ELRC877-22/23GP

IN THE EDUCATION LABOUR RELATIONS COUNCIL

Case No ELRC877-22/23GP

In the arbitration proceedings between:

MAURICE GIYANE NKANYANE Applicant

And


HOD, DEPARTMENT OF EDUCATION, GP Respondent


PANELIST:
Ntjatja Klaas Aphane
HEARD:
Different dates from 31 May to 07 December 2023
DELIVERED:



18 January 2024

ARBITRATION AWARD

Applicant’s representative: Macena Maluleke (Legal Representative) from Maluleke Macena
Attorneys
Respondent’s representative: Charmaine Trent (LR Manager) Department of Education:
Gauteng.

DETAILS OF THE HEARING AND REPRESENTATION:

1. This is the arbitration award in the arbitration proceedings concerning an alleged unfair dismissal related to misconduct dispute between Maurice Giyane Nkanyane, the Applicant, and Gauteng Provincial Government: Department of Basic Education, the Respondent.

2. The dispute was referred to the ELRC in terms of section 191(5) (a) of the Labour Relations Act 66 of 1995 (the LRA).

3. The arbitration was scheduled and held on 31 May 2023, 19 June 2023, 19 and 20 July 2023, 24 August 2023,, 19 September 2023, 20 and 24 October 2023, 24 November 2023 and 07 December 2023, all parties and witnesses physically attended at district offices of the Department of Education at Krugersdorp, and it was held under the auspices of the ELRC in terms of section 191(5) (a) of the LRA.

4. The Applicant appeared in person and was legal represented by his legal representative, Macena Maluleke, of the Maluleke Macema Attorneys, whilst the Respondent was present and represented by its employee, Charmaine E Trent.

5. The parties, the Applicant’s representative and the Respondent’s representative agreed that the Applicant must be legally represented, and therefore no need for application for legal representation.

6. The award is issued in terms of section 138(7) of the LRA.

7. The Applicant was legally represented and therefore I adopted an adversarial approach to resolve the dispute.

8. The arbitration proceedings were digitally recorded and handwritten notes were taken.

9. Herbert Matsenene, Mpotseng Moloi and Musa ka Myeza provided translation services to some witnesses.

10. The prayer sought by the Applicant was retrospective reinstatement.

THE ISSUES TO BE DECIDED:

11. I must determine whether the dismissal of the Applicant was substantively and procedurally fair or not. If not fair, I must determine the appropriate relief.


THE BACKGROUND TO THE DISPUTE:

12. The Applicant started employment relationship as an educator at Limpopo Provincial Department of Education around June 1995, and joined the Respondent around January 2017, as an educator, earning a basic monthly salary of R28 203,75.

13. The Applicant’s employment relationship was terminated by the Respondent on 20 July 2022, consequent to an internal disciplinary hearing and the internal appeal processes. The outcome of the appeal process was signed on 13 July 2023 but communicated to the Applicant on 20 July 2022.

14. The Applicant referred the alleged unfair dismissal related to misconduct dispute to the ELRC, outside the required time frame and submitted an application for condonation on prescribed ELRC condonation application form of his late referral on 10 January 2023.

15. The condonation Ruling was issued on 08 April 2023, granting the condonation application.

16. The dispute was scheduled for arbitration process on 31 May 2023, and was part heard.

17. The dispute was rescheduled for arbitration process on 19 June 2023, and was part heard dispute.

18. The dispute was scheduled for the arbitration process on 19 and 20 July 2023. The arbitration only proceeded on 19 July 2023 because the Respondents representative had challenges to attend at her place. The arbitration was postpone as the result of the agreement between the Applicant’s legal representative, the Applicant and the Respondent’s representative. It was part heard dispute

19. The dispute was scheduled for the arbitration process on 24 August 2023, it was part heard dispute.

20. The dispute was scheduled for continuation of the arbitration process on 19 September 2023, Upon arrival at Krugersdorp, the Respondents representative submitted a medical sick note that was sent by the Applicants legal representative, he was booked off sick. The Applicant was present. The dispute was postpone as the result of the unavailability of the Applicants legal representative due to ill health. It is part heard dispute. The medical sick note was sent to Nkhensani, our CMO, for record keeping.

21. The dispute was scheduled for the arbitration process on 20 October 2023. It was part heard dispute.

22. The dispute was scheduled for arbitration process on 24 October 2023. Upon arrival at Krugersdorp, the Applicant’s legal representative submitted a medical sick note that the Applicant was booked off, due to health challenges. The medical sick note was sent to Nkhensani, our CMO, and the arbitration process was postponed.

23. The dispute was scheduled for the arbitration process on 24 November 2023. Upon arrival at Krugersdorp, the Respondent’s representative submitted that the school principal and the learner witness could not be released because of commitment to examination process. The parties agree to proceed on 07 December 2023.

24. The dispute was scheduled for arbitration on 07 December 2023. The Respondent’s representative closed her case without calling further witnesses and the Applicant’s legal representative closed his case after calling the Applicant as a witness.

