ELRC180-23/24WC

Commissioner: Jacques Buitendag
Case No.: ELRC180-23/24WC
Date of Award: 5 November 2023

In the INQUIRY between:

MR. F MUSSON
(Union/Applicant)

and

DEPARTMENT OF EDUCATION – WESTERN CAPE
(Respondent)

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 the 3rd of August 2023 and the 12th and 13th October 2023 at the premises of Western Cape Education Department (WCED) in Cape Town.

2. The proceedings were digitally recorded.


3. Mr. T Fortuin, an official of SADTU, represented the educator, Mr. F Musson. The WCED was represented by its Senior Labour Relations Officer, Ms. V Phillips. Ms. S Marks attended the proceedings as the intermediary.


4. At the conclusion of the proceedings, it was agreed that the parties will submit written closing arguments. I received the heads of arguments of the parties on the 24th October 2023.

BACKGROUND

5. On 25th 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.

6. Mr. Musson has over 21 years’ experience as an educator. Mr. Musson was appointed by the WCED on the 1st March 2023 as a post level 1 educator at Grassy Park High School on a fixed term contract which expires on the 31st December 2023.


7. The WCED received allegations of misconduct of an alleged sexual nature against Mr. Musson. On or about the 8th June 2023 the WCED requested the ELRC to appoint an arbitrator for an inquiry into the alleged sexual misconduct allegations. The WCED suspended Mr. Musson pending the inalization of this inquiry.


8. The WCED leveled the following allegation against Mr. Musson:

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 April 2023 and/or May 2023, while on duty, you conducted yourself in an improper, disgraceful, or unacceptable manner towards Learner A*, a learner associated with Grassy Park High School:
(56) by attempting to and/or touching the learner’s hair; and/or
(ii) asking the learner for a hug; and/or
(iii) putting money intended for the learner in your pocket, telling her to remove it from your pocket and that she must be careful as there is a hole in your pocket.

Charge 2
It is alleged that you are guilty of misconduct in terms of Section 18(1) (q) of the Act, in that during April 2023 and/or May 2023, while on duty, you conducted yourself in an improper, disgraceful, or unacceptable manner towards Learner B*, a learner associated with Grassy Park High School by uttering the following or similar words to the learner:
(56) “Stop sucking in my class.” And/or
(ii) “Do you like it dry or wet?” and/or
(iii) “Talk to me baby… only talk to me when you are wet.”

Charge 3

It is alleged that you are guilty of misconduct in terms of Section 18(1) (q) of the Act, in that during April 2023 and/or May 2023, while on duty, you conducted yourself in an improper, disgraceful, or unacceptable manner towards Learner C*, a learner associated with Grassy Park High School by uttering the following or similar words to the learner:
(56) “Do you like it dry or wet”

Charge 4

It is alleged that you are guilty of misconduct in terms of Section 18(1) (q) of the Act, in that during April 2023 and/or May 2023, while on duty, you conducted yourself in an improper, disgraceful, or unacceptable manner towards Learner C*, a learner associated with Grassy Park High School by:
(56) Asking the learner her age; and/or
(ii) Commenting that she does not look her age; and/or
(iii) That she looks very mature and/or
(iv) looking at her body while saying this.

Charge 5
It is alleged that you are guilty of misconduct in terms of Section 18(1) (q) of the Act, in that during April 2023 and/or May 2023, while on duty, you conducted yourself in an improper, disgraceful, or unacceptable manner towards Learner D*, a learner associated with Grassy Park High School by uttering the following or similar words:
(56) “Baby look into my eyes” and/or
(ii) “Baby you can’t go to the bathroom if you are not going to take me with” and/or
(iii) “The Principal can’t do anything because the school needs a Maths teacher” and/or
(iv) “Take it out I want to taste it”

Charge 6
It is alleged that you are guilty of misconduct in terms of Section 18(1) (q) of the Act, in that during April 2023 and/or May 2023, while on duty, you conducted yourself in an improper, disgraceful, or unacceptable manner towards Learner D*, a learner associated with Grassy Park High School by watching the learner during interval.

9. Mr. Musson acknowledged that he understands the allegations levelled against him and he pleaded not guilty to the allegations.

THE ISSUE IN DISPUTE

10. I must determine whether Mr. Musson is guilty, on the balance of probabilities, on one or more of the allegations, and if so, I must determine the appropriate sanction.

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.

The WCED’s evidence and argument
12. The WCED called the Principal of the school and four learners to testify. The identity of the leaners that testified during the Inquiry were disclosed but their identity is protected for the purposes of this award.

