ELRC644-20/21 EC
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PSES405-19/20LP
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Award Date:
12 October 2021
Commissioner: N.B Mookamedi
Case No.: PSES405-19/20LP
Date of Award: 12 October 2021
In the ARBITRATION between:
S’busiso Nkululeko Sithole
(Union / Applicant)
DEPARTMENT OF EDUCATION LIMPOPO
(Respondent)
DETAILS OF THE HEARING AND REPRESENTATION.
[1] This is an Arbitration Award in the arbitration hearing between Mr S’busiso Nkululeko (the Applicant) and the Department of Education, Limpopo Provincial Administration, (the Respondent). The arbitration hearing took place on 25 February 2020 and was finalised on 16 September 2021. The Applicant attended the arbitration hearing and was represented by Mr Matsobane Philemon Thamaga, a Regional Treasurer from the South African Teachers Union (SADTU Western Region, Limpopo Province). The Respondent also attended the hearing and was represented by Mr Nkumeleni Eric Nyathela, a Deputy Director responsible for grievances and disputes resolution. Ms Eona Shibisi provided the services of an Intermediary during the testimonies of the Respondent’s witnesses who are learners in this matter.
[2] Prior to the commencement of the arbitration hearing, the Applicant submitted a single bundle of document as evidence and same was accepted as such and marked as “Bundle A”. The Applicant’s bundle of document ranged from Page 1 until Page 35. The Respondent also submitted a single bundle of document as evidence and same was accepted as such and marked as “Bundle B”. The Respondent’s bundle of document ranged from Page 1 until Page 58.
[3] Mr Chesane William Matshoge, a Regional Secretary from SADTU’s Western Region appeared as an Observer. The arbitration hearing was therefore decided by means of documentary as well as by means of oral evidence. At the conclusion of the arbitration hearing, both parties submitted their oral closing arguments in support of their respective cases. I have accordingly considered both parties’ oral closing arguments which are more relevant to the current dispute in rendering this Arbitration Award.
NATURE OF THE DISPUTE.
[4] The dispute concerns an alleged unfair dismissal in terms of sections 17 (1) (c) and 18 (1) (a) of the Employment of Educators Act 76 of 1998. The dispute concern the Applicant’s commission of two acts of sexual related misconduct against six of the Respondent’s learners during the 2017 and 2018 academic year. As an Arbitrator, I have an ethical duty not to provide the name(s) of the learner(s) who is / are the victim(s) of such alleged misconduct.
[5] As a consequence of the legal obligation entrusted upon me in dealing with the evidence of the learner(s) involved in the current arbitration hearing, the identity of the learner(s) shall be referred to as Learner A, B, C D, and so on. The Applicant vehemently denied the commission of the two alleged acts of misconduct preferred against him, hence the determination of the dispute through an arbitration hearing.
COMMON CAUSE ISSUES.
[6] The Applicant was employed by the Respondent as an Educator at Mabogopedi Secondary School since 4 September 2017. The Applicant was dismissed on 8 August 2091. The dismissal was preceded by the conclusion of a formal disciplinary hearing. Procedural fairness is not being placed in dispute in this matter. The Applicant only challenge the substantive fairness of his dismissal. At the time of his dismissal, the Applicant was earning a gross amount of R19,800-00 (Nineteen Thousand Eight Hundred Rand) per month as a salary.
ISSUE TO BE DECIDED.
[7] I am required to decide whether or not the Respondent effected the Applicant’s dismissal in a manner which is considered to be substantively fair. Should I find that the Respondent effected the Applicant’s dismissal in a manner which is considered to be substantively unfair, I shall determine an appropriate relief.
SURVEY OF EVIDENCE AND ARGUMENTS.
THE RESPONDENT’S CASE.
The Respondent’s first witness, Mr Paul Mafereka Molapisi testified under oath as follows:
[8] He is employed by the First Respondent as a Circuit Manager. He manages the Respondent’s Thabazimbi Circuit. The Applicant who is the subject matter of the current arbitration hearing is best known to him. The Applicant was dismissed after he was found to have committed the two acts of misconduct as recorded under Paragraph 5 of the current Arbitration Award. The Applicant’s misconduct was brought to his personal attention by the Respondent’s then Acting Principal Educator, Mr Bonny Mmusi. Mr Mmusi informed him about such misconduct by means of a cellular phone call and requested his urgent intervention.
[9] Once the misconduct was brought to his personal attention, he convened a meeting of the Respondent’s School Based Support Team. One certain Ms Maesela, presided over the meeting of the School Based Support Team. The meeting was also extended to the Applicant as well as four of the Respondent’s learners who alleged that the Applicant had sexual relationship with them. During the course of the meeting, he asked learner A as to the nature of the relationship she had with the Applicant. Learner A told her that the Applicant once had sexual intercourse with her at his residential place at Thabazimbi. Learner B also told him that the Applicant once made love proposal to her and she rejected the Applicant’s love proposal.
