ELRC421-22/23 KZN

IN THE EDUCATION LABOUR RELATIONS COUNCIL

Case No ELRC421-22/23 KZN

In the matter between

Department of Education KZN Employer
And
A.P. Baboolall Employee


ARBITRATOR: R. Shanker

DELIVERED: 02 October 2023

AWARD

DETAILS OF HEARING AND REPRESENTATION
1. This matter was referred to the Education Labour Relations Council (ELRC) in terms of section 188A of the Labour Relations Act 66 of 1995, as amended, and was set down for an Inquiry by Arbitrator process.

2. The matter was scheduled on 25 October 2022, 30 November 2022, 23 & 24 February 2023, 03 May 2023, 17 June 2023 and finalised on 01 September 2023. The parties thereafter submitted written closing arguments which I considered in making this award.

3. The employee (respondent) in this matter, A.P, Baboolall (“Baboolall”), was represented by S.M Mthimkhulu, an official of SADTU. The employer, Department of Education KZN, was represented by J. Dumisa.

4. The matter against Baboolall relates to allegations of sexual assault of a learner who is a minor. In accordance with the protection of the rights of minors, the identity of the learners will not be disclosed. I will refer to the learner who was allegedly sexually assaulted as Learner “A” and the other learner that was supposed to have testified as “Learner “B” in this award. Learner A’s evidence was led via an intermediary and an interpreter.

ISSUES TO BE DECIDED
5. The issue to be determined is whether Baboolall had committed the misconduct for which he has been charged (Bundle D at page 1) and, if so, to determine an appropriate disciplinary sanction.

6. In summary, Baboolall is charged with contravening section 17 of the Employment of Educators Act 76 of 1998 (as amended). The allegation against Baboolall is that he committed an act of sexual assault against Learner A by touching her breast and bum.

7. There were allegations that Baboolall had sexually assaulted Learner B but charges against Baboolall was abandoned due to the non-availability of Learner B to testify.

BACKGROUND TO DISPUTE
8. Baboolall was an educator at the school and the form teacher of Learner A and B‘s class at the time of the incident. As a result of the serious nature of the allegations, he is currently on suspension.

9. In summary, Learner A alleges that Baboolall touched her breast and bum during a maths lesson when she approached him for assistance. Baboolall denied the allegation made by Learner A and contends that Learner A had fabricated her version because he had scolded her. Baboolall also contends that the principal had a personal vendetta against him and that this was a plot orchestrated by the principal to get rid of him.

10. The parties submitted bundles of document marked Bundle A – D. The employer called four witnesses to testify in support of its version. Baboolall testified and called two other witnesses to testify in support it his version.

SURVEY OF EVIDENCE AND ARGUMENT
11. The evidence and arguments hereunder are not verbatim accounts of the proceedings but a summary of the evidence necessary to determine whether, on the balance of probabilities, Baboolall had sexually assaulted Learner A. All evidence and arguments were considered prior to drafting this award.

12. M. Moidin, the school principal, testified that he became aware of the allegations of sexual assault against Baboolall on 05 May 2022 when Learner A’s parents came to school to lodge a complaint. He invited Ms Virasamy, the SGB chairperson, and others to the meeting. Learner A’s mother informed them that Baboolall had rubbed her daughter’s breast and touched her bum. He requested Learner A’s mother to put the complaint in writing and they awaited the letter. On 13 May 2022, Virasamy came to his office and upon establishing that the letter was not received, she phoned Learner A’s mother who confirmed that the letter, addressed to the principal, was sent with her daughter. He called Learner A to his office and she informed him that she was on the way to deliver the letter to the office when Baboolall took the letter.

13. He called Baboolall to his office to check if he received the letter. Baboolall stated that Learner A gave him the letter and so he opened and read the letter. When he questioned Baboolall about the envelope, Baboolall stated that he threw the envelope in the bin and could not locate it. He also received a complaint from the grandmother of Learner B alleging that Baboolall was demeaning and had scolded Learner B in front of the class for supporting Learner A’s version.

14. He maintained that he had a professional relationship with Baboolall and had no vendettas against Baboolall.

15. He agreed that the letter was addressed as “Dear Sir” but denied that the envelope was blank (not addressed to anyone). He maintained that the envelope was addressed to “The Principal” and Baboolall had thrown the envelope away.

16. He confirmed that he conducted the investigation. He invited Baboolall to a meeting but Baboolall refused and said he distances himself from the meeting. The parents were not happy with Baboolall being in class. He decided to remove Baboolall from the class in the best interest of the learners and the school.

