ELRC496-23/24GP

SEC 188A-INQUIRY BY ARBITRATOR

Case Number: ELRC 496-23/24 GP
Part Time Senior Panelist: M.A. HAWYES
Date of Award: 7TH of March 2024

In the ARBITRATION between

Gauteng Department of Education

(Employer)

And

M. Ximba

(Employee)

Union/Applicant’s representative:
Union/Applicant’s address:

Telephone:
Telefax:
E-mail:

Respondent’s representative:
Respondent’s address:

Telephone:
Telefax:
E-mail:

DETAILS OF HEARING AND REPRESENTATION

1. The case was scheduled for an inquiry by arbitrator at the Department of Education Resource Offices in Soshanguve and sat on the following days namely the 23rd of November 2023, the 26th, 30th and 31st January 2023 and was eventually finalized on the 26th of February 2024.

2. After completion of the inquiry the parties requested the opportunity to submit written closing arguments by the 4th of March 2024. The Respondent submitted their written closing arguments on time whereas at the time of the writing of this award (7th of March 2024) neither the Applicant nor his SADTU representative had made any closing submissions.

3. Mr. M. V. Hadebe, a union official from SADTU, represented the employee.

4. Ms. M. Ralioma, a labour relations official, represented the employer.

5. The proceedings were digitally recorded, and long hand notes were also kept of the proceedings.

6. Only the employer representative made use of a bundle of documents

7. An intermediary (Ms. M. Padi) assisted the minor witnesses and the said witness testified remotely from the hearing room where the inquiry itself took place except on the occasion of the 26th of January 2024 when the employee and his union representative left the hearing room and the inquiry continued in their absence.

8. A Xhosa/Zulu interpreter, Mr. H. Matsenene, assisted as and when required during the course of the inquiry.

ISSUE IN DISPUTE
9. The employee pleaded not guilty to two counts of alleged misconduct in terms of section 18 (1) (q) of the Employment of Educators Act, 76 of 1998 (as amended) (EEA).

10. It is common cause that the employer employs the employee as a PL1 educator at the Sikhululekile Secondary School (SSS) situated in Gauteng.

11. It was alleged firstly that on or around the 22nd of June 2023, whilst on duty at SSS, the employee sexually harassed a Grade 10 learner (MH) in that he told her that he dreamt about her and that it was a wet dream and that he wanted her.

12. Secondly, it was alleged that, on or around the 22nd of June 2022, whilst on duty at SSS, at the consumer laboratory, the employee conducted himself in an improper, disgraceful, or unacceptable manner in that he hugged a grade 10 learner MH from behind.

SURVEY OF THE EMPLOYER’S EVIDENCE AND ARGUMENT

13. When the matter commenced on the 26th of January 2024 the employee raised a point in limine and asked that I dismiss the matter for reasons completely lacking in substance. When I advised that the application for dismissal was refused both the employee and Hadebe stood up and left the hearing room. As they were on their way out, I advised them that if they left, I would continue the inquiry in their absence. They left the venue, nonetheless.

14. The evidence of three witnesses was heard in the employee and union representative’s absence. Since the employee and union representative were not in attendance the witness testified directly in front of me.

15. I will not survey the evidence in the order in which they testified. I will start with the evidence of the complainant first and deal with the supporting evidence thereafter.

16. I must mention that when the matter was adjourned to the 30th of January 2024, the employee and Hadebe returned to the fray and the arbitration continued from where it had left off with the remaining minor witnesses testifying remotely and with the assistance of an intermediary and an interpreter.

17. MH, the complainant eventually testified on the 26th of February 2024. She was clearly able to distinguish between right and wrong and took the oath.

18. MH testified that she was in grade 10 in 2023. In fact, she had failed the year and was still in grade 10. She was currently 16 years old.

19. MH testified further that she knew witness B from 2023. B had been her classmate in 2023.

20. She also knew witness R, another classmate who she had known her from childhood.

21. MH also knew the employee and stated that he had been her consumer studies educator in 2023.

22. MH testified that on the 22nd of June 2023 the school did not have water. Whilst walking with classmate K, K suggested that they go to the consumer studies laboratory to see if there was water there.

23. MH saw the employee inside the laboratory. He greeted her and said that he hadn’t seen her for a while, and she was stressing him. The employee went on to tell MH that I dream about you. MH asked the employee what he dreamt about, and the employee said that it was something only the two of them needed to know. At that stage after K had consumed water they went back to class.

24. MH testified that she later returned alone to the consumer laboratory alone and spoke to the employee concerning his dreams. The employee told her that they must stand aside from the other learners.

