ELRC72-23/24WC

Commissioner: Gail McEwan
Case No.: ELRC72-23/24WC
Date of Award: 21 July 2024

In the ARBITRATION between:

SADTU obo RYAN ANDREWS
(Union / Employee)

and

WESTERN CAPE DEPARTMENT OF EDUCATION
(Employer)

Union/Employee’s representative: Juwa Dimande (SADTU)

Employer’s representative: Venessa Mortlock (labour relations officer)


PARTICULARS OF PROCEEDINGS AND REPRESENTATION

1. This matter was referred to the Education Labour Relations Council (ELRC) in terms of section 188A of the Labour Relations Act 66 of 1995 (LRA) as amended and was heard on 11 plus 12 October 2023, 19 April 2024 and 19 July 2024 at the premises of the Western Cape Department of Education (DOE). The scheduled inquiry by an arbitrator on 8 August 2022 had to be postponed as not all the parties could get through to the premises due to the violent taxi strike during which many access roads into Cape Town had been blocked. The request for an inquiry by an arbitrator was made on the prescribed form. Both parties handed in bundles of documents and arbitration was digitally recorded. Helen Bruwer was present as an intermediary. In terms of a Collective agreement it was agreed that the use of intermediaries is compulsory when a child gives evidence in cases involving misconduct of a sexual nature. Ryan Andrews (the employee) was represented by Juwa Dimande (SADTU).The employer was represented by Venessa Mortlock (labour relations officer). Bianca Mankay was present as an Afrikaans interpreter. There were postponements granted for 13 June 2023; 8 August 2023; 1 and 5 December 2023; 18 January 2024; 23 February 2024 and 21 June 2024.

2. The purpose of this enquiry is to determine whether Andrews is guilty or not guilty of the following charges and if found guilty on a balance of probabilities to impose the appropriate sanction:-

The charges were modified during the earlier parts of arbitration by the employer and the modified charges read as follows:

(1) “It is alleged that you are guilty of misconduct in terms of section 17 (1) (b) of the Employment of Educators Act No. 76 of 1998 (the Act) in that during November 2022 you committed an act of sexual assault on learner ‘A’, a learner enrolled with Elsies River High School, by kissing the learner”;

Alternative to charge 1:
“It is alleged that you are guilty of misconduct in terms of section 18 (1) (d) of the Employment of Educators Act 76 of 1998 to be read with section 5 of the Criminal Law (Sexual Offences and Related Matters) amendment Act, Act 32 of 2007 in that during 2022, you unlawfully and intentionally sexually violated learner A, a learner enrolled at Elsies River High School, without her consent by (a) Kissing her”.

(2) “It is alleged that you are guilty of misconduct in terms of section 18 (1) (q) of the Act in that during April 2023 and / or May 2023, while on duty, you conducted yourself in an improper, disgraceful or unacceptable manner towards learner A*, a learner associated with Elsies River High School by commenting on her status picture by messaging the following or similar words to the learner: “She will need a wheelchair when he is done with her…” (Note: *It transpired that the second charge faced by Andrews related to the message sent to Sharne Pietersen when he commented on the photograph used as her status on the cell phone).

At the time that the inquiry by an arbitrator took place all learners involved had turned 18 and it was by agreement that there was no longer a need to protect their identities in this award. Leaner A was identified as being Micaila Maritz.

3. I have considered all the evidence and argument, but because the LRA requires brief reasons (section 138(7)), I have only referred to the evidence and argument that I regard as necessary to substantiate my findings.

THE BACKGROUND TO THE DISPUTE

4. Andrews works as an educator level 1 teaching grades 8 to 9 Afrikaans (first additional language) and earned R27 318.25 per month. Andrews started working for the employer on 1 January 2020. Andrews was handed a letter of suspension at the end of the part-heard arbitration on 19 April 2024.

SUMMARY OF EVIDENCE AND ARGUMENT

The employer’s version and testimony was as follows:-

5. Velma Jackson (principal of Elsies River High School) testified that she had been principal of the school since 2019. It was reported by Lameez Mushfieldt (educator level 1 (in Grade 10C)) that she had been told that Micaila Maritz had been inappropriately kissed by Andrews in room 17 in November 2022. Cheryl Williams (educator level 1) had brought the same allegations with WhatsApp messages received by Maritz that an arrangement had been made for her to meet up with Andrews after school. Initially this request from Andrews had been declined by Maritz. At this meeting it is when she had been kissed by Andrews. There had been additional plans made for Andrews to take Maritz and meet outside the school although at this suggestion Maritz had decided to go home instead. Maritz had provided a statement of what happened (ER bundle page 18) which in summary states: Andrews messaged Maritz on 2 November 2022 that he would like to take her out on a date. Maritz declined the invite saying that what Andrews was doing was wrong and both of them could end up in trouble. Andrews then invited Maritz to meet him at his classroom after school. Once there were a minimal number of learners still around that was when Andrews had kissed Maritz without her permission. Andrews was brushed off and Maritz left. It was made clear to Andrews that Maritz did not like the attention he was giving her and if it did not stop then she would have to report him. Andrews phoned her everyday although the calls were not answered. Then one time when Maritz had answered the call, Andrews said that in the event that Jackson called her to speak then she should just say she was interested in soccer. In response to Andrews asking whether Maritz had reported him she had said no as she was afraid that she might get hurt. Andrews stopped the harassment and Maritz forgave him. However, the rumours were running wild about the kiss, some of which were not true, and Williams found out about it. Maritz decided to report it to the office before things got out of hand. Jackson pointed out that Maritz had been emotional and had written the statement on her own. ER Bundle page 19 shows a screen shot from the phone of Maritz and shows the profile picture of “Ryan” (Andrews) with a message stating that “I’m gonna call now now”. Jackson explained that Andrews had never taught Maritz. Maritz had a miscarriage at the start of the school year in 2023 (after falling pregnant from her boyfriend) which is why she is not able to be present at this enquiry by an arbitrator. In an undated letter J Lindor (attendance secretary) had stated that Maritz had last attended school on 24 February 2023.