25. The Applicant’s legal representative and the Respondent’s representative pleaded to submit closing arguments on 18 December 2023, and cited several reasons to justify the deviation from the norm of seven (7) days. It was agreed that both parties should submit written closing arguments on 18 December 2023.

26. The Applicant’s dismissal was not in dispute, both the Applicant’s legal representative and the Respondent’s representative conceded that the Applicant was dismissed.

27. The Respondent’s representative called eight (8) witnesses (Tinyiko Rosita Xaba,Keitumetsi Salamina Makuti,Fikile Innocent Mvango,Mantoa Joyce Mabandla,Peter Khaxane Rahulane,Nkanyiso Johann Ngubane, Charmaine Mmalerato Mabuza, Vongani Godfrey Phephenyani) whilst the Applicant’s legal representative called the Applicant to testify in support of his case.

28. The Respondent’s representative and the Applicant’s legal representative agreed on common bundle and submitted a bundle of documents, consisting of pages 1 to 43.

29. The procedural and substantive fairness was in dispute.

30. The Applicant was legally represented, so I adopted an adversarial approach to the arbitration in order to determine the merits of the dispute fairly.

31. The prayer sought by the Applicant was retrospective reinstatement.

SURVEY OF THE EVIDENCE:

32. I wish to state from the onset, that not all evidence presented will be set out hereunder. Only a summary of the relevant evidence is contained herein.

THE RESPONDENT’S CASE:

33. The first witness for the Respondent was Tinyiko Rosita Xaba, who testified that she was a learner at Phahama Secondary School from 2018 to 2022, and has passed her grade twelve.

34. She knows the Applicant as her former teacher.

35. Whist still a learner at the school, she was instructed by the Applicant to get out of the classroom and she complied, whilst outside the Applicant told her that he loves her , and requested her to give him her cell phone number and pleaded with her to visit her at his place of residence. She refused to give the Applicant her cell phone number and to visit him at his place of residence. The conversation was in Xitsonga language as both were speaking the language.

36. She reported the Applicant’s conduct and reported the request to visit him to her friends at school when she returned to the class room. She reported the Applicant’s conduct to amongst others to, Masereme Modise and Adelaide Mukuma.

37. When she arrive home, she reported the Applicant’s conduct to his brother, because she was uncomfortable with strange request and that traumatised her.

38. One day, she was requested by the Applicant to call one learner in grade 11, and the Applicant arrived and pointed her tongue at her thighs and that infuriated the learners, who advised her to report all incidences to the school principal.

39. She was seated with Adelaide when the Applicant pointed at her thighs with his tongue.

40. She accepted the advice from other learners’ to report the Applicant, she went to report the Applicant’s conduct to the English teacher, Rahulani, who requested another teacher, Ngubane, to come and listen to the learners’ grievances and complains with regards to the Applicant’s strange conduct. She repeated her complains in the presence of both Rahulani and Ngubane. Teacher Ngubane promised to attend to the complaints at a later stage.

41. There was a WhatsApp group chart for grade 11E, she decided to send the voice note to sensitize all learners’ about the conduct of the Applicant, but also because she was scared and not feeling safe because of how the Applicant conducted himself towards her.

42. The learners’ were unsettled by the conduct of the Applicant and started making noise, and demanded audience with Ms Mabuza. Two (2) boy learners’ representative demanded help and guidance from Ms Mabuza about the conduct of the Applicant.

43. Ms Mabuza came and called her aside, and she told Ms Mabuza everything about the conduct of the Applicant, teacher Mabuza, took her to the school principal’s office, who asked her to explain to him what happened, she narrated all incidences. The school principal requested her to bring her guardian, she brought her sister to the school to talk to the principal about those incidences.

44. After some days, not sure of the date, the investigator of the department visited the school, and she was asked questions and she provided the same version of the incidences.

45. She view the Applicant’s conduct as disgustful, disrespectful and awful to her.

46. Cell phones numbers or contact numbers are collected by the learners’ representative for the purposes of academic activities. There was no group chart for English language, so the Applicant did not have any business asking her cell phone privately, outside the class room and did not ask other learners’.

47. During cross examination the witness refuted that the Applicant’s motive was to wish learners good luck with their examination, to be precise she used the words, “it is a lie and he is lying”. She pointed that the Applicant was lying as he instructed her to get out of the class specifically to tell her that he loves her, to ask her cell phone privately and to ask her to visit him at his place of residence. She refused to give the Applicant her cell phone number and to visit him, hence she immediately reported his conduct to her friends. She was single out for cell phone number and therefore cannot be for educational activities.

48. During cross examination, she maintain that she does not have anything to gain by lying about the Applicant because it was the Applicant that was lying and that makes her angry.

49. The second witness for the Respondent was Keitumetsi Salamina Makuti, who testified that she is now aged 22 years, was a learner at the school from 2016 to 2022.

50. The Applicant was harassing her from 2019. She was placed at grade 10H and went to grade 10G to see her friend, Ayanda Chawe, wherein the Applicant came in and asked her in the presence of her friend Ayanda Chawe, ”Is this scrap your friend?”. The Applicant refers to her as a scrap and that did not sit well with her to be label a scrap. She was attending hospital for medical condition, so she assumed she was called scrap because of that medical condition.
51. On her way out of grade 10G to her class, grade 10H, the Applicant stood in front of her, to stop her moving and told her, “I need you, I love you”.