[10] Upon realising the seriousness of the misconduct and its negative impact on the rights of the learners, he elevated the matter to the Respondent’s Human Resources Management (Thabazimbi Circuit. He spoke to one certain Mr Mathebula at Thabazimbi Circuit. The latter party advised him to elevate the matter to the Respondent’s District Director’s Office so as to enable the said Office to institute a formal investigation into the matter. The Respondent’s Labour Relations Officer, one certain Mr David Seleka initiated a formal investigation into the matter. Six of the Respondent’s learners were orally interviewed by Mr Seleka and so was the Applicant. All the six learners as well as the Applicant submitted their written statements in respond to the investigation process. He referred to the copies of the learners written statements as well as that of the Applicant on Page 51 until Page 58 of “Bundle B”.
Cross Examination.
[11] He testified that the request for him to intervene into the Applicant’s alleged sexual related misconduct was communicated to him by means of a cellular phone call. Furthermore, that the Applicant got implicated into the commission of the misconduct during a formal investigation process. He admitted that his evidence amounts to hearsay.
Ms A, the Respondent’s second witness, testified under oath as follows:
[12] She is a learner at Mabogopedi Secondary School. She know the Applicant who is a litigant of the current dispute. During the 2018 academic year, one of her learner friend, Learner B once told her that the two of them (meaning the Applicant and Learner B) had a sexual relationship to each other. At some point, she used to be a messenger between the Applicant and Learner B in relation to their sexual relationship to each other. Learner B even went to an extent of telling her that she was impregnated by the Applicant. She eventually conveyed such alleged pregnancy on the part of Learner B to the Applicant.
[13] Upon having conveyed such alleged pregnancy to the Applicant, the latter party asked her as to whether Learner B was indeed pregnant or not. She told the Applicant that she was not in a position to confirm let alone deny Learner B’s alleged pregnancy to which the Applicant was said to have been a contributory party at the time.
Cross Examination.
[14] She testified that she is still a learner at Mabogopedi Secondary School. Currently, she is enrolled as a grade 11 student at the same school. During the 2018 academic year, she was a Grade 9 learner at the same school and served as a messenger between the Applicant and Learner B in relation to their relationship. In the course of time, she became aware that the Applicant’s sexual relationship to Learner B amounts to a dismissible misconduct. She did not report such misconduct to any of the Respondent’s relevant authorities. She did so with the sole purpose of not subjecting Learner B to further traumatic experience.
Ms B, the Respondent’s third witness, testified under oath as follows:
[15] She is a registered Grade 10 at Mabogopedi Secondary School. The Applicant who is the litigant in the current dispute is best known to her. She had a sexual relationship with the Applicant during the 2018 academic year. There was a time when the Applicant gave her money to buy lunch and also to strengthen his sexual relationship towards her as much as to continue to entice her romantically. She once felt that she was impregnated by the Applicant and she requested Ms A to convey such feelings to the Applicant. Ms A did not convey such alleged pregnancy to the Applicant on account of respecting the Applicant’s profession. Although the Applicant committed a serious act of misconduct, the Respondent stand to abide with the Arbitration Award should the arbitration hearing direct that the Applicant be reinstated. The Respondent closed its case.
THE APPLICANT’S CASE.
The Applicant, Mr S’busiso Nkululeko Sithole testified on his own behalf under oath as follows:
[16] He used to serve as one of the Respondent’s Educator prior to his dismissal. Mabogopedi Secondary School used to be his workstation. The Respondent effected his dismissal after he was alleged to have committed the nature of the misconduct recorded under Paragraph 5 of the current Arbitration Award. His dismissal came into effect after the Respondent alleged that he had sexual relationship with six of the Respondent’s learners. At no stage did he ever commit any of the two allegations of acts of misconduct which led to his dismissal.
[17] He is of the firm opinion that both Learner A and Learner B colluded with each other to perpetuate untruthful testimonies in the current arbitration hearing for purposes of discrediting his professional image. This is after both Learner A and Learner B once promoted themselves from Grade 7 to Grade 8 during the 2017 academic year. Both the oral testimonies of Learner A and Learner B speculated on hearsay evidence.
Re-examination.
[18] He testified that he no longer remember any of the Respondent’s learners who promoted themselves from Grade 7 to Grade 8 during the 2018 academic year. He considers his dismissal to have been effected in a substantive fair manner and prays for retrospective reinstatement as an appropriate relief in this matter. The Applicant closed his case.
ANALYSIS OF EVIDENCE, ARGUMENTS AND FINDINGS.
