ELRC644-20/21 EC
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ELRC 549-20/21 GP
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Award Date:
15 September 2021
Case Number: ELRC 549-20/21 GP
Commissioner: M.A. HAWYES
Date of Award: 15th September 2021
In the ARBITRATION between
Gauteng Department of Education
(Union/Applicant)
And
Mr. Freddy Masondo
(First Respondent)
Union/Applicant’s representative: Mr. E. Machete-SADTU Union representative
Union/Applicant’s address:
Telephone: 072 387 8559
Telefax:
E-mail:
Respondent’s representative: Mr. G. Mogashane
Respondent’s address:
Telephone: 072 454 4234
Telefax:
E-mail:
DETAILS OF HEARING AND REPRESENTATION
1. The case was scheduled for arbitration and effectively sat on the 12th August 2021 and the 10th September 2021
2. Mr. G. Mogashane, a labour relations official, represented the employer.
3. Mr. E. Machete, a union official from the South African Democratic Teachers Union (SADTU) represented the employee.
4. The proceedings were digitally recorded and long hand notes were also kept.
5. The employer made use of a small bundle marked Bundle ‘A’.
ISSUE IN DISPUTE
6. The employer leveled one charge of alleged sexual misconduct against the employee. The charge involved SS, a learner at the Matsepe Secondary School.
7. The employee pleaded not guilty to the charge.
BACKGROUND TO THE ISSUE IN DISPUTE
8. The Respondent employed the employee as a PL2 educator at the Matsepe Secondary School.
SURVEY OF THE EMPLOYER’S EVIDENCE AND ARGUMENT
9. The Respondent led the evidence of the principal at Matsepe Primary School namely Ms. E. Masemola on the 12th August 2021.
10. Masemola testified that the aunt and guardian of SS arrived at the school on a day and insisted to see the employee that wants to have a relationship with her child. The employee was not at school on that particular day.
11. The following day when the employee was at school, she met with him, the aunt of SS and other siblings.
12. The employee explained that he called SS to his office. She had a friend with her. He explained that he helped SS, as he does with all needy families, with money to buy bread at home.
13. SS had written a letter which she brought to the office. The contents of the letter were not introduced into evidence.
14. Masemola was shocked by the insinuations since the employee was a good educator and she knew him to be generous with the children because he understood their circumstances.
15. The employee was a PL 2 educator (Head of Department) in good standing.
16. She experienced him as being humble, respectful, hardworking and a dedicated educator who for the most part had a 100% record of examination results with his grade 12 learners.
17. Masemola testified further that she suspected that SS’s guardian had a false motive to implicate the employee. In her experience certain families in dire need accepted help from educators such as the supply of groceries and when the educator indicated that they could no longer help them, the family members would sometimes encourage a child to fabricate evidence against the educator to extort money from him.
18. Masemola testified that she found it strange that SS’s aunt seemed more interested in meeting with the educator than with her. She had also noticed an exchange of telephone numbers between the aunt and the employee which seemed unusual and she speculated that this could be the way that the aunt would extract money from the employee.
19. Masemola testified that she suspected that there was no untoward relationship between the educator and SS. However, she was compelled to report matters of this nature to the district office which she subsequently did.
20. The matter was postponed to the 10th September 2021 to secure the attendance of SS and other witnesses. The employer representative, at this stage advised me, that he had had difficulties in securing the attendance of his witnesses at the hearing and would be resorting to the issue of subpoenas to secure their presence at the next sitting.
21. On the 10th September 2021, Mogashane advised me that he had issued subpoenas for SS and one other witness, which subpoenas were signed by the ELRC and served on the witnesses on the 28th August 2021.
22. Mogashane advised that the witnesses had not contacted him after the issue of the subpoenas and he had received information that SS had gone into hiding somewhere in Tembisa.
23. Mogashane explained further that he had no intention of requesting a fresh set of subpoenas to be issued and he summarily closed his case.
SURVEY OF THE EMPLOYEE’S EVIDENCE AND ARGUMENT
24. The employee led no evidence and also closed his case.
ANALYSIS OF EVIDENCE AND ARGUMENT
25. The onus rests on the employer to prove the allegations against the employee on a balance of probabilities.
26. The evidence of Masemola raised the possibility of the employee being subjected to undue pressure by SS’s aunt, by the raising of false claims to extort money and other benefits from him. I find that the fact that the witnesses ignored subpoenas and that SS had apparently gone into hiding (probably instigated by her aunt) lent credence to Masemola’s concerns.
27. The employer has failed to discharge the onus of proving sexual misconduct, of any shape and form, against the employee.