13. Ms. Chapman is the Principal of Grassy Park High School. The allegations were brought to her attention by a school councillor. She requested statements from the learners and referred the matter to the Circuit Manager. The learners were removed from Mr. Musson’s class. She worries about the emotional state of the leaners and submitted that the best is if Mr. Musson does not teach at the school any longer.


14. Leaner A is 14 years old. She testified that Mr. Musson is her register teacher and teaches creative arts. With regards to charge 1(i) she testified that Mr. Musson commented about her hair, asked her what shampoo and conditioner she uses and touched her hair. She felt weird and strange as an educator is not supposed to touch her hair.


15. With regards to charge 1(ii) learner A testified that Mr. Musson saw her and learner B hugging before entering his class and that he then asked her for a hug which made her feel uncomfortable.


16. With regards to charge 1(iii) learner A testified that a learner came to Mr. Musson’s class to give her some money. Mr. Musson took the money, put it in his pocket and then told her to take it out but to remember there is a hole in his pocket. This would mean that she could have touched his private parts if she did what he asked. It was inappropriate and she felt uncomfortable.


17. Learner A testified that Mr. Musson once asked learner B to stop sucking a lollypop. The way he said it was in a sexual manner and was inappropriate.


18. Leaner A testified that Mr. Musson was once handing out papers. He licked the papers before handing it out. When one of the leaners complained he asked the leaner if she wants it wet or dry.


19. Her experience is that Mr. Musson makes sexual connotations when he speaks to them and makes everything sound “flirty and dirty”. She said that she felt uncomfortable around him.


20. Leaner B testified with regard to charge 2(i) and (ii) that Mr. Musson told her to stop sucking a lollypop in his class and that he once asked her if she wants it wet or dry when he handed out papers in the class. In her view Mr. Musson said these things in a sexual manner which made her feel uncomfortable.


21. In respect of charge 2 (iii) leaner B explained that she was called to the front by Mr. Musson to read a poem. He called her baby and asked her to look into his eyes. Leaner B testified Mr. Musson said it in a sexual manner and she wanted to cry.


22. With regards to charge 1(i) learner B testified that she once saw Mr. Musson touching Learner A’s hair.


23. In respect of charge 1(iii) leaner B testified that she was in class when this incident happened. Mr. Musson took the money, put it in his pocket and told learner A that she must take it out but must watch out as there is a hole in his pocket.


24. Leaner C testified with regards to charge 4 that Mr. Musson asked her about her age and commented that she looks mature for her age whilst looking at her body. He would also make comments such as “you are looking thin today” or “you are looking chubby in those clothes”.

25. According to learner C, Mr. Musson makes inappropriate comments with sexual undertones, and that his tone and body language when he makes these comments make her feel uncomfortable.

26. With regards to charge 1(iii) learner C testified that Mr. Musson told leaner A to come and take the money from his pocket but to watch out as there was a hole in his pocket. Leaner C’s view is that Mr. Musson acted inappropriately and meant that she must watch out not to not touch his private parts.

27. With regards to charge 5(i) learner D testified that Mr. Musson asked her to look into his eyes when she was reading a poem. When she told him that she is feeling uncomfortable he told her that she will not get a mark if she does not look into his eyes. In respect of charge 5(ii) leaner D testified that she needed to go the bathroom and asked Mr. Musson for a pass. He replied that she cannot go to the bathroom if he does not come with him. Learner D testified that Mr. Musson made her feel uncomfortable.

28. With regards to charge 6 learner D testified that once during an interval her friend alerted her that Mr. Musson was watching her. When she moved behind one of the learners he moved in another direction and kept watching her. It left her feeling uncomfortable.

29. The heads of arguments of Ms. Phillips is on record. I have considered them. Ms. Phillips argued that Mr. Musson was at the school for only a few weeks when the allegations were made against him. His comments with sexual undertones left the learners feeling uncomfortable and Mr. Musson has not acted appropriately. The WCED cannot tolerate such conduct and must protect leaners. Mr. Musson has compromised the trust placed in him and the trust relationship has been irretrievably broken.

Mr. Musson’s evidence and argument
30. Mr. Musson testified that he was new at the school and wanted to build rapport with the learners.

31. With regard to charge 1 Mr. Musson testified that he recalled one day commenting that Learner A’s hair looks nice but that he did not touch her hair. Mr. Musson testified that did not ask learner A for a hug. Mr. Musson said that did not put the money in his pocket or tell learner A to remove it from his pocket. He testified that he had the money in his hand, gestured to his pocket and said that he has a hole in his pocket. He then handed learner A the money when she approached him.


