ELRC644-20/21 EC
Text
ELRC611-20/21LP
Award Date:
08 November 2021
IN THE ARBITRATION HEARING
(HELD AT MOKOPANE)
Case No: ELRC611-20/21LP
IN THE MATTER BETWEEN:
MPHAGO K.P EMPLOYEE/APPLICANT
AND
DEPARTMENT OF EDUCATION LIMPOPO EMPLOYER/RESPONDENT
ARBITRATION AWARD
DETAILS OF HEARING REPRESENTATION
1. The matter was initially scheduled to be heard at the offices of Department of Education in Polokwane on 21 April 2021. Thereafter, the matter proceeded at the Department’s Mogalakwena District office in Mokopane on, 17 May 2021, 24 August 2021, 13 September 2021 and 21 October 2021 at 09:00AM respectively.
2. The applicant (Mr. Kgathi Mpago) was present and represented by Mr. Thamaga M.P, a trade union official from SADTU; whilst the respondent, Department of Education Limpopo, was represented by Mr. Matlou M.M, the Employee Relations Officer.
3. The proceedings were conducted in English and digitally recorded. Where it was necessary, Ms Christine Kgatle, the official from Education Labour Relation Council (ELRC) interpreted the proceedings in Sepedi.
4. At the beginning of the hearing, parties submitted bundles of documents to be used as evidence. I named the applicant’s bundle as “Bundle A”, and the employer’s “Bundle R”.
ISSUES TO BE DECIDED
5. I am required to determine whether or not the suspension of the applicant was substantively and procedurally fair.
6. If not, I am required to determine the appropriate relief.
BACKROUND TO THE DISPUTE
7. The applicant is employed by the respondent as an educator from 1992. He was suspended for a period of 3 (three) months without pay after being found guilty of misconduct. The charge sheet which led to the suspension of the applicant reads as follows:
“You contravened the provisions of Section 18 (1) (a) of the Act in that on or around 31st July 2014 or at any period incidental thereto, at or near Chumana Primary School, you failed to comply with or contravened the South African Council of Educators Act 31 of 2000 in that you touched the thighs of Ms Shadung K.M without her consent, and therefore you contravened “Code of Professional Ethics”, item 6.4 by failing to promote gender equity and refrain from sexual harassment (physical or otherwise of your colleague”.
8. Dissatisfied with his suspension, the applicant filed a dispute referral with the Education Labour Relations Council (ELRC). The applicant seeks to be paid the salaries he lost due to the suspension in the event I find in his favour.
SURVEY OF EVIDENCE AND ARGUMENT
9. What follows is a summary of evidence presented at the arbitration hearing on those aspects I perceived to be pertinent to the issues I am required to determine. The respondent led testimony of 6 (six) witnesses, namely, Mr. Ntshifhefhe Mbengeni Gravis (Mr. Ntshifhefhe), Ms. Shella Elaine Maria Ngomane (Ms. Ngomane), Ms Florence Chueu (Ms. Chueu), Mr. Phethani Patrick Netshiomvani (Mr. Netshiomvani), Ms. Khumotso Marriam Shadung (Ms. Shadung), Mr. Mihloti Daniel Chauke (Mr. Chauke). The applicant gave his own testimony and called three witnesses, Ms. Tracy Kgadi Hlongwane (Ms. Hlogwane), Ms. Lisbeth Ngobeni (Ms. Ngobeni) and Mr. Phalane Raymond (Mr. Phalane).
Respondent’s case
Ms. Ntshifhefhe Mbengeni Gravis (Mr. Ntshifhefhe), testified under oath as follows:
10. He is employed by the respondent as Deputy Director: Conduct Management. He investigated the alleged misconduct of the applicant. Upon investigation, other staff members from the school (Chumana Primary School) indicated to him that they had not seen the applicant harassing (touching the thighs) of Ms. Shadung (the victim). Only Mr. Chauke was the only one who said he had knowledge since the victim reported the incident to him.
11. Upon investigation, he also managed to interview Mr. Mphago who denied the allegations. He informed him that Ms. Shadung was the one who insulted him.
12. Under cross-examination he testified that during his investigation, staff members of the school informed him that the learners (eye witnesses) could not be located. That was also confirmed by Mr. Chauke who was the acting principal on 31 July 2014.Chauke also failed to assist him in locating those learners.
13. From the statement made by the victim with the South African Police Services (SAPS), she did not mention that the employee touched her thighs. He was not aware of her reasons of omitting that in her statement.
