PSES 501-19/20WC
PSES 501-19/20WC
Award Date:
9 December 2019
Case Number: PSES 501-19/20WC
Province: Western Cape
Applicant: G.S. ADAMS
Respondent: Department of Education Western Cape
Issue: Unfair Dismissal - Misconduct
Venue: the offices of the respondent in Cape Town.
Award Date: 9 December 2019
Arbitrator: A.Singh-Bhoopchand
Case No : PSES 501-19/20WC
In the matter between
G.S. ADAMS Employee
and
DOE-WC Employer
ARBITRATOR: A.Singh-Bhoopchand
HEARD: 24 October & 27 November 2019
DATE OF AWARD: 9 December 2019
DETAILS OF HEARING AND REPRESENTATION
1. This matter was referred by the employer in terms of section 188A of the Labour Relations Act 66 of 1995(LRA) as amended and was heard on 24 October 2019 and 27 November 2019 at the offices of the respondent in Cape Town. The employee represented himself on 24 October 2019. Mr Jacques Adams, a representative of the trade union SADTU presented the closing arguments on behalf of the employee on 27 November 2019. The respondent was represented by Ms Sylvia Flandorp, a labour relations official within the labour relations directorate of the respondent.
2. One bundle of documents was handed in as evidence.
3. Proceedings were digitally recorded.
4. In accordance with the policy of the ELRC, the name of the minor learner, the complainant in this matter, who testified during these proceedings is protected, and her name is accordingly withheld. She is referred to as learner A. The complainant was assisted by an interpreter , Ms Bianca Mankay as well as an intermediary, Ms Stephanie Marks.
5. In addition to evidence and arguments on the merits of the matter, I invited the employee and his representative to make submissions relating to section 120(3) of the Children’s Act.
ISSUE TO BE DECIDED
6. I must decide whether the employee is guilty of the offences with which he is charged, and if found guilty , I must decide on an appropriate sanction
THE ALLEGED OFFECNES
7. CHARGE 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 ( hereinafter referred to as the Act), in that on or about 17 July 2019, you sexually assaulted learner A, a grade 11 learner at Franshoek Combine School when you cupped and/or caressed her breast.
ALTERNATIVE TO CHARGE 1
It is alleged that you are guilty of misconduct in terms of section 18 (1)(dd) of the Act .no 32 of 2007 in that you sexually assaulted learner A, a grade 11 learner at Franshoek Combined School when you cupped and/or caressed her breast.
CHARGE 2
It is alleged that you are guilty of misconduct in terms of section 18(1)(g) of the Act, in that on or about 17 July 2019 , while on duty you conducted yourself in an inappropriate manner by sexually harassing learner A , a grade 11 learner at Franshoek Combined School when you:
a) . massaged /rubbed her shoulders and/or
b). saying to her my darling and/or
c). kissed her on her cheek
The employee pleads not guilty to misconduct
SUMMARY OF EVIDENCE
I provide only a brief summary of the evidence in the interests of brevity. However, all evidence has been considered. I do not summarize the arguments as they form part of the record.
Respondent’s Case
8. Three witnesses testified, learner A who is a 17-year old grade 11 learner, and two educators, Ms Rochelle Herman and Ms Margery Myberg.
9. Learner A testified that the employee is her physical science teacher. There are only two other learners in their physical science class. On 17 July 2019, Mr Adams came to her desk during class and asked her about her mother – he wanted to know where her mother worked. She told him that her mother is a masseuse. Mr Adams then went behind her and massaged her shoulders and asked, “is this what she does?” He then moved his hands down her back and he then moved his hands over her breasts and he then cupped her breasts. His hands then moved further down her body. She did not say anything – she just “froze”. As his hands moved down , his face was by her neck and he mumbled words to the effect “Ajie, my darling”. He addressed her differently, as he usually just addressed her by her name, A. He then kissed her on the cheek and his hands moved further down towards her “privates”. At this point she realized what was happening and she shrugged him off. While this was happening, the other two learners were sitting in the same row about a metre away from her. It was not possible for them to see anything.