52. She reported the incident to her parents, her father asked her to take her cell phone to school and called him if the Applicant conducted himself in that fashion towards her again.

53. In 2021, while doing grade 11E, she was in the company of Keletso Van Wyk , the Applicant asked her if she was pregnant, and told her that she gained weight, grabbed her throat pushed her against the wall, put his hands on her shoulder, looked at her bums. She again reported the matter to her parents. Her father came to school to talk to the school principal about the conduct of the Applicant.

54. Indeed she gained 2 or 3 kilograms and it was not noticeable or that obvious to others.

55. She listen to the voice note of Tinyiko Xaba and decided to report her incidences to the school, she was reporting to her parents but the courage of Tinyiko Xaba gave her confidence to report the Applicant to school management.

56. The investigator came to school to investigate, she told the investigator all incidences she encountered with the Applicant, that he told her that he need her and he love her, he grabbed her and put his hands on her shoulder, called her scrap, and asked her is she was pregnant and he said she gained weight. She responded that she was not pregnant. She was wearing a dry Mack and had Simba’s, sweets and biscuits inside the dry Mack.

57. She believed that she was called a scrap because she was attending to medical conditions at KH hospital at Krugersdorp. It was not a joke nor a laughing matter to be called a scrap because of her medical conditions.

58. She reported the Applicant to her class teacher, Mr Mvango.

59. She refuted that, that the Applicant meant well by saying, “I love you”, and it was parental love, but denied that it was not parental but it was hurting her as it was said privately to her and not to the entire classroom. That’s what prompted her to report the Applicant to her parents, forcing her father to come and see the principal and discuss those concerns.

60. During cross examination, she firmly believe the conduct of the Applicant was wrong as he focused on her back whilst commenting that she gained weight and asking her if she was pregnant. It was also improper to hold her on her neck and push her to the wall and put his hands on her shoulders. She could not see her physical buttocks because she was wearing school uniform, at school.

61. The third witness for the Respondent was Fikile Innocent Mvango, who testified that he was a teacher with thirty years of experience and working at Phahama Secondary School.

62. During September 2021, whilst at school towards break time, five (5) girl learners’ approached him. He was a class teacher for grade 11F. Amongst the group of girl learners’ was Keitumetse, and complained about the conduct of the Applicant who said to the learner, Keitumetsi, “I need you and I love you”, and Keitumetse was not happy about the conduct of the Applicant. She also told him that she is not the only one harassed by the Applicant, but there are other girl learners’ who are victim of the Applicant harassment of girl learners’. The Applicant was the English teacher.

63. They played a voice note to him about the other girl learner who was complaining of harassment by the same Applicant. The content of the voice note was to tell all girl learners’ that the Applicant requested her to visit him at his place of residence and that the Applicant profess love to her, the sole purpose of such voice note was to sensitize all girl learners’ to be careful about the Applicant’s conduct. The voice note was from Tinyiko Xaba.

64. Keitumetse was crying and emotional, and he decided to bring the matter to the attention of the teacher’s liaison officer, who is in charge of learners’, parents, guardian and teacher’s colleague communication and challenges. The teacher’s liaison officer is Joyce Mantoa Joyce Mabandla.

65. The grade 11F class representative, Ofentse, came and reported the conduct of the Applicant to him and Ms Mabandla. They took the complaints of the learners’, Keitumetse and Ofentse, to the school principal.

66. The principal requested them to reduce the learners’ complaints to writing, and they complied, and the complaints was forwarded to Themba Shipamele, the departmental investigator, who investigated the complaints further.

67. As a teacher, more specifically male teacher, they are discouraged to talk about the girl learners’ looks, weight and anything personal but to focus on academic stuff. This is mostly discussed in staff meeting. Therefore the Applicant’s discussion about the looks of the girl learner and weight was inappropriate. The school principal and the deputy principal always told them how to communicate with the girl learners’, this is mostly communicated in staff meeting.

68. Staff meeting discussed sexual harassment at school, how should teachers conduct themselves towards learners’, what is expected of the teachers, communication with learners, discuss SACE requirements, prohibition of romantic relationship with learners at school or any other school.

69. The Applicant could have approach a female teacher to talk to the learner if he suspected that she was pregnant, her weight and any concerns about the looks of the learner, Keitumetse.

70. He personally spoke to the Applicant about the incidences of the learners, that they reported to him and he escalated the matter to the TLO.

71. He does not have cell phone numbers of learners.

72. During cross examination, the witness admitted that he cannot specifically point out any clauses of SACE or any relevant legislation that prohibit such conduct saves to say those issues are discussed in a staff meeting where the Applicant was always present.

73. Teachers are parents of learners and they must protect learners and treat learners with dignity.

74. The fourth witness for the Respondent was Mantoa Joyce Mabandla, who testified under oath that she is a teacher since 2013 but started at Phahama secondary school around 2015. She is a teacher liaison officer (TLO), liaison between the learners and educators, to mediate between the representatives communities of learners, facilitate election of representative of community of learners and manage the relationship.