32. With regards to charge 2(i) Mr. Musson testified that learner B came into his class sucking a lollypop. He told her to stop sucking the lollypop in his class and to throw it into the bin.


33. In respect of charges 2(ii) and charge 3 Mr. Musson explained that he did lick the papers as they were sticking together. Whilst he was handing the papers out to the class, one of the leaners said that the papers are wet. He told the leaner to dry it. Mr. Musson denied that he said “do you want it wet or dry.”


34. In as far as charge 2(iii) is concerned Mr. Musson testified that he pleaded with learner B to read a poem and said, “come baby, come do it for us please.” The leaner did not want to read the poem and did not get a mark for it.


35. With regard to charge 4, Mr. Musson testified that he was having a conversation with some of the leaners and remarked that learner C is mature for her age. He meant that she was mentally mature. Mr. Musson denied that he was looking at learner C’s body when he made the remark. He denied that he made remarks about the learner’s body.

36. Concerning charge 5(i), Mr. Musson testified that he told learner D to look into the audiences’ eyes when reading poetry. He tried to encourage the learner to make eye contact.

37. About charge 5(ii) Mr. Musson testified that he wanted to complete the lesson when learner D asked to go to the bathroom. He did not have a bathroom pass to give to the leaner. She insisted on a pass, and he replied sarcastically “must I then go with you”. There was no sexual intent in his comment.

38. With regards to charge 6, Mr. Musson testified that he cannot recall specifically watching the learner during an interval. He explained that it is part of his duties during intervals to observe the learners.

39. He has no idea why the leaners would say that he makes them uncomfortable and cannot be held responsible for how they feel. Mr. Musson testified that if he was aware that he made learners uncomfortable then he would have apologised to the learners and requested for a transfer.

40. Mr. Fortuin’s heads of argument is on record, and I have considered them. In summary, Mr. Fortuin argued that the conduct of Mr. Fortuin was pulled out of context and that he is not guilty of alleged sexual misconduct.

ANALYSIS OF EVIDENCE AND ARGUMENTS

41. The WCED bears the onus to proof the allegations levelled against Mr. Musson on a balance of probabilities. In WESUSA & Others vs Jacobz 2000 8 BLLR 977 (LC), the Court remarked that “the onus will be discharged if the respondent can show credible evidence that its version is the more probable and acceptable version. The credibility and the improbability of what they say should not be regarded as a separate enquiry to be considered piecemeal. They are part of a single investigation into the acceptability or otherwise of the respondents version, an investigation where the questions of demeanour and impression are measured against the content of a witness’s evidence, where the importance of any discrepancies and contradictions is assessed and where a particular story is tested against the facts which cannot be disputed and against the inherent probabilities, so that at the end of the day one can say with conviction that one version is false and be rejected with safety”. The onus will not be discharged by raising mere suspicions of misconduct.

42. Pre-dismissal inquiries in terms of Section 188A of the LRA are reserved in ELRC Collective Agreement 3 of 2018 for inquiries by arbitrator in cases of disciplinary action against educators charged with sexual misconduct in respect of learners. Improper, disgraceful, or unacceptable conduct that does not involve misconduct of a sexual nature cannot be subjected to a Section 188A inquiry. When an educator makes him or herself guilty of misconduct of a non-sexual nature in respect of leaners, it must be dealt with by way of disciplinary action in terms of Chapter 5 read with Schedule 2 of the Employment of Educators Act, 76 of 1998.

43. The onus is on the WCED to prove that Mr. Musson has made himself guilty of sexual misconduct. I have carefully considered the evidence. It is clear that the learners had interpreted Mr. Musson’s conduct, as being sexual in nature. Mr. Musson’s conduct must however be objectively analysed in context.

44. Learner A’s testimony, which was corroborated by Learner B’s, shows that Mr. Musson once touched Learners A’s hair and, on another occasion, asked her for a hug. In Learner’s A’s words this left her feeling weird, strange, and uncomfortable. In respect of charge 1(i) and (ii), I find that Mr. Musson’s conduct by touching Leaner A’ hair and asking her for a hug was indeed improper and unacceptable but it does not translate into sexual misconduct.

45. With regards to charge 2(i) Leaner A and B experienced Mr. Musson’s words as being sexual in nature. The context is that Mr. Musson instructed Leaner B to stop sucking a lollypop in his class. I am not persuaded that Mr. Musson’s can be found guilty of any misconduct in this instance, even more so of sexual related misconduct.

