ELRC602-23/24EC

Case Number: ELRC602-23/24EC
Panelists: Malusi Mbuli
Date of Award: 27-05-2024

In the ARBITRATION between

SADTU OBO FUZILE QAMZA
(Respondent / Employee)

And

DEPARTMENT OF EDUCATION – EASTERN CAPE
(Applicant / Employer)

DETAILS OF HEARING AND REPRESENTATION

1. The enquiry by arbitrator was held under the auspices of the ELRC in terms of section 188 (A) of the Labour Relations Act 66 of 1995 as amended in 2015. The hearing took place on the 14th & 15th of February 2024, the 18th & 19th of March 2024, 16th & 17th of April 2024 and the 14th of May 2024 at 09:00 at the Butterworth District Office in Butterworth.

2. The employee Mr. Fuzile Qamza attended the hearing and was represented by Mr. H. S. Tutu an attorney appointed by the employee / trade union SADTU. The employer also attended the hearing and was represented by Mr. Toto Tsheko an official of the employer.

3. The enquiry by arbitrator proceeded on the on the dates as indicated above in the presence of both parties. The parties further requested to file closing arguments together with mitigating and aggravating circumstances in writing on this matter not later than the 22nd of May 2024. Both the employer representative and the employee representative filed their arguments with the ELRC by the 22nd of May 2024.

4. The notice to attend the enquiry by arbitrator was properly drafted and served on the employee, signed on the 03rd of October 2023 and the employee attended the hearing as indicated above. Employee confirmed that the notice was properly served on him.

ISSUE TO BE DECIDED

5. I am required to determine whether or not the employee Mr. Fuzile Qamza is guilty of the charges levelled against him by the employer and if so whether a sanction of a dismissal is appropriate to be imposed on him in the circumstances where he is guilty.

BACKGROUND TO THE ISSUE

6. The employee is employed by the employer as an educator and is now charged by the employer in respect of the incidents of sexual misconduct appearing here under and outlined in the charges. The parties agreed that the matter should instead of being set for a disciplinary hearing be enrolled straight at the ELRC as an enquiry by arbitrator in terms of section 188 (A) of the Act in accordance with the ELRC Collective Agreement 3 of 2018.

7. This therefore means that the status of the outcome of this process will be an award that is final and binding on the employer and employee. The charges against the employee are as follows.

8. Charge 1.

- It is alleged that the employee Mr. Fuzile Qamza committed acts of misconduct as contemplated in 17 (1) (c) of the Employment of Educators Act 76 of 1998 (as amended), which inter alia reads as follows, having a sexual relationship with a learner of the school where he or she is employed in that:

(1) In a tour of Bonkolo SSS in Durban in the year 2012 the employee was caught by the educators sleeping with a learner P. O.

(2) In the 2017 tour of Bonkolo SSS in East London the employee was caught by other educators sleeping with a learner S. M.

(3) In Bonkolo SSS around March 2023 the employee told Z, N. that she had beautiful thighs after which he proposed a love affair to her.

(4) In Bonkolo SSS around March 2023 the employee proposed to Y. M. and dated her in full view and knowledge of her school mates and educators.

(5) The employee gave instructions to N, M., N. N. and V. Z. with whom the employee slept.

(6) That the employee dated a learner named M. L. in 2021 who was a learner at Bonkolo SSS.

(7) That the employee dated a learner named M. B. in 2022 who was a learner at Bonkolo SSS.

9. The employee Mr. Fuzile Qamza denies these allegations and pleaded not guilty to the said allegations hence the matter was set down for section 188 (A) inquiry as directed by ELRC Collective Agreement 3 of 2018.

SURVEY OF EVIDENCE

Submissions by the employer

10. The employer representative called their 1st witness the Principal Mr. Ntlanganiso Mahlangeni who testified that he works for the employer as a Principal at Bonkolo SSS and started teaching at Bonkolo SSS in 2018.

11. He averred that he knows the employee Mr. Fuzile Qamza because he is one of the teachers at his school and has a good working relationship with him. He testified that he is aware of the learner who was impregnated at school in September 2022 because Mr. Qamza came to his office to report that there are educators at school who are alleging that he had a relationship with the learner and has impregnated that learner.

