ELRC512-23/24FS

IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD AT MOTHEO TVET COLLEGE (BLOEMFONTEIN)

Case No ELRC 512-23/24FS


In the matter between

SADTU obo MOFOKENG B APPLICANT

and

MOTHEO TVET COLLEGE RESPONDENT

ARBITRATOR: Monde Boyce

HEARD: 28 February 2024, 30 and 31 May 2024, 01 and 02 July 2024

CLOSING ARGUMENTS: 08 July 2024

DATE OF AWARD: 18 July 2024

AWARD

PARTICULARS OF PROCEEDINGS AND REPRESENTATION:

[1] The ELRC set the matter down for arbitration on 28 February 2024, 30 and 31 May 2024 and 01 and 02 July 2024, and the matter was finalised on the latter dates. The matter, on all the above-mentioned dates, was heard at the Motheo TVET College’s Bloemfontein Campus. Mr Mbuyiselo Frans, a trade union official from the trade union SADTU, appeared for the applicant. Mr David Mokhobo, the Deputy Director: Labour Relations, appeared for the respondent.

[2] Both parties submitted bundles of documents. The proceedings were digitally recorded, and typed notes were taken. There was no interpreter present because both parties confirmed that they did not require services of an interpreter. It was agreed that parties would file written closing arguments and the parties were required to do so by no later than 08 July 2024. Both parties submitted their written closing arguments on 08 July 2024. I must mention that while the matter proceeded on 30 May 2024, and while I refused an initial application for postponement by the respondent and directed that the matter proceed, the matter had to be postponed on 31 May 2024 owing to the respondent’s two witnesses being unavailable with one witness who was to travel from Gauteng having been booked off sick and the main witness based in Durban also unable to travel and attend physically at the hearing venue in Bloemfontein owing to claims that she feared facing the applicant and preferred testifying virtually.

[3] I should mention that the postponement, despite protestations by the applicant’s representative was, in my considered view, necessary to the extent I believed that interests of justice would not be served where the applicant did not get an opportunity to test the very serious allegations that led to his dismissal with the student who made the complaint that gave rise to the charges. The postponement was also necessary to the extent that one of the issues raised by the applicant as to procedure was that this witness (student) now based in Durban, disappeared before the applicant finished cross-examining her.

THE ISSUE TO BE DECIDED:

[4] I am required to decide whether the applicant’s dismissal was procedurally and substantively unfair and I am required to grant the appropriate remedy in terms of Section 193 of the Labour Relations Act 66 of 1995 as amended (the LRA) should I find the dismissal to be unfair.

THE BACKGROUND TO THE DISPUTE:

[5] The applicant, Mr Mofokeng, was employed as a lecturer at Motheo TVET College’s Bloemfontein Campus and had been in the respondent’s employ since 14 May 2018. He earned an annual salary of R262 889.00 at salary level 7. He was dismissed on 23 October 2023. He had been charged for sexual harassment and an alternative charge of improper conduct for allegedly having conducted himself in an improper, disgraceful and unacceptable manner. He was found guilty of the alternative charge of improper conduct but was found not guilty of the charge of sexual harassment. The chairperson imposed a sanction of dismissal. Aggrieved by this sanction, the applicant, through his trade union, referred an unfair dismissal dispute to the ELRC for conciliation and, when conciliation failed, the applicant referred the dispute for arbitration. He is challenging the dismissal on procedural and substantive grounds and seeks retrospective reinstatement as relief.