[19] Section 192 (1) of the Labour Relations Act 66 of 1995 provides that in any proceedings concerning any dismissal, the employee must establish the existence of the dismissal. Section 192 (2) of the same Act goes further and provide that if the existence of the dismissal is established, the employer must prove that the dismissal is fair. Both the above cited statutory provisions of the Act are applicable in the current dispute. The Applicant’s dismissal is a matter of common cause in this matter. Therefore the onus of proof reverts to the Respondent to prove that the Applicant’s dismissal has been effected in a manner which is considered to be substantively fair.
[20] When an arbitrator is confronted with a dispute about the unfairness of a dismissal, the Constitutional Court has long held in the distinguishable authority of Sidumo & Another v Rustenburg Mine (2007) 28 ILJ 2405 (CC) that the arbitrator is required to conduct a two-staged inquiry. The first inquiry is a factual one. Generally speaking, a factual inquiry is about determining whether or not the employee (being the Applicant in this matter), committed any act of misconduct prior to the employee’s dismissal (see the authority of Hullet Aluminium (Pty) Ltd v Bargaining Council for the Metal Industry Industry & Others (2008) 29 ILJ 1180 (LC) at paragraph 26). In the light of the Sidumo authority, should I find that the Applicant did not commit any of the two alleged acts of misconduct prior to his dismissal, that will be the end of the inquiry and the Applicant’s dismissal will be found to be unfair.
[21] However, should the Respondent’s evidence demonstrate that the Applicant committed such two acts of misconduct or any one of the alleged misconduct, then the second stage of the inquiry will be ushered in. The second inquiry is about the determination of the fairness of the Applicant’s dismissal. The Applicant was dismissed after he was alleged to have had a sexual relationship with six of the Respondent’s learners during the 2017 and 2018 academic years. The Applicant vehemently denied ever having committed any of the two acts of misconduct. The Respondent led oral evidence by means of three witnesses. After having considered the oral evidence of the Respondent’s first witness, Mr Paul Mafereka Molapisi, I find his evidence to be amounting to hearsay evidence and not helpful in determining the fairness or otherwise of the Applicant’s dismissal.
[22] Section 3 (b) of the Law of Evidence Amendment Act 45 of 1988 provides that subject to the provision of any other law, hearsay evidence shall not be admitted as evidence at criminal or civil proceedings, unless the person upon whose credibility the probative value of such evidence, depends, himself testifies at the proceedings. Section 3 (b) of the Law of Evidence Amendment Act finds statutory application in relation to Mr Molapisi’s oral evidence. This is after I considered the fact that the credibility of Mr Molapisi’s oral evidence depended on Masseurs Bonny Mmusi and David Seleka to name but few of such witnesses. Yet the Respondent did not call any of the witnesses against whom the credibility of Mr Molapisi’s oral evidence heavily relied upon. The evidence of the Respondent’s third witness, Ms B factually demonstrated that she is a registered Grade 10 learner at Mabogopedi Secondary School where the Applicant was employed as an Educator prior to the latter party’s dismissal.
[23] Ms B further testified that during the 2018 academic year, the Applicant engaged himself in a sexual relationship with her. Ms B’s oral evidence also demonstrated that the Applicant occasionally bought her some lunch in a desperate effort to romantically entice her and strengthen his sexual relationship to her. Ms B’s oral evidence was corroborated (supported) by an independent evidentiary material (the oral evidence of the Respondent’s second witness, Ms A to be precise). Ms A testified that during the 2018 academic year, she was a registered Grade 9 learner at the same school where Ms B is a learner. Ms A also testified that as at the conclusion of the current arbitration hearing, she was and remain a registered Grade 11 learner at Mabogopedi Secondary School where the Applicant was an Educator prior to his dismissal.
[24] After having considered the oral evidence of both the second as well as the third witness of the Respondent, I find that on the balance of probabilities, the Applicant committed a sexual relationship misconduct at the very least, against Ms B during the 2018 academic year. On the balance of probabilities, I therefore find the evidence of the Respondent’s second as well as the third witness to be weightier, probable, credible, corroborated to each other and also having been presented in a consistent manner in relation to the dispute under consideration. The applicability of the standard of the balance of probabilities has been aptly reaffirmed in the matter of Combined Transport Services (Pty) Ltd v Buhle Zamokwakhe Miya and others (DA 15/2014) [2016] ZALAC 57 (delivered on 25 November 2016). In the Combined Transport Services decision, the court expressed a legal principle that a proper assessment of evidence requires the attachment of more weight on the evidence that is consistent and or more credible.