12. He stated that on the same day the EDO by the name of Mr. Tsipa wanted to see him and when he met with him he shared the allegations that there are educators in his school who are dating the learners and some of the learners have been impregnated by the educators.

13. He stated that these were serious allegations and he told Mr. Qamza that these were serious allegations and that the EDO Mr. Tsipa wanted a report on the allegations and that he heard that Mr. Qamza wanted the matter to be settled and came to present it to the SMT.

14. He stated that a meeting to respond to Mr. Qamzas complaint was held on the 14th of October 2022 and this meeting was attended by himself, Mr. Jwambi, Ms. Mngxitama, Ms. Tsipa and Mr. Qamza and they also signed the attendance register on that day. He averred that in the said meeting Mr. Qamza was given an opportunity to present his complaint and he stated that these allegations are coming from Mr. Sakhi who stated that he dated and impregnated the learner or learners.

15. The witness testified that in that meeting Mr. Qamza stated that his heart is falling down and aching and also said he did those things during Mr. Falteins time as a Principal but put them to a stop ever since Mr. Mahlangeni took the reins. He averred that he regarded what Mr. Qamza said as an admission and mentioned that Mr. Qamza stated that these allegations are related to the Deputy Principal post which he has not even applied for.

16. The witness averred that in 2012 Bonkolo SSS had a grade 12 tour to Durban and when they were about to go back home Mr. Qamza disappeared with the learner by the name of O. P. and when they looked for them they were at the beach and the learner was sitting on Mr. Qamzas lap or thighs.

17. He stated that they then left Durban and on their way back in the Kokstad garage Mr. Qamza again disappeared and was left there with the same learner and they came back together the following day. He stated that Mr. Qamza had a relationship with the learner by the name of O. P. based on what he saw and the confession that Mr. Qamza made in the meeting of the 14th of October 2023.

18. He stated that in 2012 he was a teacher and not yet a principal and as teachers they attend the tour with learners in order to act as parents and look after them and further stated that he of cause does not know whether in that tour Mr. Qamza and O. P. slept together.

19. He stated that he was aware that Mr. Qamza was suspended based on those allegations of sexual misconduct and such a suspension was lifted. He testified that he was not part of the tour to East London in 2017 and further stated that he was not testifying against Mr. Qamza but was just giving the hearing an account of what he know and happened.

20. The 2nd witness of the employer was Ms. Zandile Hazel Mngxitama who testified that she works for the employer Department of Education – Eastern Cape as an H.O.D – Science and Mathematics at Bonkolo SSS and she knows Mr. Qamza because they are colleagues and fellow Departmental Heads.

21. She confirmed that she is aware of the allegations of learners impregnated by the educators in their school and that she first heard about those allegations when they were attending a function at the neighboring school at Little Flower JSS and that when they came back to their school there was a letter from the Province also alluding to the same allegations and that the number of pregnant learners has increased.

22. She averred that Mr. Qamzas name was mentioned in the allegations and they did not know about the allegations and that they did not know who impregnated the learners. She stated that the other learner was highly pregnant and there was a suggestion from the teachers that she be induced in order for her to be able to write examinations but the principal didn’t agree

23. She stated that the letter was read by Mrs. Leme and shared with the SMT and SGB. She stated that Y. M. said she had an affair with Mr. Qamza and that Z. left the school because Mr. Qamza proposed love affair to her friend and this broke their friendship with Y. M. because they were not just school mates but also friends.

24. She averred that Mr. Tsipa indicated that the allegations are not only about the male educators dating learners but that there are also female educators who are dating male learners and a meeting was called after these allegations surfaced and there was also a complaint by Mr. Qamza.

25. She stated that the meeting was called to deal with these allegations on the 14th of October 2022 and was attended by herself, Mr. Mahlangeni, Mr. Jwambi, Ms. Tsipa and Mr. Qamza was also called to state his side of the story and Mr. Qamza denied having affair and impregnating learners.