10. After she shrugged Mr Adams off, he moved towards the end of the table and he said that he would like to help her with her schoolwork and that she should come to his class during break. He also said that she should shut up and not tell anyone. She did not go to his class during break as she was afraid of what he would do.
11. Mr Adams then stepped out of the class. She took out her phone and sent a message to Ms Herman and Ms Fortuin to come and get her out of class. She was in shock and she just wanted to get out of the class. Shortly after she sent the message, another learner (sent by Ms Herman) , came and fetched her. She went to Ms Herman’s class and told her what had happened. Ms Herman was very shocked by what she told her. She also told Ms Herman that Mr Adams had asked her to come to his class during break. Ms Herman told her that she should go and that she should try and record what happens there. She then went back to class. Mr Adams did not speak to her again during that class.
12. During break she saw Mrs Fortuin who wanted to know why she had sent her a message. She then told Mrs Fortuin what had happened. Mrs Fortuin said that she would speak to Mrs Myburg, the school principal. Later that day Mrs Myburg and Mrs Randy came to speak to her about what had happened with Mr Adams. The next day a social worker came to the school and spoke to her. Prior to the incident she had a normal educator/ learner relationship with Mr Adam. Since the incident she has become afraid of him. She currently still has to attend his class, but she feels afraid.
13. She also testified that on a previous occasion prior to this incident, Mr Adams had asked her what she would do if he kissed her.
14. Rochelle Herman: She testified that she teaches grade 11 learners and learner A is one of her learners. She knows her since 2016 and considers her to be an intelligent person – she is generally quiet but is usually outspoken during drama class. There are no discipline issues with her. She confirmed learner A’s evidence in so far as it related to her. She added that it was the first time that she had received such a message. When learner A came to her, she looked quite shaken. She said that Mr Adams had touched her breasts and that he had tried to kiss her. She was very shocked when she heard this, and she was not sure what to do about it. She asked learner A if anyone had seen what had happened and her response was that no one had seen . Learner A also told her that Mr Adams had asked to her come to him for extra lessons during break and that she should not tell anyone about it. She told learner A that she should go back to class and that she would report the incident to the deputy principal, Mrs Myburg. She also told her that she did not want Mr Adams to suspect anything. She then reported the incident to Mrs Myburg .
15. Margery Myberg: She testified that she was the acting principal at the time that the incident happened. Mr Adams is a colleague and they have got along very well. She confirmed that Mrs Herman had reported an incident that happened on 17 July 2019 to her. Mrs Herman told her that learner A had sent her a message to come and collect her from class and that in response to the message she had sent a learner to her class to collect her. When learner A came to her she asked her for the reason for the message. She said that Learner A told that that Mr Adams had asked her about her mother and what work she did. She told Mr Adams that her mother is a masseuse and he then put his hands on her shoulders and massaged them and that he had touched her breasts. Later Mrs Fortuin also came to her and told her that learner A had also sent her a message. Mrs Fortuin told her that when she eventually spoke to learner A , she repeated the same story. She added that learner A had also told her that Mr Adams had moved his hands towards her lap.
16. She went on to testify that she then arranged to speak to learner A. Learner A repeated the same version of events to her. She also demonstrated exactly how Mr Adams had “cupped “ her breasts and how he had moved his hands down towards her lap. She also said that he had whispered something in her ear , words to the effect : “A, my darling” and that he had kissed her on the cheek. While she related the incident, A appeared a bit traumatized, but in control. When asked if Mr Adams had done anything else, she said that he had asked her to come to his class during break and that she should not tell anyone. She concluded her interview with learner A by giving her Mrs Williams telephone number and telling her that she should contact Mrs Williams if she felt uncomfortable in class.
17. She then telephoned the school principal, Mr Cilliers and informed him of the incident. The principal told her to inform Mr Goliath , the circuit manager of the incident, which she then did. She did not engage with Mr Adam about the incident.
The Applicant’s Case
18. Jacques Adams: He testified that he has been an educator since 1993. He commenced his post as an educator at Franshoek Combined School in the year 2000. He has been teaching maths and physical science to learners in grades 10-12. Learner A is in his grade 11 physical science class. There are only two other learners in that class.
