educator asked her to kiss him, and he tried to hug her.

Educator

First witness: Mr. Sello Tlotlanang Matsididi

22. The witness testified under oath that he is having three (3) years of service. On the day in question, he was coming from the staff room, and he was requested to bring the mark sheet. He saw the learner, and he asked her to go to the classroom to fetch him the scripts. The learner was alone when he met her. There were other educators around. He gave the learner the classroom key. The learner delayed, and the mark sheets were needed urgently. He went to the classroom to check the learner with the scripts. On his arrival, the file was not on the table, and he asked her to go to the storeroom to look for it.

23. The learner went to the storeroom, and he remained in the table. She got the file, and she brought it to him. He filled the notes, and asked her to return it back. He took the scripts to the storeroom. He met the learner near the door, and they passed each other. They never been in the storeroom together. The learner went out, and he put the scripts in the storeroom, and went back to the staff room to submit the mark sheets. He did not see Khauhelo, and the door was not kicked. He did not close the door, and he denied ever asking the learner to kiss him. If the learner screamed, other learners should have heard her.

24. Under cross-examination, he stated that he is 25 years old, and he has two children. He stated that he informed the learner that the file was on the table, besides the scripts. On his arrival at the classroom, he found the learner still looking for the file. He also looked for the file, but he did not find it. He requested the learner to look for the file at the cupboard inside the storeroom. The storeroom door was not closed. When he entered the storeroom, the learner was on her way out.

25. He does not know Khauhelo. There were no learner(s) who came to open the door of the storeroom, and the learner did not scream. He used to send learners, including the learner to the storeroom to fetch him something. He had no knowledge why the learner accused him with this serious allegation.

Survey of Argument

Employer

26. The Employer representative stated that the Educator showed no remorse for his transgression. The Educator slightly closed the storeroom door, and asked the learner to kiss him. The learner screamed, and Khauhelo came in, and they left the storeroom. The learner was shocked, and scared. The learner was not comfortable with the Educator’s conduct, and her evidence was credible. The conduct of the Educator amounted to a sexual harassment.

27. The Educator compromised his core business of teaching, and learning. His clean disciplinary record would not mitigate his case. The Employer does not condone this conduct. He abused his authority, and he had a legal duty to protect the interest of the Employer, and the society by maintaining a professional relationship with a learners. He put the teaching profession into disrepute. The Educator denied the allegation against him, and he even denied that the learner screamed. His version was convenient, and improbable. Any educator who preys on learners had no place in the education system, and should be dismissed if found guilty.

Educator

28. The Educator representative stated that the Employer failed to call Khauhelo to the proceedings as the eye witness. The evidence of Khauhelo was crucial about what happened at the storeroom, and whether the learner screamed. The Educator denied the allegation against him. The learner avoided to answer questions honestly. The learner testified that she did not see or noticed that Khauhelo was following her. It is not probable for the child after experiencing such trauma would make a sound decision of realizing that all other educators would not believe her story.

29. After the alleged trauma, she continue writing her examination. It was not probable for the child at her age, would remain calm after the alleged experience. This clearly showed that she was not telling the truth, and she was not a credible witness. The testimony of the learner was contradictory. The mother of the learner was told about the alleged incident, therefore, she did not witness anything. The evidence of the learner, and her mother contradicted each other.

30. The Educator has been employed by the Employer for more than three (3) years. He never denied meeting the learner on the day in question. He further agreed that he gave the learner his classroom key to fetch the files. It could not be good to the image of the Employer that an Educator would be found guilty simply because no proper investigation was conducted. If the Educator would be found guilty, it would not be easy for him to clear his name. He would not be able to work as an educator anymore, as young as he was, with the responsibility of two children. It was our plea that the Educator be found not guilty as charged.

Analysis of evidence and argument

31. Section 28(1)(d) of the Constitution of the Republic of South Africa provides, among other things, that: “Every child has a right –
“to be protected from maltreatment, neglect, abuse or degradation”. Furthermore, this Section also provides that “A child’s best interests are of paramount importance in every matter concerning the child”. The above provisions are therefore important consideration in deciding the issue before me.

32. The allegation against the Educator is that he conducted himself in an improper, disgraceful or unacceptable manner when he closed a grade 8 learner in the storeroom, and asked her to kiss him. A false claim of sexual assault has very serious implications for the person against whom the allegations are made. Not only could such a person lose his job with very little hope of finding similar employment, but his family and community standing can be negatively affected. The arbitrator has a duty to determine if the Educator is fit to work with children. Once declared unsuitable the ELRC has a duty to submit a report to the Director-General of Social Development to be added to the National Register For sex Offenders.

33. The Educator denied the allegation against him. The standard of proof was that of a balance of probabilities. Proof that the employee actually committed the offence charged presupposes a proper investigation of the allegation against the employee, and the presentation of evidence that links the employee with the offence. Proof on a balance of probabilities means that the evidence points more probably to the conclusion that the employee committed the alleged misconduct, than to his innocence. However, a mere suspicion of guilt does not satisfy the test of proof on a balance of probabilities. The question that need to be ask is whether the Employer produced evidence to support the charge of misconduct for which the Educator disciplined for.