26. This witness stated that when Mr. Qamza was denying having an affair with the learners he did say in the meeting that he used to do those things when Mr. Faltein was still a Principal and has now but has now stopped and also said that this was done by all the other educators at their school.

27. She confirmed that she was the one who was taking minutes of the meeting of the 14th of October 2022 and that the minutes produced are a true reflection of what happened on the said date. She confirmed that Mr. Qamza was present and also in response to the allegations he stated that he used to do those things when it was Mr. Faltenis time and that he stopped doing those wrong things.

28. She stated that she was present in the school tour in 2017 but stated that she does not know of any incident involving Mr. Qamza and the learner by the name of S. M. The witness testified that the employer representative Mr. Tsheko invited her to attend the hearing on the 15th of February 2024 and when she was on her way to the hearing she met Mr. Qamza at the bus stop and told her that the hearing was postponed and she had to go back and did not honor the invitation.

29. The 3rd witness of the employer was Ms. Unathi Tsipa who testified that she works for the employer as an educator at Bonkolo SSS since April 2022 and knows Mr. Qamza because he is her H.O.D - Humanities at the same school.

30. She confirmed that she know about the incident involving teachers dating and impregnating learners at Bonkolo SSS and that this came about when Mr. Tsipa – EDO came to their school stating that there are such allegations and that they were serious allegations. She confirmed that there were a number of learners that were pregnant at their school but they did not know who impregnated those learners.

31. She stated that Mr. Qamza told her when she was with Mr. Jwambi and Miss. Mthamzeli that he has heard from the corridors that he was dating learners and has impregnated a learner by the name of Y. M. and that he was complaining about that because he does not know anything about those allegations.

32. She stated that the meeting to deal with these allegations was called on the 14th of October 2022 and was attended by herself, Mr. Mahlangeni, Mr. Jwambi, Ms. Mgxithama and Mr. Qamza was also called to state his side of the story and Mr. Qamza denied having affair and impregnating learners.

33. This witness stated that when Mr. Qamza denied having an affair with the learners. She confirmed the meeting of the 14th of October 2022 and that the minutes produced at the hearing are a true reflection of what happened on the said date. She further confirmed that Mr. Qamza was present and also in response to the allegations he stated that he used to do those things when it was Mr. Faltenis time and that he stopped doing those wrong things.

34. She stated that she has a good relationship with Mr. Qamza and that they still greet each other and last spoke on the 14th of February 2024. She testified that she does not know the whereabouts of the learners who were having relationships and or dated by the educators because some of them have passed grade 12 and have left the school.

35. The 04th and last witness of the employer was Mr. Sandile Nyalambisa who testified that he works for the employer as the Chief Education Specialist – Employee Relations and that he was appointed by the District Director to investigate the allegations of educators dating learners at Bonkolo SSS.

36. He stated that as a result of that investigation he issued suspension letters for both Mr. Qamza and Mr. Mahlangeni and that he could not get hold of all the learners involved because they had left school and that he consulted with Z. N. He averred that in their investigation Z. N. told them that Mr. Qamza told her that she had beautiful thighs and also confirmed that Mr. Qamza was dating Y. M. when he approached her saying she had beautiful thighs.

37. He stated that Z. N. also told them that Y. M. told her that she was given money by Mr. Qamza because she had an affair with him. He stated that they also picked up that Mr. Qamza was also interfering with the investigation because he went to Y. Ms home before they went for investigation.

38. He confirmed that they did visit Y. Ms home and were told that Mr. Qamza came and that they couldn’t get hold of Y. M. because she was in George and that they found her grandmother at home and that grandmother is now deceased.

39. He told the hearing that Y. M. went to school and shouted saying that she will sue people who go around talking about her. He further stated that the staff members Mr. Sakhi Yongama, Libala Jwambi and Nomava Jwambi told them that Mr. Qamza would instruct the learners at grade 11 that they will be his girlfriends the following year when they were doing grade 12.

40. He stated that these witnesses were approached and subpoenaed but refused to come to the hearing and testify and that the learners in questions are all out of the province and cannot come to the hearing to give evidence.