Ms. Shella Elaine Maria Ngomane testified under oath as follows:
14. At the time of the incident, she was working at Tshamahansi Clinic as a Love Life coordinator in charge of visiting schools to teach learners on Love Life programmes. Since Mr. Mphago was the one teaching learners life skills subject he assisted them with coordination of the programme.
15. She was also a victim of being sexual harassed by the employee. She further indicated that, at one stage, Mr. Mphago whispered in her ear and told her that, “O Pakile and opare tight pants” loosely translated as “you have big buttocks and you are wearing tight Pants”. She felt humiliated by what was said by Mr. Mphago and later reported the incident to the principal who requested her to file her complaint in writing, which she did.
16. Knowing the applicant, she will not dispute the allegations which were levelled against him.
17. During cross-examination she testified that she was not present when Mphago touched the thighs of Shadung, as such she did not witness the incident.
Ms Florence Chueu testified under oath as follows:
18. She is employed by the respondent as an Administration Clerk deployed at Chumana Primary School.
19. Her relationship with the applicant was good and bad at the same time. That came after he proposed love to her and she refused. He used to offer her lifts from Tshamahansi to town. One day whilst driving together, he touched her thighs. She further submitted that, she had to put her bag on her lap, but Mr. Mphago forcefully removed it and at that stage, Mr. Mphago was fully erected. That also repeated on other day were he pushed his hands inside her panties.
20. She threatened him that the following she was going to report the incident to the school principal. Mphago begged her not to do that and she understood. In the other incident he tried to kiss her whist she was making photo copies in the principal’s office.
21. Whilst still a member of the School Governing Body, it was reported by one of the parents that her child who was at grade 7 was harassed by the employee. Her sister also shared that she experienced the same harassment. Most of the things in the school are not investigated for fear of victimisation after reporting.
22. Although, she never witnessed Ms. Shadung’s harassment, the victim used to share with her the sad experiences caused by Mphago.
23. Under cross-examination she testified that she could not include all her sexual harassment in the statement because the police officer in charge requested her only to write what transpired on the day involving the altercation between Shadung and Mphago over a veranda. Further that her encounters were not reported to the principal.
Mr. Phethani Patrick Netshiomvani testified under oath as follows:
24. His role on the matter was chairing of the applicant’s disciplinary hearing. The disciplinary hearing was postponed several times. On 02 August 2019 the disciplinary hearing was heard and finalised. On this day, the applicant was present and represented by Mr. Phalane Raymond, a union representative from SADTU. The employee’s representative made an application for postponement. He submitted that Mr. Thamaga (the initial representative) informed him in the morning of the hearing that he was going to Pretoria. The application was not supported by any document.
25. He issued an ex tempore ruling to the effect that in the interest of leaners and finality the matter should proceed, but only the employer’s case will be heard on that day.
26. The applicant’s representative submitted that if indeed the matter was to proceed, they would walk out of the hearing since that would be unfair to the employee. He warned them about the implications thereof, but despite that, they walked out.
Ms. Khumotso Marriam Shadung testified under oath as follows:
27. Before being transferred to Ithuteng Junior Primary (the new school), she worked with the applicant as an educator at another school. Later she was transferred to Chumana Primary School. Her transfer to the new school was triggered by conflicts between her and Mphago (including sexual harassment) and other staff members. However, she never hated Mr. Mphago, but his conduct and behaviour.
28. Upon her arrival at Chumana, the employee used to applaud her attire and also called her “cousin”. This was followed by inappropriate touching and requests to have sexual intercourse with her. She refused and informed him that she is married and also knows his wife. Dissatisfied with her answer, the applicant would say that anyway, he was not going to take that thing (referring to her female private parts), she thinks she was better than other women.
29. On the other day, whilst she was in class, the applicant came and stood next to her. He took her hands and placed them in his genitals. The touching of thighs also happened in the classroom. The applicant would say to her that her hip curves drove him crazy. Thereafter, he would apologise. Further, that her husband is not performing well in bed. If she could have sexual intercourse with him, she would lose weight. At that time when she thought of reporting the applicant, she would think of the learners, his wife, her colleagues, her husband and the community. As such she would keep her silence.
30. The applicant also shared with her that he had sexual intercourse with another colleague, known to her as Gift on the backseat of the mini bus on their trip to Durban. She reprimanded him about his actions of sexual nature. Realising that he was persistent, she later shared her experience with her colleagues Mr. Mokwele, Mr. Macheke, Mr. Mkhondo, Ngobeni, and Ms. Choeu. Most her colleagues never took the allegations serious and they simple said they know him to be just like that. However, Ms. Chueu said to her that she was also experiencing the same harassment from the employee. She felt humiliated by the actions of the applicant.