75. The matter of Keitumetse was brought to her attention by her colleague, Fikile Innocent Mvango, that the Applicant is making sexual advances to the learner and the class representative came to report the same matter, and requested that she came to the class so that all could be told to her by the class, upon arrival at the class room, discovered that Ms Mabuza was there and took learners to the principal’s office.

76. The mood at the class was tense and learners were rowdy and demanded action against the Applicant.

77. Teacher Ngubane and Peter Khaxane Rahulane came to her and reported the other incidence of the Applicant requesting cell phone number of Tinyiko Xaba and requesting Tinyiko to visit his place of residence.

78. She reported the incidences to Diale, the deputy school principal, who requested that they provide her with reports and statements and they complied.

79. The conduct of the Applicant breached the Employment of Educators Act, is against professionalism required of teachers that stated that communication should always be professional. The focus of teacher is educate learners.

80. Teachers are not allowed to talk private matter privately with learners. Learners at the school are well behaved and they enjoyed a cordial relationship with learners and representative of communities of learners, and were just emotional once around September 2021 because of the conduct of the Applicant.

81. The fifth witness for the Respondent was Peter Khaxane Rahulane, who testified under oath that he is a teacher at school, since 2020.

82. He was approached by the two learners, Tinyiko and another learner, looking for teacher Ngubane and he called teacher Ngubane to meet with the learner.

83. They reported that the Applicant requested the learners cell phone number and requested her to come and visit him at his home, also reported that the Applicant pointed at Tinyiko thighs with his tongue.

84. They called the learner, Tinyiko, who confirmed that the Applicant was pointing to her thighs with his tongue.

85. They then reported the matter to the TLO, Joyce Mabandla. They were called into the principal’s office to explain the incidences and were called to be witnesses at the Applicant’s disciplinary hearing and the arbitration processes.

86. As teachers, they are told always in staff meeting and other training arranged for teachers, not to get involved with learners and not to degrade learner but to always treat them with dignity. Tinyiko was well behave learners with no troubles, quite cooperative and team player with no reason to concoct stories.

87. He cannot quote legislation or policy saves to say he knows SACE discourage bad conduct by teacher but cannot quote anything specifically prohibiting requesting cell phone from learners or any conducts that the Applicant was charged with.

88. The sixth witness for the Respondent was Nkanyiso Johann Ngubane who testified under oath that he was a teacher at Phahama Secondary School since 2017, he started teaching at Kwazulu Natal around 2016 and moved to Gauteng around 2017.

89. He was approached by the teacher Rahulani, accompanied by two girl learners, Tinyiko Xaba and Adelaide Mukoma. Tinyiko Xaba explain to them that she was uncomfortable in a class and at school because of the conduct of the Applicant. He ask privately for her cell phone number, that he love her and requested her to come and visit her at his place of residence. In a class room the Applicant would take out his tongue and point his tongue towards her thighs.

90. He ask learners and Rhulani to go back to their class in order to verify if the allegations were true or got substances of the allegations. The learners in the class confirm what Tinyiko Xaba and Adelaide Mukoma reported and they decided to report the Applicant’s conduct to the TLO, Joyce Mantoa Mabandla, to escalate the Applicant’s conduct to the principal.

91. The learners were agitated by the conduct of the Applicant.

92. Teachers are not allowed to have private communication with learners privately.

93. Two weeks before the incidences, the teachers were taught about the importance of treating learners with dignity and it was shocking that the Applicant was treating learners in that fashion, more-so the training was still fresh and new.

94. During cross examination, the witness conceded that the learners reported the Applicant’s conduct around September 2021 but do not remember the actual date. Equally conceded that though he is not aware of any policy prohibiting teachers asking cell phone from girl learners, indicated that the motive plays an important role in determining the correctness of asking a girl learner a cell phone numbers. If the Applicant ask the cell phone publicly in a class room for educational purposes, then that cannot be wrong.

95. Teachers are not allowed to have private communication with learners privately. There was no WhatsApp group for the Applicant with the learners so it was strange on the Applicant will require contact details of one learner privately.

96. The seventh witness for the Respondent was Chairmaine Mmalerato Mabuza who testified under oath that she is a teacher from 1995 and only started at Phahama Secondary school in 2007. She is a disciplinary coordinator at school. She is a teacher for 31 years.

97. It was after break when she witness learners making noise even outside classes, it was her class period and checked with the learners as to why they were behaving in such a manner. They told her that they will embark on a strike after her class because girl learners were not safe at school because of the conduct of the Applicant.

98. The learner told her that the Applicant was pointing his tongue at Tinyiko Xaba, and Tinyiko told her that the Applicant told her that he love her, he ask Tinyiko privately to give him her cell phone numbers and pleaded with her to come and visit him at his residence.

99. She took the learners to the principal and Tinyiko repeatedly reported to the principal what she told her. That the Applicant told her that he loves her, ask her to give him his cell phone numbers and asked her to visit him at his place.

100. In order to pacify learners and avert strike, she went back the class and pleaded with the learners not to embark on strike but to give the principal an opportunity to deal with the Applicant’s conduct.