19. On 17 July 2019, he was not in a good state of mind because his mother had taken ill and he had to take her to hospital . The first period of that school day was his physical science class with learner A. He finished his lesson and then gave the class some work to do. He gave them five minutes to complete the work and then he went around to each of them to see how they had done their work. He went to learner A He asked her asked her about her mother because his own mother was on his mind. She said that her mother is a masseuse. He then put his hand on her shoulder and started to look at her work. Her work was 75% correct. He then put his arms around her and said, “nice my girl” and he kissed her on the head. He then went towards the board and asked all of them whether they now understood the work. All three of them said that they did. He then gave them three question papers to answer and he went to the bathroom to have his tablets. As he was coming back from the bathroom, he noticed that learner A was also coming back from somewhere. He asked her where she had been, and she said that she was “just out”.
20. Later that day, during the fourth period he had a maths class with learner A. She attended the class normally. There was no indication that she was afraid of him.
21. He frequently hugs learners and addresses them with fond words in a fatherly manner. There has never been any untoward intention in any of these gestures. He has now learnt that he should not behave this way with learners as it can be misinterpreted. He is a married man and he is a father of children who are still at school. He would never do anything that would jeopadise his job.
ANALYSIS
22. The employer bears the onus to prove on a balance of probabilities that the employee is guilty of the alleged offences. Unlike in a criminal trial , the employer is not required to prove the guilt of the employee beyond reasonable doubt. The fundamental difference between charge one and charge two is that if found guilty in terms of section 17 (1)(b) of the Act, then the mandatory sanction is dismissal. If found guilty on the alternative charge or of charge 2 in terms of section 18 of the Act , then I as the arbitrator has a discretion in terms of the sanction to be imposed.
23. Sexual assault referred to in section 17(1)(b) is defined as any form of assault committed in circumstances of a sexual nature so that the sexual integrity of the victim is violated or threatened. The test to be applied in determining whether conduct has the requisite sexual nature is an objective one, viewed in the light of the circumstances. The part of the body touched, the nature of the contact , the situation in which it occurred , the words and gestures accompanying the act and all other circumstances surrounding the conduct , including threats which may or may not have been accompanied by force are relevant.
24. Learner A’s version is for the most part corrorborated by the employee himself. However, he does not admit to touching her breasts or moving his hands towards her lap. The question to be determined then in relation to the charges is whether the touching was sexual in nature and whether it amounted to a sexual assault.
25. Learner A was unwavering in her testimony. She consistently reported the same version to Ms Herman, Ms Fortuin and Ms Myburg. Contrary to the testimony of the employee, she was very uncomfortable and shocked about what happened, to the extent that she reached out to Ms Fortuin and Ms Herman. Effectively, she cried out to be rescued. There is no plausible reason ( and none was offered by the employee) as to why she would fabricate her version . There is no reason why she would want to get Mr Adams into trouble when they had enjoyed a normal relationship between an educator and a learner. In fact, the employee himself testified that Learner A is an honest person.
26. Her reaction immediately after the incident is indicative of the effect that the incident had on her. Generally, in offences of a sexual nature and especially in those involving children there is generally no obvious response that is expected of them. There are many reasons for this , one of them being the shame and fear that is felt by victims. In this case one can only imagine her sense of fear, confusion and shock given that the perpetrator is her educator, someone that she respected and trusted . I was impressed by the calm and measured manner in which she tried to articulate what had happened. Her version is consistent with the version of the employee in terms of the circumstances and manner in which the touching happened, save for the overt touching of the breast and the moving of the hands towards the lap.
27. The fact that she immediately called for help from two female educators suggests that she was indeed traumatized by what had happened. In fact, she sent the first message to Ms Fortuin and when Ms Fortuin did not respond immediately, she sent another message to Ms Herman. This tells me that she was desperate to leave the class and that she was indeed fearful . He reaction is suggestive of the sinister nature of the incident. This was not innocent touching as the employee would have us believe. Even if it was, it is in any event not allowed.