[25] I respectfully aligned myself with the same legal principle in dealing with the current dispute. In the matter of NUMSA and another v Tokiso Dispute Settlement and others JR 2049/09 [2014] ZALCJHB 237 (handed down on 17 June 2014), the court held that the employer bears the overall onus at the end of the arbitration hearing in proving that the dismissal was effected in a manner which is both procedurally and substantively fair on the evidence presented. The court further held that the employer is required only to prove that it acted in a fair manner in respect of those matters which the employee claims it did not. The same legal principle as expressed in the NUMSA decision also finds judicial as well as legal relevance and application in the current dispute. Now that the misconduct which led to the Applicant’s dismissal has been factually and substantively proven, the second stage of the inquiry is ushered in. The second stage of the inquiry deals with the fairness or the otherwise of the Applicant’s dismissal.
[26] The Applicant has been dismissed for having allegedly committed a serious misconduct (that is having allegedly engaged himself in a sexual relationship with six of the Respondent’s learners at Mabogopedi Secondary School. The Applicant vehemently denied ever having committed any of the two acts of the alleged misconduct. Throughout the entire arbitration hearing, the Applicant failed to lay an evidentiary foundation which supported his mere denial of the nature of the misconduct preferred against him. In the seminal authority of De Beer v Trudon (Pty) Ltd (1994) 15 ILJ 1057 (LAC), the court, with approval referred to the matter of FAWU and others v Amalgamated Beverage Industries Ltd (1994) 15 ILJ 1057 (LAC) when it held that an evidential foundation had to be laid and that a party could not merely rely on arguments only, as arguments without an evidential basis would be no more than speculation I accordingly align myself with the legal principle expressed in De Beer authority in so far as the Applicant’s oral evidence is concerned.
[27] After having considered the evidence of the Applicant in its material totality, I find it to be of weak probative value, improbable, incredible and speculative without having laid any evidential foundation which supported his denial of the commission of the alleged misconduct. I also find the legal principle expressed in De Beer authority to be militating against the Applicant’s case in this matter. Section 17 (1) (b) of the Employment of Educators Act explicitly defines serious misconduct and directs that an Educator must be dismissed if he or she is found guilty of having committed an act of sexual assault on a learner, student or other employee. Section 17 (1) (c) of the same Act goes further that an Educator must be dismissed if he or she is found guilty of having a sexual relationship with a learner of the school where he or she is employed. Section 18 (1) of the same Act defines misconduct as a breakdown in the employment relationship and an Educator commits misconduct if he or she-
[a] fails to comply with or contravenes this Act or any other statute, regulation or legal obligation relating to education and employment relationship.
[28] Both the above cited sections of the Employment of Educators Act applies to the current dispute. The ineluctable conclusion I am factually able to arrive at based on the totality of the evidence placed before me is that, not only did the Applicant committed a misconduct, but also that the Applicant committed a serious misconduct in terms of section 17 (1) (c) of the Employment of Educators Act. “Misconduct” is a labour law concept which means that the employee’s conduct contravened either the rule(s), or policy established by the employer. Item 7 of the Code of Good Practice: Dismissal: (Schedule 8 of the Labour Relations Act) provides that any person who is determining whether a dismissal for misconduct is unfair should consider-
[a] whether or not the employee contravened a rule or standard regulating conduct in, or of relevance to, the workplace; and
[b] if a rule, or standard was contravened, whether or not-
[i] the rule was a valid or reasonable rule or standard;
[ii] the employee was aware, or could reasonably be expected to have been aware, of the rule or standard;
[iii] the rule or standard has been consistently applied by the employer; and
[vi] dismissal is an appropriate sanction for the contravention of the rule or standard.
[29] After having considered the totality of both parties’ evidence, the ineluctable conclusion I am best able to factually arrive at is that the Applicant committed a serious misconduct. Having considered Item 7 of the Code of Good Practice : Dismissal (Schedule 8 of the Labour Relations Act), I am of the considered view that dismissal sanction was and still remain an appropriate sanction in relation to the Applicant’s contravention of the workplace rules recorded in this Arbitration Award. Guided by the celebrated decision of Sidumo & another v Rustenburg Platinum Mines Ltd v CCMA & others (2007) 28 ILJ 2405 (CC), the conclusion I am factually able to arrive at is as follows:
[a] Not only did the Applicant broke an existing workplace rule but that such rule was known to the Applicant and or was reasonably expected to have been known to the Applicant
[b] The rule was reasonable.
[c] The Respondent acted in a manner which is substantively fair in effecting the Applicant’s dismissal.
[d] Dismissal is an appropriate disciplinary sanction under the circumstances.
[30] I therefore find that the Respondent effected the Applicant’s dismissal in a manner which is considered to be substantively fair.
AWARD.
[31] The Respondent effected the Applicant’s dismissal in a manner which is substantively fair.
[32] The Applicant’s dismissal is an appropriate sanction under the circumstances.
[33] The Applicant’s alleged unfair dismissal claim is hereby dismissed.