101. The department of education circulate circulars to all teachers on how to conduct themselves at work, more importantly in relations to learners. She cannot remember all circulars but remember GDE Circular 1 of 2026, Employment of Educators Act and SACE documents, the principal in most recent meeting also emphasise compliance by the teachers on corporal punishment, sexual harassment and examination irregularities.

102. Teachers do communicate with leaners through WhatsApp group platform, for academic purposes, but not private matter and not private communication.

103. Boys’ learners were angry that the Applicant pointed at Tinyiko’s thighs using his tongue and salivating the tongue.

104. There is a pattern of improper behaviour by the Applicant towards learners and therefore the sanction of dismissal was proper sanction.

105. Female teachers warned male teachers not to get involved with girl learners and always chased girl learners from staff room or their offices.

106. It was unprofessional of the Applicant to ask learners cell phone numbers privately.

107. The eight witness for the Respondent was Vongani Godfrey Phephenyani who testified under oath that he is an employee of the Respondent, employed as a deputy director. He joined the public services in 2004 and joined the Respondent in 2009.

108. He mainly preside over the disciplinary process of the Respondent, and he presided over the Applicant disciplinary hearing and his report is part of the records of the arbitration proceedings.

109. He saw the Applicant for the first time at his disciplinary hearing, and his verdict was based on evidence adduced during the disciplinary process. There is no predetermined outcome and he was objective in the disciplinary process. There are no procedural irregularities and explained the rights of the Applicant, procedures for the disciplinary process.

110. The Applicant was represented in the disciplinary hearing by SADTU, and they at no stages raised to him that the charges were fabricated and there was no shred of evidence that the charges were fabricated.
111. Key considerations were evidence of witnesses, GDE circular 1 of 2016 and SACE code of ethics, SACE regulates the conduct and conditions of educators.
112. His responsibilities for the purpose of this dispute was to preside over the disciplinary hearing, determine the verdict based on evidence available to him, depending on the verdict, to make determinations of an appropriate sanction.
113. During cross examination, he denied that the outcome was predetermined. He was not biased or conflicted, and has no personal interests in the disciplinary process.
114. During cross examination, he mentioned that his qualification is B Tech Labour Relations from Vaal Triangle Technickon.
115. The Applicant exhausted all internal revenues available inclusive of appeal to the appeal authority so he was aware of his rights as explained to him.

THE APPLICANT’S CASE:

116. The Applicant was the only witness to testify in support of his case and testified under oath that he started the employment as an educator around June 1995 at Limpopo provincial department of Education, and around January 2017, he joined the Respondent, Gauteng Provincial department of Education, earning a basic monthly salary.
117. He is a teacher with 23 years of services, he was teaching two classes of grade 10, three classes of grade 11, four classes of grade 12 and was a class manager for grade 9.
118. He was served with the notice to attend disciplinary hearing and the charges as per page 10.
119. He did not ask the girl leaner, Tinyiko Rosita Xaba, to visit his house.
120. He ask the learner, Tinyiko Rosita Xaba, to give him, her cell phone number, for educational purposes, because she was absent from school for few days. Adelaide Mukoma was assisting her to catch up for few days she was not in class.
121. For more than twenty years as a teacher, he never asked any learner to visit his home, equally he does not know of any policy that prohibit any learner from visiting a teacher at home.
122. He does not know what section 18(1) (q) of the Employment of Educators Act 76 of 1998 entails, and there was no evidence by any witnesses of what that sections provides.
123. Tinyiko Rosita Xaba never gave him her cell phone numbers.
124. There was no evidence that he look at Keitumetse buttocks in a suggestive manner, she was dressed to cover her private parts or her body.
125. The chairperson of the disciplinary hearing was biased and did not find any wrongdoing on his part but passed a verdict of guilty. The issue of pointing his tongue at the thighs of Tinyiko, and conversation about pregnancy of Keitumetse was not canvassed during the disciplinary process.
126. There was no existence of the rule that was breached and does not know of any of the rules with regards to his charges
127. The Respondent failed to adhere to consistent application of discipline. There is a teacher, Sethe, at a school at Alexandra, who told him that he was given two months suspension without salary after taking a girl learner to his private room.
128. During cross examination, he conceded that he was not aware of the charges that were preferred against Sethe, and was not aware of any evidence and witnesses that were called and what their testimony was.
129. He equally conceded that saying I love you to the girl learners was not wrong as he loves all his learners.
130. There was no training at school level about SACE and does not remember any training, plus there is no attendance register to prove that he attended such training.
131. He visited the learner’s home when the learner lost her mother.
132. Most of his peers are astonished by the dismissal and are of the view that the principal and or the Respondent should have handle this matter differently without the disciplinary process.
133. The prayer sought by the Applicant was retrospective reinstatement.

