ELRC1019-19/20NW
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Award Date:
15 August 2021
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Panellist: Themba Manganyi
Case No.: ELRC1019-19/20NW
Dates of Hearing: 10 December 2020 & 16 July 2021
Date of Arguments: 23 July 2021
Date of Award: 15 August 2021
In the Inquiry by Arbitrator Hearing between
NORTH WEST DEPARTMENT OF EDUCATION EMPLOYER
and
SADTU OBO P.D. MOTADINYANE EMPLOYEE
Employer’s representative: Mr Andile Stengana
E-Mail Address:
Employee’s representative: Mr Joseph Senne
E-Mail Address:
Details of hearing and representation
1. This is an arbitration award emanating from section 188A of the Labour Relations Act 66 of 1995 *”the LRA”), as amended, process. The matter was heard on 10 December 2020 and on 17 July 2021 at Bojanala District Office in Rustenburg. The proceedings were held under the auspices of the Education Labour Relations Council (“the Council”).
2. Mr Andile Stengana (“Stengana”), the ER Officer, represented the Employer, the North West Department of Education. Mr Joseph Senne (“Senne”), a SADTU Official, represented the Employee, Mr Phillimon D. Motadinyane (“Motadinyane”). Messrs S.M. Mohaule-Mboweni and Busi Seoketsa, the Intermediary and the Interpreter respectively, assisted in these proceedings.
3. Parties were allowed to call witnesses and to cross-examine witnesses and they requested to submit their closing arguments in writing on or before 23 July 2021. I have duly received same. The proceedings were digitally recorded and the recording thereof was retained by the Council.
Issue/s to be decided
4. I am enjoined in these proceedings to determine whether Motadinyane misconducted himself or not as alleged. The allegation that was preferred against him was couched as follows:
• Charge 1 – On 20 April 2019 you wrongfully and unlawfully sexually assaulted / harassed MM (Learner) by inappropriately touching her buttocks and private parts at your office at the school.
Preliminary issue/s
5. The charge sheet was amended by agreement between the parties to state the date of the alleged incident as 21 February 2019.
Survey of evidence and arguments
The Employer’s case
Three witnesses testified in support of the Employer’s case and they all testified under oath. In summary, their evidence was as follows:
6. Mr Ophilia Thabo (“Thabo”) testified that on 21 February 2019 two learners came to her office and one of the learners, MM was crying. She stated that she stood up to comfort MM and asked her why she was crying. MM told her that she did not want to go to the athletics with the Principal (“Motadinyane”). However, MM did not tell her why was she afraid to go with Motadinyane. After the learners had left, her colleague called Motadinyane and told her about the incident and Motadinyane said he would come back to school to sort it out. She stated that Motadinyane informed her the following day that the matter was sorted.
7. Under cross-examination, she stated that she met MM around 12h00. She stated that when less than five learners have to participate in sporting activities, they will be given money for lunch box.
8. Mr Joseph Mojalefa (“Mojalefa”) testified that she was MM’s grandfather and that on 21 February 2019 Motadinyane came to his house around 18h00. He stated that Motadinyane told him and his wife that he (Motadinyane) heard that there was a complaint at the school that he has touched MM and he apologized. He submitted that a criminal case was opened against Motadinyane. However, he did not know about the progress of the case.
9. Under cross-examination, he stated that MM had told him that Motadinyane touched her on the buttocks and he also inserted his hands in her breast. He disputed that the R100, 00 that Motadinyane gave her was for the athletics and further said that MM was not the only learner that was participating. He could not comment when it was put to him that MM was the only learner who was participating from the school.
10. MM testified though the assistance of an Intermediary and she stated that on 21 February 2019 an Educator named Nakedi came to call her from her class telling her that Motadinyane wanted her in his office. When she got to the office, Motadinyane told her to close the door. After she closed the door, Motadinyane stood up and came to where she was standing. Motadinyane stood close to her and said she should kiss him. Motadinyane told her not to be afraid and he tried to kiss her on her mouth. She bowed her head and he ended up kissing her on her forehead. She stated that she told Motadinyane that she had to go back to class for her Mathematics test. She stated that after she left the office, she went to Thabo, but she did not tell Thabo the reason for her crying. She averred that on the first occasion (20 February 2019) Motadinyane called her to his office. He closed the door and stood very close to her. Motadinyane told her to leave when there was another learner who was knocking at the door. She told her desk mate what had happened in Motadinyane’s office. At that time, Motadinyane was holding her and he tried to put his hand under her skirt, but she pushed his hand and he ended up touching her buttocks.