6. In cross-examination Jackson confirmed that she had not personally seen the kiss and it was put to her that this then is hearsay evidence as no-one saw the kiss. Jackson explained that we are at this point as the incident had been reported to her. Maritz was born in 2005; had been in grade 10 in 2022 when she was seventeen years’ old. Jackson was referred to ER bundle page 26 which was read into the record and contains a statement from Maritz dated 7 June 2023 in which she wrote that: she wished to state that she did not want to continue with the case against Andrews. The reason being that at the moment she was going through an emotional state in her life. Jackson was referred back to the letter written regarding the last day that Maritz had been at school and Jackson explained she had the option to de-register the leaner or could keep the registration open if she intended to return to the school. Jackson felt she made the correct decision not to de-register Maritz so she is still registered at the school. Jackson confirmed that Maritz had not been at school since 24 February 2023 and she had not spoken to her since that date. There was nothing said in re-examination.

7. Lezaan Michaels (now 18 years’ old). It was confirmed that this witness was over the age of 18 so no consent letter was required from her parents who had given their consent verbally. Michaels testified that she had been in grade 11 when the incident happened in 2022. Maritz was amongst her three close friends and Michaels knew what happened as she had been told by Maritz. Andrews had phoned and messaged Maritz and the messages led to talk about sex positions. Maritz had confirmed that she was given a French kiss by Andrews when they had met on a Friday in Room 17. Maritz told Michaels everything at class starting with the French kiss (tongue had been used). After that Andrews planned to meet with Maritz at a place where he had booked a room. On the Tuesday Williams had confronted Maritz although at that time everything had been denied by Maritz. Michaels was not told where they had met except that they had taken an Uber to get to a hotel where the room had been booked. Michaels, Johannes, Maritz, plus one other had been called in and asked what had happened. Maritz said that they had “lekker gevreyed” (had good fun) in room 17. Maritz had explained what happened and had thereafter left the school as she was pregnant. Andrews had phoned Maritz and said to leave this case which resulted in Maritz writing that she no longer wished to continue with this case. Michaels had never been taught by Andrews but he had asked her for the phone number of Maritz so Michaels had sent it to Andrews. 

Bundle page 28 contains more WhatsApp messages in which Andrews told Michaels not to discuss the case with Maritz rather to just ask if she could see Maritz and establish how she was doing. Michaels had responded saying that she would not discuss the case so Andrews need not worry. Andrews had been harassing Michaels to assist him and tell Maritz to drop the case. Michaels had not spoken to Maritz in this regard. Michaels gave Andrews the phone number of Tamia Hendricks (learner) as well who Andrews had also contacted to get Maritz to drop the case. Andrews contacted Maritz at school and would run up to her. Andrews always asked about this case and asked if the ‘evil’ post was yet to come. They discussed Maritz sitting with Andrews and Andrews had sent her a photograph of a dick (penis). Michaels knew what had happened and when asked whether Andrews had sex with Maritz he had just laughed. Andrews had ended the call by saying ‘yes’ and was laughing. 

Michaels was unsure whether Hendricks had bothered to contact Maritz. Andrews had spoken to Maritz and offered her money to drop this case. Michaels said she had lost a friend and Andrews never looked out for Maritz when she became quiet and depressed. Without all this it is possible that Maritz would never have left the school. Maritz was always quiet but had been happy. Maritz had a boyfriend and Michaels was not sure of his age. They had spoken about her boyfriend and Andrews was told to leave Maritz alone. Michaels had been very upset as the school had never been the same. Michaels explained that she felt uncomfortable and feels for Maritz as her friend. Michaels at a time had also heard rumours about Andrews and Maritz. There had also been a post on Instagram that Andrews was a pedophile. Maritz had shown Michaels the photograph of the dick but that message had then been deleted. Andrews had also asked Michaels to drop this case.

8. In cross-examination Michaels confirmed that she knew why she was present. Michaels was referred to bundle page 7 and had read the charge sheet into the record. Michaels agreed that she had never seen Andrews kissing Maritz. Michaels said the teachers are not allowed to phone learners. Michaels explained that on ER bundle pages 19 and 20 were not on her WhatsApp group although she knew how Maritz had saved Andrews details on her cell phone. Michaels agreed that the messages never referred to a love affair with Maritz. It was put to Michaels that there had been no need for Andrews to call a leaner. Michaels added that Andrews should also not message Maritz as it was against the law. Teachers are not supposed to communicate with learners especially the girls. Michaels recognized that on ER bundle page 20 there was the phone number of Maritz and Andrews had called her. 

