ELRC302-23/24EC

Case Number: ELRC302-23/24 EC
Panelists: Malusi Mbuli
Date of Award: 02-11-2023

In the ARBITRATION between

NTOKOZO TOM
(Respondent / Employee)

And

DEPARTMENT OF EDUCATION – EASTERN CAPE
(Applicant / Employer)

DETAILS OF HEARING AND REPRESENTATION

1. The enquiry by arbitrator was held under the auspices of the ELRC in terms of section 188 (A) of the Labour Relations Act 66 of 1995 as amended in 2015. The hearing took place on the 19th of October 2023 at 09:00 at the Mbizana District Office in Mbizana.

2. The employee Mr. Ntokozo Tom attended the hearing and was represented by Ms. Keke a site steward of the employee trade union SADTU. The employer also attended the hearing and was represented by Mr. K. Dalasile an official of the employer.

3. The enquiry by arbitrator proceeded on the on the 19th of October 2023 as indicated above in the presence of both parties. The parties further requested to file closing arguments together with mitigating and aggravating circumstances on this matter not later than the 27th of October 2023 and both the employer representative and the employee representative filed their arguments with the ELRC by the 27th of October 2023.

4. The notice to attend the enquiry by arbitrator was properly drafted and served on the employee, signed for on the 02nd of August 2023 and the employee attended the hearing as indicated above.

ISSUE TO BE DECIDED

5. I am required to determine whether or not the employee Mr. Ntokozo Tom is guilty of the charges levelled against him by the employer and if so whether a sanction of a dismissal is appropriate to be imposed on him in the circumstances.

BACKGROUND TO THE ISSUE

6. The employee is employed by the employer as an educator and is now charged by the employer in respect of the incidents appearing here under outlined in the charges. The parties agreed that the matter should instead of being set for a disciplinary hearing be enrolled straight at the ELRC as an enquiry by arbitrator in terms of section 188 (A) of the Act in accordance with the ELRC Collective Agreement 3 of 2018.

7. This therefore means that the status of the outcome of this process will be an award that is final and binding on the employer and employee. The charges against the employee are as follows.

- It is alleged that the employee Mr. Ntokozo Tom is guilty of misconduct in terms section 18 (1) (a) of the Employment of Educators Act 76 of 1998 (as amended), which inter alia reads as follows:

(1) “Fails to comply with or contravenes this Act, or any statute, regulation or legal obligation relating to Education and the employment relationship, in that you unprofessionally commented to a learner (Uyazibona na uba uvuthiwe) which amounts to sexual harassment towards a learner.

(2) It is alleged that you Ntokozo Tom is guilty in terms of section 18 (1) (q) of the Employment of Educators Act 76 of 1998 in that while on duty, the educator conducted himself in an improper, disgraceful and unacceptable manner in that you unprofessionally commented to a learner (uyazibona na uba uvuthiwe) which amounts to sexual harassment towards a learner.

8. The employee Mr. Ntokozo Tom denies these allegations and pleaded not guilty to the said allegations hence the matter was set down for section 188 (A) inquiry as directed by ELRC Collective Agreement 3 of 2018.

SURVEY OF EVIDENCE

Submissions by the employer

9. The employer representative called their witness the learner (a minor child) S. G. who testified with the assistance of the intermediary Mrs. Noluthando Nxala – appointed by the ELRC. She testified that she is a minor child aged 17 years old who was born on the 01st of July 2006.

10. She stated that she is now in 2023 doing grade 12 at Nonqkubela Senior Secondary School and last year she was a learner at grade 11 at Mzamba Senior Secondary School and she knows the employee Mr. Ntokozo Tom because he is a teacher at Mzamba S.S.S. even though he is not teaching in her class.

11. She testified that the employee used to do inappropriate reactions to her by blowing kisses and winking at her since she was at grade 10 and one time at school he asked her to give him water claiming its Gods water and she laughed at him. She stated that the employee stated that she has now grown and was ready for him and again she just laughed and walk away.

12. She testified that she did not feel comfortable as the employee also had a child at school doing grade 12 and she never reported this to anyone because she respected the employee as a teacher but later realized how wrong it was and reported that to her sister and was called to the office by the Principal together with Maganu.

13. When they got to office they were confronted by the Principal because the Principal thought that they were dating the teachers in the names of Mr. Dlamini, Mr. Tuta and Mr. Tom and they told the Principal that it was the teachers who were into them. She stated that she felt that the Principal was on the side of the teachers because he said that the teachers are not safe.

14. She stated that she had no reason to lie about Mr. Tom and the matter was reported to the police and her parents suggested that she change schools because they knew that this conduct was wrong. She confirmed that she once met with the employee at the staff room that was empty without any teachers during school hours and when she was cross examined on this part she could not give satisfactory answer.