34. Reading of this allegation against the Educator, the Employer is alleging that the Educator closed the learner in the storeroom, and asked her to kiss him. The Employer was required to prove that the learner was closed inside the storeroom, and the storeroom was closed by the Educator. The request to kiss him happened behind closed door.

Whether the door was closed?

35. It is the learner’s version that he did not see the Educator closed the storeroom door. It is the learner’s version that the door was slightly closed. It is further the learner’s version that Khauhelo told her how she entered the storeroom. Khauhelo told the learner, and her mother that the door of the storeroom was closed. Khauhelo further told them that she kicked the door to enter the storeroom.

36. In Bargaining Council for the Furniture Manufacturing Industry, Kwazulu-Natal v UKD Marketing CC and others (2013) 34 ILJ 96 (LAC), it was held that an adverse inference may be drawn against a party for failing to testify only if the evidence of the other party calls for a reply. It is a prerequisite to the application of the rule than an adverse inference should be drawn from a party’s failure to call a witness that the evidence that the party faces must have been of such a nature that, all the time the other party closing its case, there was sufficient evidence enable the Court to say, the other party’s version was more probable than not.

37. In this matter, the Employer was required to prove that the door was closed, and Khauhelo was the one who opened the door, but they failed to do so. The evidence of the Employer’s witnesses amounted to hearsay because it was not corroborated by a direct witness. The Employer failed to call Khauhelo to this inquiry in order to prove that the door of the storeroom was closed. It will not be in the interest of justice to admit their hearsay as evidence. I, therefore, conclude that the Employer failed to prove that the Educator closed the learner inside the storeroom.

Whether he ask for a kiss?

38. The Educator is placed at the scene from the onset. The Educator requested the learner to return the file to the cupboard. The Educator denied the allegation to say they were together inside the storeroom. The Educator’s version is that he also went to the storeroom to file the files, but he, and the learner passed each other at the door of the storeroom. The Educator further denied ever requesting the learner to kiss him. In Stellenbosch Farmers’ Winery Group Ltd and another v Martell et Cie and others (2003) (1) SA 11 (SCA) (handed down on 6 September 2002) the Court held that where a Commissioner is faced with two conflicting versions before him the Commissioner must make a finding on the credibility of witnesses and on the probabilities of the two versions, to determine where the truth lies. The question that should be answered is whether the probabilities favour the party that bears the onus of proof. The Court further held that the credibility of a witness is in an extricable manner bound to the consideration of the probabilities of the case, the Arbitrator should therefore resort to credibility where the probabilities fail to point which version embraces the truth more.

39. What then appears to be in dispute is whether the incident occurred as alleged? According to the allegation, the request to kiss, happened behind closed door. I have already decided that the Employer failed to prove that the storeroom door was closed. It is the learner’s version that when she stood-up from the cupboard, the Educator was standing next to her. He stretches his hands, like someone who wanted to hug her, and he requested a kiss. It is the mother’s version that when the learner stood-up from the cupboard, the Educator was next to her, they talk about family, and examinations, and requested a kiss. Even though the mother was not present during the incident, she maintained that what had happened inside the storeroom. The testimony of the leaner, and her mother contradicted each other about the events that led to the kissing.

40. It is the learner’s version that after the Educator requested a kiss, she screamed, which denied by the Educator, and Khauhelo came in. In this matter, the Employer was required to prove that Khauhelo came inside the storeroom after hearing the screaming of the learner, but they failed to do so. The Employer failed to call Khauhelo to this inquiry to testify whether she came to the storeroom after hearing the learner’s screaming, how did she enter the storeroom, whether she found both the learner, and Educator inside the storeroom, where the Educator was standing, and what was the condition of the learner? No evidence was led how near Khauhelo was close to the classroom, while the other learners were far away. No evidence was led how the learner knew that the other learners were far away from the classroom.

41. During the cross-examination of the learner as the witness, she testified that she will not dispute if the Educator will say he did not ask her to kiss him. It is not enough to conclude that the Educator had a motive to send the learner to his classroom. How probable a 14 year old girl, who was shocked, and scared, continue to write her final EMS examination without any disturbances? How probable that she was clam like nothing happened, and only cry when she arrived home. Is the behaviour or conduct of the learner probable? The testimony of the mother did not take the matter in the Employer’s desired direction. I conclude that the learner’s versions were not probable. In this matter, the party burdened with the onus of proof has failed in discharging it.

Conclusion

42. It is clear from the evidence presented during the proceedings that the Educator did not breach any Employer’s rules. The Employer cannot escape the consequences of the way it decided to word the charge sheet, and the charge on which it proceeded to discipline the Educator.

Award

43. I find the Educator, Mr Sello Tlotlanang Matsididi, not guilty of the charge that preferred against him.

Signature: 
Commissioner: Khuduga Tlale
Sector: Educat