NTSEPENG MOOKAMEDI
(ELRC PANELLIST).
Case No.: PSES405-19/20LP
Date of Award: 12 October 2021
In the ARBITRATION between:
S’busiso Nkululeko Sithole
(Union / Applicant)
DEPARTMENT OF EDUCATION LIMPOPO
(Respondent)
DETAILS OF THE HEARING AND REPRESENTATION.
[1] This is an Arbitration Award in the arbitration hearing between Mr S’busiso Nkululeko (the Applicant) and the Department of Education, Limpopo Provincial Administration, (the Respondent). The arbitration hearing took place on 25 February 2020 and was finalised on 16 September 2021. The Applicant attended the arbitration hearing and was represented by Mr Matsobane Philemon Thamaga, a Regional Treasurer from the South African Teachers Union (SADTU Western Region, Limpopo Province). The Respondent also attended the hearing and was represented by Mr Nkumeleni Eric Nyathela, a Deputy Director responsible for grievances and disputes resolution. Ms Eona Shibisi provided the services of an Intermediary during the testimonies of the Respondent’s witnesses who are learners in this matter.
[2] Prior to the commencement of the arbitration hearing, the Applicant submitted a single bundle of document as evidence and same was accepted as such and marked as “Bundle A”. The Applicant’s bundle of document ranged from Page 1 until Page 35. The Respondent also submitted a single bundle of document as evidence and same was accepted as such and marked as “Bundle B”. The Respondent’s bundle of document ranged from Page 1 until Page 58.
[3] Mr Chesane William Matshoge, a Regional Secretary from SADTU’s Western Region appeared as an Observer. The arbitration hearing was therefore decided by means of documentary as well as by means of oral evidence. At the conclusion of the arbitration hearing, both parties submitted their oral closing arguments in support of their respective cases. I have accordingly considered both parties’ oral closing arguments which are more relevant to the current dispute in rendering this Arbitration Award.
NATURE OF THE DISPUTE.
[4] The dispute concerns an alleged unfair dismissal in terms of sections 17 (1) (c) and 18 (1) (a) of the Employment of Educators Act 76 of 1998. The dispute concern the Applicant’s commission of two acts of sexual related misconduct against six of the Respondent’s learners during the 2017 and 2018 academic year. As an Arbitrator, I have an ethical duty not to provide the name(s) of the learner(s) who is / are the victim(s) of such alleged misconduct.
[5] As a consequence of the legal obligation entrusted upon me in dealing with the evidence of the learner(s) involved in the current arbitration hearing, the identity of the learner(s) shall be referred to as Learner A, B, C D, and so on. The Applicant vehemently denied the commission of the two alleged acts of misconduct preferred against him, hence the determination of the dispute through an arbitration hearing.
COMMON CAUSE ISSUES.
[6] The Applicant was employed by the Respondent as an Educator at Mabogopedi Secondary School since 4 September 2017. The Applicant was dismissed on 8 August 2091. The dismissal was preceded by the conclusion of a formal disciplinary hearing. Procedural fairness is not being placed in dispute in this matter. The Applicant only challenge the substantive fairness of his dismissal. At the time of his dismissal, the Applicant was earning a gross amount of R19,800-00 (Nineteen Thousand Eight Hundred Rand) per month as a salary.
ISSUE TO BE DECIDED.
[7] I am required to decide whether or not the Respondent effected the Applicant’s dismissal in a manner which is considered to be substantively fair. Should I find that the Respondent effected the Applicant’s dismissal in a manner which is considered to be substantively unfair, I shall determine an appropriate relief.
SURVEY OF EVIDENCE AND ARGUMENTS.
THE RESPONDENT’S CASE.
The Respondent’s first witness, Mr Paul Mafereka Molapisi testified under oath as follows:
[8] He is employed by the First Respondent as a Circuit Manager. He manages the Respondent’s Thabazimbi Circuit. The Applicant who is the subject matter of the current arbitration hearing is best known to him. The Applicant was dismissed after he was found to have committed the two acts of misconduct as recorded under Paragraph 5 of the current Arbitration Award. The Applicant’s misconduct was brought to his personal attention by the Respondent’s then Acting Principal Educator, Mr Bonny Mmusi. Mr Mmusi informed him about such misconduct by means of a cellular phone call and requested his urgent intervention.
[9] Once the misconduct was brought to his personal attention, he convened a meeting of the Respondent’s School Based Support Team. One certain Ms Maesela, presided over the meeting of the School Based Support Team. The meeting was also extended to the Applicant as well as four of the Respondent’s learners who alleged that the Applicant had sexual relationship with them. During the course of the meeting, he asked learner A as to the nature of the relationship she had with the Applicant. Learner A told her that the Applicant once had sexual intercourse with her at his residential place at Thabazimbi. Learner B also told him that the Applicant once made love proposal to her and she rejected the Applicant’s love proposal.