Submissions by the employee

41. The employer representative then closed their case and the employee representative Mr. Tutu called the employee Mr. Fuzile Qamza who took the witness stand and testified that he has been working for the employer as an educator for 21 years and HOD Humanities for 5 years at Bonkolo Senior Secondary School.

42. He confirmed that he is aware of the charges levelled against him, heard what the witnesses had to testify against him but denied that he ever dated the learners nor he impregnated the learners. He also denied that he slept and dated the learner by the name of O. P. in 2012 but admitted that he remained with O. P. at the beach because she was his friend, was drunk and they were taking pictures / photos. He stated that it is O. P. who asked to take a photos / pictures with him and that O. P. was a brilliant student.

43. He testified that he did not propose love to O. P. and he did not have sexual intercourse with O. P. At first he denied that O. P. set on his thighs at the beach but later admitted that she set on his thighs. She confirmed that on their way back from this trip from Durban in 2012 he was left by the taxi with O. P. at a petrol station in Kokstad or O. P. was also left at the petrol station in Kokstad together with him and they spent the night there at the petrol station and returned with another transport the following day.

44. He averred that they didn’t sleep, their clothes were left in the taxi and that he paid for O. P. as well when they were catching transport back home but denied that he dated this learner by the name of O. P.

45. In relation to the 2nd charge he denied having slept with the learner by the name of S. M. when they were in a school trip to East London but admitted that he know her and that she completed her matric in 2017.

46. The employee denied proposing love affair to the learner by the name of Z. N, that he slept with her and also denied that he told her that she has beautiful legs. He confirmed that he know about the letters that were submitted to the SMT and also confirmed that he visited Z. M and was accompanied by Mr. Ntakumba and that Z. M. was in her class.

47. He stated that he approached Z. M. because she was a signatory on the letter that was produced because he wanted to verify if Z. M. was the author of the said letter. He disputed that he dated and impregnated the learner by the name of Y. M. but confirmed that she know her because she was in his class.

48. He stated that the learners told him that that they were given money by Ms. Tsipa so that they can implicate him but this version was not put to Ms. Tsipa when she was testifying and only came to light when the employee was testifying.

49. Later still during examination in chief he stated that he know that Y. M. was not around but with her mother in George and he produced a letter written by Y. M. stating that she did not have a love relationship with him and that she was not impregnated by him.

50. This letter was produced very late in the proceedings after the employer witnesses have testified but was an old letter dated the 02nd of June 2023 and stated that she obtained the letter on the same day. Averred that he went to Y. M. because she was not contacted and he was assisting the investigation.

51. He confirmed that Y. M. was once pregnant and was impregnated by her boyfriend her boyfriend and that in their school teachers know about the learner’s love affairs. He disputed that he would tell learners who are learning at grade 11 that they will be his girlfriends the following year when they were doing grade 12 and that he does not know where these allegations are coming from.

52. The employee denied that he dated a learner named M. L. in 2021 who was a learner at Bonkolo SSS but confirmed that he know her. He also denied that he dated a learner named M. B. in 2022 who was a learner at Bonkolo SSS and stated that all these allegations are preferred against him because he does not see eye to eye with the Principal and the teachers who belong to another faction at his school.

53. He stated that the Principal is facing similar charges and he wants to implicate him as well so that he does not go down alone. He confirmed that he was at work at school on the 14th of October 2022 and that he attended the meeting that discussed the dating and impregnating of learners at their school.

54. He later confirmed that the minutes of the 14th of October 2022 were a true reflection of what happened on the day but again later changed or corrected a statement on the minutes. He stated that Ms. Tsipa was not present when he was there in the meeting and that the meeting was not attending to his complaint but was called after there were allegations of teachers who were dating the learners and some of those learners became pregnant.

55. He confirmed that he was one of the teachers who were implicated and when he was asked about the said allegations he stated that he used to do wrong things and when he said that he was referring to the fact that he used to drink too much liquor and that was not an admission that he used to date learners when the principal was still Mr. Faltein. He stated that he knew that it was wrong to date or have a love affair with the learners and the employee representative closed their case.