Michaels explained that the WhatsApp messages on ER bundle page 27 related to when Andrews told the witnesses in this case to withdraw from the case. Andrews had been desperate to get the phone number of Maritz and she had never wanted to be a witness for Andrews in this case. Michaels was resolute that it had been Andrews who had made contact to drop this case and never the other way around. It was put to Michaels that she was not telling the truth but Michaels insisted that she had only spoken the truth. Andrews had communicated with Michaels and had tried to manipulate her into helping him. (At this point Andrews tried to introduce into evidence a phone call from his cell phone. I advised that this needed to have been transcribed and the voices authenticated before such evidence could be used). Michaels agreed that she had been speaking to Andrews as she wanted him to say what had happened between him and Maritz. 

Again it was put to Michaels that she was not telling the truth. Michaels said that she had never asked Andrews for money to drop this case. Andrews had told Michaels that when he wins this case he will buy bottles of wine. It was put to Michaels that Andrews will say that she had asked him for money. Michaels explained that she had spoken to Maritz the previous night. In the WhatsApp messages on ER bundle page 29 it was agreed that nothing was mentioned about grooming when Andrews’ message had read “don’t rush things and seem pushy.” Michaels explained that Maritz had never wanted to come today as she is afraid to testify. It was put to Michaels that she could not speak on behalf of Maritz. It was further put to Michaels that she had agreed that she is not on Facebook; on Instagram but it was said that Andrews was a pedophile; Maritz was afraid of what happened and yet as a good friend Michaels had not visited Maritz at her house. Michaels insisted that Maritz had gone with Andrews in an Uber to a hotel room. It was put to Michaels that in the WhatsApp messages nothing shows the existence of a love relationship between Andrews and Maritz. Michaels explained that Maritz was shy and everyone had known about the situation between her and Andrews.

9. In re-examination with reference to EE bundle pages 19 and 20 Michaels explained that she had not saved the number and profile of Andrews on her own phone but had seen it on the phone of Maritz. Michaels confirmed that she had never asked for any money from Andrews. At this point the inquiry was adjourned for the following day.

10. Brooklyn Johannes (18 years old) testified that she was now in grade 11 and the incident had happened when she had been in grade 10 when her class teacher had been Williams. Johannes met Maritz in November 2022 when during a break Maritz had been on her own, had looked upset and she was invited to join their group. Maritz was asked what was wrong and they were told that she was upset about what Andrews had done to her. It had been after school in the classroom when Andrews had kissed Maritz and then he had asked her out on a date with him on the Friday as he had booked a room. Both learners were classmates and friends with Michaels and Hendricks. Maritz had looked very upset although she was a quiet and humble person who would never tell a lie. Maritz had said she had been kissed by Andrews on the Friday in the classroom but had not expanded on what type of kiss it had been.

11. In cross-examination Johannes explained that Maritz had told her about the kiss and thereafter she had been requested to go to a room with Andrews. Maritz had declined to go to the room. It was agreed that Maritz had never said Andrews had wanted to sleep with her. It was put to Johannes that it was unclear who they should believe – Maritz, Michaels or Johannes. Johannes explained that Michaels and Maritz had been very close and she had wanted to tell Michaels everything. Johannes said that Maritz had never lied to her although she may not have told her the full story. It was felt that Maritz should be believed although she could have told Johannes more about what happened. It was put to Johannes that nothing had taken place between Maritz and Andrews. Johannes said that it was true about the kiss and only the three of them had been told the same day the kiss had happened. It was put to Johannes that she had spread false rumours about Andrews throughout the whole school. This was denied by Johannes.

12. We took a short break as I was asked to postpone this inquiry as SADTU representative was not feeling well and his grandchild had been admitted to hospital. The employer had requested the matter be postponed as they wished to add additional charges against Andrews as a further two similar incidences had been reported to them. When the break concluded I discussed what I had been asked to do and agreement was reached on the following terms: (a) the employer would have the additional charges ready to be shared with SADTU and myself by no later than 2 November 2023. (b) The parties would exchange paginated and indexed bundles of documents by no later than 9 November 2023 and mine plus the witnesses’ copy of such bundles would be available when the inquiry continued. It was agreed by all that they were available (after the school examinations) on both 1 and 5 December 2023 when the inquiry would continue. SADTU representative was wished a speedy recovery and good wishes for his grandson. The Inquiry was adjourned and I sent out a Ruling confirming the arrangements that had been agreed between the parties.

13. On 19 April 2024 neither Andrews nor his representative were present for arbitration to commence by 09h30 (after a half hour grace period). Mortlock phoned the principal of the school and it was confirmed that Andrews had reported for duty. Andrews then was handed the phone and claimed that he had not received the notice of set down for 19 April 2024. I had already checked that correct service had been made to Andrews and Dimande. I took over the call and told Andrews he had one hour until 10h30 to be present for arbitration to continue. Both Andrews and Dimande were present shortly before the stipulated time. The employer produced a new bundle of documents as attempts were made in Court to take out a Protection Order against Mortlock after she had subpoenaed Sharne Petersen who is the main witness in this matter. Application for this Protection Order had been made in the Bishop Lavis Court on 17 April 2024. It was found that Mortlock had done her job and no Protection Order would be issued. This was seen as a means to attempt to deny Mortlock the right to subpoena the correct witnesses for this case.