28. The evidence of the two educators further corroborates the learner’s version. Ms Herman, who spoke to her immediately after the incident, testified that she appeared traumatized. She went back to class only because having reported the incident , she felt that she would be protected in the event that anything further happened. Both these educators have a good relationship with the employee. They both testified that they did not expect this kind of behaviour from him. Yet they readily believed what the learner told them. Clearly the state that the learner presented herself in, her desperate call to be removed from the class and the manner in which she related the incident was convincing enough for them. They chose to believe her despite their good relationship with the employee. This is telling .
29. The employee on the other while agreeing to a large extent with learner A’s version would have us believe that there was nothing untoward in his behaviour ; that the touching that happened (on his version) was innocent and acceptable; that he did not touch the learner’s breasts and that he did not move his hand towards her lap. A key element in determining whether the incident was of a sexual nature is its impact on the victim. Clearly the learner felt violated. She testified that she “froze” and she “shrugged him off”. It is concerning that the employee sees nothing wrong in his behaviour even if it did not involve the touching of the breast, which on the probabilities more likely did happen. The employee had no business to touch the learner at all. His conduct was unbecoming of an educator and unacceptable. To add fuel to the fire, his behaviour was overtly sexual in nature.
30. I say that his conduct was overtly sexual in nature for several reasons. The touching happened in a clandestine manner to the extent that none of the other learners saw what happened. He whispered words to her -words like “my darling”. Had the words been words expressed in a fatherly manner as the employee claims they were, then they would more likely have been expressed in a normal tone of voice. The expression of the words was coupled with the massaging and a kiss. Under these circumstances it is more likely that there was indeed a touching of the breasts and the movement towards the lap. The learner’s reaction and the way she experienced the incident cements my view that the employee’s conduct was a sexual assault on learner A.
31. The employee’s conduct is a violation of the child’s right to dignity, a right which is enshrined in the Constitution of our land.
Finding
32. It is my finding that the employee, G.S.Adams , is guilty of misconduct in terms of section 17(1)(b) of the Act, for which a sanction of dismissal is mandatory. I make this finding on the totality of the evidence before me.
“the credibility of witnesses and the probability or improbability of what they say are not separate piecemeal enquiries . They are part of a single investigation where questions of demeanour and impression are measured against the context of witnesses where the importance of any discrepancies or contradictions is assessed and where a particular story is tested against the facts which cannot be disputed and against inherent improbabilities so that at the end of the day one can say with conviction that one version is more probable and should be accepted and that therefore the other version is false and may be rejected with safety”
The Code of Professional Ethics for educators , published by the South African Council for Educators , which is binding on all educators states the following: Educators must, inter alia
• Strive to enable learners to develop a set of values consistent with the fundamental rights contained in the Constitution of South Africa;
• Exercise authority with compassion;
• Avoid any form of humiliation , and refrain from abuse.
33. The applicant has clearly broken the laws of our country that have been endorsed by the highest court in our land, he has failed to uphold the Professional Code of Conduct for educators and he has violated the rights of a child to dignity. Such an educator cannot be trusted with learners.
34. Given that the sanction of dismissal is mandatory, I need not consider mitigating and aggravating circumstances. However, I do so for the sake of completeness.
35. Despite the evidence against him, the employee maintains that he has done nothing wrong. He shows no remorse whatsoever. The first step in showing remorse is an acknowledgement of wrongdoing. He shows no intention to rehabilitate because he does not want to admit to the wrongfulness of his conduct. In this regard the Labour Appeal Court has stated:
“It would in my view be difficult for an employer to re-employ an employee who has shown no remorse . Acknowledgement of wrongdoing is the first step towards rehabilitation. In the absence of a recommitment to the employer’s workplace values , an employee cannot hope to re-establish the trust which he himself has broken . Where an employee falsely denies having committed misconduct an employer would , particularly where a high degree of trust is reposed in an employee , be legitimately entitled to say to itself that the risk of continuing to employ the offender is unacceptably great.”
36. I do not find any mitigating circumstances. Dismissal is not only mandatory, it is appropriate in the circumstances.
AWARD
In the premises, I make the following order:
1. The employee, GS Adams, is guilty of misconduct in terms of section 17(1)(b) of the Act for which a mandatory sanction of a summary dismissal is imposed, effective from the date of this award.