[10] Upon realising the seriousness of the misconduct and its negative impact on the rights of the learners, he elevated the matter to the Respondent’s Human Resources Management (Thabazimbi Circuit. He spoke to one certain Mr Mathebula at Thabazimbi Circuit. The latter party advised him to elevate the matter to the Respondent’s District Director’s Office so as to enable the said Office to institute a formal investigation into the matter. The Respondent’s Labour Relations Officer, one certain Mr David Seleka initiated a formal investigation into the matter. Six of the Respondent’s learners were orally interviewed by Mr Seleka and so was the Applicant. All the six learners as well as the Applicant submitted their written statements in respond to the investigation process. He referred to the copies of the learners written statements as well as that of the Applicant on Page 51 until Page 58 of “Bundle B”.
Cross Examination.
[11] He testified that the request for him to intervene into the Applicant’s alleged sexual related misconduct was communicated to him by means of a cellular phone call. Furthermore, that the Applicant got implicated into the commission of the misconduct during a formal investigation process. He admitted that his evidence amounts to hearsay.
Ms A, the Respondent’s second witness, testified under oath as follows:
[12] She is a learner at Mabogopedi Secondary School. She know the Applicant who is a litigant of the current dispute. During the 2018 academic year, one of her learner friend, Learner B once told her that the two of them (meaning the Applicant and Learner B) had a sexual relationship to each other. At some point, she used to be a messenger between the Applicant and Learner B in relation to their sexual relationship to each other. Learner B even went to an extent of telling her that she was impregnated by the Applicant. She eventually conveyed such alleged pregnancy on the part of Learner B to the Applicant.
[13] Upon having conveyed such alleged pregnancy to the Applicant, the latter party asked her as to whether Learner B was indeed pregnant or not. She told the Applicant that she was not in a position to confirm let alone deny Learner B’s alleged pregnancy to which the Applicant was said to have been a contributory party at the time.
Cross Examination.
[14] She testified that she is still a learner at Mabogopedi Secondary School. Currently, she is enrolled as a grade 11 student at the same school. During the 2018 academic year, she was a Grade 9 learner at the same school and served as a messenger between the Applicant and Learner B in relation to their relationship. In the course of time, she became aware that the Applicant’s sexual relationship to Learner B amounts to a dismissible misconduct. She did not report such misconduct to any of the Respondent’s relevant authorities. She did so with the sole purpose of not subjecting Learner B to further traumatic experience.
Ms B, the Respondent’s third witness, testified under oath as follows:
[15] She is a registered Grade 10 at Mabogopedi Secondary School. The Applicant who is the litigant in the current dispute is best known to her. She had a sexual relationship with the Applicant during the 2018 academic year. There was a time when the Applicant gave her money to buy lunch and also to strengthen his sexual relationship towards her as much as to continue to entice her romantically. She once felt that she was impregnated by the Applicant and she requested Ms A to convey such feelings to the Applicant. Ms A did not convey such alleged pregnancy to the Applicant on account of respecting the Applicant’s profession. Although the Applicant committed a serious act of misconduct, the Respondent stand to abide with the Arbitration Award should the arbitration hearing direct that the Applicant be reinstated. The Respondent closed its case.
THE APPLICANT’S CASE.
The Applicant, Mr S’busiso Nkululeko Sithole testified on his own behalf under oath as follows:
[16] He used to serve as one of the Respondent’s Educator prior to his dismissal. Mabogopedi Secondary School used to be his workstation. The Respondent effected his dismissal after he was alleged to have committed the nature of the misconduct recorded under Paragraph 5 of the current Arbitration Award. His dismissal came into effect after the Respondent alleged that he had sexual relationship with six of the Respondent’s learners. At no stage did he ever commit any of the two allegations of acts of misconduct which led to his dismissal.
[17] He is of the firm opinion that both Learner A and Learner B colluded with each other to perpetuate untruthful testimonies in the current arbitration hearing for purposes of discrediting his professional image. This is after both Learner A and Learner B once promoted themselves from Grade 7 to Grade 8 during the 2017 academic year. Both the oral testimonies of Learner A and Learner B speculated on hearsay evidence.
Re-examination.
[18] He testified that he no longer remember any of the Respondent’s learners who promoted themselves from Grade 7 to Grade 8 during the 2018 academic year. He considers his dismissal to have been effected in a substantive fair manner and prays for retrospective reinstatement as an appropriate relief in this matter. The Applicant closed his case.
ANALYSIS OF EVIDENCE, ARGUMENTS AND FINDINGS.