14. Sharna Petersen (20 years old and will soon be turning 21 in August 2024 testified that the incident between herself and Andrews happened in 2022 when she had been 19 years old. Petersen is currently in grade 12 at the Elsies River High School. In 2022 Randy Bailey had been her teacher. Petersen confirmed that she and her granny had signed the statement on ER bundle page 53. Bailey had written the statement and then both signed it. It was Andrews who came to fetch the signed document. In essence the statement confirms that Petersen would withdraw the allegations made against Andrews plus Baily and would no longer participate in proceedings against both educators. ER bundle page 54 contains an affidavit signed by Petersen dated 15 October 2023. Petersen was made to write this affidavit by Bailey who had told her exactly what to say via a WhatsApp message. Petersen was taken by Bailey to the police station where she had been asked to write her statement in order to save the job of Bailey. Petersen by this time had told her granny the truth and she had been believed. Petersen had tried to take out a Protection Order against Mortlock both at the Elsies River police station and in the Court in Bishop Lavis at the behest of Andrews and Bailey in order to save their jobs. They had both wanted Petersen to keep quiet. Andrews drove to her house where her granny had invited him inside. Petersen was very uncomfortable and then she and her granny were driven to Court by Andrews. The incident at the school happened in August/September 2022. It happened after school when Petersen saw Andrews and Tyron Jacobs (English teacher grade 10). Andrews came over to Petersen and asked whether she played any sports and then asked for her phone number. At the time she gave the number to Andrews and most other learners were on the sports field. Later the same day Petersen received a message from Andrews again about sports only this had been at night time. Andrews had also asked whether Petersen had a boyfriend (message was ignored). 

Petersen had saved the number of Andrews. Petersen confirmed that the photograph on ER bundle page 52 was of her which she had put in as her status on the phone. Andrews had messaged that Petersen would require a wheelchair after he was finished with her and she had thought that Andrews had wanted rough sex with her. Petersen did not reply as she had felt very uncomfortable and she had never been asked such a question before. Petersen told a friend who had thought that the message was nasty and this had been in the school holidays. Petersen had not received any further messages from Andrews. At school Petersen had asked Andrews where she could find Josephine Adams. Andrews said he had a file which was in room 17 which at the time was an empty classroom. Petersen turned around to leave when Andrews pushed her up against the cupboard. 

The photographs on ER bundle pages 32 to 36 show the door to the classroom (number 17) and how by opening the cupboard doors it blocked the view to what was happening inside the classroom. Andrews had then kissed Petersen behind the cupboard door to hide them from view. It had been a French kiss with Andrews holding Petersen around her waist. Petersen had felt that Andrews had wanted more than a kiss. Tongue was used in the kiss and Petersen had kept her hands at her side. Petersen pushed Andrews off her and left. Petersen had only told her friend about what had happened but had not been believed. Petersen was left feeling disgusted by the kiss and it had been unexpected. Petersen had wanted to tell Adams her business teacher about what had happened. To walk out Petersen had to open the door and her usual classes were in room 20. Petersen continued to feel disgusted and was feeling that Andrews had wanted more from her. Andrews had told Petersen that the kiss had been nice.

15. In cross-examination Petersen confirmed that in 2022 she had been 19 years old and her classroom was numbered 20 with Bailey as her teacher. Andrews had met Petersen on the field between August/September 2022. Andrews was close to Bailey (history teacher) and Bailey had helped Petersen a lot. In 2021 Petersen had been in Grade 10 although she had only met Andrews in 2022 who had never taught Petersen. It was Andrews who approached Petersen in 2022 and he had not previously taught her nor had he been known to her until 2022. Andrews had approached Petersen in August/September 2022 and they had never previously met or knew each other. Andrews was new to the school but they had not spoken and she had never been in his class. On the field that day had been the first time Andrews had walked towards Petersen. At the time there had been a soccer practice taking place on the field. Petersen had been alone when Andrews had asked whether she played any sports. Andrews had been with Jacobs and had asked for and was given the phone number of Petersen. Petersen had said she played rugby and soccer. 

Petersen had ignored the question asked about whether she had a boyfriend. It was put to Petersen that this was denied by Andrews and Petersen insisted that she remembered this very clearly. Petersen explained that she is a kind person and therefore had given her phone number to Andrews even though he was a stranger. Petersen confirmed she had deleted all the chats from her phone but had not yet blocked the number of Andrews. Petersen knew that Andrews was a teacher at the school. The reason for deleting the chats was because they took up space on her phone. Petersen only had one comment on her status being that about her later needing a wheelchair. This was denied and Petersen was told that she was not telling the truth. Petersen had told her friend (Maritz) that she was a rat as the teachers were scared of losing their jobs. Petersen confirmed that she had never been asked to lie about anything. Maritz had matriculated in 2023. Petersen had written the note on bundle page 53 stating that she did not want to take this matter any further. Petersen explained that the note had been typed out by Bailey as both he and Andrews wanted Petersen off the case. Although Petersen had signed the note when she was twenty years old but she said the note had been short. In the event that it had been any longer Petersen said she would not have signed. Bailey and Andrews had wanted Petersen to cover for them as they feared they would lose their jobs. The note had been written by Bailey and signed by both Petersen and her granny. Petersen felt that she had been forced to remove herself from this case. Petersen stated that she had been forced to sign the statement; denied writing the note; confirmed that the signatures were hers and that of her granny and stated that Bailey had told her to write in the date on 1 September 2023. The educators had begged her granny to make Petersen drop the case. 