FINDINGS ON THE CHARGES, ANALYSIS OF EVIDENCE & ARGUMENT

56. In respect of these charges set out in paragraph 8 above, the employer representative led evidence of 4 witnesses who are 3 educators at the school in question, Bonkolo SSS and the official of the Department Mr. Sandile Nyalambisa.

57. The evidence of these four witnesses is detailed above in the topic that deals with survey of evidence and these witnesses spoke to different charges preferred against the employee and I must say at this stage that there was no evidence led in relation to some of the charges as will be demonstrated hereunder.

58. The employer however managed to adduce evidence in relation to the other charges confirming that the employee was guilty of those specific charges on a balance of probabilities. In essence the evidence of these witnesses linked the employee to the commission of the sexual offences in question.

59. In relation to the charges the employee confirmed that he is aware of the charges levelled against him, heard what the witnesses had to testify against him but stated that he denies that he ever dated the learners nor he impregnanted the learners. I must also clarify that the test used to arrive at a finding of guilt in labour matters is one of balance of probabilities as opposed to the beyond reasonable doubt that is used to determine guilt in criminal matters.

60. On the 1st charge the employee denied that he slept and dated the learner by the name of O. P. in 2012 in a trip undertaken by the school grade 12s and teachers to Durban but admitted that he remained with the learner O. P. at the beach.

61. He states that he remained with this learner alone because this learner was his friend, he was drunk and they were taking pictures / photographs and it is this learner O. P. who asked to take a photo / pictures with him. The employee’s defense above is unacceptable and there was no satisfactory explanation why he would remain at the beach with a learner when other educators and learners were gone.

62. It is not disputed that when the educators and learners went back to Idutywa and after the said trip the employee was left behind by the school taxi with the same learner O. P. at a petrol station in Kokstad and they spent the night there at the petrol station and returned back with another public transport the following day.

63. This learner was not called to testify at the hearing, the employee averred that they didn’t sleep, their clothes were left in the taxi and that he paid for her as well when they were catching transport back home but denied that he dated this learner by the name of O. P.

64. There is no evidence to confirm that they slept, or had sexual intercourse in the trip to Durban and at Kokstad but the 2 acts at the beach and Kokstad garage cannot be a coincidence. They simple confirm on a balance of probabilities that the employee had a love relationship with this learner.

65. At first the employee denied that O. P. set on his lap at the beach but later admitted that she set on his thighs. These 2 conflicting versions confirm that the employee is trying to hide something and that can only be the fact that he was dating or had a love affair with this learner.

66. I do not accept the employee’s explanation in relation to these 2 incidents that are not disputed in anyway and I find that the employee was dating this learner and in fact what makes things worse is that this happened in front of other learners and educators. Accordingly the employee is found guilty of this charge.

67. In relation to the 2nd charge the employee denied having slept with the learner by the name of S. M. when they were in a school trip to East London but admitted that he know her and that she completed her matric in 2017.

68. There was no evidence led in relation to this charge that implicate the employee and even the educator who was present in the said trip Ms. Tsipa had no knowledge of the contents of this charge. Accordingly the employee is found not guilty of this charge because there is no evidence implicating him.

69. On the 3rd charge the employee denied proposing love affair to the learner by the name of Z. N. or slept with her and also denied that he told her that she has beautiful legs. He confirmed that he know about the letters that were submitted to the SMT and also confirmed that he visited Z. N. and was accompanied by Mr. Ntakumba and that Z. N. was in his class.

70. His explanation for visiting or approaching Z. N. is that she was a signatory on the letter that was produced implicating him and that he wanted to verify if Z. N. was the author of the said letter. This letter was part of the Departments investigation or dealing with allegations of teachers dating learners in that school and the question is why the employee would worry about that when the Department is handling it.

71. The only reasonable conclusion to be drawn from this conduct is that the employee wanted to intercept and interfere with the employer investigation. The employee defense is that he was assisting the investigation of the employer but this cannot be accepted as he is not authorized to do so, was himself a subject of investigation and his investigation or confrontation of the learners was parallel to that of the Department in that it was not disclosed.

72. The fact that this leaner did not come to the hearing and testify mean that the charge preferred on the employee is based on hearsay and there is no satisfactory reason why the employer did not make means for this learner to come and testify and be cross examined. For this reason the employee is found not guilty of this charge as well.