11. Under cross examination, she confirmed that Motadinyane called her twice in his office. She stated that Motadinyane came close to her after he told her to close the door. She stated that Motadinyane gave her the money in her hand whilst he was still seated on the other side of the table. She said Motadinyane told her that the money was for her lunch box and that he would give her more money. She confirmed that Motadinyane tried to kiss her on her mouth, but she bowed her head and he kissed her on her forehead. She further confirmed that Motadinyane tried to put his hand under her skirt and to hold her breasts, but someone knocked at the door. Then, he quickly went to his desk. It was put to her that it was not true that Motadinyane held her or kissed her. She was adamant that he did.
The Employee’s case
12. Motadinyane testified that his relationship with his staff members is harmonious and that he has an educator – learner relationship that is fine. He stated that on 20 February 2019 Mr Selebogo (another educator) called MM to inform her that she was selected to participate in athletics in Rustenburg. Selebogo gave MM an indemnity form and told her that she should hand the form back to him (Motadinyane) the following day. He stated that the following day he went to collect the indemnity form from MM’s class, but she did not have it with her. Shortly after he got to his office, MM came to his office with the indemnity form. He testified that he spoke to MM about the transport arrangements for the following day and he gave her R100, 00 for catering for the event. He stated that when he went to inform other educators that MM would not be at school the following day, he passed MM in Thabo’s office. He disputed that he kissed MM. He averred that he went to MM’s home to deliver the athletics participation card. He denied that he had apologized to MM’s grandparents. He stated that he spoke to the grandmother about the transport arrangements and he also told the grandmother about the allegation that he heard from his colleagues that he had allegedly touched MM inappropriately.
13. Under cross-examination, he confirmed that the catering money was supposed to be authorized by the School Governing Body (“SGB”). He stated that he called the SGB chairperson and the chairperson told him to complete the claim form for things that needed to be paid including MM’s catering money and bring it with the cheque book to her. He gave MM the money that was readily available at the school as he did not know that he would see MM again. He confirmed that he received a call from Ms Matlakane who told her that she was in Thabo’s office with MM and that MM was crying because she was afraid to go with him to the athletics. He stated that the reason that he went to MM’s house was to deliver the participation card. He disputed that MM’s grandfather said anything when he spoke to MM’s grandmother. He confirmed that he saw MM in Thabo’s office immediately after MM had left his office.
Analysis of evidence and argument
14. This is an award in terms of section 138(7) of the LRA. Therefore, it was not my intention to rehearse all the submissions that were made during these proceedings as they are a matter of record. Only the salient points were reiterated. However, it should not be construed that I did not consider all the submissions as they have been considered including the closing arguments.
15. It is trite that an unchallenged version would be considered to be a true version unless if the credibility and the demeanor of the witness/es is doubtful. Thabo’s evidence that MM went to her office on 21 February 2021 immediately after she (MM) left Motadinyane’s office was not in dispute. Thabo’s version that MM was crying was corroborated by Motadinyane himself when he testified that he was informed by Matlakane that MM was crying. MM confirmed that she did not disclose to Thabo the reason for her crying. MM only told Thabo that she did not want to go with Motadinyane to the athletics. It would not be illogical to conclude that there was something that unsettled MM around Motadinyane for her to travel with him. Motadinyane did not dispute that he had told Matlakane that he would sort out whatever MM was crying about when he came back to school. In my view, Motadinyane knew the reason why MM was crying and did not want to go with him to the athletics. Hence, he promised Matlakane that he would sort it out.
