ELRC956-21/22WC

IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD IN
CAPE TOWN

Case No ELRC 956-21/22WC

In the inquiry between


M. LOMBARD Employee

and

DOE-WC Employer


Date of Award:11 March 2024
Arbitrator: A.Singh-Bhoopchand



ARBITRATION AWARD



DETAILS OF HEARING AND REPRESENTATION

1. This Inquiry by Arbitrator was convened for hearing in terms of the provisions of section 188A of the Labour Relations Act no.66 of 1995, as amended (LRA) read together with the provisions of the ELRC Collective Agreement 3 of 2018. The hearings were held over several days. The matter was concluded when the final closing arguments were submitted on 27 February 2024.

2. Mr J. Dimade, a representative of the trade union SADTU represented the employee. Ms V. Mortlock, a professional officer within the Labour Relations Directorate of the WCED represented the Employer.

3. The minor learners, the complainants in this matter, were assisted by an intermediary,

4. Two bundles of documents were submitted as supporting evidence to the oral testimonies. The parties accepted the documents to be what they purported to be without admitting its contents.


5. Proceedings were digitally recorded.

6. In keeping with ELRC policy, the identity of the minor learners (the complainants herein) is protected, and they shall accordingly be referred to as learner “A” and learner “B”.


THE ALLEGATIONS

CHARGE 1

It is alleged that you guilty of alleged misconduct as defined in terms of Section 18(1) (q), of the Employment of the educators Act, no 76 of 1998 to, ( hereinafter referred to as the Act),in that during term 3 and or 4 of 2021,you conducted yourself in an improper, disgraceful and or unacceptable manner, in that you attempted to touch the bum of learner A*, a Grade 7 learner previously enrolled at Belhar Primary School.

CHARGE 2
It is alleged that you guilty of alleged misconduct(dishonesty) as defined in terms of Section 18(1) (dd) of the Act. To be read with section 18(2)(b)(vi) of the Criminal Law Sexual Offences and Related Matters Amendment Act, in that on or about 29/07/2021, you sexually groomed learner A*, a Grade 7 learner previously associated with Belhar Primary School, by sending her the following text messages via WhatsApp:
i. Naughty, naughty; and/or
ii. More like yummy; and /or
iii. Sexy neh; and /or
iv. Be good ……... send me a gorgeous pic of you, and. or
v. Make sure you delete my messages, please.


Charge 3
It is alleged that you guilty of alleged misconduct(dishonesty) as defined in terms of Section 18(1) (q), of the Employment of the educators Act, no 76 of 1998 to, ( hereinafter referred to as the Act),in that during term 3 and or 4 of 2021,you conducted yourself in an improper, disgraceful and or unacceptable manner, by hugging of learner B*, a Grade 7 learner previously enrolled at Belhar Primary School.



ISSUE IN TO BE DETERMINED

7. I must determine whether the employee, Mr Lombard, is guilty of the allegations against him, and if so the appropriate sanction.

PLEA
8. Mr Lombard pleads not guilty to all the allegations.

BACKGROUND

9. Mr Lombard is an educator currently employed at the Belhar Primary School since 2016. He has served as an educator at various public schools for the past 20 years. He has a clean disciplinary record. He denies all the allegations. He admits that the messages in respect of Charge 2 were sent from his phone. However, his defence is that the messages were sent by his wife.

10. Both the learners, learner “A” and learner “B” were in in grade 7 at the Belhar Primary School at the time of the incident.


THE EVIDENCE

It is not my intention to repeat all aspects of the respective testimonies of each of the witnesses that testified during the course of the arbitration, but only to highlight the different submissions in general. The evidence will be dealt with in more detail later in this award.

The Employer’s Evidence
Seven witnesses testified.

11. Learner A: Mr Lombard attempted to touch her buttocks when she went to his table to ask a question. He was busy on his phone and was sitting with his hands on the table, while she stood next to him. He moved his hands backwards and tried to touch her, but she moved away. The incident happened during the COVID 19 pandemic when they were required to practice social distancing. Mr Lombard did generally follow the COVID rules, but he was not too strict about them.

12. On another occasion, she had her bag on her back, and she struggled to get into her desk. Mr Lombard noticed and commented that her buttocks are getting too big. Her friend Alex heard the comment but no one else in the class seemed to have heard.


13. In relation to charge 2, she said that Mr Lombard sent her the text messages in response to her WhatsApp status. The messages made her feel awkward and uncomfortable. She showed the messages to her friend Alex on the same day. Alex told her to inform teacher Mrs Windvogel which she did.