AWARD
28. The employee is found not guilty.
MARK HAWYES
ARBITRATOR
Commissioner: M.A. HAWYES
Date of Award: 15th September 2021
In the ARBITRATION between
Gauteng Department of Education
(Union/Applicant)
And
Mr. Freddy Masondo
(First Respondent)
Union/Applicant’s representative: Mr. E. Machete-SADTU Union representative
Union/Applicant’s address:
Telephone: 072 387 8559
Telefax:
E-mail:
Respondent’s representative: Mr. G. Mogashane
Respondent’s address:
Telephone: 072 454 4234
Telefax:
E-mail:
DETAILS OF HEARING AND REPRESENTATION
1. The case was scheduled for arbitration and effectively sat on the 12th August 2021 and the 10th September 2021
2. Mr. G. Mogashane, a labour relations official, represented the employer.
3. Mr. E. Machete, a union official from the South African Democratic Teachers Union (SADTU) represented the employee.
4. The proceedings were digitally recorded and long hand notes were also kept.
5. The employer made use of a small bundle marked Bundle ‘A’.
ISSUE IN DISPUTE
6. The employer leveled one charge of alleged sexual misconduct against the employee. The charge involved SS, a learner at the Matsepe Secondary School.
7. The employee pleaded not guilty to the charge.
BACKGROUND TO THE ISSUE IN DISPUTE
8. The Respondent employed the employee as a PL2 educator at the Matsepe Secondary School.
SURVEY OF THE EMPLOYER’S EVIDENCE AND ARGUMENT
9. The Respondent led the evidence of the principal at Matsepe Primary School namely Ms. E. Masemola on the 12th August 2021.
10. Masemola testified that the aunt and guardian of SS arrived at the school on a day and insisted to see the employee that wants to have a relationship with her child. The employee was not at school on that particular day.
11. The following day when the employee was at school, she met with him, the aunt of SS and other siblings.
12. The employee explained that he called SS to his office. She had a friend with her. He explained that he helped SS, as he does with all needy families, with money to buy bread at home.
13. SS had written a letter which she brought to the office. The contents of the letter were not introduced into evidence.
14. Masemola was shocked by the insinuations since the employee was a good educator and she knew him to be generous with the children because he understood their circumstances.
15. The employee was a PL 2 educator (Head of Department) in good standing.
16. She experienced him as being humble, respectful, hardworking and a dedicated educator who for the most part had a 100% record of examination results with his grade 12 learners.
17. Masemola testified further that she suspected that SS’s guardian had a false motive to implicate the employee. In her experience certain families in dire need accepted help from educators such as the supply of groceries and when the educator indicated that they could no longer help them, the family members would sometimes encourage a child to fabricate evidence against the educator to extort money from him.
18. Masemola testified that she found it strange that SS’s aunt seemed more interested in meeting with the educator than with her. She had also noticed an exchange of telephone numbers between the aunt and the employee which seemed unusual and she speculated that this could be the way that the aunt would extract money from the employee.
19. Masemola testified that she suspected that there was no untoward relationship between the educator and SS. However, she was compelled to report matters of this nature to the district office which she subsequently did.
20. The matter was postponed to the 10th September 2021 to secure the attendance of SS and other witnesses. The employer representative, at this stage advised me, that he had had difficulties in securing the attendance of his witnesses at the hearing and would be resorting to the issue of subpoenas to secure their presence at the next sitting.
21. On the 10th September 2021, Mogashane advised me that he had issued subpoenas for SS and one other witness, which subpoenas were signed by the ELRC and served on the witnesses on the 28th August 2021.
22. Mogashane advised that the witnesses had not contacted him after the issue of the subpoenas and he had received information that SS had gone into hiding somewhere in Tembisa.
23. Mogashane explained further that he had no intention of requesting a fresh set of subpoenas to be issued and he summarily closed his case.
SURVEY OF THE EMPLOYEE’S EVIDENCE AND ARGUMENT
24. The employee led no evidence and also closed his case.
ANALYSIS OF EVIDENCE AND ARGUMENT
25. The onus rests on the employer to prove the allegations against the employee on a balance of probabilities.
26. The evidence of Masemola raised the possibility of the employee being subjected to undue pressure by SS’s aunt, by the raising of false claims to extort money and other benefits from him. I find that the fact that the witnesses ignored subpoenas and that SS had apparently gone into hiding (probably instigated by her aunt) lent credence to Masemola’s concerns.
27. The employer has failed to discharge the onus of proving sexual misconduct, of any shape and form, against the employee.
AWARD
28. The employee is found not guilty.
MARK HAWYES
ARBITRATOR