[19] Section 192 (1) of the Labour Relations Act 66 of 1995 provides that in any proceedings concerning any dismissal, the employee must establish the existence of the dismissal. Section 192 (2) of the same Act goes further and provide that if the existence of the dismissal is established, the employer must prove that the dismissal is fair. Both the above cited statutory provisions of the Act are applicable in the current dispute. The Applicant’s dismissal is a matter of common cause in this matter. Therefore the onus of proof reverts to the Respondent to prove that the Applicant’s dismissal has been effected in a manner which is considered to be substantively fair.
[20] When an arbitrator is confronted with a dispute about the unfairness of a dismissal, the Constitutional Court has long held in the distinguishable authority of Sidumo & Another v Rustenburg Mine (2007) 28 ILJ 2405 (CC) that the arbitrator is required to conduct a two-staged inquiry. The first inquiry is a factual one. Generally speaking, a factual inquiry is about determining whether or not the employee (being the Applicant in this matter), committed any act of misconduct prior to the employee’s dismissal (see the authority of Hullet Aluminium (Pty) Ltd v Bargaining Council for the Metal Industry Industry & Others (2008) 29 ILJ 1180 (LC) at paragraph 26). In the light of the Sidumo authority, should I find that the Applicant did not commit any of the two alleged acts of misconduct prior to his dismissal, that will be the end of the inquiry and the Applicant’s dismissal will be found to be unfair.
[21] However, should the Respondent’s evidence demonstrate that the Applicant committed such two acts of misconduct or any one of the alleged misconduct, then the second stage of the inquiry will be ushered in. The second inquiry is about the determination of the fairness of the Applicant’s dismissal. The Applicant was dismissed after he was alleged to have had a sexual relationship with six of the Respondent’s learners during the 2017 and 2018 academic years. The Applicant vehemently denied ever having committed any of the two acts of misconduct. The Respondent led oral evidence by means of three witnesses. After having considered the oral evidence of the Respondent’s first witness, Mr Paul Mafereka Molapisi, I find his evidence to be amounting to hearsay evidence and not helpful in determining the fairness or otherwise of the Applicant’s dismissal.
[22] Section 3 (b) of the Law of Evidence Amendment Act 45 of 1988 provides that subject to the provision of any other law, hearsay evidence shall not be admitted as evidence at criminal or civil proceedings, unless the person upon whose credibility the probative value of such evidence, depends, himself testifies at the proceedings. Section 3 (b) of the Law of Evidence Amendment Act finds statutory application in relation to Mr Molapisi’s oral evidence. This is after I considered the fact that the credibility of Mr Molapisi’s oral evidence depended on Masseurs Bonny Mmusi and David Seleka to name but few of such witnesses. Yet the Respondent did not call any of the witnesses against whom the credibility of Mr Molapisi’s oral evidence heavily relied upon. The evidence of the Respondent’s third witness, Ms B factually demonstrated that she is a registered Grade 10 learner at Mabogopedi Secondary School where the Applicant was employed as an Educator prior to the latter party’s dismissal.
[23] Ms B further testified that during the 2018 academic year, the Applicant engaged himself in a sexual relationship with her. Ms B’s oral evidence also demonstrated that the Applicant occasionally bought her some lunch in a desperate effort to romantically entice her and strengthen his sexual relationship to her. Ms B’s oral evidence was corroborated (supported) by an independent evidentiary material (the oral evidence of the Respondent’s second witness, Ms A to be precise). Ms A testified that during the 2018 academic year, she was a registered Grade 9 learner at the same school where Ms B is a learner. Ms A also testified that as at the conclusion of the current arbitration hearing, she was and remain a registered Grade 11 learner at Mabogopedi Secondary School where the Applicant was an Educator prior to his dismissal.
[24] After having considered the oral evidence of both the second as well as the third witness of the Respondent, I find that on the balance of probabilities, the Applicant committed a sexual relationship misconduct at the very least, against Ms B during the 2018 academic year. On the balance of probabilities, I therefore find the evidence of the Respondent’s second as well as the third witness to be weightier, probable, credible, corroborated to each other and also having been presented in a consistent manner in relation to the dispute under consideration. The applicability of the standard of the balance of probabilities has been aptly reaffirmed in the matter of Combined Transport Services (Pty) Ltd v Buhle Zamokwakhe Miya and others (DA 15/2014) [2016] ZALAC 57 (delivered on 25 November 2016). In the Combined Transport Services decision, the court expressed a legal principle that a proper assessment of evidence requires the attachment of more weight on the evidence that is consistent and or more credible.