17. Baboolall wanted to be the teacher component of the SGB. He was aware that a person could not stand for election if he/she had a record of misconduct. He reported that Baboolall had a record of misconduct but did not disclose the nature of the misconduct. He was forced to report the misconduct as it would have been fraudulent of him not to do so in terms of the rules. He did not comment when it was put to him that the misconduct was four years old.

18. He agreed that both he and Baboolall had applied for the principal position. He denied that he had victimised or harassed Baboolall as he wanted to be the number one candidate. He had been acting in the position for over six years and did not see Baboolall as a threat. He had no idea of whether Baboolall had reported this to the union.

19. He denied that he was using Learner A to fight his vendetta.

20. Learner A, testified that she was 10 years old and in grade 4. On the day of the incident, the class was full and they were working on maths. Baboolall’s desk was at the front left corner. She went to Baboolall’s desk, stood next to him and asked him to please help her with some maths. She was about 30cm away from him at that stage. Whilst busy helping her with maths, Baboolall was touching her. He touched her on her breast and rubbed her bum. The touching lasted for a few minutes. She was doing short division. He would touch her every time she did something correct and he would say “good”. Other learners were busy with maths at the time.

21. She reported the incident to her mum and dad. She first reported it to her mum and then on a different day she told her dad. She asked her dad if it was allowed for Sir to touch her breast and rub her bum and he said no. Her mother reported it at school.

22. She was given a letter to take to school. The letter was addressed to the principal. Baboolall took the letter from her and read the content of it to the whole class. He took a paper and folded to like a letter and wrote “to Baboolall”. He then took the envelope that was addressed to the principal and threw it away.

23. After reading the letter, Baboolall told the class that he helped lots of people and showed them pictures that he helped people. Baboolall did that because he felt that she was lying about him touching her breast and bum.

24. Under cross-examination, she agreed that Learner B was her friend. She maintained that Learner B witnessed the incident. She denied that anyone coaxed her into saying that Baboolall touched her breast and bum. She agreed that Baboolall had scolded her and that she told Learner B “I don’t like Sir”. She maintained, however, that Baboolall had scolded her the day after he had touched her breast and bum and that Baboolall had scolded her because she had made a mistake when doing her homework.

25. She saw Baboolall also touch the breast of Learner B and another girl learner.

26. She conceded under cross-examination that she didn’t see Baboolall take a page and make an envelope. She stood close to Baboolall because of the desk. She could not recall how many times Baboolall had touched her but maintained that it was more than once. She didn’t report it to the principal because she was scared.

27. Learner A’s Mother testified that on one evening, Learner A asked her if it is okay that sir touches her like this. She asked her daughter how and her daughter said sir touched me on my breast and rubbed me on my bum. She phoned the principal the same evening and made an appointment for the next morning. The next day, she met with the principal and SGB members. She told them what happened. They advised her to go home, speak to her daughter, write a statement and send it to school. She did so and sent the letter on the Friday morning with her daughter. She wrote on the letter “for attention the principal”.

28. The SGB phoned to ask her about the letter and she told them that she had already sent it with her daughter. She asked her daughter what happened to the letter. Her daughter informed her that when she requested permission to go to the principal’s office, Baboolall asked her the reason. When she showed Baboolall the letter, he took the letter from her. Her daughter also informed her that Baboolall had embarrassed her in front of the class – Baboolall read the letter to the class and told the class “See Learner A wants me to lose my job. Did anyone see me touch anyone in class”.

29. Under cross-examination, she maintained that she incorrectly wrote the date on the letter and immediately corrected it. When the principal saw the alteration, he asked her to sign it. She denied that the principal asked her to change the date. Her daughter told her that Baboolall touches other girls and that is why she wrote it in the letter. Her daughter likes to play and joke and she was not made aware by other teachers that her daughter is troublesome at school. She disputed that her daughter does not take too well to being disciplined and that is why her daughter made the allegations.

30. Virasamy, the SGB member, testified that she was present when Learner A’s mother arrived at the school to complain about Baboolall touching her daughter inappropriately. She requested Learner A’s mother to put it in writing. She didn’t receive the letter so she called Learner A’s mother who advised that the letter was sent with her daughter. They then called Learner A and asked her for the letter. Learner A was in tears and informed them that she told Baboolall that she has a letter for the principal but Baboolall took the letter and read it out to the class and told the learners that he does not want to lose his job as he has a family to support.

31. When called, Baboolall handed in the letter and later, when the envelope was requested to check to whom the letter was addressed to, Baboolall brought a blank envelope. They later established from Learner A and B that Baboolall had torn up and thrown the original envelope in the bin. When questioned later, Baboolall did not admit or deny that he threw the envelope in the bin and he requested a representative.