46. In respect of charge 2(ii) and charge 3 it may constitute improper and unacceptable conduct from an educator to lick papers whilst handing it out in class, but I am not persuaded that his comment “do you like it wet or dry” must be interpreted, in context, as sexual in nature.

47. In respect of charge 5(iii) and (iv) no evidence was led.

48. With regards to charge 2(iii), and charge 5(i) and (ii) it appears that Mr. Musson is addressing female learners using the word “baby”. This is clearly improper, disgraceful, and unacceptable but I do not find that Mr. Musson’s words morph into sexual misconduct, as is intended by the abovementioned ELRC resolution to be dealt with by way of a Section 188A Inquiry by Arbitrator.

49. Also, I find, in context, that the WCED has not discharged the onus in respect of charge 4 that Mr. Musson’s words constitute sexual misconduct, although they were clearly unacceptable and improper.

50. With regard to charge 6, I am also not persuaded that Mr. Musson’s conduct falls within the ambit of the ELRC Resolution 3 of 2018 and constitutes sexual misconduct.

51. This leaves charge 1(iii). The evidence of Learner A, which was corroborated by learners B and C shows that Mr. Musson took money, which was intended for Learner A , put it in his pocket and then invited learner A, in front of other learners, to take the money from his pocket, whilst warning her that there is a hole in his pocket. The conclusion reached by leaners that it meant that learner A could have touched Mr. Musson’s genitals if she would take the money from his pocket is, in context, reasonable. For obvious reasons, learner A did not comply. It was interesting how Mr. Musson changed his version on this score. On the 3rd August 2023, under cross-examination of learner A it was put by Mr. Fortuin to the learner that Mr. Musson would agree that he put the money in his pocket, that he took the money from his pocket and gave it to her and said, “you can be very lucky I have a hole in my pocket.” Under cross-examination of learner C on 12 October 2023 and it was put to the learner that Mr. Musson did not put the money in this pocket, which in in direct contradiction to what was put to learner A. When Mr. Musson testified he changed his version again to say that he had the money in his hand, gestured to his pocket and said that he has a hole in his pocket. My conclusion is that Mr. Musson has changed his version because of learner’s A version being corroborated by learners B and C and because he knew that his conduct was unacceptable. To invite a young female leaner, in front of her peers, to take money from his pocket and warning her that there is a hole in his pocket suggested by innuendo that she must watch out not to touch his genitals. His conduct was inappropriate, disgraceful, unacceptable and it constitutes misconduct of sexual nature. In respect of charge 1(iii) I find Mr. Musson is guilty as charged.

52. 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 Mr. Musson’s years of service as an educator. I have further taken into account that Mr. Musson has shown some acknowledgement of wrongdoing during his testimony. I have further considered that he will probably find it difficult to secure employment in the education sector if he is dismissed.

53. 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 interests 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 interests 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.

54. 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) respect the dignity, beliefs and constitutional rights of learners and in particular children, which includes the right to privacy and confidentiality; b) ..; c) strive to enable learners to develop a set of values consistent with the fundamental rights contained in the Constitution of South Africa ; d) ..; e) avoid any form of humiliation, and refrain from any form of abuse, physical or psychological; f) refrain from improper physical contact with learners; g) promotes gender equality; h)..; i). refrain from any form of sexual harassment (physical or otherwise) of learners; j) … k) …; l) use appropriate language and behaviour in his or her interaction with learners and act in such a way as to elicit respect from the learners.

55. Educators are entrusted with the care of children, and they must act with utmost good faith in their conduct towards learners because society must be able to trust educators unconditionally with their children. Mr. Musson has failed to conduct himself in accordance with the ethical standards expected from an educator and I find dismissal to be the only appropriate sanction in this instance.

56. n terms of section 18(1)(q) of the Employment of Educators Act, it constitutes misconduct if an educator “while on duty,

56. 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. Having regard to the seriousness of Mr. Musson’s conduct, I find him unsuitable to work with children.

AWARD
1. Mr. Musson is found guilty of charge 1(iii).
2. I find summary dismissal to be the appropriate sanction.
3. The WCED must inform Mr. Musson of the date of his dismissal.
4. I find Mr. Musson 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.
5. The ELRC must also send a copy of this award to the South African Council for Educators (SACE) to consider revoking Mr. Musson’s SACE certificate.

ELRC Commissioner: Jacques Buitendag