ELRC333-23/24EC

IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD AT MTHATHA
IN THE INQUIRY BY THE ARBITRATOR
BETWEEN
DEPARTMENT OF EDUCATION EC APPLICANT
AND
SADTU OBO GHU L RESPONDENT

ARBITRATION AWARD

CASE NO ELRC333-23/24 EC
DATE/S OF HEARING 29 JANUARY 2024
DATE AWARD SUBMITTED 06 FEBRUARY 2024
NAME OF PANELIST SIZIWE GCAYI


DETAILS OF THE HEARING AND REPRESENTATION
1. The matter was set down for an inquiry by arbitrator in terms of section 188A of the Labour Relations Act 66 of 1995 (LRA) at the Department of Education offices in Mthatha on 29 January 2024. Mr K Dalasile an official represented the Applicant (Dept of Education EC). Mr S Makunga an official from SADTU, represented the Respondent (Mr Ghu L)
2. The proceedings were electronically recorded and manually recorded.

ISSUES TO BE DECIDED
3. I am required to determine following:
[a] whether the employee is guilty of the three charges proffered against him by the employer. If I find him guilty on all or any of the charges, I should decide the appropriate sanction. The employee pleaded not guilty on all the charges.

BACKGROUND OF THE DISPUTE
4. The employee is employed as an educator at Sehushe Senior Secondary School, at OR Tambo Coastal District.

5. The employee is charged with the charges mentioned:
Charger 1.
You contravened section 17 [1] [c] of the Employment of educators Act 76 of 1998, in that on or about 2019 – 2022 you had sexual relationship with the following learners of the school where you are employed: Lusanda Bondlingwe and Unako Dutywa.
Charge 2
You contravened section 18 [1] [q] of the Employment of educators Act 76 of 1998, in that whilst on duty, you conducted yourself in an improper, disgraceful or unacceptable manner, in that you proposed love to a learner at your school Nosiphelo Vula, and you verbally and emotionally abused a learner Asekho Keto.
Charger 3
You contravened section 18 (1)( r ) of the Employment of educators Act 78 of 1998, in that on or about 2020 you threatened to assault Asekho Keto, a learner at your school.

SURVEY OF SUBMISSIONS AND ARGUMENTS
Employer’s case
6. Mr Dalasile submitted that all witnesses were not available. They experienced difficulties in tracing the witnesses. All witnesses have exited Sehushe SSS. Several attempts were made with no success.

7. In relation to Asekho Keto, he submitted that, she was 1st contacted on 25 / 09/ 2023, she advised that she was in KZN [Durban] and was willing to participate in the proceedings. On 09 /10 /2023 her grandmother was contacted and she confirmed the same, they had no interest in the matter. On 25 /01 /2024 Asekho was contacted she demonstrated lack of interest in the matter. For 3-5 times she kept on dropping the phone, when she realised she was contacted in relation to matter.

8. In relation to Lusanda Badlingwe, he submitted that, she was 1st contacted on 25/ 09 /2023 she advised that she was not willing to be part of the proceedings. On 25/01/2024 she was contacted and her number did not go through.

9. In relation to Unako Dutywa, he submitted that, she was contacted on 25 / 09/2023 and she distanced herself from the charges, and also that she was not willing to participate in the proceedings. On 25 / 01/ 2024 she was contacted and she advised that she had no interest in the matter.

10. In relation to Nosipho Vula, he submitted that she was never contacted. The school had no records of her contact details, due to the break in that occurred at the school, according to Mr Matshomba.

11. The employer’s case was closed.
Employee’s Case
12. Mr Makhunga argued that Mr Ghu be found not guilty on all three counts. He further argued that there was no evidence before the Council implicating the employee to all the charges.

ANALYSIS OF SUBMISSIONS AND ARGUMENTS
13. Section 17 of the EEA 76 of 1998 mentioned acts of serious misconduct as
(1) An educator may be dismissed if he / she is found guilty of (c) having a sexual relationship with a learner of the school where he / she is employed.

14. Section 18 (f) misconduct: unjustifiable prejudices the administration, discipline or efficiency of the department of Basic Education, an office of the state or a school or adult learning centre.

15. Section 18 (g) misuses his/her position in the department of Basic Education or a school or adult learning centre to promote or to prejudice the interests of any person.

16. In MUDAU v MEIBC & OTHERS [2013] 13 ILJ 663 [ LC] the Court held that “the arbitrators mandate in terms of section 188A is to determine on a balance of probabilities whether an employee has committed an offence for which he / she has been charged and if so, whether there is a basis in fairness to terminate the employment relationship between the parties”.

17. It is common cause in these proceedings that there was no evidence that was led by both parties. No witnesses testified. All witnesses except Nosiphelo Vula had no interest in the matter as per the submissions made before me. There is no evidence implicating the employee to the three charges he is facing. I am called upon to determine on the balance of probabilities whether the employee has committed the offences he has been charged. There is no evidence adduced before me pointing to the guilty of the employee.

AWARD
18. The Employee [ Ghu L.C] is found not guilty of all the three charges proffered against him.

Commissioner: Siziwe Gcayi