2. The employee, G,S Adams, is found unsuitable to work again with children in terms Section 120 of the Childrens Act.
A.Singh-Bhoopchand
Senior ELRC Panelist
Province: Western Cape
Applicant: G.S. ADAMS
Respondent: Department of Education Western Cape
Issue: Unfair Dismissal - Misconduct
Venue: the offices of the respondent in Cape Town.
Award Date: 9 December 2019
Arbitrator: A.Singh-Bhoopchand
Case No : PSES 501-19/20WC
In the matter between
G.S. ADAMS Employee
and
DOE-WC Employer
ARBITRATOR: A.Singh-Bhoopchand
HEARD: 24 October & 27 November 2019
DATE OF AWARD: 9 December 2019
DETAILS OF HEARING AND REPRESENTATION
1. This matter was referred by the employer in terms of section 188A of the Labour Relations Act 66 of 1995(LRA) as amended and was heard on 24 October 2019 and 27 November 2019 at the offices of the respondent in Cape Town. The employee represented himself on 24 October 2019. Mr Jacques Adams, a representative of the trade union SADTU presented the closing arguments on behalf of the employee on 27 November 2019. The respondent was represented by Ms Sylvia Flandorp, a labour relations official within the labour relations directorate of the respondent.
2. One bundle of documents was handed in as evidence.
3. Proceedings were digitally recorded.
4. In accordance with the policy of the ELRC, the name of the minor learner, the complainant in this matter, who testified during these proceedings is protected, and her name is accordingly withheld. She is referred to as learner A. The complainant was assisted by an interpreter , Ms Bianca Mankay as well as an intermediary, Ms Stephanie Marks.
5. In addition to evidence and arguments on the merits of the matter, I invited the employee and his representative to make submissions relating to section 120(3) of the Children’s Act.
ISSUE TO BE DECIDED
6. I must decide whether the employee is guilty of the offences with which he is charged, and if found guilty , I must decide on an appropriate sanction
THE ALLEGED OFFECNES
7. CHARGE 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 ( hereinafter referred to as the Act), in that on or about 17 July 2019, you sexually assaulted learner A, a grade 11 learner at Franshoek Combine School when you cupped and/or caressed her breast.
ALTERNATIVE TO CHARGE 1
It is alleged that you are guilty of misconduct in terms of section 18 (1)(dd) of the Act .no 32 of 2007 in that you sexually assaulted learner A, a grade 11 learner at Franshoek Combined School when you cupped and/or caressed her breast.
CHARGE 2
It is alleged that you are guilty of misconduct in terms of section 18(1)(g) of the Act, in that on or about 17 July 2019 , while on duty you conducted yourself in an inappropriate manner by sexually harassing learner A , a grade 11 learner at Franshoek Combined School when you:
a) . massaged /rubbed her shoulders and/or
b). saying to her my darling and/or
c). kissed her on her cheek
The employee pleads not guilty to misconduct
SUMMARY OF EVIDENCE
I provide only a brief summary of the evidence in the interests of brevity. However, all evidence has been considered. I do not summarize the arguments as they form part of the record.
Respondent’s Case
8. Three witnesses testified, learner A who is a 17-year old grade 11 learner, and two educators, Ms Rochelle Herman and Ms Margery Myberg.
9. Learner A testified that the employee is her physical science teacher. There are only two other learners in their physical science class. On 17 July 2019, Mr Adams came to her desk during class and asked her about her mother – he wanted to know where her mother worked. She told him that her mother is a masseuse. Mr Adams then went behind her and massaged her shoulders and asked, “is this what she does?” He then moved his hands down her back and he then moved his hands over her breasts and he then cupped her breasts. His hands then moved further down her body. She did not say anything – she just “froze”. As his hands moved down , his face was by her neck and he mumbled words to the effect “Ajie, my darling”. He addressed her differently, as he usually just addressed her by her name, A. He then kissed her on the cheek and his hands moved further down towards her “privates”. At this point she realized what was happening and she shrugged him off. While this was happening, the other two learners were sitting in the same row about a metre away from her. It was not possible for them to see anything.
10. After she shrugged Mr Adams off, he moved towards the end of the table and he said that he would like to help her with her schoolwork and that she should come to his class during break. He also said that she should shut up and not tell anyone. She did not go to his class during break as she was afraid of what he would do.