ANALYSIS OF EVIDENCE AND ARGUMENTS:

134. In considering the merits of this dispute, I had regard to the provisions of the LRA, the ELRC Dispute Resolution Procedure, and the Code of Good Practice: Dismissal (the Code) of the LRA and relevant case law.
135. Everyone has the right to a fair labour practices. This cardinal principle is enshrined in section 23 of the Constitution of the Republic of South Africa Act 108 of 1996. This right is well entrenched by section 185 of the LRA, which provide the right not to be unfairly dismissed or subjected to unfair labour practices.
136. In the case of Sidumo and another v Rustenburg Platinum Mines (Pty) Ltd and others (2007) 28 ILJ 2405 (CC) 2007) 12 BLLR 1907 (CC), the court held that, “one of the primary objects of the LRA is to give effect to and to regulate the fundamental rights conferred by section 23 of the Constitution, including the right to fair labour practices enshrined in section 23(1).
137. There was an agreement between the Applicant’s legal representative and the Respondent’s representative that the Applicant can be legally represented by his legal representative.
138. Section 188 of the LRA provides that an employee’s dismissal will be unfair if the employer fails to prove that the dismissal was for a fair reason and that it was effected in accordance with a fair procedure.
139. In terms of section 192 of the LRA, the employee must prove that he was dismissed and the employer then bears the onus to prove that the dismissal was fair.
140. The dismissal of the Applicant was not in dispute; both the Respondent’s representative and the Applicant’s legal representative confirmed that the Applicant was dismissed.
141. Procedural fairness and substantive fairness was in dispute.
142. An arbitration is a new (de novo) hearing, which means that the evidence concerning the reason of the Respondent’s decisions (which is challenged or in dispute) is heard afresh. That means I must determine the fairness of the Respondent’s decision on the evidence admitted and submissions made at the arbitration.
143. A teacher or an educator is defined by the Employment of Educators Act, as any person appointed exclusively perform extracurricular duties, who teaches, who educates, educate or trains other persons or who provides professional educational services, including professional educational therapy and educational psychological services at a school.
144. The Applicant was charged with two counts of misconduct in that he conducted himself in an improper, disgraceful or unacceptable manner with regards to two girl learners, by asking Tinyiko Rosita Xaba cell phone numbers and asking her to visit him in his place of abode. Secondly by telling the girl learner, Keitumetse Mekute, that she has gained weight whilst looking at her buttocks in a suggestive manner.
145. The evidence in chief of Tinyiko Rosita Xaba was that there were two incidences, firstly the Applicant ask her to come out of the class room and profess his love to her privately outside class, to be precise, “I love you”, and ask her to give him her cell phone number and pleaded with her to visit him at his place. She refused and reported the incidence to her friends, Masareme Modise and Adelaide Mukoma. She also reported the conduct of the Applicant to his brother at him.
146. The Applicant conceded that he asked Tinyiko Rosita Xaba cell phone number for academic purposes, she was absent from work and lost out and was assisted by Adelaide Mukoma to do catch ups. He denied extending invitation to the learner to come to his place. The Applicant conceded saying he loves the learner but not in a romantic manner but parental love. It was very strange that the Applicant requested cellphone for catch up purposes but during cross examination of the learner, Tinyiko, it was said it was for the purposes of wishing learner good luck with examination.
147. The second incidence of September 2021, was the Applicant pointing his tongue towards her thighs, resulting in the learners getting rowdy and reporting all incidences to the teachers, TLO and principal. The principal requested the learner to bring her guardian to school and she brought her sister. The Applicant denied pointing his tongue towards the learner’s thighs. Teacher Mabuza, Rahulana, Ngubane, Mabandla and Mvango spoke to the class learner who confirmed the incidence.
148. All the Respondent’s witnesses with regards to the two incidences of Tinyiko Rosita Xaba were credible, consistent and corroborated each other and their version highly probable and should be accepted.
149. The Applicant’s version is highly questionable in that there was no need to profess parental love outside the class room, the version that the learner Tinyiko was lacking behind and requested cell phone for educational purpose, to catch up, was merely after thoughts deliberately intended to misled the process, more-so that version was never canvassed or put to witness during cross examination. The witness, Tinyoko, labelled the Applicant liar, when the issue of parental love was put to her. Indeed Tinyiko assertions that the Applicant was economical with the truth is not farfetched, as the Applicant indicated the purposes of requesting cellphone was for catch up purposes in his evidence in chief, but during cross examination of learner Tinyiko, was to wish her good luck with her examination.
150. Keitumetse also testified with regards to two incidences. She was with Ayanda Chawe when the Applicant called her a scrap and that was not a joke and was hurting her. On her way out to her class the Applicant stopped her and told her, “I need you and I love you”. The Applicant confirmed that indeed called the learner a scrap but it was a joke and they laughed about it. The Applicant did not denied or confirmed that he stopped Keitumetse and told her I need you and I love you.
151. The second incident was when she was with Keletso Van Wyk, when the Applicant stopped her by placing his hands on her neck and pushing her against the wall, placing his hands on her shoulder and looking at her buttocks. The Applicant denied looking and seeing Keitumetse buttocks, amongst others Keitumetse was wearing uniform covering her private parts and did not look at her suggestively.