31. Under cross-examination she testified that she could not lie about the accusations of being sexually harassed because it also embarrasses her. That was the reason she took long to report the incidents to the relevant authority. After reporting the matter to the acting principal (Mr. Chauke), she was asked to make a formal statement which was written by Mr. Chauke. She was not aware of Chauke’s reasons of writing that the applicant tried to touch her thighs whilst in fact he did.
Mr. Mihloti Daniel Chauke testified under oath as follows:
32. He is employed by the Department as an educator at Chumana Primary School. Ms. Shadung informed him that Mphago came in the grade 6 class were she was sited doing her work. He sat in front of her and put his hands below the table where she was sited and touched her thighs. Ms. Shadung came and reported that she was abused by the applicant. He wrote the statement of what was reported to him in Sepedi into English. The language of Sepedi confuses him sometimes, he wrote the statement the way he understood Ms. Shadung.
33. Although he never witnessed the incident, based on the character of Mr. Mphago, he had no reason not to believe her because that corroborated the allegations which were levelled against the applicant by other leaners, Mufamadi and Matseu.
34. After the first sitting of this hearing, he was called by Mr. Thamaga three times to discuss this matter. Unfortunately they could not meet because Thamaga was aware that he was a witness of the employer in the matter.
35. During cross-examination he testified that he wrote the statement the way he understood Ms. Shadung.
Applicant’s case
Mr. Kgathi Phillius Mphago testified under oath as follows:
36. He is employed by the respondent as an educator since 1992 and was transferred to Chumana Primary School in 2003.
37. On 02 August 2019, he attended his disciplinary hearing with his union representative (Mr. Phalane). On the day in question, Mr. Phalane requested for postponement of the matter since his initial representative (Mr. Thamaga) was not available. He submitted that Mr. Thamaga went to Pretoria as such he was not available.
38. The chairperson of the hearing denied postponement and ruled that the matter would be partly heard and they can leave. They left at the advice of the chairperson and the matter proceeded in their absence. He was found guilty and a sanction of 3 (three) months without pay was imposed. He feels that was not fair because he was not afforded an opportunity to be heard.
39. He denied having touched the thighs of anyone or having sexually assaulted anyone including Ms. Shadung. The touching of thighs could not have been possible because at the school, teachers exchange classrooms and that he never shared any table or sat next to her. He was in good terms with Ms. Shadung except the fact that they once had an altercation involving the veranda. For instance, he once helped her after she collapsed by taking her to the doctor.
40. In his view, these whole allegations were orchestrated and led by Mr. Chauke after he failed to support him on his quest for the position of the school principal. He was surprised why the relevant leaners were not interviewed since the incident is alleged to have taken place in the classroom.
41. Under cross-examination he testified that their purpose of attending the hearing on 02 August 2019 was to request for postponement but they were not having any supporting documents.
42. The sexual harassment accusations were orchestrated by Chauke because they were not getting along over the position of school principal and that the alleged victims never reported to anyone.
Ms. Tracy Kgadi Hlongwane testified under oath as follows:
43. In 2014, she was a leaner at Chumana Primary School at grade 6A. Mr. Mphago used to teach her life skills whilst Ms. Shadung thought her Sepedi.
44. She never saw Mr. Mphago touching the thighs of Shadung in the classroom. She also does not recall Mphago taking a chair in the classroom and sat next to Shadung. In her view, Mr. Mphago is not capable of conducting himself in the manner alleged by the respondent.
45. During cross-examination she testified that she never missed even a single class in that year. Further that it was not possible that she could see the hands of a person under the table facing an opposite direction.
Ms. Lisbeth Ngobeni testified under oath as follows:
46. In the year 2014, she was attending school in Chumana Primary School at grade 6B. She never witnessed Mr. Mphago taking a chair and sitting next to Shadung. Neither did she witness him touching Ms. Shadung’s thighs in their classroom. Mphago is not capable of doing that because he gave them love and education.
47. During cross-examination she testified that she attended all her classes in 2014. Further that Ms. Ngomane is a good person not capable of lying. The same goes to Ms. Shadung. Ms. Chueu looked like a good person, but she never spoke to her.
Mr. Phalane Raymond testified under oath as follows:
48. He is an educator who was seconded to the trade union (SADTU) Western Region. His duties also include representation of union members in legal proceedings such as disciplinary hearings and arbitrations.
49. In the morning of the 02nd of August 2019, he was requested by Mr. Thamaga to attend the disciplinary hearing of the applicant and request a postponement. This came after Mr. Thamaga and other educators received a call from the employer to travel to Pretoria to register their Masters degrees.