The affidavit had been written by Petersen although those had not been her words. The whole thing had been dictated by Bailey and Andrews who wanted Petersen to save their jobs. Petersen was aware that the affidavit had been given under oath; the words were not hers and both educators were standing there making Petersen sign. Both the grandparents of Petersen had never wanted her to get involved. They both now knew the truth and had then wanted Petersen to give evidence. Petersen said she wanted to put this case behind her so she could concentrate on her school work. Petersen confirmed she had appeared in Court as Bailey and Andrews said she needed to draw up a Protection Order. Petersen explained she had been forced to do that. Her granny then learnt the truth which Andrews had never her told about what had happened. It was put to Petersen that everything she had said was disputed by Andrews and Petersen countered that Andrews was not being honest. Mortlock had explained to Petersen that she needed to be in Court or she could face a fine of up to R10 000.00 or be jailed. Petersen had wanted to put things right and decided that she would testify in this matter. Petersen confirmed that the photograph on bundle page 52 was of her and she used that photo as her profile picture. Petersen confirmed that she had never communicated with Andrews via WhatsApp. Petersen was asked to give her current phone number which I stopped as that was a very bad idea in these circumstances.

16. In re-examination Petersen confirmed that Andrews had sent messages to her asking whether she had a boyfriend and Petersen at the time had given her phone number to Andrews. Petersen confirmed that Andrews had told her and her neighbor Bennie to take out a Protection Order against Mortlock.

17. Micaila Maritz testified she was eighteens years’ old and had been kissed by Andrews. Maritz confirmed she was in
grade 11C at the Elsies River High School and Benjamin Sanderson was her class teacher. The incident with Andrews
happened in 2022 at school. Andrews had asked Maritz to come to his classroom after school. This had happened
when Maritz was walking on the porch past Andrews and she was aware that he was an educator. Maritz never asked
why he had wanted to see her. Maritz could not recall the date but remembered she had gone to his classroom at
about 14h45. Maritz stepped into the classroom near the cupboard and was told to wait there until the porch area was
clear. Maritz stated that Andrews taught in room 17 and the photographs on bundle pages 35 and 36 are of that room.
Andrews closed the door and opened the cupboard door. Andrews then pushed Maritz into the cupboard; said that
“this was his size” and then kissed her with their mouths both closed. Maritz then pushed herself away from him.

Andrews had said he was sorry about the kiss and asked Maritz not to go to the office about what had happened.
Maritz explained that the kiss had been unexpected and it had felt weird. Andrews told Maritz not to go to the office
and Maritz turned around and left to go home. Maritz received a message from Andrews asking whether she had a
boyfriend and also sent her stick sex positions. The sticks represented a person in different positions like bending
forward and on a chair. Maritz asked why she had been sent these and then Andrews had deleted the message.
Andrews had phoned her and said he was sorry. Maritz said that Andrews looked cracked in the way he looks and
walks. Maritz never knew how Andrews had got her phone number. Nothing further had happened between them.
Cheryl Williams was told what had happened by Brandy Truby (learner). Andrews had also asked Maritz to go with him
to a party and Maritz had said “no”. Truby and Johannes told Williams who had called her and Maritz who said she was scared as Andrews had said to keep quiet as he was scared of losing his job. Maritz then decided to rather tell the truth. Bundle page 37 is a call log of calls received from Andrews on the phone of Maritz. Andrews had said he would pay Maritz R5 000.00 to withdraw this case (bundle page 37) where Andrews phone number had been saved on the phone by Maritz. Bundle page 40 contains a call seemingly to Maritz from ‘SADTU’ who was believed to be the union. Maritz had blocked that contact so they could not phone her again. Bundle page 42 also shows that Maritz had blocked the number of Andrews as she had not wanted to be involved after being sent the sex positions and the question about whether she had a boyfriend. Andrews came back to her house and had spoken to her mother (bundle page 43). Maritz had told Williams that Mortlock had never forced her into anything. Bundle page 44 shows Andrews outside of her house. Andrews had said that his girlfriend was pregnant and he could not lose his job. Maritz thought that Andrews was weird and mad.