15. She denied having plotted against the employee Mr. Tom and stated that she know about the story of Maganu because the Principal told them at the staff room. She stated that that she did not report the said advances to Ms. Madikizela who is a dealing with social issues in their schools but did not report the matter to her because she did not was to share it with the staff members.

16. She averred that one day the employee Mr. Tom lowered the window of his car by the gate and told her that he loves her and would but to Mr. Tom about 3 times a week at school.

Submissions by the employee

17. The employer representative then closed their case and the employee / respondent Mr. Ntokozo Richard Tom took the witness stand and testified that he works for the employer as an educator at Mzamba Comprehensive School since 2013 and teaches Economics, Business Studies & EMS.

18. He averred that he know the learner by the name of S. G. because she is an intelligent young learner and the staff always talk about her because she is performing very well and that he would always tease her by calling her by her surname which can be translated to English to mean (holding war). He confirmed having spoken to her and asking if he was ready and this was said in the context of being ready for grade 12 as she was motivating her.

19. He disputed that he was with her at the staff room and stated that it was impossible to have a learner and him in the staff room as the staff room is always busy because the school has a number of teachers. He stated that he was called by the Principal who told him that there was an investigation relating to the teachers having love relationships with teachers and he did not know anything about that.

20. He confirmed that he know Maganu and has a good relationship with her parents and he visited her father when there were allegations that he has impregnated a learner which learner had to leave school and also wanted to commit suicide but he didn’t know anything about that. He confirmed that he has a good relationship with his Principal.

21. He averred that he was called by police and also stated that when the parents of the learner allegedly impregnated by him was asked about that she indicated that her daughter has never been present and that she has no problem with S. G. at all.

22. He further testified that they are suspecting that there is a plot by the members of the community against teachers who are coming from outside the community because they want teachers from that community employed in their positions. He further testified that when this incident happed there was already an offer from the community leaders for the teachers from the community to assist in teaching his subjects.

23. The 2nd witness of the employee was Mr. Solomzi Malimba who testified that he works for the Department of Education as a Principal at Mzamba Comprehensive School since 2023 and the school has never had allegations of this nature before.

24. The Principal stated that the school has a learner support program run by Learner Support Agency with someone based in their school dealing with learner problems and they have to report issues of this nature to Learner Support Agency and nothing was reported by S. G. with Learner Support Stuff. He corroborated the employee evidence that it is not possible that the learner can be with the teacher at the staff room during working hours.

25. He averred that he received the report of a certain learner by the name of Amanda Mbonisweni who was allegedly impregnated by the employee and upon investigation it was clear that this was not true but a fabricated story because the mother of that learner denied that her child was ever pregnant. He averred that the learner by the name of Maganu had a funny behavior and heard that she had an affair with a learner assistant.

26. He stated that this learned shared with him that she had once been raped at home and that she felt that the school would be a safe place but has been harassed by the teachers at school. He stated that when S. G., was called by him together with Maganu she stated that the teacher by the mane of Mr. Tom told her that she was ripe and ready for relationship. He then referred the matter to the SMT and called Mr. Tom.

27. He averred that when he asked Mr. Tom about what was said by S. G., Mr. Tom explained that she was merely motivating the learner who is intelligent and stating if she was ready for grade 12. The Principal testified that from how all this thing happened the possibility of a plot against the teachers cannot be ruled out.

28. He further confirmed that there was involvement of the members of the community member in this issue and confirmed that there was an offer from the community leaders for the teachers from the community to assist in teaching the employees subjects and he rejected that because he was not to be told by the community what to do in the official management of the school.

FINDINGS ON THE CHARGES, ANALYSIS OF EVIDENCE & ARGUMENT

29. In respect of these charges set out in paragraph 7 above, the employer representative led evidence of 1 witness the learner who was the subject of the said alleged sexual misconduct.

30. The evidence of this witnesses is detailed above in the topic that deals with survey of evidence at paragraph. In essence this witness testified that.

- She is a minor child and know the employee Mr. Ntokozo Tom because he is a teacher at Mzamba S.S.S. even though he is not teaching in her class and the employee used to do inappropriate reactions to her by blowing kisses and winking at her since she was at grade 10. One time at school he asked her to give him water claiming its Gods water and that she now grown and was ready for him and again she laughed and walk away.

- She says did not feel comfortable as the employee also had a child at school doing grade 12 but she never reported this to anyone because she respected the employee as a teacher but later realized how wrong it was and reported that to her sister and was called to the office by the Principal together with Maganu.