152. The Applicant did not denied or confirmed that he told the learner, Keitumetse, that , “ I love and I need you”, put his hands on her throat / neck to push her to the wall, put his hands on her shoulder and ask her if she was pregnant. She was motivated
153. It is a common fact that , and it was agreed by the learner that indeed she picked up weight during 2020 covid19 period, but it was not easily noticeable as it was two or three kilogram.
154. All witnesses of the Respondent were credible, consistent and corroborated each other on this two incidences of Keitumetse, their version highly probable whilst the Applicant insisted that he did not see the learner’s buttocks.
155. The conduct of the Applicant was indeed, without any fear of contradictions, improper, disgraceful, unacceptable, unprofessional and highly irregular of a teacher of his age and experience.
156. SACE code of conduct for Educators specifically stipulated that the core duties of the teacher is to educate and train the learners, and it is consistent with South African School Act. It enjoined all educators to acknowledge, uphold and promote the basic human rights as embodied in the Constitution of the Republic of South Africa Act 108 of 1996 as amended, specifically section 10 and 29. All teachers are called upon to conduct themselves properly and consistent with the teaching profession, respect and treat learners with dignity, avoid any form of humiliation and abuse of learners physically and psychologically.
157. It goes without saying that the conduct of the Applicant goes against any expectations and conduct expected of a teacher, calling Keitumetse scrap, are you pregnant, and pointing his tongues at Tinyiko.
158. Equally telling Tinyiko privately that, “I love you”, give me your cell phone number and asking her to visit him at home is contrary to the values, ethos and code of conduct expected of teachers. The same goes to Keitumetse by saying, “I need you and I love you”, is against the code of conduct that prohibits any form of sexual harassment or any form of sexual relationship with learners.
159. Teachers inclusive of the Applicant are also prohibited from improper physical contact with the learners, using his hand to restrain Keitumetse by holding his throat / neck, placing his hands on her shoulders cannot be condoned and it is against the SACE code of conduct for educators.
160. It is practically impossible for the Applicant, not to know the SACE code of conduct for educators. The Applicant joined the teaching profession in 1995, therefore it is practically and reasonably expected of him to know the SACE code of conduct and to conduct himself as per the expectation of the teaching profession. Though he started at Limpopo before coming to Gauteng, the teaching profession expectations is the same. It is disingenuous of the Applicant to claim he was not trained or no information was shared with him to know that his conducts with regards to Tinyiko and Keitumetse are prohibited, frowned upon and must be stopped. The Applicant adopted consistent and constant predatory conducts towards grade 10 and 11 learners, Keitumetse and Tinyiko, from 2019 until stopped in 2021.
161. The Applicant indicated that the Respondent was inconsistent in its application of discipline, in that the teacher, Sethe, of Alexandra was sanctioned with two months suspension without salary for seductive conduct, and the Applicant pleaded for a final written warning and one month suspension without salary on his appeal.(R16 and 17). Why was it necessary if no misconduct was committed?
162. There was no charges of Sethe that was shared with the arbitration process, no evidence and no document to prove similar charges, similar evidence and therefore fairness of similar sanction should be pronounced. He conceded that he was not avers of all information of Sethe during cross examination.
163. In G4S Cash Services v NBCRFLI and others (JR 1103/13) 2017 ZALCJHB 334, the Court held that, the raising of inconsistency cannot automatically constitute a bar to the imposition of dismissal.
164. In Absa Bank Ltd v Naidu and others (2015) 36 ILJ 602 (LAC), the Court held that the parity principle should be applied with caution. Each case should be decided on its facts and circumstances and the parity principle is not intended to profit or benefit the employees who commit serious acts of misconduct.
165. The Applicant submitted that he does not know section 18(1) (q) of the Employment of educators Act 76 of 1998 with its amendments and therefore did not commit misconduct as charged.
166. Section 18(1)(q) of the Employment of Education Act 76 of 1998 provides that a misconduct refers to a breakdown in the employment relationship and an educator commits if he or she while on duty conduct himself or herself in an improper ,disgraceful or unacceptable manner.
167. This is more or similar charges preferred against the Applicant and therefore there absolutely nothing wrong with the charges.
168. The Applicant submitted that the chairperson of the disciplinary hearing was biased and the outcome was predetermined. Arbitration process is a de novo process. There was no evidence that the process was tempered with or tainted.
169. The Applicant submitted that the disciplinary process was concocted to get rid of him, but there is no shred of evidence to suggest that any person needed him out of the system, inclusive of the principal who failed to come to testify.
170. In terms of item 4 (1) of the Code of Good Practice on Dismissal (the Code), the employer should notify the employee of the allegations using a form and a language that the employee can reasonable understand, and the employee should be entitled to a reasonable time to prepare the response and to the assistance of a trade union representative or fellow employee. After the enquiry, the employer should communicate the decision taken and preferably furnish the employee with written notification of that decision.
171. The Applicant was charged and served with charge sheet, served with notice to attended a disciplinary meeting, he participated in the disciplinary hearing, he was represented by an official of SADTU, he was given a verdict, allowed mitigation and appeal, he was notified of the sanction and outcome of the appeal and advised to refer the dispute to the ELRCS.