SURVEY OF EVIDENCE:

Respondent’s Evidence

[6] The respondent called Mr Sililo Mfazwe as its first witness. He testified that he is currently employed as Assistant Campus Manager: Corporate Services and is responsible for human resources, labour relations and other related functions at the Motheo TVET College in Bloemfontein. He knows the applicant who was a former lecturer at the college. The applicant was charged for sexual misconduct for allegedly sexually harassing a student. The incident took place at B19 at the Bloemfontein campus. The alternative charge was that the applicant conducted himself in an improper, disgraceful and unacceptable manner when he, on 10 May 2022, instructed a female student to go to office B19 where immediately followed her and had sexual intercourse with her. The incident was brought to his attention on 11 May 2022 when he received a call from a Mr Bheki Nzimande who told him that he was the father to the female student, Miss Aphelele Nzimande, who had been sexually harassed by the applicant. Mr Nzimande had then told him that Miss Nzimande was at the police station to report the incident. He (Mr Mfazwe) proceeded to Parkroad police station where he met with a sergeant Bosman who was the police officer handling the case.

[7] He confirmed to sergeant Bosman that Miss Nzimande was a student at the campus. He called Miss Pela who is the college counsellor and who is response for student support to come to the police station. He could not confirm if Mr Pela went to the police station. The document on page H of the bundle submitted by the respondent was the incident report he filed. Page I of the bundle contains a certificate of registration of the applicant with the South African Council of Educators (SACE) which all educators are required to register with. The certificate of registration was issued on 18 April 2017 and states the applicant’s acknowledgment of acceptable behaviour by educators. Page J of the bundle contains the SACE Code of Conduct for Educators. Clause 3.6, 3.8, 3.9 and 3.10 of the Code of Conduct on the “Conduct: Educator and Leaner which provide that an educator must refrain from improper physical contact with leaners, from courting leaners from any school, from sexual harassment (physical or otherwise) of leaners and any form of sexual relationship with leaners from any school. Educators do not have a choice or an election but to comply with the Code of Conduct.

[8] The second witness called by the respondent was Miss Aphelele Nzimande who testified virtually. She knew the applicant as he was her Computer Practice lecturer. She was a student at Motheo TVET College in May 2022 doing Business Management N5 course. On 10 May 2022, she had to go to the college to finish her formal assessment. She arrived in the afternoon because she had to go to work first. She started her formal assessment but had a printing problem and had to wait because she had to print. She went to inform the applicant that she had a printing problem, and the applicant asked her to go to his office, and he gave her the key to the office and asked her to fetch a file from his desk. She went to the office and switched the lights on and went to look for the file, and that is when the applicant came in, closed the door and switched off the lights. The applicant came towards her, and she undressed herself because the applicant directed her to. He then penetrated her, and she afterwards left the office. She did not have a love relationship with the applicant and did not agree to have sex with him. She could not fight the applicant because she was powerless. It was not the first time that she had sex with the applicant. She previously had sex with the applicant in his office. Her first sexual encounter with the applicant was not consensual. She did not tell anyone about the first encounter, but she reported the second encounter to her friend and her family.

[9] Before the incident of May 2022, she had no relationship with the applicant except that of being a student and lecturer. She later had to go to work after the assessment at KFC restaurant. She went to work but arrived late. The manager at her workplace, Mr Themba Vundla, could see that she was not ok. The following day, she broke down at work. She and the manager, Mr Vundla, called her mother and her mother reported what she told her to her father. Her father and mother drove to Bloemfontein to discuss the incident with the college. After the incident, she made a decision not to attend classes at the college because she felt unsafe. She also left her job in Bloemfontein.

[10] The incident affected her negatively because she had to leave her job and start all over again. She also reported a rape case at the police station in Parkroad in Bloemfontein. The case, however, did not proceed because she withdrew case. She withdrew the case because of the length of time she felt the case took. She did attend a party in Bloemfontein in December because she was not concerned much about her safety because the party did not relate to the incident that occurred. The college provided her support by constantly checking up on her and arranging a psychologist. The college has been checking up on her ever since. The incident affected her relationship with her friends because she had to cut them off and her parents were also affected by the incident.