- When they got to office they were confronted by the Principal because the Principal thought that they were dating the teachers in the names of Mr. Dlamini, Mr. Tuta and Mr. Tom and they told the Principal that it was the teachers who were into them. She stated that she felt that the Principal was on the side of the teachers because he said that the teachers are not safe.

- She stated that she had no reason to lie about Mr. Tom and the matter was reported to the police and her parents suggested that she change schools because they knew that this conduct was wrong. She confirmed that she once met with the employee at the staff room that was empty without any teachers during school hours and when she was cross examined on this part she could not give satisfactory answer.

- She denied having been part of a plot against the employee Mr. Tom and stated that she know about the story of Maganu because the Principal told them at the staff room. She stated that that she did not report the said advances to Ms. Madikizela who is a dealing with social issues in their schools but did not report the matter to her because she did not was to share it with the staff members.

- She averred that one day the employee Mr. Tom lowered the window of his car by the gate and told her that he loves her and would but to Mr. Tom about 3 times a week at school.
31. I must say at this stage that the respondent did not call a number of relevant witnesses to explain the process, corroborate the evidence of the main witness they called. This led to a number of issues and evidence not corroborated on materiel aspect.

32. Corroboration in the presentation of a case and leading of evidence is very important and the cautionary rules of evidence teaches us that the evidence of a single witness and that of a minor must be approached with caution. The employer witness is a minor and came to present her case or the case of the employer as a single.

33. The employee has not presented a bare denial in this matter but has put the issue of the community plot or plots at the center of his defense and the employer has not presented any evidence to rebut this when the perpetrators of the said plot had been mentioned by names.

34. I shall therefore deal with and evaluate the evidence led at the hearing in consideration of this background because also in Tshishonga v/s Ministry of Justice and Constitutional Development & other (2007) 28 ILJ 195 (LC) the court said that an adverse inference must be drawn if a party fails to testify or place evidence of a witness who is available and able to elucidate the facts as this failure leads naturally to the inference that he fears that such evidence will expose facts unfavorable to him or even damage his case.

35. In Small v Smith 1954 (3) SA 434 (SWA) at 438 Claassen J said: "It is, in my opinion, elementary and standard practice for a party to put to each opposing witness so much of his own case or defense as concerns that witness and if need be to inform him if he has not been notified thereof, that other witnesses will contradict him, so as to give him fair warning and an opportunity of explaining the contradiction in defending his own character.

36. It is grossly unfair and improper to let a witness's evidence go unchallenged in cross-examination and afterwards argue that he must be disbelieved. Once a witnesses' evidence on a point in dispute has been deliberately left unchallenged in cross-examination and particularly by a legal practitioner, the party calling that witness is normally entitled to assume, in the absence of a notice to the contrary, that the witness's testimony is accepted as correct.

37. The 2 witnesses of the employee side, himself and the principal led clear, coherent and corroborative evidence to the effect that:

- These witnesses testified that this is the first incident or of the school having allegations of this nature and that this was not reported to the principal nor the Learner Support Agency representative who is at school specifically for these issues. Whilst there is nothing wrong in the leaner sharing this with her sister and this matter coming from outside, it becomes consistent with the employees defense of a plot.

- The said plot and explanation why such a plot can be carried out was clearly explained by the employee and the Principal in the circumstances and consistent with the evidence led and how things unfolded could not rule out the possibility of such a plot.

- The employee did not deny interaction or having spoken to the learner but explained that that all the teachers know her by the name of S. G. because she is an intelligent young learner and the staff always talk about her because she is performing very well.

- He also said that he would always tease her by calling her by her surname which can be translated to English to mean (holding war). This explanation is not so farfetched and teacher would always know the best performing student and encourage her. I have no reason to disbelieve what the employee has said in his defense and the principal confirmed his version on a number of issues.

- He disputed that he was with the learner at the staff room and stated that it was impossible to have a learner and him in the staff room with a learner as the staff room is always busy because the school has a number of teachers about 39 of them. This is again confirmed or corroborated by the Principal.

- According to the Principal when the employee was asked about what happened upon investigation he gave essentially the same version and has always been consistent in his defense. Again I have no reason to disbelieve the evidence of the employee.

- He stated that he was called by the Principal who told him that there was an investigation relating to the teachers having love relationships with teachers and he did not know anything about that. The issue that related to the employee allegelly having impregnated a certain child for the community which happened to be a lie talk to the narrative of the suspicion of a plot.

- As I have indicated above these witness which in any event could be found around the community were not called to testify and the version of the employee remains unchallenged and confirmed also by the lies coming from some members of that community. It is common that there can be a possibility of this plot by the members of the community against teachers who are coming from outside the community because they want teachers from that community employed in their positions.