16. It is common cause that Motadinyane visited MM’s house on 21 February 2021. According to Motadinyane, he went there to deliver MM’s participating card. Motadinyane did not challenge Mojalefa’s version that he apologized for allegedly touching MM inappropriately. Motadinyane also did not challenge Mojalefa’s version that he spoke him (Mojalefa). I must pause here and explain that I advised Motadinyane that he had to put his version through his representative to the Employer’s witnesses if he did not agree with the witnesses’ versions. Nonetheless, he did not heed my advice. Therefore, the only inference that I can arrive at is that Motadinyane did not have a version to put to the witnesses. All that he did during his evidence in chief was to cook up some convenient version that was not even corroborated by any other witness. His version was a bare denial of the sequence of events. I therefore find his version rather convenient and improbable under the circumstances.
17. I am mindful of the fact that there were defects in MM’s testimony in respect of the chronological sequence of events. However, I was impressed with her consistency as a witness. MM led her evidence in chief on the first day of the arbitration (10 December 2020), but she could not conclude due to technological glitches. On the second day of the arbitration (16 July 2021), she reiterated what she said on the first day and during the cross examination, she maintained her version. Considering that the alleged incident occurred in February 2019 and on two occasions when MM testified, she maintained her version, I can only conclude that her version is more probable. Consequently, I find Motadinyane guilty of the charge that was levelled against him. Thus, his conduct was in contravention of section 17(1)(b) of the Employment of Educators Act no 76 of 1998.
18. Where an educator is guilty of misconduct in terms of section 17 of the Act, the sanction of dismissal is mandatory. The arbitrator has no discretion to impose any other sanction, irrespective of mitigating circumstances. Educators are entrusted with the care of children and adolescents. Therefore, they must act with the utmost good faith in their conduct towards learners as society must be able to trust educators unconditionally with children. If educators breach this trust, dismissal is generally the most appropriate sanction.
Award
19. Mr Phillimon D. Motadinyane is GUILTY of contravening the prescripts of section 17 of the Educators Employment Act 76 of 1998. Therefore, his employment contract with the North West Department of Education is summarily terminated.
20. Mr Phillimon D. Motadinyane is found unsuitable to work with children in terms of section 120(4) of the Children’s Act 38 of 2005.
___________________________
Council Panellist
Themba Manganyi
Case No.: ELRC1019-19/20NW
Dates of Hearing: 10 December 2020 & 16 July 2021
Date of Arguments: 23 July 2021
Date of Award: 15 August 2021
In the Inquiry by Arbitrator Hearing between
NORTH WEST DEPARTMENT OF EDUCATION EMPLOYER
and
SADTU OBO P.D. MOTADINYANE EMPLOYEE
Employer’s representative: Mr Andile Stengana
E-Mail Address:
Employee’s representative: Mr Joseph Senne
E-Mail Address:
Details of hearing and representation
1. This is an arbitration award emanating from section 188A of the Labour Relations Act 66 of 1995 *”the LRA”), as amended, process. The matter was heard on 10 December 2020 and on 17 July 2021 at Bojanala District Office in Rustenburg. The proceedings were held under the auspices of the Education Labour Relations Council (“the Council”).
2. Mr Andile Stengana (“Stengana”), the ER Officer, represented the Employer, the North West Department of Education. Mr Joseph Senne (“Senne”), a SADTU Official, represented the Employee, Mr Phillimon D. Motadinyane (“Motadinyane”). Messrs S.M. Mohaule-Mboweni and Busi Seoketsa, the Intermediary and the Interpreter respectively, assisted in these proceedings.
3. Parties were allowed to call witnesses and to cross-examine witnesses and they requested to submit their closing arguments in writing on or before 23 July 2021. I have duly received same. The proceedings were digitally recorded and the recording thereof was retained by the Council.
Issue/s to be decided
4. I am enjoined in these proceedings to determine whether Motadinyane misconducted himself or not as alleged. The allegation that was preferred against him was couched as follows:
• Charge 1 – On 20 April 2019 you wrongfully and unlawfully sexually assaulted / harassed MM (Learner) by inappropriately touching her buttocks and private parts at your office at the school.
Preliminary issue/s
5. The charge sheet was amended by agreement between the parties to state the date of the alleged incident as 21 February 2019.