50. The applicant’s application for postponement was not granted by the chairperson who reasoned that the matter needed to be finalised. That came after he consulted someone using a cellular phone.
51. Mr. Seleka who was the representing the employer indicated to the chairperson that the matter would be partly heard and they will be furnished with the recordings of the hearing. On that note, they requested to be released. Their request was granted. What surprised them is that they were not furnished with the recordings, instead they received the outcome of the hearing with a sanction.
52. During cross-examination he testified that he is aware of the employer’s disciplinary code that the disciplinary hearing may proceed in the absence of the other party. The same goes to Mr. Mphago. Further that there was no documentary evidence to prove that Mr. Thamaga was sent by the employer on the 02 August 2019 to go to Pretoria. On the day in question, they were not having any document to justify the postponement. In his view, the document was going to assist with the granting of postponement. The chairperson was not obliged to grant postponement application.
ANALYSIS OF EVIDENCE AND ARGUMENT
53. I will not regurgitate the evidence as led by the parties but only give brief reasons for my findings as required by section 138 (7) of the LRA. In my analysis and findings I have considered the evidence, witnesses and the closing arguments made by the parties.
54. In this matter the employee challenged the fairness of his suspension on two grounds. He argued that his suspension was not procedurally fair because he was not afforded the right to be heard during the disciplinary hearing. Further, that it was substantively unfair for the employer to suspend him without pay because the allegations levelled against him were not proven by the employer. The employer contended that the applicant’s suspension was both procedurally and substantively fair because he was found guilty of a serious misconduct after being afforded a fair hearing. These are two conflicting versions.
55. In Avril Elizabeth Home for the Mentally Handicapped v CCMA & others the Labour Court held that:
“When determining whether an employee is guilty of misconduct, the proper test is proof on a balance of probabilities not that of beyond reasonable doubt, which is the burden of proof as it applies in our criminal law system”.
56. When confronted with these two versions, I find that of the employer to be most probable for the reasons canvased hereunder.
57. Starting with procedural fairness, it is important to note that the chairperson of the disciplinary hearing was vested with the powers to make rulings including postponement rulings. However, such powers should be exercised along the rules of natural justice, fairness and the employer’s disciplinary code.
58. In this case, the applicant and Mr. Phalane testified that they attended the disciplinary hearing on 02 August 2019 to “request for postponement of the disciplinary hearing”. It was Mr. Phalane’s testimony that both of them were aware of the employer’s disciplinary code that disciplinary hearing may proceed in the absence of the other party. He also testified that Mr. Seleka indicated to the chairperson that the matter would be partly heard and they will be furnished with the recordings of the hearing. It should be noted that this evidence differed with that of Mr. Mphago. I fail to understand Mr. Phalane’s reasons of leaving the hearing because if they relied on the provision of recordings by the chairperson, how was the employer’s version going to be challenged i.e cross examination of the employer’s witnesses could not have been possible under the circumstances.
59. Under cross-examination they both testified that there was no documentary evidence submitted to the chairperson to substantiate their application. It was Mr. Phalane’s testimony during cross-examination that in his view, the document was going to assist with the granting of postponement and that the chairperson was not obliged to grant postponement application.
60. When analysing the contents of page 32 of Bundle A, I found that the document does not prove that Mr. Thamaga went to Pretoria on the day in question, but it only shows that an amount of R1500 was paid to the Tshwane University of Technology in the student account of Mr. Thamaga.
61. Mr. Netshiomvani testified uncontested evidence that he warned the applicant and his representative about the implications of walking out of the disciplinary hearing. Despite that, they walked out.
62. In my view, it is not important how many times the matter was postponed in favour of which party. Cardinal is the reason (and if necessary proof thereof) of postponement application. The reason should be valid, just and fair to warrant postponement. The LRA sets out in section 1(d) (iv) that one of its main objectives is “the effective resolution of labour disputes”. Ancillary to this objective is the notion of ‘expeditious resolution of labour disputes’.
63. In determining whether to grant a postponement, one must bear in mind what was said in Carephone (Pty) ltd v Marcus no & others where the head note reads as follows:
“In a court of law, the granting of an application for postponement is not a right. It is an indulgence granted by the court in the exercise of a judicial discretion. What is normally required is a reasonable explanation for the need to postpone and the capability of an appropriate costs order to nullify the opposing party's prejudice or potential prejudice”.