73. On the 4th allegation the employer alleged that the employee dated and impregnated the learner by the name of Y. M. and this allegation is like others disputed and denied by the employee. The employee at least confirmed that he know this learner because she was in his class and stated that the learners told him that they were given money by Ms. Tsipa so that they can implicate him.

74. These learners which the employee is referring to were not called by the employer nor employee to testify and there was not even an attempt to approach them or subpoena them. The employer attempted to call the learner by the name of Y. M. but she did not co-operate. Furthermore the version that Ms. Gave the learners money to implicate the employee was not put to Ms. Tsipa when she was testifying and only came to light when the employee was testifying. There was no satisfactory explanation why this version was not canvased during Ms. Tsipas testimony and the employee was also represented by an attorney.

75. Again the only explanation for this version coming up very late in fact at the close of the employee’s case is because it was just an afterthought and the employee formulates his defense as we are proceeding with evidence. For this reason the employee’s version in this regard stands to be rejected.

76. Later still during examination in chief the employee stated that he know that Y. M. was not around but with her mother in George and he produced a letter written by Y. M. stating that she did not have a love relationship with him and that she was not impregnated by him.

77. This letter was produced very late in the proceedings after the employer witnesses have testified but the employee states that it was an old letter dated the 02nd of June 2023 and stated that she obtained the letter on the same day when he was suspended and visited Y. M. at her home. Again this letter was produced at the stage when the employee was giving evidence yet it was obtained long time before the hearing on the 02nd of June 2023.

78. Again, in this charge the employee went to Y. Ms. home and according to him he was assisting the investigation because Y. M. was not contacted for investigation. Again the employee took it upon himself to visit the home of this learner and in that parallel investigation he obtained a letter that exonerates him.

79. Most interestingly this was not verified and authenticated because this witness who wrote it was not called either by the employer or employee and there was not even an attempt by the employee to call her to testify on its contents. I take note of the fact that this witness is now residing in George, a distance of about 600kms or more, but the employee seem to have a good relationship with this learner and is in communication with her,

80. I shall therefore deal with and evaluate the evidence led at the hearing in consideration of this fact because in Tshishonga v/s Ministry of Justice and Constitutional Development & other (2007) 28 ILJ 195 (LC) the court said that an adverse inference must be drawn if a party fails to testify or place evidence of a witness who is available and able to elucidate the facts as this failure leads naturally to the inference that he fears that such evidence will expose facts unfavorable to him or even damage his case.

81. In Small v Smith 1954 (3) SA 434 (SWA) at 438 Claassen J said: "It is, in my opinion, elementary and standard practice for a party to put to each opposing witness so much of his own case or defense as concerns that witness and if need be to inform him if he has not been notified thereof, that other witnesses will contradict him, so as to give him fair warning and an opportunity of explaining the contradiction in defending his own character.

82. To demonstrate the relationship which the employee and this learner Y. M. have the employee confirmed that in that year at grade 12 this learner was once pregnant and was impregnated by her boyfriend and that in their school teachers know about the learners love affairs. He has earlier testified that he is friends to learners and could easily have called this one so that she can be cross examined.

83. The evidence of this learner Y. M. remains hearsay as she was not called by either the employee or the employer and in the circumstance I have no reason to admit the evidence of this learner either favorable or not favorable to the employee. However the confirmed relationship that the employee had with this learner as a learner, visiting her home, obtaining letters from her during investigation by the employer and being in contact with her proves on a balance of probabilities that the employee is guilty of having a love relationship with this learner but I cannot find the employee guilty of impregnating this learner as it was not proved by the employer.

84. In respect of charge 5 the employee has disputed that he would tell or give instructions to learners N.N., N.M and V.Z. who were learning at grade 11 that they will be her girlfriends the following year when they were doing grade 12 and that he does not know where these allegations are coming from. This allegation is not supported by evidence but is consistent with the behavior of the employee and for that reason I believe this assertion.