18. In cross-examination Maritz confirmed that the incident happened in 2022 when she had been in grade 10 with Williams as her teacher. Maritz recalled it had happened in November when Andrews had given her a peck on the mouth i.e. with closed lips. Maritz was aware that Michaels had told Williams about the kiss from Andrews and she had forwarded the messages to Williams. It was put to Maritz that Michaels had said the kiss was French and not just a quick kiss on the mouth. Maritz stated that she is not responsible for what Michaels may have said. It was agreed that perhaps Michaels had misrepresented what had happened. Maritz confirmed she had written a letter to Truby that she had “lekker gevry”. Maritz said she had the letter. It had been thought that Andrews had wanted to romance her nicely. Maritz confirmed that Andrews had never touched her anywhere else. Andrews had opened the cupboard door which blocked out the entrance door which meant they could not be seen when Andrews had kissed her. That incident had happened after school and Maritz had been told by Andrews to come to his classroom. Maritz confirmed that she had no classes with Andrews; he had said to wait until the patio was clear which took between five to ten minutes and Maritz had wanted to go home but Andrews had said to wait. Once Maritz entered the classroom he had said that “this was his size” before he had kissed her. Maritz never spoke to Andrews or phoned him. Maritz was referred to EE bundle page 18 where there had been an incoming call to Andrews at 13h56 and it was agreed by Maritz that it had been between her and Andrews. Mushfieldt told Maritz to deny everything. Andrews had asked Maritz who had said he had harassed her. Maritz was referred to EE bundle page 10 which were phone calls between her and Michaels. Maritz said that she did not remember these calls.

18.1 A voice note on EE bundle page 20 was read into the record. Andrews had the original voice note on his phone and had played the voice note for all to hear. Our interpreter (Mankay) and Mortlock (who is Afrikaans speaking) confirmed that the translation from Afrikaans and English was not an accurate reflection of what had actually been said on the voice note. Hence this evidence will be excluded.

Maritz confirmed she had been given a kiss on her lips by Andrews and had not been romanced by him. Maritz confirmed that Andrews had phoned her last year to withdraw the case after which he said she would be paid R5 000.00. Maritz explained that Andrews was worried about his job as he knows what he had done. The phone number on bundle page 17 was believed to be the representative of Andrews but no name had been given. Maritz explained that the number of Andrews had been blocked so it was possible that Andrews had used a different phone. Maritz confirmed that she had only phoned from one number. Maritz explained she had signed the note (bundle page 31) about not wishing to take this matter any further as at the time she had a miscarriage and once discharged from hospital she had needed time to heal. Maritz never saw the dick pictures. Andrews had asked her to clear all messages from him and he had even showed up at her home. Andrews had come twice in a single day and had spoken to the aunt of Maritz when he had come a third time to speak to the mother of Maritz. On 21 February 2024 (bundle page 43) is a missed voice call from Andrews at 16h28; followed by a message from Andrews asking the mother of Maritz to phone him back as soon as is possible. On the same page there are four photographs of Andrews standing outside the house of Maritz at 17h40. Finally there is a message at 19h25 confirming that Andrews is again outside the house of Maritz. Eventually the mother of Maritz had spoken to Andrews but outside of the house.

19. In re-examination Maritz was referred to the charges against Andrews and confirmed that nothing is said about harassment although Andrews had communicated this to Maritz (EE bundle page 17). Maritz had never been romanced by Andrews. Andrews had said that he had done nothing wrong yet he was still willing to pay R5 000.00 as he never wanted to lose his job. Maritz stated that as seen on EE bundle page 12 it was Michaels who sent the message about the “dick picture that was sent from ‘you’ to her stating “we saw it this is gonna be a ugly thing if it is not stopped I am telling you now but also I know I have the power to stop her.” This was in response to messages from Andrews.

20. At this point we had run out of time and arbitration was adjourned. Arbitration continued on 19 July 2024.

21. Before the commencement of arbitration on 19 July 2024 SADTU representative explained he needed some time to speak to the employer representative. After some time they returned and both agreed that I should hear out Andrews as what he had to say may change everything. I insisted that the register first be completed and that anything Andrews had to say would be said under oath and would be recorded.

21.1 Andrews testified that he had tried to commit suicide with an overdose of sleeping tablets for which he had been hospitalized. He was then seen in hospital by a psychiatrist who took over his treatment. Andrews spent a month each day in the Life Skills Center where he had realized the “error” in his ways. He wanted to plead guilty to the charges (charge 1 plus the alternative and to charge 2). The reason for this is that he did not want to listen to any more witnesses and pleaded guilty as he did not wish to testify as he may feel traumatized. I again explained the section 188A inquiry by an arbitrator process; explained that he had not yet been found guilty or not of anything and that the arbitration must continue to its conclusion. It was the employer who brought the charges against Andrews and he (after the last witness) would have the opportunity to state his version of what happened to enable me to make a finding on a balance of probabilities.

21.2 I explained that if Andrews wanted to plead guilty to all the charges then I still needed to make a finding on the evidence presented. I explained that arbitration would need to be concluded even if he confirmed he was guilty as charged. I explained that in the event that he was found guilty of these very serious charges he may be found unsuitable to again work with children (his SACE certificate may be revoked) and his name may be listed on the register of sexual offenders (Department of Social Development). I allowed the SADTU representative to speak in private with Andrews and to find out whether there was any medical report that confirmed what he had told us. Andrews said he had a report at home and would send it to SADTU who would forward it to me. I repeated the implications attached to Andrews pleading guilty to all charges more than once on the record. He insisted he had to proceed by confirming he was guilty as charged.

21.3 Andrews was very emotional and it was agreed that he did not need to sit through the leading of evidence by an educator from the school where these acts took place. SADTU sat in during that evidence led and had the chance to cross-examine the witness. Andrews voluntarily confirmed he was guilty as charged and on that basis he was not required to lead his own evidence. I received the emailed medical report from SADTU at 19h32 on 19 July 2024.