14. Learner B testified that she saw the messages that Mr Lombard sent to Learner A. This prompted her to recount the incident where Mr Lombard had hugged her in a way that made her feel uncomfortable. She reported the incident to Mrs Windvogel who in turn reported it to Mrs Freeman.

15. Mrs Windvogel: She is an educator at Belhar Primary. She confirmed that Leaner A sent her a screenshot of the message that she said she received from Mr Lombard. The learner was upset. She reported the matter to her grade head. They were shocked and, in a dilemma, as to what do as they were both fond of Mr Lombard as a colleague. He is an excellent teacher. They reported the matter to the school principal.


16. Lauren Trout: She is the mother of learner A. Her daughter did not report any of the incidents to her. She became aware of the incident when the principal, called her and told her about it. The drugs that her daughter was found in possession of belonged to her husband. He uses the drugs for medicinal reasons. She did not want her daughter to get into trouble for this, so she had spoken to Mr Lombard to explain the circumstances. Mr Lombard did not report the incident to the principal.

.
17. Alex Jafta: She was friends with Learner A when they were in grade 7. She confirmed that she heard Mr Lombard comment that Learner A’s buttocks was getting too big. She also confirmed that learner A told her about the WhatsApp message from Mr Lombard.

18. Mrs T. Freeman: She testified that Mrs Windvogel told her about the hugging incident with learner B.


19. Mr Pedro: He confirmed that Mrs Windvogel reported informed him about the WhatsApp message. He said that he had not received any disciplinary complaints about learner “A”.

The Employees Evidence

In addition to Mr Lombard, two learners, Lieshen Kamaldien and Zahiera Tall testified as well as the deputy principal, Mr Sheldon and Mr Lombard’s wife, Yolanda Lombard.

20. M.B. Lombard: He testified that he is a dedicated and hard-working educator with long service. He is also a religious person. He denies all the allegations. He said that leaner A was a “bossy “ child, a control freak and that she was usually the leader of a group (of friends). There were several incidents at school for which she had to be disciplined. There was also an incident where she had been found in possession of a drug called “weed sugar”.

21. He also said that he did not have any WhatsApp group with learners. He did however have a WhatsApp group for parents. It is possible that Learner A obtained his mobile number form her mother’s phone and she communicated with him randomly with random messages.

22. He often left his phone at home. The WhatsApp messages were sent to Learner A by his wife on a day when he had left his phone at home.


23. The two learners said that Learner “A” was popular in school, and they were friends with her at one time. However, they were no longer friends with her. They said that Mr Lombard was a good teacher and that he had not attempted to touch learner “A’s buttocks and neither did he make any comment about the size of her buttocks. They also said that Mr Lombard enforced the COVID 19 rules strictly so Learner A could not have gone so close to his table. Learner ‘A” did not follow school rules -she wore jewellery to school and dressed provocatively.

24. The deputy principal was called as character witness and he confirmed that Mr Lombard was a good educator.

25. Yolanda Lombard said that both learner “A” and her mother called her husband and /or texted him frequently and that they intruded in their family time as they did so after school hours and during weekends. She believes that they both had a crush on her husband. Her husband often leaves his phone at home and on one such occasion she picked up his phone to check for messages. She saw a message from learner “A”. She was annoyed and sent the messages in the bundle because she wanted to her because she wanted to establish what her motive was in contacting her husband so often. It did not occur to her that the messages would get him into trouble.

ANALYSIS

26. This award contains brief reasons for the decisions arrived at, and although all the evidence and argument may not be specifically detailed, consideration has been given to all that was presented during the arbitration in terms of relevance in reaching this decision.

The applicable legal principles

27. The employer bears the onus to prove the allegations on a balance of probabilities. Any misconduct of a sexual nature is viewed in a very serious light in terms of the Employment of Employment Act to the extent that the sanction of dismissal is mandatory if the employee is found guilty.


28. Any act of a sexual nature is prohibited in terms of the SACE Code of Ethics to which all educators are enjoined to adhere to.

29. In determining any misconduct in terms of section 18 of the Employment of Educators Act, a decision maker must take into account that children are central to the dispute. Section 28 (1) of the Constitution of the Republic of South Africa, provides that every child has the right to be protected from maltreatment, neglect, abuse and degradation.

30. In terms of our common law, educators have a legal duty to take care of the children entrusted to them. Learners being vulnerable, teachers ordinarily have a positive duty to provide a safe environment for them, free from any form of fear, abuse, intimidation, coercion or physical and/or emotional harm. It so that in the education sector in particular, the in loco parentis principle ought to be supreme as it is meant to protect learners.

Is the employee guilty of the allegations?