- Wrong as it is, but it is a reality that such tendencies do play out and cannot be cannot be overlooked and there is undisputed evidence that there was already an offer from the community leaders for the teachers from the community to assist in teaching his subjects. Sometimes community members don’t know their role and it’s supposed to stop, sometimes is difficult for them to draw the line because when it is said the school is theirs it doesn’t mean that they can now play the role of people entrusted to and qualified to run institutions of teaching and learning.

- They cannot play the role of Principals, District Directors etc. simple because that’s not their role a person can only exercise authority for which he or she has been authorized to or empowered to discharge or perform. The Court in Evergreen Investment (Pty) Ltd v Messerschmidt 2019 (3) SA 481 (GP) quoting from the Road Accident Appeal Tribunal v Gouws 2018 (3) SA 413 (SCA) held that: “Repositories of power can only exercise such power as had been conferred upon them by law”.

- The Principal stated that the school has a learner support program run by Learner Support Agency with someone based in their school dealing with learner problems and they have to report issues of this nature to Learner Support Agency and nothing was reported by S. G. with Learner Support Stuff. This witness was not called to share her role if any to prove a serious allegation with far reaching consequences for the educator and learner for that matter.

38. For these reasons and argument, the learner’s version is highly improbably and the testimony of the employer witness, the same learner cannot be believed, her version for the reasons listed above is rejected.

39. The only conclusion to be drawn from what happened is that the employee is not guilty of the 2 charges levelled against him. It must be emphasized here that the test for a guilty finding in labour matters is one of balance of probabilities not beyond reasonable doubt but it doesn’t mean that the employer can just point at an employee and establish guilt. There must be clear and credible evidence linking that employee to the commission of that offense.

40. Section 185 (a) of the Labour Relations Act 66 of 1995 as amended provides that: Every employee has a right not to be unfairly dismissed. The Act recognizes 3 reasons for the termination of the employee’s services by the employer and these are the conduct of the employee, incapacity of the employee and the employer’s operational requirements and in this matter the employee is charged because of his conduct and the employer has to prove that the employee has committed misconduct on a balance of probabilities.

41. In terms of section 192 (2) of the Labour Relations Act the employer has the onus to prove the existence of any one of these grounds as a reason to dismiss the employee and that the dismissal of the employee is fair.

42. The employees evidence was not challenged by the employer on materiel aspects as can be seen in the summary and analysis above. I do not have any reason to doubt and reject the employee’s corroborated evidence when I compare that to the evidence of the employer.

43. In the circumstances, I will accept the employee and his witness’s testimony that there is no valid reason for the employee to be charged. The question that I have to answer in this award is whether the employee has contravened any rule and if yes whether the sanction of a dismissal is appropriate in the circumstances.

44. In De Beers Consolidated Mines Ltd v/s CCMA & others (2000) 21 ILJ 1051 (LAC) the court accepted that the ultimate justification for the employer’s powers to impose discipline flows from the right to manage their business effectively. The court held further that “dismissal is not an expression of moral outrage, much less it is an act of vengeance. It is or should be sensible operational response to risk management in the particular enterprise”.

45. In Standard Bank of South Africa Ltd v/s CCMA and others (1998) LC 7 the court stated that it is trite principle that breach by the employee of the duty of good faith to the employer is destructive to the employment relationship. The employee has breached this duty of good faith to the employer. If you look at the testimony of the Principal as a representative of the Department of Education at school level you can pick up that even the Principal feel that there is possible something questionable about the alleged sexual misconduct against his teacher.

46. I am satisfied that the rationale that I have used in coming to this conclusion is one that qualifies when we talk about reasonableness and weighing the interests of both parties as directed in the Constitutional Court in its decision in NEHAWU v/s University of Cape Town (2003) (CC) where the Constitutional Court held that the arbitrator is expected to have regard to the interest of both parties in coming to a conclusion whether the conduct of the employer to dismiss the employee was fair or not.

47. In this matter the interests of the employee far outweigh those of the employer and for that matter I found that it is in the interest of teaching and learning that the employee be retained and kept teaching at his school because he has not committed any act of sexual misconduct. The employer’s version in so far as it relates to the reason for dismissal of the employee is rejected. This means that the employer has failed to discharge its onus in terms of section 192 (2) of the Act.

48. I therefore found the employee not guilty of the charges leveled against and in the circumstances I hereby make the following award.

AWARD

49. The employee Mr. Ntokozo Tom has not committed any transgression as alleged by the employer Department of Education – Eastern Cape.

50. The charges levelled against the employee are hereby dismissed,

51. I make no order as to costs at this stage.

Signature:

ELRC Arbitrator / Commissioner: Malusi Mbuli