[25] I respectfully aligned myself with the same legal principle in dealing with the current dispute. In the matter of NUMSA and another v Tokiso Dispute Settlement and others JR 2049/09 [2014] ZALCJHB 237 (handed down on 17 June 2014), the court held that the employer bears the overall onus at the end of the arbitration hearing in proving that the dismissal was effected in a manner which is both procedurally and substantively fair on the evidence presented. The court further held that the employer is required only to prove that it acted in a fair manner in respect of those matters which the employee claims it did not. The same legal principle as expressed in the NUMSA decision also finds judicial as well as legal relevance and application in the current dispute. Now that the misconduct which led to the Applicant’s dismissal has been factually and substantively proven, the second stage of the inquiry is ushered in. The second stage of the inquiry deals with the fairness or the otherwise of the Applicant’s dismissal.
[26] The Applicant has been dismissed for having allegedly committed a serious misconduct (that is having allegedly engaged himself in a sexual relationship with six of the Respondent’s learners at Mabogopedi Secondary School. The Applicant vehemently denied ever having committed any of the two acts of the alleged misconduct. Throughout the entire arbitration hearing, the Applicant failed to lay an evidentiary foundation which supported his mere denial of the nature of the misconduct preferred against him. In the seminal authority of De Beer v Trudon (Pty) Ltd (1994) 15 ILJ 1057 (LAC), the court, with approval referred to the matter of FAWU and others v Amalgamated Beverage Industries Ltd (1994) 15 ILJ 1057 (LAC) when it held that an evidential foundation had to be laid and that a party could not merely rely on arguments only, as arguments without an evidential basis would be no more than speculation I accordingly align myself with the legal principle expressed in De Beer authority in so far as the Applicant’s oral evidence is concerned.
[27] After having considered the evidence of the Applicant in its material totality, I find it to be of weak probative value, improbable, incredible and speculative without having laid any evidential foundation which supported his denial of the commission of the alleged misconduct. I also find the legal principle expressed in De Beer authority to be militating against the Applicant’s case in this matter. Section 17 (1) (b) of the Employment of Educators Act explicitly defines serious misconduct and directs that an Educator must be dismissed if he or she is found guilty of having committed an act of sexual assault on a learner, student or other employee. Section 17 (1) (c) of the same Act goes further that an Educator must be dismissed if he or she is found guilty of having a sexual relationship with a learner of the school where he or she is employed. Section 18 (1) of the same Act defines misconduct as a breakdown in the employment relationship and an Educator commits misconduct if he or she-
[a] fails to comply with or contravenes this Act or any other statute, regulation or legal obligation relating to education and employment relationship.
[28] Both the above cited sections of the Employment of Educators Act applies to the current dispute. The ineluctable conclusion I am factually able to arrive at based on the totality of the evidence placed before me is that, not only did the Applicant committed a misconduct, but also that the Applicant committed a serious misconduct in terms of section 17 (1) (c) of the Employment of Educators Act. “Misconduct” is a labour law concept which means that the employee’s conduct contravened either the rule(s), or policy established by the employer. Item 7 of the Code of Good Practice: Dismissal: (Schedule 8 of the Labour Relations Act) provides that any person who is determining whether a dismissal for misconduct is unfair should consider-
[a] whether or not the employee contravened a rule or standard regulating conduct in, or of relevance to, the workplace; and
[b] if a rule, or standard was contravened, whether or not-
[i] the rule was a valid or reasonable rule or standard;
[ii] the employee was aware, or could reasonably be expected to have been aware, of the rule or standard;
[iii] the rule or standard has been consistently applied by the employer; and
[vi] dismissal is an appropriate sanction for the contravention of the rule or standard.
[29] After having considered the totality of both parties’ evidence, the ineluctable conclusion I am best able to factually arrive at is that the Applicant committed a serious misconduct. Having considered Item 7 of the Code of Good Practice : Dismissal (Schedule 8 of the Labour Relations Act), I am of the considered view that dismissal sanction was and still remain an appropriate sanction in relation to the Applicant’s contravention of the workplace rules recorded in this Arbitration Award. Guided by the celebrated decision of Sidumo & another v Rustenburg Platinum Mines Ltd v CCMA & others (2007) 28 ILJ 2405 (CC), the conclusion I am factually able to arrive at is as follows:
[a] Not only did the Applicant broke an existing workplace rule but that such rule was known to the Applicant and or was reasonably expected to have been known to the Applicant
[b] The rule was reasonable.
[c] The Respondent acted in a manner which is substantively fair in effecting the Applicant’s dismissal.
[d] Dismissal is an appropriate disciplinary sanction under the circumstances.
[30] I therefore find that the Respondent effected the Applicant’s dismissal in a manner which is considered to be substantively fair.
AWARD.
[31] The Respondent effected the Applicant’s dismissal in a manner which is substantively fair.
[32] The Applicant’s dismissal is an appropriate sanction under the circumstances.
[33] The Applicant’s alleged unfair dismissal claim is hereby dismissed.
NTSEPENG MOOKAMEDI
(ELRC PANELLIST).