31. The dispute before me was largely a factual one. In order to resolve factual disputes, findings must be made with reference to (a) the credibility of the various factual witnesses; (b) their reliability; and (c). the probabilities. I will make these findings during the course of this award.

32. The test for whether something has been proved on a balance of probabilities is whether the version of the party bearing the onus, is more probable than not. In determining the probabilities, evidence is assessed against human experience, logic, and common sense. Evidence must be evaluated holistically and not piecemeal.

“The credibility of the witnesses and the probability and improbability of what they say should not be regarded as separate enquiries to be considered piecemeal. They are part of a single investigation into the acceptability or otherwise of the Respondent’s version. “

33. In dealing with conflicting versions the Supreme Court of Appeal has provided guidance:

“The technique generally employed by courts in resolving factual disputes of this nature may conveniently be summarised as follows: To come to a conclusion on the dispute issues a court must make findings on (a) the credibility of the various factual witnesses; (b) their reliability; (c) the probabilities. As to (a) , the courts finding on the credibility of a particular witness will depend on its impressions about the veracity of the witness, That in turn will depend on a variety of subsidiary factors, not necessarily in order of importance , such as (i) the witnesses’s candour and demeanour in the witness box, (ii) his bias, latent and blatant,(iii) internal contradictions in his evidence,(iv) external contradictions with what was pleaded or put on his behalf, or with established fact or with his own extracurial statements or actions, (v) the probability or improbability of particular aspects on his version, (vi) the calibre and cogency of his performance compared to that of other witnesses testifying about the same incident or events. “

34. Children, in this case a teenager, do not act and react in the same manner as adults, and it is therefore naïve to evaluate their evidence in the same way as one would evaluate the evidence of adults. Courts have recognised that the evidence of children cannot be assessed in the same way as the evidence of adults, that it may be wrong to apply adult tests for credibility to the evidence of children; that a fair trial must not only take into account the rights of the accused but also the rights and capabilities of children , that a contradiction in a child’s testimony should not necessarily be given the same effect as a similar flaw in the testimony of an adult and that evidence if given by an adult may have had a deficiency so grave as to require rejection of it as incredible, may in the case of a child be explicable as due to the limitation of a child’s immaturity rather than lack of rationality. In this case I must also consider that teenagers are at an impressionable age.

35. In terms of the cautionary rule of evidence in relation to child witnesses, it does not mean that the evidence of children must be above any critisim. It requires only that the evidence accepted should be substantially satisfactory in relation to material issues or that it should be corroborated by other evidence. There is no rigid rule that corroboration must always be present before a child’s evidence is accepted. What is required of a presiding officer is a detailed evaluation, not confined to demeanour, of the extent to which the evidence of a child could be regarded as reliable and acceptable.


36. Overall, the question is not whether a witness is wholly truthful in all she says, but whether the arbitrator is satisfied that the story which the witness tells is a true one in its essential features.

Is the employee guilty of the allegations?

37. Learner A’s version of the allegations of charge one was corroborated by her friends while two of her so called “ex-friends” corroborated the version of Mr Lombard. It is curious that out of an entire class of learners who were all present at the time, that Mr Lombard chose to call two learners that have reason to testify against learner A. The one learner said that she had been friends with learner A, but that their friendship broke when learner A betrayed her confidence about her parent’s divorce. The other learner said that whilst learner A was popular and that she initially wanted to be like her, she had later realised that Learner A was not a good person, in that she was prone to spreading rumours; that she did not follow school rules and that she dressed provocatively. It is no surprise then that these two learners would readily say that learner A is not telling the truth. Put differently the group or club against Learner A constructed their testimonies in a manner that rushed to Mr Lombard’s aid. The learners went further and said specifically that the incident did not happen. There is no specific date mentioned in the charge, yet Lieshen immediately said that the incident did not happen even before any context was put to her.

38. Neither of them impressed me as witnesses, as their testimonies are not considered to be objective nor neutral, but instead appeared to be biased towards Mr Lombard because of their falling out with learner A. These learners can hardly be regarded as credible witnesses.

39. All the learners that testified, including learners A and B agreed that Mr Lombard was a good teacher and that he was generally well liked. It is quite probable therefore that learners would find it had to believe that he is capable of anything untoward and that they would be willing to testify in his favour. In the similar vein, it is improbable that learners, and in this case learners A and B, would make up stories that would get a good and well-liked teacher into trouble.