11. Mr Adams then stepped out of the class. She took out her phone and sent a message to Ms Herman and Ms Fortuin to come and get her out of class. She was in shock and she just wanted to get out of the class. Shortly after she sent the message, another learner (sent by Ms Herman) , came and fetched her. She went to Ms Herman’s class and told her what had happened. Ms Herman was very shocked by what she told her. She also told Ms Herman that Mr Adams had asked her to come to his class during break. Ms Herman told her that she should go and that she should try and record what happens there. She then went back to class. Mr Adams did not speak to her again during that class.
12. During break she saw Mrs Fortuin who wanted to know why she had sent her a message. She then told Mrs Fortuin what had happened. Mrs Fortuin said that she would speak to Mrs Myburg, the school principal. Later that day Mrs Myburg and Mrs Randy came to speak to her about what had happened with Mr Adams. The next day a social worker came to the school and spoke to her. Prior to the incident she had a normal educator/ learner relationship with Mr Adam. Since the incident she has become afraid of him. She currently still has to attend his class, but she feels afraid.
13. She also testified that on a previous occasion prior to this incident, Mr Adams had asked her what she would do if he kissed her.
14. Rochelle Herman: She testified that she teaches grade 11 learners and learner A is one of her learners. She knows her since 2016 and considers her to be an intelligent person – she is generally quiet but is usually outspoken during drama class. There are no discipline issues with her. She confirmed learner A’s evidence in so far as it related to her. She added that it was the first time that she had received such a message. When learner A came to her, she looked quite shaken. She said that Mr Adams had touched her breasts and that he had tried to kiss her. She was very shocked when she heard this, and she was not sure what to do about it. She asked learner A if anyone had seen what had happened and her response was that no one had seen . Learner A also told her that Mr Adams had asked to her come to him for extra lessons during break and that she should not tell anyone about it. She told learner A that she should go back to class and that she would report the incident to the deputy principal, Mrs Myburg. She also told her that she did not want Mr Adams to suspect anything. She then reported the incident to Mrs Myburg .
15. Margery Myberg: She testified that she was the acting principal at the time that the incident happened. Mr Adams is a colleague and they have got along very well. She confirmed that Mrs Herman had reported an incident that happened on 17 July 2019 to her. Mrs Herman told her that learner A had sent her a message to come and collect her from class and that in response to the message she had sent a learner to her class to collect her. When learner A came to her she asked her for the reason for the message. She said that Learner A told that that Mr Adams had asked her about her mother and what work she did. She told Mr Adams that her mother is a masseuse and he then put his hands on her shoulders and massaged them and that he had touched her breasts. Later Mrs Fortuin also came to her and told her that learner A had also sent her a message. Mrs Fortuin told her that when she eventually spoke to learner A , she repeated the same story. She added that learner A had also told her that Mr Adams had moved his hands towards her lap.
16. She went on to testify that she then arranged to speak to learner A. Learner A repeated the same version of events to her. She also demonstrated exactly how Mr Adams had “cupped “ her breasts and how he had moved his hands down towards her lap. She also said that he had whispered something in her ear , words to the effect : “A, my darling” and that he had kissed her on the cheek. While she related the incident, A appeared a bit traumatized, but in control. When asked if Mr Adams had done anything else, she said that he had asked her to come to his class during break and that she should not tell anyone. She concluded her interview with learner A by giving her Mrs Williams telephone number and telling her that she should contact Mrs Williams if she felt uncomfortable in class.
17. She then telephoned the school principal, Mr Cilliers and informed him of the incident. The principal told her to inform Mr Goliath , the circuit manager of the incident, which she then did. She did not engage with Mr Adam about the incident.
The Applicant’s Case
18. Jacques Adams: He testified that he has been an educator since 1993. He commenced his post as an educator at Franshoek Combined School in the year 2000. He has been teaching maths and physical science to learners in grades 10-12. Learner A is in his grade 11 physical science class. There are only two other learners in that class.