85. In relation to charge 6 & 7 the employee denied that he dated a learner named M. L. in 2021 who was a learner at Bonkolo SSS but confirmed that he know her. He also denied that he dated a learner named M. B. in 2022 who was a learner at Bonkolo SSS and stated that all these allegations are preferred against him because he does not see eye to eye with the Principal and the teachers who belong to another faction at his school.

86. He stated that the Principal is facing similar charges and he wants to implicate him as well so that he does not go down alone. I do not accept the applicant’s defense as it does not make sense but I cannot find him guilty of these charges because there was no evidence led on it and there is nothing that links the employee to the charge.

87. The employee confirmed that he was at work / school on the 14th of October 2022 and that he attended the meeting that discussed the dating and impregnating of learners at their school. He disputed an utterance he made reflected on the minutes of the 14th of October 2022 but later confirmed that they were a true reflection of what happened on the day in the meeting but again later changed or corrected some statements.

88. He stated that Ms. Tsipa was not present when he was there in the meeting and that the meeting was not attending to his complaint but was called after there were allegations of teachers who were dating the learners and some of those learners became pregnant.

89. He confirmed that he was one of the teachers who were implicated and when he was asked about the said allegations he stated that he used to do wrong things and when he said that he was referring to the fact that he used to drink too much and that was not an admission that he used to date learners when the principal was still Mr. Faltein.

90. This version cannot be accepted and the reason for that is that the employee was responding to specific allegations of dating and impregnating the learners and it makes a lot of sense to think that he was responding to that than the issue of drinking.

91. The employee confirmed that he knew that it was wrong to date or have a love affair with the learners. For the reasons and argument, the testimony of the employee cannot be believed, his version for the reasons listed above is rejected. Effectively the employee in this meeting made an admission that he used to date learners at their school but he said has stopped that conduct.

92. The only conclusion to be drawn from what happened is that the employee is guilty of the 3 sexual misconduct charges as discussed above. It must be emphasized again here that the test for a guilty finding in labour matters is one of balance of probabilities not beyond reasonable doubt.

SANCTION

93. Section 185 (a) of the Labour Relations Act 66 of 1995 as amended provides that:
- Every employee has a right not to be unfairly dismissed.

94. The Act recognizes 3 reasons for the termination of the employee’s services by the employer and these are the conduct of the employee, incapacity of the employee and the employer’s operational requirements. In this matter the employee is charged because of his conduct and the employer has to prove that the employee has committed misconduct on a balance of probabilities.

95. In terms of section 192 (2) of the Labour Relations Act the employer has the onus to prove the existence of any one of these grounds as a reason to dismiss the employee and that the dismissal of the employee is fair.

96. The employer’s evidence was not challenged by the employee on materiel aspects as can be seen in the summary and analysis above. I do not have any reason to doubt and reject the employer’s evidence in relation to the charges for which the employee has been found guilty.

97. I must also say at this stage that the employer made attempts to contact more relevant witnesses but these witnesses could not attend because some were afraid and some not willing to testify against their fellow educators and colleagues.

98. In the circumstances I accept the employer’s witness’s testimony that the employee is guilty of such transgressions. The other question that I have to answer in this award is whether the conduct of the employee constitutes a serious act of misconduct and whether the sanction of a dismissal is appropriate in the circumstances.

99. The Constitutional Court in Sidumo & another v/s Rustenburg Platinum Mines Ltd and other (2007) 12 BLLR 1097 held that in deciding whether dismissal is an appropriate sanction for an act of serious misconduct, the test is whether the misconduct renders the continued employment relationship intolerable.

100. The acts of misconduct committed by the employee in the context of his employment renders the employment relationship involving learners intolerable. This type of misconduct is also expressly prohibited by the employer and organized labour in the ELRC Collective Agreement Resolution 3 of 2018 and the employer is bound by this Collective Agreement and expected to apply discipline in a consistent manner.

101. On the appropriateness of the sanction the LAC court in its decision in Nampak Corrugated Wadesville v/s Khoza (1999) 20 ILJ 585 (LAC) Ngcobo J.A. held that the determination of the appropriate sanction is a matter which is largely within the discretion of the employer, however that discretion must be exercised fairly. It would be fair and reasonable to impose a sanction of a dismissal for these transgressions.