32. Baboolall testified that he did not touch the breast or private part of any learner and he did not threaten any learner. Learner A had been interfering with learners in her class. She was very disruptive to the lessons and to learners directly. She had sworn at learners many times and often in her vernacular. She never sat at her own designated seat and sat as she pleased. She scribbled on learner’s books, scribbled on the tables, fought with other learners and even farted on learners. These incidents are recorded in the incident report book. He reported Learner A to the office on many occasions but those cases were brushed aside and the learner was sent back to class. Learner A did not like to be questioned about her behaviour. She was always in denial of any allegations brought against her although there were countless learners stating that she interfered with them in various ways.

33. He maintained that Learner A had fabricated this complaint against him because he had scolded her in class. On 12 May 2022, after Learner A had provoked learners, he scolded Learner A for her lewd acts and behaviour towards learners. Learner A began to cry for a long time and so much so that she did not want to listen to his lessons and put her head down in defiance. It hurt him and he tried to talk to her but her response was to say “Sir, I don’t like you. Your always scold. I will show you. I will show you”.

34. On 13 May, whilst learners were at the front of the class, Learner A said “Sir, I have a letter for you”. He took the letter. Learner A also said “I have hand sanitiser to leave at the office”. He told her that that was not urgent and should have left it at the office before coming to his class. Educators receive letters from learners all the time. The envelope was not addressed. He had no knowledge of what the contents of the letter was and he therefore opened the envelope and read the letter. The letter read “Dear Sir”. As he read through the content of the letter, he wondered as to which teacher the content is referring to. Towards the end of the letter, he realised that it implicated him. He asked Learner A if she knew the content of the letter and if she told her parents anything (in reference to him touching her breast and bum) to which Learner A responded in the negative.

35. He read the letter out to the class. As the form teacher, he stopped and discussed with the class the consequences of speaking lies and how it could impact people that have families. During that discussion, he called on one female learner to read one part of the letter. Learner A started to sob so he asked the class why is she crying. At that stage, Learner B, a close friend of Learner A said “Sir, I saw what you did”. This didn’t bother him because he already spoke about speaking lies. He did not single out or threaten any learner but he did tell Learner A and B to correct the matter and tell the truth to their parents. Later that day, Learner A came to him and said “Sir, don’t tell Learner B anything because I told her what to say".

36. Later that day, about 13:30, he was called to the principal’s office and asked if he received the letter. He agreed that he received the letter. The principal then started shouting and threatening him with charges of misconduct. He did not refuse to hand in the letter. At that stage the principal only asked him if he received the letter and not to hand it in. When he was requested to hand in the letter, he went to his classroom, took the letter out of his bag, returned to the office and handed it to the principal. He was asked for the envelope and he told them that the letter did not come with an envelope and he did not know what happened with the envelope. After school, the principal asked him to check for the envelope again. He went to his class and checked. The only envelope he could find was a white one. As it was the same size, he gave it to the principal.

37. He did not have a sound working relationship with the principal and believed that the principal was involved in a conspiracy against him. In 2020, the principal (a deputy principal at that stage) tried to remove him from school. He fought against it and was placed in grade 2. In 2021, the principal, for no reason, moved him to teach grade 7 and then to grade 6 and then to grade 4. He made it known that he was upset with the principal. He had applied for the principal post and was not shortlisted. The Departmental Head post was advertised whilst he was on suspension. He stood for election for a shop steward. Staff voted for him but the principal was upset and blocked it. The principal tried to implicate him in misconduct on two previous occasions – the first was when the principal accused him of slapping a learner that was the principal’s friend’s son and the second was when the principal accused him on picking on a boy learner’s private part. He requested for proof but nothing was forthcoming. In August 2021, he indicated to his union via WhatsApp that he was disillusioned about the principal’s conduct in relation to his application for the post of principal. In February 2022, he indicated to his union via WhatsApp that the principal was victimising and harassing him (and another teacher) and that the principal wanted to get rid of them.

38. He was aware that the principal posted on a private chat that he was suspended indefinitely. He was not allowed to submit a statement in his defence and the principal did not call him to present his side of his story. He was denied private arbitration. One day he was told that the matter was being investigated and the next day he was told that he was suspended. The principal posted on chat that he was removed permanently. For the period of his suspension, the principal refused his request to be placed at the circuit office. The principal refused him pastoral care although he was the most senior staff at school with 28 years of service. He ended up in hospital twice because of the principal’s behaviour and emotional bulling. Events and statements that were made soon after the incident did not correlate. This was in relation to him being removed as the educator, the date when the principal said that the parents came to see him and as to who requested that he be removed from class.