19. On 17 July 2019, he was not in a good state of mind because his mother had taken ill and he had to take her to hospital . The first period of that school day was his physical science class with learner A. He finished his lesson and then gave the class some work to do. He gave them five minutes to complete the work and then he went around to each of them to see how they had done their work. He went to learner A He asked her asked her about her mother because his own mother was on his mind. She said that her mother is a masseuse. He then put his hand on her shoulder and started to look at her work. Her work was 75% correct. He then put his arms around her and said, “nice my girl” and he kissed her on the head. He then went towards the board and asked all of them whether they now understood the work. All three of them said that they did. He then gave them three question papers to answer and he went to the bathroom to have his tablets. As he was coming back from the bathroom, he noticed that learner A was also coming back from somewhere. He asked her where she had been, and she said that she was “just out”.
20. Later that day, during the fourth period he had a maths class with learner A. She attended the class normally. There was no indication that she was afraid of him.
21. He frequently hugs learners and addresses them with fond words in a fatherly manner. There has never been any untoward intention in any of these gestures. He has now learnt that he should not behave this way with learners as it can be misinterpreted. He is a married man and he is a father of children who are still at school. He would never do anything that would jeopadise his job.
ANALYSIS
22. The employer bears the onus to prove on a balance of probabilities that the employee is guilty of the alleged offences. Unlike in a criminal trial , the employer is not required to prove the guilt of the employee beyond reasonable doubt. The fundamental difference between charge one and charge two is that if found guilty in terms of section 17 (1)(b) of the Act, then the mandatory sanction is dismissal. If found guilty on the alternative charge or of charge 2 in terms of section 18 of the Act , then I as the arbitrator has a discretion in terms of the sanction to be imposed.
23. Sexual assault referred to in section 17(1)(b) is defined as any form of assault committed in circumstances of a sexual nature so that the sexual integrity of the victim is violated or threatened. The test to be applied in determining whether conduct has the requisite sexual nature is an objective one, viewed in the light of the circumstances. The part of the body touched, the nature of the contact , the situation in which it occurred , the words and gestures accompanying the act and all other circumstances surrounding the conduct , including threats which may or may not have been accompanied by force are relevant.
24. Learner A’s version is for the most part corrorborated by the employee himself. However, he does not admit to touching her breasts or moving his hands towards her lap. The question to be determined then in relation to the charges is whether the touching was sexual in nature and whether it amounted to a sexual assault.
25. Learner A was unwavering in her testimony. She consistently reported the same version to Ms Herman, Ms Fortuin and Ms Myburg. Contrary to the testimony of the employee, she was very uncomfortable and shocked about what happened, to the extent that she reached out to Ms Fortuin and Ms Herman. Effectively, she cried out to be rescued. There is no plausible reason ( and none was offered by the employee) as to why she would fabricate her version . There is no reason why she would want to get Mr Adams into trouble when they had enjoyed a normal relationship between an educator and a learner. In fact, the employee himself testified that Learner A is an honest person.
26. Her reaction immediately after the incident is indicative of the effect that the incident had on her. Generally, in offences of a sexual nature and especially in those involving children there is generally no obvious response that is expected of them. There are many reasons for this , one of them being the shame and fear that is felt by victims. In this case one can only imagine her sense of fear, confusion and shock given that the perpetrator is her educator, someone that she respected and trusted . I was impressed by the calm and measured manner in which she tried to articulate what had happened. Her version is consistent with the version of the employee in terms of the circumstances and manner in which the touching happened, save for the overt touching of the breast and the moving of the hands towards the lap.
27. The fact that she immediately called for help from two female educators suggests that she was indeed traumatized by what had happened. In fact, she sent the first message to Ms Fortuin and when Ms Fortuin did not respond immediately, she sent another message to Ms Herman. This tells me that she was desperate to leave the class and that she was indeed fearful . He reaction is suggestive of the sinister nature of the incident. This was not innocent touching as the employee would have us believe. Even if it was, it is in any event not allowed.
28. The evidence of the two educators further corroborates the learner’s version. Ms Herman, who spoke to her immediately after the incident, testified that she appeared traumatized. She went back to class only because having reported the incident , she felt that she would be protected in the event that anything further happened. Both these educators have a good relationship with the employee. They both testified that they did not expect this kind of behaviour from him. Yet they readily believed what the learner told them. Clearly the state that the learner presented herself in, her desperate call to be removed from the class and the manner in which she related the incident was convincing enough for them. They chose to believe her despite their good relationship with the employee. This is telling .
29. The employee on the other while agreeing to a large extent with learner A’s version would have us believe that there was nothing untoward in his behaviour ; that the touching that happened (on his version) was innocent and acceptable; that he did not touch the learner’s breasts and that he did not move his hand towards her lap. A key element in determining whether the incident was of a sexual nature is its impact on the victim. Clearly the learner felt violated. She testified that she “froze” and she “shrugged him off”. It is concerning that the employee sees nothing wrong in his behaviour even if it did not involve the touching of the breast, which on the probabilities more likely did happen. The employee had no business to touch the learner at all. His conduct was unbecoming of an educator and unacceptable. To add fuel to the fire, his behaviour was overtly sexual in nature.
30. I say that his conduct was overtly sexual in nature for several reasons. The touching happened in a clandestine manner to the extent that none of the other learners saw what happened. He whispered words to her -words like “my darling”. Had the words been words expressed in a fatherly manner as the employee claims they were, then they would more likely have been expressed in a normal tone of voice. The expression of the words was coupled with the massaging and a kiss. Under these circumstances it is more likely that there was indeed a touching of the breasts and the movement towards the lap. The learner’s reaction and the way she experienced the incident cements my view that the employee’s conduct was a sexual assault on learner A.
31. The employee’s conduct is a violation of the child’s right to dignity, a right which is enshrined in the Constitution of our land.
Finding
32. It is my finding that the employee, G.S.Adams , is guilty of misconduct in terms of section 17(1)(b) of the Act, for which a sanction of dismissal is mandatory. I make this finding on the totality of the evidence before me.
“the credibility of witnesses and the probability or improbability of what they say are not separate piecemeal enquiries . They are part of a single investigation where questions of demeanour and impression are measured against the context of witnesses where the importance of any discrepancies or contradictions is assessed and where a particular story is tested against the facts which cannot be disputed and against inherent improbabilities so that at the end of the day one can say with conviction that one version is more probable and should be accepted and that therefore the other version is false and may be rejected with safety”
The Code of Professional Ethics for educators , published by the South African Council for Educators , which is binding on all educators states the following: Educators must, inter alia
• Strive to enable learners to develop a set of values consistent with the fundamental rights contained in the Constitution of South Africa;
• Exercise authority with compassion;
• Avoid any form of humiliation , and refrain from abuse.
33. The applicant has clearly broken the laws of our country that have been endorsed by the highest court in our land, he has failed to uphold the Professional Code of Conduct for educators and he has violated the rights of a child to dignity. Such an educator cannot be trusted with learners.
34. Given that the sanction of dismissal is mandatory, I need not consider mitigating and aggravating circumstances. However, I do so for the sake of completeness.
35. Despite the evidence against him, the employee maintains that he has done nothing wrong. He shows no remorse whatsoever. The first step in showing remorse is an acknowledgement of wrongdoing. He shows no intention to rehabilitate because he does not want to admit to the wrongfulness of his conduct. In this regard the Labour Appeal Court has stated:
“It would in my view be difficult for an employer to re-employ an employee who has shown no remorse . Acknowledgement of wrongdoing is the first step towards rehabilitation. In the absence of a recommitment to the employer’s workplace values , an employee cannot hope to re-establish the trust which he himself has broken . Where an employee falsely denies having committed misconduct an employer would , particularly where a high degree of trust is reposed in an employee , be legitimately entitled to say to itself that the risk of continuing to employ the offender is unacceptably great.”
36. I do not find any mitigating circumstances. Dismissal is not only mandatory, it is appropriate in the circumstances.
AWARD
In the premises, I make the following order:
1. The employee, GS Adams, is guilty of misconduct in terms of section 17(1)(b) of the Act for which a mandatory sanction of a summary dismissal is imposed, effective from the date of this award.
2. The employee, G,S Adams, is found unsuitable to work again with children in terms Section 120 of the Childrens Act.
A.Singh-Bhoopchand
Senior ELRC Panelist