[11] The respondent called its third witness, Mr Jefferey Themba Ngcobo. He testified that he is currently employed as the Principal at the Western TVET College in Gauteng. He chaired the applicant’s disciplinary hearing. The applicant was charged for having committed an act of sexual harassment as well as an alternative charge of having conducted himself in an improper, disgraceful and unacceptable manner. Charge 1 related to alleged rape while the alternative to that charge related to the applicant’s having conducted himself in an improper and disgraceful manner. He found the applicant not guilty on the main charge but found him guilty of the alternative charge. He found the applicant not guilty in relation to the charge of rape because evidence before him suggested that the student who was the complainant was not raped but had consensual sex because she confirmed as much and admitted during the disciplinary hearing that she undressed herself.

[12] Evidence led before him was that the applicant was guilty of the alternative charge of improper conduct because the sexual encounter happened at the campus. He found it to be disgraceful and improper for the applicant to have had a sexual relationship with a student who was in his class. He was not aware of the initial charge allegedly preferred against the applicant. He was not part of any narrowing of issues where issues related to the charge were raised. But the hearing he chaired had nothing to do with the amendment of the charge. Charges can be amended before an employ makes a plea. After the applicant pleaded guilty, the respondent could not amend the charge because the applicant had already registered a plea of not guilty to the main charge and the alternative charge. A person can be dismissed on an alternative charge depending on the gravity of such a charge. The applicant received the notice to appear for a disciplinary hearing on 01 June 2022 and the hearing was scheduled to proceed on 20 and 21 June 2022. The applicant had an opportunity to prepare for his disciplinary hearing.

[13] He had been a lecturer before becoming a principal. A lecturer or a teacher should be registered with the South African Council of Educators (SACE). Page J3 contains the Code of Conduct which sets out the professional code of conduct for teachers. SACE clearly instructs the educators on what to refrain from. The applicant had physical contact with the student. Sexual relationships with leaners is also prohibited, and the applicant confirmed having had a sexual relationship with the student. As a lecturer himself, he is aware of the Code of Conduct, and when lecturers sign the application for employment, they are expected to acknowledge awareness of the SACE Code.

Applicant’s Evidence

[14] The applicant, Mr Bartholomew Mofokeng, testified that he had worked for the college for more than 10 years. He possesses a bachelor’s degree in computer science. He got his qualification to teach in 2016. In the ten years that he had worked for the college, he had never been found guilty of breaching the policies of the college. He obtained his SACE certificate in 2018. From 2012 until 2018, he taught at the college without a SACE certificate and there had never been a problem during that period. The college did not require him to have a SACE certificate before he commenced his lecturing duties from 2012 to 2018. There also are some of his colleagues who had taught at the college without a SACE certificate. When he applied for his certificate, SACE never read out to him what the certificate of registration entailed. The college only required the certificate when he applied for National Curriculum Vocational (NCV). He was never aware of the SACE Code of Conduct, and he only saw it for the first time during the disciplinary hearing process. He never received induction from the college after he was appointed to that post. Had the college given him proper induction, he would not have committed the offence he was dismissed for.

[15] He was found not guilty of the charge of rape. He had a relationship with Miss Nzimande. He met her when he gave her a lift and which was when they exchanged contact details. They had a sexual relationship between December 2021 and January 2022. He only realized late in March 2022 that she was a student at the college. He initially thought Miss Nzimande was a student at the Central University of Technology (CUT). He realized that she was a student in late March 2022 when she attended his class. After realizing that she was his student, they spoke about their relationship, and they agreed to stop the relationship. But after a while, they started communicating again when Miss Nzimande would ask for money from him. The first sexual intercourse in his office happened in February 2022. But at that time, he did not know that she was his student. The sexually encounter came about when they started chatting on WhatsApp and when Miss Nzimande told him that she was going to pass by her college. During that encounter, they first kissed and later had sexual intercourse.