39. He spent three months in the staffroom whilst on suspension. He was told to stay away from learners but once interacted with children during a field event in school and a soccer event out of school. Learner A and B were present. Learner A was not scared and sat a few metres away from him. The learners would also walk close to the staffroom and showed no fear. He always conducted himself ethically and morally. There had been no similar allegations levelled against him previously.

40. Under cross-examination, he agreed, in relation to Learner A being a troublesome child, that he did not sit her down and have a discussion with her. He was her form teacher for two months. He did not write any letters to her parents. He did not go directly to the principal but sent the learner to the office. He did not report the learner to the disciplinary committee because the school does not operate like that.

41. He agreed that his version, that Learner A said “I’ll show you”, was not put to Learner A to rebut. He denied that he threatened learners in class and maintained that he only explained to them the implications of lying. He spoke to Learner A directly in class when he asked her whether she was aware of the content of the letter. He asked them to tell the truth and not to correct their version. He did not see the seriousness of his conduct in this regard.

42. After he read the letter from the parent, he did not bring it to the attention of the principal because he does not have a good relationship with the principal and the principal went to mosque at that time. He made no effort to take it to the deputy principal. He denied that his intention was not to hand in the letter to management. He maintained that Learner A was inspired by the principal to lodge a complaint because only the principal and not the parents charged him.

43. Chryselle Chettia, a learner in the same class as Learner A, testified that she did not see Baboolall touch Learner A’s breast and bum. She stated that Learner A used to swear and like to hurt learners. When educators tried to stop Learner A, she would give them attitude, that is, she would tell them off. She, however, did not know which educator received such treatment. There was one instance when Learner A was scribbling in another learner’s book. Baboolall tried to stop her but she gave him attitude. Baboolall tried to make Learner A happy by tickling her under her chin. She did not see Baboolall threaten any learner. There were no other educators troubled by Learner A.

44. Under cross-examination, she stated that she didn’t know about the incident where Baboolall had scolded Learner A and where Learner A told Baboolall that she doesn’t like him. With regard to the incident where Learner A went to Baboolall for assistance, she indicated that she was focused on her maths and when she looked up, she saw Baboolall touch Learner A under her chin.

45. With regard to the letter, she maintained that Learner A indicated that she wanted to hand in the letter to the office but Baboolall took the letter and said he wants to read it first.

46. Under re-examination, she stated that she did see Baboolall scold Learner A, but in a nice way, ie, he was explaining to Learner A.

47. Rouwenvenn Mothilal testified. He sits on the SGB disciplinary committee. He believed that he was being sidelined and so he questioned the principal regarding the complaint against Baboolall. He was informed that the matter was being dealt with at circuit office as it was a serious matter. He did not believe that Baboolall committed the offence because Baboolall was a very respectable person that went out of his way to assist others. His daughter and son were at the school and there were no complaints of sexual harassment. Under cross-examination, he agreed that the SGB disciplinary committee was not responsible for dealing with disciplinary matters in respect of teachers. He could not say that the learner was never abused by Baboolall but would be very surprised.

ANALYSIS OF EVIDENCE AND ARGUMENTS
48. The key issue to be determined in this matter is whether Baboolall had sexually assaulted Learner A. Baboolall denied that he had done so. As to whether Baboolall had sexually assaulted Learner A would depend on the credibility and reliability of the witnesses and the probabilities of their versions being true.

49. I found the employer’s witnesses to be credible and reliable and that their versions were probable. They also corroborated each other’s evidence. For reasons mentioned below, I found Baboolall to be an unreliable and dishonest witness.

50. I accept the evidence that Learner A had reported the incident at home and that the mother has visited the school the next morning to lodge a complaint. I accept that, upon request, the mother wrote a letter of complaint and sent it with Learner A to school. This evidence was corroborated by Learner A, the principal and Virasamy.

51. I accept the mother’s evidence that the letter of complaint was in an envelope and that she had addressed the envelope to the principal. It is highly unlikely that the mother would not have addressed the letter to the principal given the confidential nature of the letter and that the complaint was against Baboolall who was Learner A’s form teacher. I accept Learner A’s evidence that Baboolall threw the envelope in the bin. Virasamy confirmed that Learner A had maintained this version when called in by the principal. I reject Baboolall’s version at this arbitration that the envelope was blank. When requested to produce the envelope by the principal, he told them that the letter did not come with an envelope and he did not know what happened with the envelope. It was rather unusual that he would have kept the letter but not the envelope.