21.4 I had explained that I was sorry that Andrews was so “ill” and wished him a speedy recovery. I explained that my findings and decision would be based on the evidence put before me as I had to remain neutral as it was evident that all those involved were hurting and I needed to be fair to all involved. I ruled that there would be no need for any closing arguments and my award would be sent to the parties by the Council after fourteen days.

22. Cheryl Williams (educator level 1; taught English home language; was the class teacher for Grade 11 (B) and taught grades 11(A) and 11 (B) plus grades 8 (A to D)). Williams testified that she had compiled the incident report on ER bundle page 17. Williams was told by Jackson to type out the report and this was after she had initially reported about the incident between Andrews and Maritz. The incident happened sometime during the period 7 to 11 November 2022. At the time Maritz had been in grade 10. Two friends (Michaels and Hendricks) of Maritz had told Williams about what happened as they were concerned about Maritz. Williams had confronted Maritz and Andrews as she felt that Maritz was in a risky situation. This was done during the second interval in her classroom. It was conveyed that Andrews had messaged Maritz with a very inappropriate message. Maritz was told to meet Andrews in room 17 and once there Andrews had kissed her. Maritz was invited but refused plans to go out somewhere with Andrews. Maritz had then gone home. Williams explained to Maritz that she needed evidence. When called in Maritz she had first denied everything and had then explained that she was afraid of her mother; her partner and Andrews knowing that she had spoken about what really happened. Maritz confirmed that what she had said was the truth. Maritz admitted that Andrews had kissed her and after that she had gone home. Andrews had messaged Maritz whilst she was in a class. Williams had explained that she was obligated to report the matter in terms of the “Abuse no more” policy. Williams and Maritz then went to see Jackson where Maritz had explained what happened between her and Andrews who were still in communication via WhatsApp messages. Andrews had approached Williams two to three times regarding the case and Williams had said she could not discuss the case as she was uncomfortable with the questions he was asking. Williams and Andrews had been in the same class at the Cape Peninsula University of Technology for a four year degree. Williams explained that Andrews came off as being secretive and deep. Andrews gave off a weird persona which made Williams question whether he was genuine or not which she found to be odd. Williams had believed Maritz but needed evidence for which she had asked for from Maritz plus her friends as well.

23. In cross-examination Williams was asked to explain more about her perceptions of Andrews. Williams explained that they had been in the same class for a number (not all) of different subjects. It was said that Andrews still had that odd personality which Williams never knew whether or not she could trust him. Williams stated the Andrews made her feel uncomfortable. Williams and Andrews were only in the same class; they spoke about the examinations, their studies and life in general. Williams gave an example of how Andrews would make random sexual comments or sexually charged statements. They would sometimes speak after classes or examinations. Williams did not know much about Andrews other than he had been in high school at Bellville and he lived with his parents in Delft. Williams explained that Andrews would stare as her, pass sexual comments which left her feeling like she needed to get away. In re-examination Williams confirmed that she was not friends with Andrews.

The employee’s version and testimony was as follows:

24. Ryan Andrews had earlier at arbitration on 19 July 2024 pleaded guilty to both charges and the alternative charge he had faced. These details are confirmed in paragraph 21 of this award.

ANALYSIS OF THE EVIDENCE AND ARGUMENT

25. In terms of the Employment of Educators Act, 76 of 1998 in section 19. (5) it states “that an educator who admits the charge(s) shall be deemed to be guilty of the misconduct with which the educator has been charged”. Andrews admitted guilt to all the charges he faced and is therefore deemed to be guilty of those charges.

26. Throughout this process of an inquiry by an arbitrator in terms of section 188A of the LRA there were some difficulties in getting Andrews to follow the procedure that was taking place. As an example he would be playing with his cell phone and would suddenly start playing aloud a recording that he had made / voice note that he had received. There were many postponements for a variety of reasons. Andrews is intelligent and seemed to know his way around the law like he demonstrated when he (plus Bailey) coerced Petersen to take out a protective order against Mortlock who was just doing her job. The protective order was not granted. Further Andrews had bullied those involved in attempts to try to get them to drop this case. What Andrews failed to understand is that the charges were brought about by the employer and even if those involved “dropped” the case – the matter would proceed to its’ conclusion. Andrews faced very serious charges and was aware that he would get the chance to tell me his version of the events once the employer had finished calling all their witnesses. Andrews was at all times represented by an experienced trade union official. I have confirmed advising Andrews of his rights and the possible outcomes he may face in pleading guilty to all charges. There had been evidence given about payments of R5000.00 not to testify and so forth if the case could have been dropped. I do not think that anyone facing such charges would have taken the chances to stall the case so much in the event that he was not guilty. At the end Andrews insisted he was pleading and was guilty as charged so hence he never gave his own version of events. I asked for a medical report to substantiate what Andrews had claimed and this report was received by me after arbitration closed on 19 July 2024.