[16] Regarding the incident of 10 May 2022, there were assignments to be submitted by students. Miss Nzimande was one of the students who had not yet submitted the assignment, and he sent a message via WhatsApp group to remind all students who were late in submitting to submit. He received responses from other students, but did not receive any response from Miss Nzimande, and he sent her a direct message to say she must come and submit her assignment. Miss Nzimande came to the college around 14h30 and at that time, he was still busy with classes. Miss Nzimande had indicated that she wanted to print, and he gave her the key to his office. It took him more than thirty minutes before he could finish his class. After some time when he went to his office, he found Miss Nzimande standing. They had a brief conversation, and they thereafter started kissing, Miss Nzimande undressed, and they started having sex. The distance between his office and the class is about two minutes. He never instructed Miss Nzimande to undress but she did so on her own.

[17] After that sexual encounter, he did not get any sense that there was a problem. During their conversation after having sexual intercourse, Miss Nzimande had asked if she could come over to his place over the weekend. He was busy on the phone when Miss Nzimande left his office. They later had a conversation, and he could not sense anything untoward. He did not speak to Miss Nzimande on 11 May 2024. What he did was to send a message to all students to check their results on the exam portal. He was arrested for rape on 12 May 2022, and before his arrest, he had not spoken to Miss Nzimande. Miss Nzimande was present when he was arrested.

[18] He had pleaded not guilty to the original charge of rape. If he was given an opportunity to plea to the alternative charge, he would have pleaded guilty to the charge in order to show remorse for having had a sexual relationship with a student. Page F1 of the respondent’s bundle contains a letter where he was asked to respond to alleged misconduct and why disciplinary action should not be taken against him. Page G of the respondent’s bundle contains the response he furnished the college in respect of the allegations made against him. He was suspended, and the allegation he was suspended for was that of rape. On all the correspondence he responded to, he was responding to charge 1 that referred to his having committed an act of sexual harassment as reflected on page C of the respondent’s bundle. He never got an opportunity to plead to the alternative charge during the disciplinary inquiry. The charge in respect of which he responded to the letter sent to him to explain reasons why he should not be disciplined related only to the charge of rape and not the alternative charge that was amended after he had pleaded guilty during the initial hearing. If the alternative charge was part of what was contained in the earlier correspondence he received especially in the letter asking to give reasons why he should not be disciplined, he would have pleaded guilty and would have accepted the consequences of his actions.

ANALYSIS OF THE EVIDENCE AND ARGUMENT

[19] In the present matter, dismissal was common cause and, as such, it was the respondent that was required to discharge the onus in terms of Section 192(2) of the LRA. The trite principle is that while onus never shifts, a party asserting a version that would be in the sole knowledge of that party should at least discharge the evidentiary burden. In this regard, to the extent that the applicant would have made assertions that are to his sole knowledge and that the respondent would not be aware of, the expectation is that the applicant would lead as such evidence as would have him seen to have discharged the evidentiary burden. There is a further expectation that to the extent the respondent would have provided prima facie proof of the misconduct, that the evidentiary burden would shift to the applicant to prove his own defense, a principle that the Labour Court in Emfuleni Local Municipality v SALGBC and others as well as in Compass Group Southern Africa Ltd v CCMA and Others . I have taken into account versions and arguments by both parties.

Procedural unfairness

[20] I first deal with alleged procedural unfairness of the dismissal because, from the onset, the arguments by the applicant mostly turned on procedural defects that he alleged occurred in his dismissal. The applicant alleged that the respondent amended the charge preferred against him after he had pleaded guilty to the main charge of rape. I hasten to mention that my gleaning of the charge alleged to be amended, and which charge read as follows: “ Committed an act of Sexual Harassment-It is alleged that on Tuesday, May 10th, 2022, at approximately 18h00, you committed sexual harassment when you instructed a female student, Ms Aphelele Nzimande, to go to office B19 in Bloemfontein Campus to collect files/books/documents, and then you immediately followed her to the office and sexually harassed or raped her.” This is the charge that the applicant claims to have been aware of and which he claims to have pleaded not guilty to.