52. I accept Learner A’s version that she requested permission from Baboolall to take the letter to the principal’s office and that Baboolall took the letter from her and read it. I reject Baboolall’s version that Learner A said “Sir, I have a letter for you”. Baboolall’s own witness, Chettia, confirmed that Learner A requested permission from Baboolall to take the letter to the office but Baboolall opened the letter and read it.

53. I accept that Baboolall had no intention of handing in the letter to the principal or anyone in management. The letter was a short, one page hand written letter. It is not in dispute that whilst reading the letter, Baboolall realised that the complaint was against him. After reading and discussing the letter with the class, Baboolall put the letter in his bag. There was clearly no effort to take the letter to the principal or deputy principal.

54. I accept that Baboolall tried to intimidate Learner A into changing her version by reading out the letter to the class, questioning Learner A in front of the class as to whether she was aware of the content of the letter and telling the class about the consequences of lying and the effect it would have on his job and family, etc. it is clear that Baboolall’s conduct made Learner A cry in class. I reject Baboolall’s version that he only tried to get Learner A and B to tell the truth. Given the seriousness of the allegations, he ought to have taken the letter straight to management rather than discuss it in class. As an experienced educator he would have known that his conduct in this regard was prohibited and unacceptable.

55. I accept Learner A’s version that Baboolall had touched her breast and bum whilst assisting her with maths and believe that her version is probable. Learner A was a compelling witness. She gave clear evidence with sufficient details and I found her to be an honest witness. Baboolall did not dispute that Learner A was at his desk and that he provided maths assistance to her. Baboolall’s witness, Chettia, did not see the incident because she was focused on her maths but when she looked up, she saw Baboolall touching Learner A under her chin. It is therefore clear that Learner A was close enough for Baboolall to touch her. As to whether Learner A had actual breasts at that age is immaterial. Although Learner B did not testify, Baboolall confirmed that when the letter was read out in class, Learner B said “Sir, I saw what you did”. This further points in the direction that Learner A’s version is probably true. I reject Baboolall’s version that Learner A later said to him “Sir, don’t tell Learner B anything because I told her what to say" as this version was not put to learner A to rebut and therefore not tested.

56. I reject Baboolall’s version that Learner A had fabricated her version because he scolded her in class and she said “Sir, I don’t like you. Your always scold. I will show you. I will show you”. I accept that Baboolall had scolded Learner A in class and she had told a friend that “I don’t like Sir”. I, however, reject Baboolall’s version that Learner A had directly told him “Sir, I don’t like you. Your always scold. I will show you. I will show you”. This critical aspect of his version was not put to Learner A when she testified and learner A was not given an opportunity to rebut Baboolall’s version in this regard. There is therefore no reason for me to believe that Learner A had fabricated a version against Baboolall because he scolded her.

57. I reject Baboolall’s version that this whole case was manufactured by the principal because of a personal vendetta that the principal had against him. Baboolall presented lengthy evidence of his poor working relationship with the principal and the principals conduct following the incident but he failed to show how or why Learner A or her mother or Virasamy were linked and were working together with the principal to fabricate the charges against him. I am satisfied that the charges were bona fide and that the allegations by Learner A were made independently and without any cohesion by the principal or via Learner A’s mother.

58. I therefore find that the evidence, on the whole, is sufficient to substantiate the employer’s version that Baboolall had sexually assaulted Learner A. The misconduct that Baboolall had committed is of a sexual nature and is dealt with in section 17(1)(b) of the Employment of Educators Act, 76 of 1998. In terms of Section 17, the misconduct is regarded as serious misconduct for which dismissal is a mandatory sanction irrespective of any mitigating factors. Having regard to the gravity of the misconduct, the rights of learners to be treated with dignity and that Baboolall is an educator who works closely with learners, I am satisfied that the employment relationship has irretrievably broken down.

59. I therefore find that a sanction of dismissal is appropriate in the circumstances. In addition, given the nature of the sexual misconduct involving a vulnerable learner, I find that Baboolall should not be permitted to ever work with children again.

AWARD
60. In the circumstances I make the following award:
60.1. The employee, A.P. Baboolall, contravened section 17 of the Employment of Educators Act, 76 of 1998.
60.2. The employer, Department of Education KZN, must with immediate effect impose the sanction of dismissal on Baboolall in terms of the said Act.
60.3. The ELRC General Secretary must forward this award to the Department of Social Development for Baboolall’s name to be included in the National Child Protection Register as unsuitable to work with children and to the SA Council for Educators (SACE) for appropriate action.

Raj Shanker
Senior ELRC Arbitrator
Kwazulu Natal