27. It was the evidence of Maritz that she had been walking past the classroom (17) of Andrews when he called her to come inside. She was told by Andrews to wait for the porch to clear and then she could enter. On entering the room Andrews had pushed the cupboard door closed behind Maritz which effectively blocked them from the view of others who may have been passing by along the porch. Andrews leaned onto Maritz pushing her back to the open cupboard door. Andrews had commented that “this was his size” and proceeded to kiss her on the lips – no mouths were open and it was not a “French kiss”. Andrews then suggested they go out together on a date and Maritz had said no. Whilst the message itself had been deleted, Maritz had testified that she received a WhatsApp message of sticks that were alleged to have been a variety of sex positions. Maritz also said that she had been offered R5 000.00 from Andrews to drop the case. Maritz had blocked the number of Andrews on her phone. Andrews in his quest to stop the case from proceeding had visited Maritz at her home as evidenced by the photographs on him standing outside her home. Andrews went as many as three times in one day and eventually on the third visit had spoken to the mother of Maritz. This evidence confirms, on a balance of probabilities that Andrews is guilty of misconduct in terms of section 17 (1) (b) of the Employment of Educators Act No. 76 of 1998 (the Act) in that during November 2022 Andrews committed an act of sexual assault on Maritz by kissing the learner and had done the same / similar to Petersen.

28. It was the evidence of Petersen that she had been given a French kiss by Andrews during which the tongue had been used. This was done in much the same manner in which Maritz had been kissed in classroom 17. Petersen was in the class of Bailey who was a friend of Andrews. Petersen saved the number of Andrews on her phone and had updated her status photograph. Andrews and Petersen communicated with each other and on seeing her updated photograph Andrews had messaged that “she would require a wheelchair after he was finished with her” and she had thought that Andrews had wanted rough sex with her. Andrews confirmed he was guilty of the charges and from the evidence led I find on a balance of probabilities that Andrews is guilty of misconduct while on duty as Andrews conducted himself in an improper, disgraceful or unacceptable manner towards Peterson by commenting on her status picture by messaging that “she will need a wheelchair when he is done with her.”

29. I find that Andrews committed misconduct as per the first charge and its alternative in terms of section 17 (1) (b) of the Employment of Educators Act 76 of 1998. It was clearly conduct of a sexual nature committed against two learners. Having found that Andrews committed misconduct in terms of section 17 (1) (b) (as detailed above), the sanction of dismissal is mandatory, irrespective of any mitigating factors. Charge 2 finds application under the same section as it clearly was misconduct of a sexual nature against Petersen. For the sake of completeness, I have also considered the totality of circumstances in order to decide whether dismissal would be a fair and an appropriate sanction if it were not mandatory. The conduct of Andrews towards the learners was unacceptable, disgraceful and improper in that he had kissed them and sent a disgraceful message to Petersen. This was unwelcome and unwarranted conduct of a sexual nature. His treatment towards them made them feel uncomfortable and as vulnerable young girls, they felt that it was improper. This kind of conduct is unacceptable within an educator and learner context particularly in that an educator holds the balance of power in such a relationship. Educators have a positive duty to ensure that learners are educated in a safe environment. The environment must be free from harassment of any nature but particularly harassment or assault of a sexual nature. Parents entrust their children for safe keeping at school. Educators take the role and responsibilities of parents while at school. Viewed against this back ground, the conduct of Andrews is viewed in an extremely serious light and is in contravention of relevant legislation which prohibits such conduct. I have particularly considered the Employment of Educators Act (mentioned above) as well as the SACE Code of Professional Ethics for educators (South African Council for Educators, as intended in the South African Council for Educators Act, 31 of 2000). The protection of learners and consideration of their interests is paramount, particularly as educators are leaders within the school environment as well as leaders within the community environment. Such conduct serves to destroy the relationship of trust between employee and employer.

30. In these circumstances based on the evidence and my conclusions above, Andrews is dismissed with effect from 26 July 2024.

31. Section 120 (1) (c) of the Children’s Act 38 of 2005 (“the Act”) provides that a finding that a person is unsuitable to work with children may be made by “any forum established or recognized by law in any disciplinary proceedings concerning the conduct of that person relating to a child”. Section 121 provides that where such a finding is made, the person against whom such a finding was made may have the finding reviewed by a court of law. Section 120 (2) of the Act provides that a finding that a person is unsuitable to work with children may be made by such a 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. As the arbitrator I may also make the finding on my own accord.

32. In view of my finding of the serious nature of the conduct of Andrews and the priority to protect the rights of children, I find that Andrews is unsuitable to work with children. In tribunals of this nature, consideration of the best interests of children is paramount. My finding is aimed at the protection of children and in particular, vulnerable young girls.

AWARD

33. Ryan Andrews is found guilty on a balance of probabilities of the charges against him and as such I impose the mandatory sanction of dismissal with effect from 26 July 2024.

34. Ryan Andrews is found unsuitable to work with children in terms of section 120 (4) of the Children’s Act 38 of 2005 (“the Act”) and his SACE certificate is to be revoked.

35. The General Secretary of the ELRC must, in terms of section 122 (1) of the Act, notify the Director General: Department of Social Development in writing of the findings of this forum made in terms of section 120 (4) of the Children’s Act 38 of 2005, that Ryan Andrews is unsuitable to work with children, for the Director General to enter his name as contemplated in section 120 in part B of the register.


Gail McEwan
COMMISSIONER