[21] The contentious charge becomes that contained on page C of the respondent’s bundle which contains an alternative charge to the above-mentioned charge which reads as follows: “Alternative to Charge 1: Conducted yourself in an improper, disgraceful and unacceptable manner when you instructed a female student, Ms Aphelele Nzimande, to go to office B19 in Bloemfontein Campus to collect files/books/documents, and then you immediately followed her to the office and had sexual intercourse.” Having read both charges, I hasten to state that I could find nothing pointing to any dissimilarities except that the Charge 1 makes reference to sexual harassment or rape (my emphasis and underlining). While the applicant, during narrowing of issues, stated that he had been charged for rape and that he was found not guilty of rape and that the rape case opened by Miss Nzimande was subsequently withdrawn for lack of evidence, the above charge and that contained in what the applicant refers to as the initial charge, relates to the applicant having committed an act of sexual harassment and does not refer to rape as the primary conduct or charge that the applicant was charged for. In that regard, the applicant’s constant reference to rape as the charge that was preferred against him is misguided.

[22] But even if the applicant had been charged for rape and had been found not guilty, same would not absolve him of the alternative charge of having conducted himself in an improper, disgraceful and unacceptable manner by having a sexual relationship with a student. I must also mention that even if the charge was amended as was the case, the applicant fully understood the allegations that he was required to answer to in his disciplinary enquiry. The first charge that did not contain an alternative refers to sexual harassment and details the conduct that the applicant is alleged to have engaged in, and which conduct is not dissimilar to that detailed in both the amended Charge 1 and the alternative to Charge 1 except that the main Charge 1 does make reference to the applicant having sexually harassed the student or raped her.

[23] It is not uncommon for an employer to amend a charge or charges, but what is important is that the employee must be given ample time to prepare for and answer to the charges, which I find the respondent to have done in the present case. The applicant, as shown on page C of the respondent’s bundle, received the notice containing the amended charge and acknowledged receipt by appending his signature on 01 June 2022, and the hearing was scheduled for 20 and 21 June 2022. Evidence before me is that the applicant did register a plea to both the main Charge 1 and the alternative charge to Charge 1 on the date of the disciplinary hearing. The respondent’s witness, Mr Ngcobo, who chaired the applicant’s disciplinary hearing, categorically stated during cross-examination that he is not aware of any other hearing that the applicant pleaded to the charge to except the one he chaired from 20 June 2022 where he afforded the applicant an opportunity to plead to Charge 1 of sexual harassment and the alternative to that charge relating to the applicant having conducted himself in an improper, disgraceful and unacceptable manner after he had ascertained that the applicant understood the charges. The applicant, even if the charge was amended, had ample time to prepare for and answer to the charge and, to the extent the applicant provided no proof of such, reject that there was any hearing chaired by Mr Ngcobo that was convened on 06 and 07 June 2022 as alleged by the applicant. In any event, Mr Ngcobo’s appointment letter as the chairperson of the disciplinary hearing was given to him and he signed in acceptance of the appointment on 01 June 2022 and the letter specifically makes reference to the dates of 20 and 21 June 2022 as dates that the disciplinary hearing would convened and not on any earlier date as alleged and as suggested by the applicant during cross questioning of Mr Ngcobo.

[24] To the extent the applicant, during cross examination, and at the commencement of the arbitration process, claimed that there was a hearing convened where he had registered a plea in respect of the alleged charge of rape afterwhich the respondent served him with the amended charge, needed to provide evidence of such a claim, something he failed to do. That there was a hearing before the one convened on 20 and 21 June 2022 and chaired by Mr Ngcobo appears to be in the sole knowledge of the applicant. To the extent this was the case, he needed to discharge the evidentiary burden to prove his claim. The applicant referred to EOH Abantu (Pty) Ltd v CCMA and others and argued that the respondent should not have amended the charge after commencement of the hearing, in particular referring to the alleged hearing that took place on 06 and 07 June 2022. While I have already rejected the assertion to the effect that that the charge was amended after the applicant had pleaded guilty in an alleged earlier disciplinary hearing, it is worth noting that the applicant did not point to any prejudice he subsequently suffered as a consequence. In the very judgment in the above-mentioned case that the applicant made reference to, the LAC held that:

“The employer ordinarily cannot change the charge, or add new charges after the commencement of the hearing where it would be prejudicial to do so. However, by the same token, courts and arbitrators must not adopt too formalist or technical an approach. It normally will be sufficient if the employee has adequate notice and information to ascertain what act of misconduct he is alleged to have committed. The categorisation by the employer of the alleged misconduct is of less importance.” (My underlining).