102. In De Beers Consolidated Mines Ltd v/s CCMA & others (2000) 21 ILJ 1051 (LAC) the court accepted that the ultimate justification for the employer’s powers to impose discipline flows from the right to manage their business effectively. The court held further that “dismissal is not an expression of moral outrage, much less it is an act of vengeance. It is or should be sensible operational response to risk management in the particular enterprise”. In Standard Bank of South Africa Ltd v/s CCMA and others (1998) LC 7 the court stated that it is trite principle that breach by the employee of the duty of good faith to the employer is destructive to the employment relationship. The employee has breached this duty of good faith to the employer and learners.

103. I am satisfied that the rationale that I have used in coming to this conclusion is one that qualifies when we talk about reasonableness and weighing the interests of both parties as directed in the Constitutional Court in its decision in NEHAWU v/s University of Cape Town (2003) (CC) where the Constitutional Court held that the arbitrator is expected to have regard to the interest of both parties in coming to a conclusion whether the conduct of the employer to dismiss the employee was fair or not.

104. In Council for Scientific & Industrial Research v/s Fijen 1996 (2) SA 1 (A) at page 26 the court held that it is a natural term of the employment contract that there is a reciprocal duty not to conduct oneself in a manner which is calculated to destroy the relationship of trust and confidence essential to the continuation of the employment relationship.

105. In this matter the interests of the employer and learners far outweigh those of the employee. The employee did not come forward and admit his wrongdoing, instead throughout the processes he denied having committed any transgression and this can only be regarded as an aggravating factor.

106. All the charges for which the employee has been found and summarized above constitute a serious acts of misconduct and even though discipline has to be applied in a corrective and progressive manner in terms of the Code of Hood Practice in the Labour Relations Act 66 of 1995 as amended, these acts of misconduct are so serious that when proved as has happened calls for a sanction of a dismissal for the first offence.

107. Further these transgressions are not only acts of misconduct but they also go against the spirit of the Constitution of the Republic of South Africa which is the supreme law of the country provides in section 28 (2) in any decision that has to be taken involving children, the interests of children (learners) enjoy paramount importance.

108. From his transgressions that have been proved the employee cannot be trusted to work in the school environment where there are learners. The employer and learners will suffer severe prejudice if this wrong doing can be condoned and that discipline has to be applied consistently.

109. The employer’s version in so far as it relates to the reason why the employee must be dismissed is accepted. This means that the employer has managed to discharge its onus in terms of section 192 (2) of the Act. I have found the employee guilty of Section 17(1) (c) of the Employment of Educators Act 76 of 1998 transgression and in terms of this subsection an educator must be dismissed if he or she is found guilty of such a transgression.

110. Section 120 (2) 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 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.

111. The representative who acts for the Department of Education (employer) would accordingly have the right to make such an application. The arbitrator may however also make the finding on his own accord.

112. In the circumstances I hereby make the following award.

AWARD

113. The employee Mr. Fuzile Qamza is found guilty of the allegations against him in respect of 2 charges, 1, and 4 as appearing in the Notice of Disciplinary Hearing.

114. The employee Mr. Fuzile Qamza employment is terminated with immediate effect, without notice. The Provincial Department of Education of the Eastern Cape must inform Mr. Fuzile Qamza of his dismissal.

115. I further find that the employee Mr. Fuzile Qamza is unsuitable to work with children in terms of section 120 (2) of the Children’s Act no 38 of 2005.

116. The General Secretary of the Education Labour Relations Council must:

- As the administrator of this Section 188A enquiry, 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 that the employee Mr. Fuzile Qamza ID no 7209105303085 & Persal No 54824681 is unsuitable to work with children, for the Director General to enter his name as contemplated in section 120 Part B of the National Child Protection Register.

- Send a copy of this arbitration award to the South African Council of Educators (SACE) for the revoking of Mr. Fuzile Qamzas SACE certificate.

117. The employee has the right to take this award on review to the Labour Court.

Signature:

ELRC Arbitrator / Commissioner: Malusi Mbuli