172. Therefore the dismissal of the Applicant did complied with item 4(1) of the Code of Good Practice on Dismissal. The dismissal was procedurally unfair.
173. Equally, in terms of item 7 of the Code of Good Practice on Dismissal (the Code), the following must be consider in determining the fairness of the dismissal, whether the employee contravened the rule, if the rule was valid or reasonable, if the employee was aware of the rule or is reasonable expected to be aware of the rule, the rule is consistently applied by the employer and if dismissal is the appropriate sanction for breached of such a rule.
174. In Woolworths (Pty) Ltd v SACCAWU and others (JA 56/2016) (2017) ZALAC 54, the court laid down steps for an inquiry into a breach of a rule and held that in cases of a breach, the Commissioner must consider, whether there was a rule breached, the nature and importance of the rule breached, whether the employee had knowledge of the rule or was expected to have such knowledge, whether the rule had been consistently applied and whether dismissal was an appropriate sanction.
175. The Applicant despite denying the charges, denied knowledge of the rule, denied breaching the rule, denied existence of the rule, there was overwhelming, credible and corroborated evidence, which pointed to the commission of the misconducts by the Applicant in relations to Tinyiko and Keitumetse.
176. Based on the totality of evidence, and submissions at the arbitration processes, the Respondent cannot be faulted for terminating the employment of the Applicant.
177. There was no slightest remorse on the Applicant, he blames his colleagues, the Respondent, no training provided to him, no SACE code of educators, no section 18(1)(q) of the EEA, he is a victim of concocted lies to terminate his employment, blames the principal for reporting the misconduct, cries inconsistent application of discipline and blames learners as well.
178. All Respondent’s witness, both males and females teachers and learners were embarrassed by the conduct of the Applicant and lost respect for the Applicant to a point where Tinyiko and Keitumetse labelled the Applicant a liar. The learners were ready to strike if the Applicants conduct were to be condoned.
179. Trust relationship, cornerstone of the employment relationship is broken beyond doubt as both teachers and learners lost confidence of the Applicant as the result of his conduct. The Applicant does not trust the Respondent as he accused the Respondent of colluding to get rid of him. The Respondent does not trust the Applicant and the Respondent must protect learners from predatory conducts.
180. In Tseane v Get Ahead Foundation (1995) 16 ILJ 202 (IC), the Court held that an employee owes an employer a duty to always promote its business interests and act in its interest. A breach of this duty by an employee entitles an employer to dismiss him.
181. In the Publication, Principles pf Practice Labour Law, issue 7, (2005) paragraph 245, it is held that, “When rendering services, the employee must ensure that his services are executed in good faith and that they in no destruct from the relationship of trust”.
182. In Department of Labour v GPSSBC (2010) 231 ILJ 1313 (LAC), the Labour Appeal Court confirmed the principle that a sanction aimed at correction and rehabilitation is of no purpose when an employee refuses to acknowledge the wrongfulness of his / her conduct.
183. It goes without saying that the Applicant does not appreciate the wrongfulness of his conduct, and its impact on girl learners, impact which is not positive at all, socially, morally, academically and humanly.
184. This misconducts are of a serious nature and warrants the Respondent losing trust and confidence in the Applicant, more so that the Applicant was employed in a position of trust to build capacity in the educational sector.
185. The Respondent has discharged the onus to prove the existence of good reasons for the dismissal of the Applicant and therefore cannot be faulted on substantive fairness. The conduct of the Applicant was costly in terms of national capacity building framework, undermined the educational sector and dehumanize and humiliated girl learners.
186. Therefore the Respondent cannot be faulted for dismissal on substantive fairness and procedural unfairness.
187. Though the Applicant was charged with improper, disgraceful and unacceptable conduct with regards to girl learners, wherein he discharged his predatory advances of trying to have sexual relationship with girl learners, the girl learners were not gullible to his predatory conduct. By touching and restraining Keitumetse on her way to the class, touching her on her throat / neck and placing his hands on her shoulder, raises his suitability to work with girl learners and therefore learners must be protected from this predatory nature in terms of section 120(1)( c) and section 120 (2) of the Children’s Act 38 of 2005.
188. Mr Maurice Giyane Nkanyane, ID Number 7003265341088, is found UNSUITABLE TO WORK WITH CHILDREN, in terms of section 120(4) of the Children’s Act 38 of 2005.

RELIEF SOUGHT:

189. In terms of section 193(2) of the Labour Relations Act, the arbitrator must reinstate the employee unless:-
1. The employee does not wish to be reinstated or re-employed
2. The circumstances surrounding the dismissal are such that a continued employment relationship would be intolerable
3. It is not reasonably practicable for the employer to reinstate or re-employ
190. The prayer sought by the Applicant was retrospective reinstatement. The Applicant is not entitled to any reinstatement as relief sought for the alleged unfair dismissal. The relationship between the Respondent and the Applicant is beyond repair, based on the totality of evidence presented.









Award

In the premises I make the following award

191. The Applicant, Giyane Maurice Nkanyane’s, dismissal by the Respondent, Gauteng Provincial Department of Education, was procedurally and substantively fair.
192. The Application is dismissed.
193. There is no order as to costs.

Thus, done and signed at Pretoria, dated 18 January 2024.

Signature: