PSES-800-16/17WC
PSES-800-16/17WC
Award Date:
14 August 2017
Case Number: PSES-800-16/17WC
Province: Western Cape
Applicant: NAPTOSA obo Ni-Shaatah Larney
Respondent: Department of Education Western Cape
Issue: Unfair Dismissal - Misconduct
Venue: Department of Education Cape Town Offiices
Award Date: 14 August 2017
Arbitrator: Bella Goldman
Case No PSES-800-16/17WC
In the matter between
NAPTOSA obo Ni-Shaatah Larney Applicant
And
Department of Education Western Cape Respondent
ARBITRATOR: Bella Goldman
HEARD: 13 and 14 June 2017 and 24 July 2017
DELIVERED: 14 August 2017
ARBITRATION AWARD
DETAILS OF THE HEARING AND REPRESENTATION
1. The arbitration hearing was held at the Cape Town offices of the respondent’s Labour Relations Department on 13 and 14 June 2017 and 13i July 2017. Mr Faez Tassiem, Union Official represented the applicant and Ms Deborah Matshaya, Labour Relations Officer represented the respondent. The proceedings were recorded. Mr Daniel Kova was present on 13 and 14 June 2017 for the purpose of acting as intermediary for the child witnesses who were scheduled to testify on behalf of the respondent. It was agreed that closing arguments would be submitted in writing.
ISSUE TO BE DECIDED
2. I have to decide whether or not the respondent’s dismissal was substantively fair in terms of the Labour Relations Act 66 of 1995 as amended (LRA).
BACKGROUND TO THE ISSUE
3. The applicant was employed by the respondent as an Educator, Post Level 1 at A Z Berman High School from January 2014 until 26 September 2016 when she was dismissed for misconduct. The applicant appealed the findings of the disciplinary hearing and on 24 February 2017 the appeal hearing confirmed her dismissal.
4. The applicant was issued with notice to attend a disciplinary hearing on 8 August 2016, the charges against the applicant were:
Charge 1
It is alleged that you are guilty of misconduct in terms of Section 17(1) (c) of the Employment of Educators 76 of Act of 1976 (The Act) in that around September 2015 you had a sexual relationship with a learner of AZ Berman High School and was seen kissing him in front of your class.
Charge 2
It is alleged that you are guilty of misconduct in terms of Section 18(1) (q) of the Act in that while on duty you conducted yourself in an improper, disgraceful or unacceptable manner in that you were seen kissing learner A in your class after school and / or you are always in the class with Learner A after school behind closed doors and covered windows.
5. At her disciplinary hearing the applicant pleaded not guilty to both charges and was found guilty on both charges and the sanction of dismissal was applied.
6. At the arbitration hearing the applicant changed her plea to not guilty to charge 1 but guilty to charge 2. The reason provided by the applicant for her change of plea in terms of charge 2 was at the time of the hearing she was embarrassed and humiliated by the situation and hence pleaded not guilty to both charges.
7. The respondent alleged that the applicant was seen by learners kissing learner A in a sexual way in her classroom. The learners stated that learner A and the applicant were alone in her classroom, the door of which was closed and that the learners peeped into the classroom by tearing a hole in the brown paper which covered the window of the classroom.
8. The applicant’s admitted being alone with learner A in her classroom, the door of which was closed, she claimed to be comforting him with regards to his personal problems in terms of which he was confiding in her, by hugging him and that he kissed her.
9. The three learners who allegedly witnessed the incident and who testified at the disciplinary hearings did not testify at the arbitration hearing.
SURVEY OF THE EVIDENCE AND ARGUMENT
10. I have considered all the evidence and argument, but because the LRA (section 138(7)) requires an award to be issued with brief reasons for the findings, I have only referred to the evidence and argument that I regard as necessary to substantiate my findings and the determination of the dispute.
Documentary Evidence
11. The parties each submitted a bundle of documents each in evidence which were agreed as being what they purported to be. The respondent’s bundle was made up of inter alia the charge sheet, the chairperson’s findings and reasons therefore and the SACE code of ethics. The applicant’s bundle was made up of a transcript of an extract of the recording of the disciplinary hearing which was agreed.
Employer’s Evidence
The respondent called one witness, Mr Derrick Allen Moore the Principal of the school at the time of the incident who gave evidence under oath. Neither learner 1, 2 or 3 who the respondent intended to call testified at the arbitration. The following is a summary of Mr Moore’s testimony:
Derrick Alan Moore
12. The witness was Principal of the school from 1 January 2013 to 31 December 2015 when he retired. Late in 2015 an Educator by the name of Ms Heradien informed the witness that there were rumours alleging that ‘there was something between the applicant and learner A’. Learners had complained to that educator, that the applicant and learner A were always together and that she was favouring him and the implication was that they had a ‘close relationship’. Ms Heradien was not prepared to testify at the disciplinary hearing or at the arbitration hearing.
13. Shortly after Ms Heradien’s allegations the witness went to see the applicant and informed her of the rumours. The applicant’s response was that the rumours were ‘a lot of nonsense’. The witness warned the applicant about the fact that whenever a male teacher is alone with a female leaner and visa versa it will always lead to rumours and he advised her to desist from being seen alone with learner A. He told her that she had a good reputation at the school and he could see that she took pride in her work and that she was one of the best educators at the school.
14. He became aware of the incident in question sometime in November 2015 when learners 1 and 2 and their respective mothers came to see him with regard to an issue they had with the applicant. The main issue they came to see the witness was an incident in terms of which they alleged that the applicant had treated learners 1 and 2 unfairly, he could not recall the details thereof. Whilst there, the mother of learner 1 said that learner 1 and 2 saw the applicant and leaner A kissing in her classroom. The witness’s understanding was that it was a romantic / sexual kiss. Thereafter he heard there was a confrontation between learners 1 and 2 and learners who supported the applicant. The witness was not aware of a third learner who allegedly witnessed the incident or a similar incident between leaner A and the applicant.
15. Thereafter he informed the applicant of the allegations against her and told her that he had to refer the matter to the respondent. The applicant told him that learner A was upset and that she was comforting him. The applicant did not dispute being alone with learner A, however she disputed any improper conduct.
16. It was put to the witness that at applicant’s disciplinary hearing, three learners said they peeped through the brown paper and allegedly saw the incident. The witness could not recall a third learner.
Employer’s Evidence
The applicant Ni-Shaatah Larney gave evidence and called one witness, both gave evidence under oath. The following is a summary of their testimonies:
Ni-Shaatah Larney
17. The applicant was 27 years old at the time of the alleged incident and this was her first teaching post, learner A and the other learners were 15 years old at the time of the incident. The applicant taught science and technology to grade 8 and 9 learners and was in charge of organising extra mural soccer for the juniors and seniors, this involved organising their coaching sessions, matches and attending the same, learner A was part of the group who played soccer. She said that many of the classroom windows were covered with brown paper; this was to prevent learners from looking out of the window and becoming distracted.
18. As a result of the applicant organising soccer, learner A and other boys would spend a lot time in her classroom. After a match they would discuss the match and would chat generally. The applicant would sometimes assist them with their work and sometimes the learners would speak to her about their personal situations.
19. Learner A spent more time with her than the others, he was the eldest child in his family and there were always issues between his mother and him with regards to his younger brother and he used to share his problems with the applicant, she would try to advise and assist him. She referred him to Ms Oliver who handles children with social problems at the school and if she considers the problem to be serious she refers the learner to the department’s psychologist and / or social worker.
20. The applicant admitted that that the principal spoke to her about sending too much time with male learners and especially learner A and to refrain from doing so and in retrospect she should have heeded his advice.
21. In November 2015 around the time learner 1 and 2 and their mothers reported the incident to the principal. Learners 1 and 2 approached the applicant together with about three other female learners whilst the applicant was marking scripts. The three learners asked learners 1 and 2 why they were spreading rumours about the applicant. The applicant told learner 1 and 2 that she heard they were spreading rumours about her and asked them to please refrain from doing so. The three girls said that learners 1 and 2 were spreading rumours about her pregnancy and were claiming that she and learner A were having a relationship, the implication being that the baby she was carrying at the time was learner A’s baby. The applicant denied having a relationship and told them that the baby she was carrying was not that of learner A.
22. On the day in question learner A came to see her after school about a personal problem, he told her about an argument he and his mother had and was very upset. He became emotional and so the applicant hugged him around the shoulders and he then put his arms around her waist and as the applicant was about to move away he kissed her on the lips. This took the applicant by surprise, she did not know what to do, should she kiss him back or move away, she moved away. He appeared confused and apologised and left.
23. For a split second she thought of kissing him but did not, when asked why she thought of kissing him back she said that she is human and it was an emotional situation and that she is guilty of hugging him but not kissing him. She did not have a sexual relationship with him he kissed her and she had a momentary thought of kissing him back but did not. It was a closed mouth kiss. The witness said that she is guilty of hugging learner A not kissing him or having a romantic or sexual relationship with him.
Kevin Edmund Voges
24. The witness has been Principal at the school since January 2016 and has worked with the applicant from the time he was appointed until the appeal hearing confirmed her dismissal on 24 February 2017.
25. He found the applicant to be an extremely hardworking and conscientious educator who always went the extra mile for her learners with whom she had a good rapport and over who she was able to effectively enforce discipline. He confirmed that since he has been at the school all classrooms facing a certain way including that of the applicant are covered with brown paper from waist to shoulder height.
26. There is not much sport offered at the school, however the applicant organised soccer at the school and always encouraged the soccer teams and ensured that they had the appropriate gear. Many learners come from impoverished homes with socio economic problems and it is not uncommon for them to form a close bond with an educator who they trust. He said that the applicant’s version of what took place on the day in question is probable given the social context in which the learners come from and he would trust her should he be reinstated.
27. The evidence of the witness with regard to attempts to get learners 1, 2 and 3 to testify at the arbitration hearing was:
28. Learner 1, she is no longer at the school but he managed to call her, she gave him her mother’s phone number and told him to phone her mother which he did. Her mother did not answer the phone, he sent her mother a Whatsapp message which was read but not answered.
29. Learner 2, he phoned her mother who said that she wants nothing to do with the case and does not want her daughter involved with the case and would not give permission for her daughter to testify.
30. Leaner 3, her father initially gave permission for her to testify, she was supposed to testify on a day and time that she was supposed to write an exam. When informed that she would have to testify she was in tears. Permission was granted for her to write her exam early on the day in question and then come to the office of the witness so that she could be taken to where the arbitration was held. She did write the exam early however she went home after her exam instead of coming to the office of the witness as arranged. Thereafter the father of learner 3 said he would bring her to the arbitration hearing as long as he was paid for the time he would have to take off work, he was asked for a quote and never responded.
ANALYSIS OF THE EVIDENCE AND ARGUMENT
31. In a case where unfair dismissal is alleged it is for the employer to prove on a balance of probabilities that the dismissal was fair.
32. If an employee is dismissed for misconduct, Schedule 8 of the LRA requires the dismissal to be substantively and procedurally fair. In this case there was no challenge to procedural fairness only to substantive fairness in that the applicant claimed that she was not guilty in terms of charge 1 which in terms of the Act carries a statutory mandatory sanction of dismissal.
33. In order for the dismissal to be substantively fair the employer must prove that:
• There was a rule
• The rule was reasonable.
• The rule was known to the employee or should have been known.
• The rule was broken by the employee.
• Dismissal was the appropriate sanction for the breach of the rule,
34. The applicant was charged with two acts of misconduct and was found guilty in terms of both.
Charge 1
It is alleged that you are guilty of misconduct in terms of Section 17(1) (c) of the Employment of Educators 76 of Act of 1976 (The Act) in that around September 2015 you had a sexual relationship with a learner of A Z Berman High School and was see kissing him in front of your class.
Charge 2
It is alleged that you are guilty of misconduct in terms of Section 18(1) (q) of the Act in that while on duty you conducted yourself in an improper, disgraceful or unacceptable manner in that you were seen kissing learner A in your class after school and / or you are always in the class with Learner A after school behind closed doors and covered windows.
35. The applicant pleaded not guilty in terms of both charges at her disciplinary hearing but at the arbitration hearing pleaded guilty to charge 1 stating that she did hug learner A in order to comfort him and was at the time and at other times alone in the class with learner A after school behind closed doors which could be regarded as improper. However she denied kissing learner A, she stated that he kissed her. It was not disputed that many classrooms were covered in brown paper, although that was not the case at the applicant’s disciplinary hearing.
36. As per charge 1, I must determine in terms of the evidence before me whether the respondent has proved on a balance of probabilities that the applicant had a sexual relationship with learner A around September 2015.
37. In this case the respondent did not call any witnesses who could testify as to the incident, the only witness who the respondent called was Mr Moore, the Principal at the time of the incident who testified as to what he was told by the applicant and Learner 1’s mother and who was unclear as to what he was told and who could only recall there being two leaners and not three leaners who allegedly witnessed an incident.
38. The applicant conceded that Learner A used to confide in her as to his personal problems and that she advised him as best she could and that on the day in question he was particularly upset and she hugged him so as to comfort him and that he then kissed her. She testified that this took her by surprise and for a moment she did not know what to do, whether to kiss him back or pull away, but she did not kiss him back but pulled away. She said that the feeling to kiss him back was prompted by a thought and she did not act on that though and that she cannot be found guilty on a thought which I agree with.
39. It is perhaps not the best idea for a female educator to hug a male learner of that age when they are alone together and visa versa for obvious reasons. However a hug to comfort a distressed leaner cannot be evidence of a sexual relationship. This is a de novo hearing and I have no evidence before me to dispute the applicant’s testimony that she was kissed by the learner A and that she did not kiss him and her version of the details of the applicant’s and learner A’s relationship.
40. In short I have no evidence before me to conclude that on a balance of probabilities the applicant had a sexual relationship with Learner A. None of the role players testified before me, that is, learner A and learners 1, 2 and 3. Mr Moore said that the rumours were reported to him by Ms Heradien but she also did not testify. As stated the only evidence I had before me was that of the applicant.
41. I am mindful of the fact that I can take into account hearsay evidence in some circumstances, however in this case there was none before me to consider, the recollection of Mr Moore was very poor on his own admission and I only had a very short summary of the findings and sanction emanating from the disciplinary hearing.
42. The applicant did not deny that she was informed by the principal of rumours that were circulating of a relationship between herself and the applicant and yet she continued seeing Leaner A on his own which she conceded may not have been wise but I cannot use these facts to come to the conclusion that she was having a sexual relationship with learner A.
43. I have taken note that Learner A’s mother only reported the incident some two months after the incident when her daughter and learner 2 had had some sort of altercation with the applicant, the nature of which Mr Moore could not recall.
44. For the reasons stated above I find the applicant not guilty in terms of charge 1. The applicant on her own version is guilty in terms of charge 2. As per the terms of the disciplinary hearing the sanction of dismissal was applied in respect of charges 1 and 2 on the basis that the chairperson came to the conclusion that the applicant had kissed learner A as per a ‘French kiss’ which is regarded as a sexual kiss.
45. I have not on the evidence before me found that to be the case, what I do however find is that the applicant acted in an improper manner by continuing to see learner A alone behind closed doors after having been warned of rumours that were circulating to the detriment of herself and learner A.
46. A finding of guilt in terms of section 18 (1) (q) of the Act does not carry a mandatory statutory sanction of dismissal and I find that for the reasons stated the sanction of dismissal was too harsh and that therefore the applicant’s dismissal was substantively unfair.
47. I find that it would be fair and equitable that the applicant be reinstated with full back pay with the sanction of a final written warning valid for twelve months from the date of reinstatement.
AWARD
48. I find that the applicant’s dismissal was substantively unfair.
49. The applicant is to be re-instated on the same terms and conditions as she was employed in terms of prior to when the appeal hearing confirmed her dismissal on the 24 February 2017 with no loss of benefits including leave, medical aid, pension and progression benefits.
50. The applicant is reinstated with a final written warning valid for twelve months as from 1 September 2017. The final written warning should not refer to the applicant kissing a learner as I have found her not guilty of kissing learner A. It should refer to improper conduct relating to her being alone with a high school learner behind closed doors which could lead to allegations of sexual misconduct.
51. The applicant is to report for duty at the workplace at 7h30 on Friday 1 September 2017. The applicant provided me with a salary slip on which I have calculated her back pay from 24 February 2017 until 1 September 2017. Should there be a dispute regarding the quantum it can be referred back for arbitration. I have worked on the assumption that given that educators are paid before the 24th of each month the applicant has been paid for the month of February 2017. If my assumption is incorrect the applicant is owed another four days of remuneration.
52. The respondent, Department of Education, Western Cape is ordered to pay the applicant Ni-Shaatah Larney the sum of R122, 832.00 (R20, 472.00 x 6 months) which is the remuneration she would have earned from 1 March 2017 to 31 August 2017. This sum must be paid by no later than 15 September 2017 after which interest will run at the prescribed rate.
ELRC Panellist: Bella Goldman
Province: Western Cape
Applicant: NAPTOSA obo Ni-Shaatah Larney
Respondent: Department of Education Western Cape
Issue: Unfair Dismissal - Misconduct
Venue: Department of Education Cape Town Offiices
Award Date: 14 August 2017
Arbitrator: Bella Goldman
Case No PSES-800-16/17WC
In the matter between
NAPTOSA obo Ni-Shaatah Larney Applicant
And
Department of Education Western Cape Respondent
ARBITRATOR: Bella Goldman
HEARD: 13 and 14 June 2017 and 24 July 2017
DELIVERED: 14 August 2017
ARBITRATION AWARD
DETAILS OF THE HEARING AND REPRESENTATION
1. The arbitration hearing was held at the Cape Town offices of the respondent’s Labour Relations Department on 13 and 14 June 2017 and 13i July 2017. Mr Faez Tassiem, Union Official represented the applicant and Ms Deborah Matshaya, Labour Relations Officer represented the respondent. The proceedings were recorded. Mr Daniel Kova was present on 13 and 14 June 2017 for the purpose of acting as intermediary for the child witnesses who were scheduled to testify on behalf of the respondent. It was agreed that closing arguments would be submitted in writing.
ISSUE TO BE DECIDED
2. I have to decide whether or not the respondent’s dismissal was substantively fair in terms of the Labour Relations Act 66 of 1995 as amended (LRA).
BACKGROUND TO THE ISSUE
3. The applicant was employed by the respondent as an Educator, Post Level 1 at A Z Berman High School from January 2014 until 26 September 2016 when she was dismissed for misconduct. The applicant appealed the findings of the disciplinary hearing and on 24 February 2017 the appeal hearing confirmed her dismissal.
4. The applicant was issued with notice to attend a disciplinary hearing on 8 August 2016, the charges against the applicant were:
Charge 1
It is alleged that you are guilty of misconduct in terms of Section 17(1) (c) of the Employment of Educators 76 of Act of 1976 (The Act) in that around September 2015 you had a sexual relationship with a learner of AZ Berman High School and was seen kissing him in front of your class.
Charge 2
It is alleged that you are guilty of misconduct in terms of Section 18(1) (q) of the Act in that while on duty you conducted yourself in an improper, disgraceful or unacceptable manner in that you were seen kissing learner A in your class after school and / or you are always in the class with Learner A after school behind closed doors and covered windows.
5. At her disciplinary hearing the applicant pleaded not guilty to both charges and was found guilty on both charges and the sanction of dismissal was applied.
6. At the arbitration hearing the applicant changed her plea to not guilty to charge 1 but guilty to charge 2. The reason provided by the applicant for her change of plea in terms of charge 2 was at the time of the hearing she was embarrassed and humiliated by the situation and hence pleaded not guilty to both charges.
7. The respondent alleged that the applicant was seen by learners kissing learner A in a sexual way in her classroom. The learners stated that learner A and the applicant were alone in her classroom, the door of which was closed and that the learners peeped into the classroom by tearing a hole in the brown paper which covered the window of the classroom.
8. The applicant’s admitted being alone with learner A in her classroom, the door of which was closed, she claimed to be comforting him with regards to his personal problems in terms of which he was confiding in her, by hugging him and that he kissed her.
9. The three learners who allegedly witnessed the incident and who testified at the disciplinary hearings did not testify at the arbitration hearing.
SURVEY OF THE EVIDENCE AND ARGUMENT
10. I have considered all the evidence and argument, but because the LRA (section 138(7)) requires an award to be issued with brief reasons for the findings, I have only referred to the evidence and argument that I regard as necessary to substantiate my findings and the determination of the dispute.
Documentary Evidence
11. The parties each submitted a bundle of documents each in evidence which were agreed as being what they purported to be. The respondent’s bundle was made up of inter alia the charge sheet, the chairperson’s findings and reasons therefore and the SACE code of ethics. The applicant’s bundle was made up of a transcript of an extract of the recording of the disciplinary hearing which was agreed.
Employer’s Evidence
The respondent called one witness, Mr Derrick Allen Moore the Principal of the school at the time of the incident who gave evidence under oath. Neither learner 1, 2 or 3 who the respondent intended to call testified at the arbitration. The following is a summary of Mr Moore’s testimony:
Derrick Alan Moore
12. The witness was Principal of the school from 1 January 2013 to 31 December 2015 when he retired. Late in 2015 an Educator by the name of Ms Heradien informed the witness that there were rumours alleging that ‘there was something between the applicant and learner A’. Learners had complained to that educator, that the applicant and learner A were always together and that she was favouring him and the implication was that they had a ‘close relationship’. Ms Heradien was not prepared to testify at the disciplinary hearing or at the arbitration hearing.
13. Shortly after Ms Heradien’s allegations the witness went to see the applicant and informed her of the rumours. The applicant’s response was that the rumours were ‘a lot of nonsense’. The witness warned the applicant about the fact that whenever a male teacher is alone with a female leaner and visa versa it will always lead to rumours and he advised her to desist from being seen alone with learner A. He told her that she had a good reputation at the school and he could see that she took pride in her work and that she was one of the best educators at the school.
14. He became aware of the incident in question sometime in November 2015 when learners 1 and 2 and their respective mothers came to see him with regard to an issue they had with the applicant. The main issue they came to see the witness was an incident in terms of which they alleged that the applicant had treated learners 1 and 2 unfairly, he could not recall the details thereof. Whilst there, the mother of learner 1 said that learner 1 and 2 saw the applicant and leaner A kissing in her classroom. The witness’s understanding was that it was a romantic / sexual kiss. Thereafter he heard there was a confrontation between learners 1 and 2 and learners who supported the applicant. The witness was not aware of a third learner who allegedly witnessed the incident or a similar incident between leaner A and the applicant.
15. Thereafter he informed the applicant of the allegations against her and told her that he had to refer the matter to the respondent. The applicant told him that learner A was upset and that she was comforting him. The applicant did not dispute being alone with learner A, however she disputed any improper conduct.
16. It was put to the witness that at applicant’s disciplinary hearing, three learners said they peeped through the brown paper and allegedly saw the incident. The witness could not recall a third learner.
Employer’s Evidence
The applicant Ni-Shaatah Larney gave evidence and called one witness, both gave evidence under oath. The following is a summary of their testimonies:
Ni-Shaatah Larney
17. The applicant was 27 years old at the time of the alleged incident and this was her first teaching post, learner A and the other learners were 15 years old at the time of the incident. The applicant taught science and technology to grade 8 and 9 learners and was in charge of organising extra mural soccer for the juniors and seniors, this involved organising their coaching sessions, matches and attending the same, learner A was part of the group who played soccer. She said that many of the classroom windows were covered with brown paper; this was to prevent learners from looking out of the window and becoming distracted.
18. As a result of the applicant organising soccer, learner A and other boys would spend a lot time in her classroom. After a match they would discuss the match and would chat generally. The applicant would sometimes assist them with their work and sometimes the learners would speak to her about their personal situations.
19. Learner A spent more time with her than the others, he was the eldest child in his family and there were always issues between his mother and him with regards to his younger brother and he used to share his problems with the applicant, she would try to advise and assist him. She referred him to Ms Oliver who handles children with social problems at the school and if she considers the problem to be serious she refers the learner to the department’s psychologist and / or social worker.
20. The applicant admitted that that the principal spoke to her about sending too much time with male learners and especially learner A and to refrain from doing so and in retrospect she should have heeded his advice.
21. In November 2015 around the time learner 1 and 2 and their mothers reported the incident to the principal. Learners 1 and 2 approached the applicant together with about three other female learners whilst the applicant was marking scripts. The three learners asked learners 1 and 2 why they were spreading rumours about the applicant. The applicant told learner 1 and 2 that she heard they were spreading rumours about her and asked them to please refrain from doing so. The three girls said that learners 1 and 2 were spreading rumours about her pregnancy and were claiming that she and learner A were having a relationship, the implication being that the baby she was carrying at the time was learner A’s baby. The applicant denied having a relationship and told them that the baby she was carrying was not that of learner A.
22. On the day in question learner A came to see her after school about a personal problem, he told her about an argument he and his mother had and was very upset. He became emotional and so the applicant hugged him around the shoulders and he then put his arms around her waist and as the applicant was about to move away he kissed her on the lips. This took the applicant by surprise, she did not know what to do, should she kiss him back or move away, she moved away. He appeared confused and apologised and left.
23. For a split second she thought of kissing him but did not, when asked why she thought of kissing him back she said that she is human and it was an emotional situation and that she is guilty of hugging him but not kissing him. She did not have a sexual relationship with him he kissed her and she had a momentary thought of kissing him back but did not. It was a closed mouth kiss. The witness said that she is guilty of hugging learner A not kissing him or having a romantic or sexual relationship with him.
Kevin Edmund Voges
24. The witness has been Principal at the school since January 2016 and has worked with the applicant from the time he was appointed until the appeal hearing confirmed her dismissal on 24 February 2017.
25. He found the applicant to be an extremely hardworking and conscientious educator who always went the extra mile for her learners with whom she had a good rapport and over who she was able to effectively enforce discipline. He confirmed that since he has been at the school all classrooms facing a certain way including that of the applicant are covered with brown paper from waist to shoulder height.
26. There is not much sport offered at the school, however the applicant organised soccer at the school and always encouraged the soccer teams and ensured that they had the appropriate gear. Many learners come from impoverished homes with socio economic problems and it is not uncommon for them to form a close bond with an educator who they trust. He said that the applicant’s version of what took place on the day in question is probable given the social context in which the learners come from and he would trust her should he be reinstated.
27. The evidence of the witness with regard to attempts to get learners 1, 2 and 3 to testify at the arbitration hearing was:
28. Learner 1, she is no longer at the school but he managed to call her, she gave him her mother’s phone number and told him to phone her mother which he did. Her mother did not answer the phone, he sent her mother a Whatsapp message which was read but not answered.
29. Learner 2, he phoned her mother who said that she wants nothing to do with the case and does not want her daughter involved with the case and would not give permission for her daughter to testify.
30. Leaner 3, her father initially gave permission for her to testify, she was supposed to testify on a day and time that she was supposed to write an exam. When informed that she would have to testify she was in tears. Permission was granted for her to write her exam early on the day in question and then come to the office of the witness so that she could be taken to where the arbitration was held. She did write the exam early however she went home after her exam instead of coming to the office of the witness as arranged. Thereafter the father of learner 3 said he would bring her to the arbitration hearing as long as he was paid for the time he would have to take off work, he was asked for a quote and never responded.
ANALYSIS OF THE EVIDENCE AND ARGUMENT
31. In a case where unfair dismissal is alleged it is for the employer to prove on a balance of probabilities that the dismissal was fair.
32. If an employee is dismissed for misconduct, Schedule 8 of the LRA requires the dismissal to be substantively and procedurally fair. In this case there was no challenge to procedural fairness only to substantive fairness in that the applicant claimed that she was not guilty in terms of charge 1 which in terms of the Act carries a statutory mandatory sanction of dismissal.
33. In order for the dismissal to be substantively fair the employer must prove that:
• There was a rule
• The rule was reasonable.
• The rule was known to the employee or should have been known.
• The rule was broken by the employee.
• Dismissal was the appropriate sanction for the breach of the rule,
34. The applicant was charged with two acts of misconduct and was found guilty in terms of both.
Charge 1
It is alleged that you are guilty of misconduct in terms of Section 17(1) (c) of the Employment of Educators 76 of Act of 1976 (The Act) in that around September 2015 you had a sexual relationship with a learner of A Z Berman High School and was see kissing him in front of your class.
Charge 2
It is alleged that you are guilty of misconduct in terms of Section 18(1) (q) of the Act in that while on duty you conducted yourself in an improper, disgraceful or unacceptable manner in that you were seen kissing learner A in your class after school and / or you are always in the class with Learner A after school behind closed doors and covered windows.
35. The applicant pleaded not guilty in terms of both charges at her disciplinary hearing but at the arbitration hearing pleaded guilty to charge 1 stating that she did hug learner A in order to comfort him and was at the time and at other times alone in the class with learner A after school behind closed doors which could be regarded as improper. However she denied kissing learner A, she stated that he kissed her. It was not disputed that many classrooms were covered in brown paper, although that was not the case at the applicant’s disciplinary hearing.
36. As per charge 1, I must determine in terms of the evidence before me whether the respondent has proved on a balance of probabilities that the applicant had a sexual relationship with learner A around September 2015.
37. In this case the respondent did not call any witnesses who could testify as to the incident, the only witness who the respondent called was Mr Moore, the Principal at the time of the incident who testified as to what he was told by the applicant and Learner 1’s mother and who was unclear as to what he was told and who could only recall there being two leaners and not three leaners who allegedly witnessed an incident.
38. The applicant conceded that Learner A used to confide in her as to his personal problems and that she advised him as best she could and that on the day in question he was particularly upset and she hugged him so as to comfort him and that he then kissed her. She testified that this took her by surprise and for a moment she did not know what to do, whether to kiss him back or pull away, but she did not kiss him back but pulled away. She said that the feeling to kiss him back was prompted by a thought and she did not act on that though and that she cannot be found guilty on a thought which I agree with.
39. It is perhaps not the best idea for a female educator to hug a male learner of that age when they are alone together and visa versa for obvious reasons. However a hug to comfort a distressed leaner cannot be evidence of a sexual relationship. This is a de novo hearing and I have no evidence before me to dispute the applicant’s testimony that she was kissed by the learner A and that she did not kiss him and her version of the details of the applicant’s and learner A’s relationship.
40. In short I have no evidence before me to conclude that on a balance of probabilities the applicant had a sexual relationship with Learner A. None of the role players testified before me, that is, learner A and learners 1, 2 and 3. Mr Moore said that the rumours were reported to him by Ms Heradien but she also did not testify. As stated the only evidence I had before me was that of the applicant.
41. I am mindful of the fact that I can take into account hearsay evidence in some circumstances, however in this case there was none before me to consider, the recollection of Mr Moore was very poor on his own admission and I only had a very short summary of the findings and sanction emanating from the disciplinary hearing.
42. The applicant did not deny that she was informed by the principal of rumours that were circulating of a relationship between herself and the applicant and yet she continued seeing Leaner A on his own which she conceded may not have been wise but I cannot use these facts to come to the conclusion that she was having a sexual relationship with learner A.
43. I have taken note that Learner A’s mother only reported the incident some two months after the incident when her daughter and learner 2 had had some sort of altercation with the applicant, the nature of which Mr Moore could not recall.
44. For the reasons stated above I find the applicant not guilty in terms of charge 1. The applicant on her own version is guilty in terms of charge 2. As per the terms of the disciplinary hearing the sanction of dismissal was applied in respect of charges 1 and 2 on the basis that the chairperson came to the conclusion that the applicant had kissed learner A as per a ‘French kiss’ which is regarded as a sexual kiss.
45. I have not on the evidence before me found that to be the case, what I do however find is that the applicant acted in an improper manner by continuing to see learner A alone behind closed doors after having been warned of rumours that were circulating to the detriment of herself and learner A.
46. A finding of guilt in terms of section 18 (1) (q) of the Act does not carry a mandatory statutory sanction of dismissal and I find that for the reasons stated the sanction of dismissal was too harsh and that therefore the applicant’s dismissal was substantively unfair.
47. I find that it would be fair and equitable that the applicant be reinstated with full back pay with the sanction of a final written warning valid for twelve months from the date of reinstatement.
AWARD
48. I find that the applicant’s dismissal was substantively unfair.
49. The applicant is to be re-instated on the same terms and conditions as she was employed in terms of prior to when the appeal hearing confirmed her dismissal on the 24 February 2017 with no loss of benefits including leave, medical aid, pension and progression benefits.
50. The applicant is reinstated with a final written warning valid for twelve months as from 1 September 2017. The final written warning should not refer to the applicant kissing a learner as I have found her not guilty of kissing learner A. It should refer to improper conduct relating to her being alone with a high school learner behind closed doors which could lead to allegations of sexual misconduct.
51. The applicant is to report for duty at the workplace at 7h30 on Friday 1 September 2017. The applicant provided me with a salary slip on which I have calculated her back pay from 24 February 2017 until 1 September 2017. Should there be a dispute regarding the quantum it can be referred back for arbitration. I have worked on the assumption that given that educators are paid before the 24th of each month the applicant has been paid for the month of February 2017. If my assumption is incorrect the applicant is owed another four days of remuneration.
52. The respondent, Department of Education, Western Cape is ordered to pay the applicant Ni-Shaatah Larney the sum of R122, 832.00 (R20, 472.00 x 6 months) which is the remuneration she would have earned from 1 March 2017 to 31 August 2017. This sum must be paid by no later than 15 September 2017 after which interest will run at the prescribed rate.
ELRC Panellist: Bella Goldman