40. Mr Lombard’s evidence in respect of Learner A was contradictory. On the one hand he suggested that the possible motive for Learner A getting him into trouble is that she was aggrieved that he had disciplined her on many occasions because of her behaviour. On the other hand, he (and his wife) claim that she had a “crush” on him. These theories are mutually destructive. Had she indeed harboured romantic feelings, then there is no plausible reason why she would get him into trouble. In fact, had she harboured such feelings then she would have responded positively, and she would have welcomed the type of message that she received from his phone. The fact that she instead reacted with shock and that she was disturbed to the extent that she immediately reported it to her friend and then to an educator, lends credence to her version.

41. Mr Lombard denies that he is the author of the messages in charge 3 and he brought his wife to the proceedings to corroborate his version that it was she that sent the messages. Her testimony is improbable for many reasons. Mrs Lombard claims that she looked at her husband’s phone to check for messages and that she saw a message from Learner A with words to the effect “hello how are you?” Learner A denies that she sent a message and says that she received the messages in response to her new WhatsApp profile picture. The messages certainly read as if they are in response to the picture.

42. Mrs Lombard also said that the reason that she sent the messages was because she wanted to establish if her husband was having an affair; what the learner’s motive was in sending messages to her husband and whether or not it was in fact the learner’s mother that was sending the messages. First and foremost, the messages do not read as if they were trying to establish any of this. The messages read as if it is indeed a response to the picture as testified by Learner A. The content of the messages reads as if the author is flirting with the recipient rather than trying to establish any facts. Mrs Lombard’s testimony is also contradictory in that on the one hand she said that she trusted her husband implicitly and yet in the same breath she said that she wanted to establish whether he was having an affair. If she trusted him then she would not suspect that he was having an affair. Overall, the tone and content of the messages does not match the context and the narrative that Mrs Lombard attempted to paint.

43. She also said that it did not occur to her that the messages would get her husband into trouble, yet she asked for the messages to be deleted. The only possible, and most logical explanation for the request for the message to be deleted is that the messages were from Mr Lombard.

44. The version that Learner A and her mother were harassing Mr Lombard was never put to them during cross examination. Had the learner indeed been harassing Mr Lombard, it is questionable why he did not discipline her for that or report the alleged harassment to the school principal.

45. In assessing the evidence holistically, it is Mr Lombard’s version in respect of charge 2 that is the most improbable. The high probability of him having sent those messages contributes to the probability and the ultimate finding that he did indeed attempt to touch learner A’s buttocks. The content and tone of the messages suggest that he would be that way inclined. Further, Learner A only came forward with the allegation in charge 1 after she received the WhatsApp messages. It is only then that she seemed to have realised there were nefarious intentions behind the attempt to touch her and the comments on the size of her buttocks. The overall story is credible.


46. In respect of charge 3, learner B came across as a credible witness. The circumstance under which she decided to reveal the incident is plausible. She said that she was prompted to tell her story when she heard about the incident with learner A.


FINDING

47. I find Mr Lombard guilty of Charges 1, 2 and 3

SANCTION

48. Unlike misconduct in terms of section 17(1) for which the sanction of dismissal is mandatory, there is no mandatory sanction for serious misconduct in terms of section 18. Dismissal is a possible sanction, but the arbitrator has a discretion in this regard. The charges are no doubt very serious especially because of the obvious sexual innuendo. I have already set out the legal principles and the constitutional imperative in determining disputes involving children. It is simply unsafe for the employee to be allowed to work with children.

49. Generally, it is not appropriate to dismiss an employee for a first offence, except if the misconduct is of such gravity that it makes a continued employment relationship intolerable. Given the environment that the employee has to work in, a continued employment is intolerable.


50. When deciding whether to impose the penalty of dismissal. I must in addition to the gravity of the offence consider such factors as the length of service, previous disciplinary record, personal circumstances, the nature of the job and the circumstances of the infringement.

51. I have considered that Mr Lombard has a clean disciplinary record and that he has long service. I have also considered his personal circumstances. Unfortunately, none of this can ameliorate the gravity of the offences. Dismissal is the only appropriate sanction.


I make the following award:


AWARD
1. The employee, MB Lombard is found guilty of Charges 1, 2 and 3
2. The employee, M.B. Lombard is dismissed with immediate effect.
3. The employer, The Western Cape Education Department must inform the employee, of his dismissal immediately upon receipt of this award.
4. The Education Labour Relations Council as the Administrator of this Section 188A inquiry is entitled:
• In terms of section 122 of the Children’s Act, Act 38 of 2005, to notify the Director General: Department of Social Development, in writing of the findings of this Tribunal.
• To send a copy of this arbitration award to the South African Council for Educators (SACE) for the revoking of Mr Lombard’s SACE Certificate.


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A. Singh-Bhoopchand
Arbitrator
ELRC Panellist
11 March 2024