[25] I thus cannot find that the respondent to have erred in amending the charge and have already found that the applicant suffered no prejudice as the charge was served well before the date of 20 June 2022 when the first sitting of his disciplinary hearing took place where he registered a plea on the amended charge. I thus do not find the respondent to have erred as to procedure.

Substantive fairness

[26] Regarding substantive fairness, I cannot claim to have my work cut out. By his own version, the applicant would have pleaded guilty to the alternative charge of conducting himself in an improper, disgraceful and unacceptable manner. This charge was based on the applicant’s having sexual intercourse with his student who subsequently lodged the complaint that resulted in the charge. The applicant did not dispute having had a sexual relationship with Miss Nzimande and admitted that he and Miss Nzimande had sexual intercourse on more than one occasion in his office. While the applicant stated that the sexual intercourse was consensual, Miss Nzimande disagreed and stated during her evidence in chief and during cross examination that she was not in a love relationship with the applicant and that, while they had sex, both encounters were not consensual. But even if it was, the applicant was a lecturer, and Miss Nzimande was a student in his class and, as such, he had no business engaging in conduct that is explicitly prohibited in terms of the SACE’s Code of Conduct.

[27] By his own version during his evidence in chief and during cross examination, the applicant admitted that he became aware in March 2022 that Miss Nzimande was his student, and that he discussed the situation with Miss Nzimande where he stopped the relationship. But the sexual encounter of 10 May 2022 in respect of which the charge he was dismissed for was brought, occurred after he became aware that Miss Nzimande was his student. Asked why he still continued with the relationship the applicant’s proffered a lame response to the effect that he did so after Miss Nzimande contacted him asking for financial assistance and asking whether she could pay him a visit at his place. This is conduct that I find to be highly disgraceful, improper and completely unacceptable. A lecturer, by virtue of the position he holds, has immense power of students, and it is easy to take advantage of students. The applicant alluded to having provided financial assistance to Miss Nzimande. This is conduct that I find to be very serious in that by providing such financial assistance and being Miss Nzimande’s lecturer, the applicant abused his position and took advantage of the very student he was lecturing. This is irrespective of whether the applicant and Miss Nzimande were in a love relationship.

[28] The applicant registered with SACE in 2017 as shown in his SACE certificate of registration on contained on page I of the respondent’s bundle. Among values that educators are required to abide by is that of “committing themselves to do all within their power, in the performance of their professional duties, to act in accordance with the ideals of their profession, as expressed in the SACE Code of Conduct.” SACE’s Code of Conduct, in particular Clause 3.9, clearly states that educators must refrain from any form of sexual relationship with leaners from any school. I find the applicant’s conduct to have been completely inconsistent with the provision of the SACE’s Code. Asked during cross examination about whether, when he stopped the relationship with Miss Nzimande, the applicant was aligning himself with the SACE Code, the applicant’s response was not very convincing to the extent that he said he stopped the relationship based on his own ‘personal view’. I however reject that this could have been the case but instead find that the applicant initially stopped the relation in March because he knew that having a sexual relationship with a student is wrong, and by stopping the relationship, he aligned himself with the SACE Code of Conduct and was fully aware that his conduct was unbecoming and completely prohibited by the Code. I find that his conduct was against educators’ professional ethics and find that the respondent did not err in dismissing him.

[29] In the premises, I make the following award:

AWARD

[30] The dismissal of the applicant was procedurally and substantively fair.

[31] The application is accordingly dismissed, and the Council is directed to close the file.

Monde Boyce
Panelist: ELRC