Survey of evidence and arguments
The Employer’s case
Three witnesses testified in support of the Employer’s case and they all testified under oath. In summary, their evidence was as follows:
6. Mr Ophilia Thabo (“Thabo”) testified that on 21 February 2019 two learners came to her office and one of the learners, MM was crying. She stated that she stood up to comfort MM and asked her why she was crying. MM told her that she did not want to go to the athletics with the Principal (“Motadinyane”). However, MM did not tell her why was she afraid to go with Motadinyane. After the learners had left, her colleague called Motadinyane and told her about the incident and Motadinyane said he would come back to school to sort it out. She stated that Motadinyane informed her the following day that the matter was sorted.
7. Under cross-examination, she stated that she met MM around 12h00. She stated that when less than five learners have to participate in sporting activities, they will be given money for lunch box.
8. Mr Joseph Mojalefa (“Mojalefa”) testified that she was MM’s grandfather and that on 21 February 2019 Motadinyane came to his house around 18h00. He stated that Motadinyane told him and his wife that he (Motadinyane) heard that there was a complaint at the school that he has touched MM and he apologized. He submitted that a criminal case was opened against Motadinyane. However, he did not know about the progress of the case.
9. Under cross-examination, he stated that MM had told him that Motadinyane touched her on the buttocks and he also inserted his hands in her breast. He disputed that the R100, 00 that Motadinyane gave her was for the athletics and further said that MM was not the only learner that was participating. He could not comment when it was put to him that MM was the only learner who was participating from the school.
10. MM testified though the assistance of an Intermediary and she stated that on 21 February 2019 an Educator named Nakedi came to call her from her class telling her that Motadinyane wanted her in his office. When she got to the office, Motadinyane told her to close the door. After she closed the door, Motadinyane stood up and came to where she was standing. Motadinyane stood close to her and said she should kiss him. Motadinyane told her not to be afraid and he tried to kiss her on her mouth. She bowed her head and he ended up kissing her on her forehead. She stated that she told Motadinyane that she had to go back to class for her Mathematics test. She stated that after she left the office, she went to Thabo, but she did not tell Thabo the reason for her crying. She averred that on the first occasion (20 February 2019) Motadinyane called her to his office. He closed the door and stood very close to her. Motadinyane told her to leave when there was another learner who was knocking at the door. She told her desk mate what had happened in Motadinyane’s office. At that time, Motadinyane was holding her and he tried to put his hand under her skirt, but she pushed his hand and he ended up touching her buttocks.
11. Under cross examination, she confirmed that Motadinyane called her twice in his office. She stated that Motadinyane came close to her after he told her to close the door. She stated that Motadinyane gave her the money in her hand whilst he was still seated on the other side of the table. She said Motadinyane told her that the money was for her lunch box and that he would give her more money. She confirmed that Motadinyane tried to kiss her on her mouth, but she bowed her head and he kissed her on her forehead. She further confirmed that Motadinyane tried to put his hand under her skirt and to hold her breasts, but someone knocked at the door. Then, he quickly went to his desk. It was put to her that it was not true that Motadinyane held her or kissed her. She was adamant that he did.
The Employee’s case
12. Motadinyane testified that his relationship with his staff members is harmonious and that he has an educator – learner relationship that is fine. He stated that on 20 February 2019 Mr Selebogo (another educator) called MM to inform her that she was selected to participate in athletics in Rustenburg. Selebogo gave MM an indemnity form and told her that she should hand the form back to him (Motadinyane) the following day. He stated that the following day he went to collect the indemnity form from MM’s class, but she did not have it with her. Shortly after he got to his office, MM came to his office with the indemnity form. He testified that he spoke to MM about the transport arrangements for the following day and he gave her R100, 00 for catering for the event. He stated that when he went to inform other educators that MM would not be at school the following day, he passed MM in Thabo’s office. He disputed that he kissed MM. He averred that he went to MM’s home to deliver the athletics participation card. He denied that he had apologized to MM’s grandparents. He stated that he spoke to the grandmother about the transport arrangements and he also told the grandmother about the allegation that he heard from his colleagues that he had allegedly touched MM inappropriately.