25. The employee then stated that he had had a wet dream whilst dreaming about her and that this was not the first time.

26. MH testified that she got scared and the employee mentioned that he had been wanting her since grade 8.

27. MH testified further that the employee mentioned that he had wanted to tell her last year (2022 when she was in grade 9) that he loved her but because he saw her now, he told her “I love you”.

28. The employee told her that if she accepted his proposal, they must make a plan to meet for a date. The employee told her that he really wanted her like crazy and told her to sleep on it (think about it) and she went back to class.

29. MH testified that an earlier incident had occurred when the employee blew her a kiss (this was physically demonstrated at the hearing) as she came out of the bathroom.

30. MH testified further that the first person she told was B. She told her that she has a problem in that Sir (the employee) wants her. She later repeated the same thing to K.

31. She and K later reported the matter to two teachers (Mr. Matile) and (Mr. Mchaba) and still later to the Principal of the school.

32. In respect of the second incident, they were in class at the laboratory for consumer studies.MH testified that she was at station 1 busy washing dishes and B was at station 2.

33. The employee came up to her and hugged her from behind. The employee stated that he wanted to tell her that Ma’ Kwela is pregnant.

34. As they finished class B told her that she could see that she was not ok after the hug from the employee. MH testified that she was not comfortable telling B about the earlier incident at that time.

35. MH also deposed that the employee would pat her on the shoulder when he came into class and would engage in sex talk in class despite the class being consumer studies and not life orientation.

36. MH testified that the incidents had resulted in trauma and anxiety, and she could not sleep well at night.

37. During cross-examination MH stated that the employee approached her in the passage whilst she was with B and a boy learner and wanted to know why she had not visited him at the consumer laboratory again. MH replied curtly that she did not go to the consumer laboratory for the specific purpose of visiting him.

38. Ms. Daphney Chune, the Principal of the school testified, inter alia, that MH together with her friends BR and NR reported the earlier mentioned incidents to her.

39. When the employee was called in, he stated that he knows nothing about the incidents and denied making any advances towards MH.

40. Chune testified that MH first reported the matter to the teacher liaison officer, Mr. T.S Mathibe who later referred her to Ms. M. Tladi. Both Mathibe and Tladi were called as witnesses and gave brief testimony confirming that and MH’s complaints against the employee.

41. The employer then lead the testimony of two minor witnesses in support of MH’s allegations. The first was NR (15 years old) and the second was BR (16 years old). NR testified on the 26th January 2024 and BR on the 26th of February 2024.

42. I should also mention that Deputy Principal, Mr. L.B Langa gave brief testimony on the 31st of January 2024 relating to the chain of events after MH had lodged the complaint against the employee.

43. The largely corroboratory evidence of friends and classmates NR and BR will not be discussed here but may be touched on during my evaluation of the evidence.


SURVEY OF THE EMPLOYEE’S EVIDENCE AND ARGUMENT

44. The employee testified that he taught English, Consumer Studies and Life Orientation. He indicated that topics of sexuality normally dealt with in Life Orientation studies also came up during Consumer Studies from time to time.

45. The employee testified that he recalled being called to the Principals office in the presence of the Deputy Principal to answer MH’s allegations contained in allegation 1 and 2.

46. The employee denied that anything had taken place and stated that he did not even know the name of the child.

47. The employee stated further that he had an alibi (other colleagues could attest that he did nothing to MH), but the principal had instructed him not to contact colleagues since it was feared that he would interfere with the witnesses.

48. When asked during cross-examination why MH had cooked up these incidents against him the employee was at a loss for words.


ANALYSIS OF EVIDENCE AND ARGUMENT

49. The onus rests on the employer to prove all allegations of misconduct against the employee on a balance of probabilities.

50. Crucial in this case is the credibility findings in respect of the various witnesses particularly the evidence of MH.

51. MH was a good witness who gave detailed testimony on the two allegations levelled against the employee.

52. She stood her ground in the face of the employee’s bare denial and cross examination.

53. Her minor friends and classmates corroborated her testimony in terms of time and content. So too did the educator witnesses who were involved in dealing with this case from start to finish. The employee raised no major contradictions and inconsistencies in the employer’s evidence.

54. MH has no motive to fabricate evidence against the employee and the employee could not explain why MH would be possessed to, suddenly out of the blue, lodge a two false allegations against him with remarkable detail and clarity.

55. I find that the version of the employee is improbable and accept the version of MH.

56. I find further that the conduct of the employee was inappropriate, disgraceful, and improper

57. I find the employee guilty of two counts of sexual misconduct terms of section 18 (1) (q) of the EEA.

58. The parties are directed to file submissions in aggravation and mitigation of sanction within three calendar days of receiving my findings on the merits whereafter my sanction ruling will follow.

MARK HAWYES
PART TIME SENIOR PANELIST
7th of March 2024