13. Under cross-examination, he confirmed that the catering money was supposed to be authorized by the School Governing Body (“SGB”). He stated that he called the SGB chairperson and the chairperson told him to complete the claim form for things that needed to be paid including MM’s catering money and bring it with the cheque book to her. He gave MM the money that was readily available at the school as he did not know that he would see MM again. He confirmed that he received a call from Ms Matlakane who told her that she was in Thabo’s office with MM and that MM was crying because she was afraid to go with him to the athletics. He stated that the reason that he went to MM’s house was to deliver the participation card. He disputed that MM’s grandfather said anything when he spoke to MM’s grandmother. He confirmed that he saw MM in Thabo’s office immediately after MM had left his office.
Analysis of evidence and argument
14. This is an award in terms of section 138(7) of the LRA. Therefore, it was not my intention to rehearse all the submissions that were made during these proceedings as they are a matter of record. Only the salient points were reiterated. However, it should not be construed that I did not consider all the submissions as they have been considered including the closing arguments.
15. It is trite that an unchallenged version would be considered to be a true version unless if the credibility and the demeanor of the witness/es is doubtful. Thabo’s evidence that MM went to her office on 21 February 2021 immediately after she (MM) left Motadinyane’s office was not in dispute. Thabo’s version that MM was crying was corroborated by Motadinyane himself when he testified that he was informed by Matlakane that MM was crying. MM confirmed that she did not disclose to Thabo the reason for her crying. MM only told Thabo that she did not want to go with Motadinyane to the athletics. It would not be illogical to conclude that there was something that unsettled MM around Motadinyane for her to travel with him. Motadinyane did not dispute that he had told Matlakane that he would sort out whatever MM was crying about when he came back to school. In my view, Motadinyane knew the reason why MM was crying and did not want to go with him to the athletics. Hence, he promised Matlakane that he would sort it out.
16. It is common cause that Motadinyane visited MM’s house on 21 February 2021. According to Motadinyane, he went there to deliver MM’s participating card. Motadinyane did not challenge Mojalefa’s version that he apologized for allegedly touching MM inappropriately. Motadinyane also did not challenge Mojalefa’s version that he spoke him (Mojalefa). I must pause here and explain that I advised Motadinyane that he had to put his version through his representative to the Employer’s witnesses if he did not agree with the witnesses’ versions. Nonetheless, he did not heed my advice. Therefore, the only inference that I can arrive at is that Motadinyane did not have a version to put to the witnesses. All that he did during his evidence in chief was to cook up some convenient version that was not even corroborated by any other witness. His version was a bare denial of the sequence of events. I therefore find his version rather convenient and improbable under the circumstances.
17. I am mindful of the fact that there were defects in MM’s testimony in respect of the chronological sequence of events. However, I was impressed with her consistency as a witness. MM led her evidence in chief on the first day of the arbitration (10 December 2020), but she could not conclude due to technological glitches. On the second day of the arbitration (16 July 2021), she reiterated what she said on the first day and during the cross examination, she maintained her version. Considering that the alleged incident occurred in February 2019 and on two occasions when MM testified, she maintained her version, I can only conclude that her version is more probable. Consequently, I find Motadinyane guilty of the charge that was levelled against him. Thus, his conduct was in contravention of section 17(1)(b) of the Employment of Educators Act no 76 of 1998.
18. Where an educator is guilty of misconduct in terms of section 17 of the Act, the sanction of dismissal is mandatory. The arbitrator has no discretion to impose any other sanction, irrespective of mitigating circumstances. Educators are entrusted with the care of children and adolescents. Therefore, they must act with the utmost good faith in their conduct towards learners as society must be able to trust educators unconditionally with children. If educators breach this trust, dismissal is generally the most appropriate sanction.
Award
19. Mr Phillimon D. Motadinyane is GUILTY of contravening the prescripts of section 17 of the Educators Employment Act 76 of 1998. Therefore, his employment contract with the North West Department of Education is summarily terminated.
20. Mr Phillimon D. Motadinyane is found unsuitable to work with children in terms of section 120(4) of the Children’s Act 38 of 2005.
___________________________
Council Panellist
Themba Manganyi
ELRC 302 -20 /21 NW
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