64. A postponement is an indulgence, and accordingly, the chairperson found no basis to grant the application for postponement. In my analysis, it is clear that the applicant and his representative were not expelled from the disciplinary hearing. They left on their own accord after their application for postponement was not granted.
65. Based on these reasons, I opine that that the applicant was afforded the right to be heard, but he waived such right. Therefore, I find the suspension of the employee to be procedurally fair.
66. Moving to substantive fairness. I should acknowledge that the employer’s case relied mostly on character evidence of the applicant. For that reason, the first point that needs to be made as was said in NUM obo Winston Busiswe Manganye v CCMA and others is that evidence to the effect that the accused has a bad character, is inadmissible, unless the character evidence has some bearing on issues unrelated to the reputation of the accused. The applicant’s defense against all the allegations amounts to a mere denial.
67. Ms. Ngomane and Ms. Chueu testified in this hearing that although they did not see Mr. Mphago touching the thighs of Ms. Shadung, they all suffered sexual harassment on different occasions perpetrated by the applicant. In my view their evidence was detailed and not exaggerated. They also appeared to be honest from their demeanor and candor. Their evidence was also corroborated by that of Ms. Shadung.
68. Under normal circumstances, it is difficult for victims and witnesses of sexual harassment to come forward and disclose openly about their experiences. This is because of the aspect of human dignity at stake.
69. In my view, the witnesses could not have made up all the detailed allegations which have the possibility of tainting their reputation, image and dignity. Ms. Shadung could not have gone further implicating her former colleagues including Gift. She had no reason to lie since she never hated the applicant. The same can be said about the applicant who testified that he was in good terms with Ms. Shadung except the fact that they once had an altercation involving the veranda. For instance, he once helped her after she collapsed by taking her to the doctor. The applicant only testified that Mr. Chauke hates him.
70. If indeed there was conspiracy against the applicant, the victims could have fabricated other grounds for the employer to find him guilty, than using sexual harassment accusations.
71. The employer’s witnesses were also corroborated by Ms. Ngobeni who testified for the applicant. She testified under cross-examination that Ms. Ngomane is a good person not capable of lying. The same goes to Ms. Shadung. She also testified further that Ms. Chueu looked like a good person, but she never spoke to her.
72. The evidence of Ms. Hlongwane and Ms. Ngobeni appeared to be somehow exaggerated because it is improbable that a leaner can attend all her classes in a year without missing a single one.
73. Mr. Chauke led important uncontested evidence after the first sitting of this hearing, that he was called by Mr. Thamaga three times to discuss this matter. Unfortunately they could not meet because Thamaga was aware that he was a witness of the employer in the matter. This in my view raises one’s eyebrows since Mr. Thamaga was well aware that the matter at that time was sub judice and that Chauke was to testify. In fact he took a witness’s stand but his testimony had to be postponed due to unavailability of an interpreter. I also did not find good reasons why Mr. Thamaga would call Chauke whilst fully aware that he hated the applicant (as per the applicant’s testimony) under the circumstances.
74. Having regard to the evidence before me, I am convinced that the respondent successfully defended its decision to suspend the applicant under the circumstances.
75. To this end, I find that the respondent succeeded in proving on a balance of probabilities that the employee’s suspension was fair.
AWARD
76. I find the suspension of the applicant to have been procedurally and substantively fair;
77. The applicant’s case is dismissed.
This done and signed at Polokwane on the 08th day of November 2021
Matloga Nicholas
Commissioner/ Panellist
(HELD AT MOKOPANE)
Case No: ELRC611-20/21LP
IN THE MATTER BETWEEN:
MPHAGO K.P EMPLOYEE/APPLICANT
AND
DEPARTMENT OF EDUCATION LIMPOPO EMPLOYER/RESPONDENT
ARBITRATION AWARD
DETAILS OF HEARING REPRESENTATION
1. The matter was initially scheduled to be heard at the offices of Department of Education in Polokwane on 21 April 2021. Thereafter, the matter proceeded at the Department’s Mogalakwena District office in Mokopane on, 17 May 2021, 24 August 2021, 13 September 2021 and 21 October 2021 at 09:00AM respectively.
2. The applicant (Mr. Kgathi Mpago) was present and represented by Mr. Thamaga M.P, a trade union official from SADTU; whilst the respondent, Department of Education Limpopo, was represented by Mr. Matlou M.M, the Employee Relations Officer.
3. The proceedings were conducted in English and digitally recorded. Where it was necessary, Ms Christine Kgatle, the official from Education Labour Relation Council (ELRC) interpreted the proceedings in Sepedi.
4. At the beginning of the hearing, parties submitted bundles of documents to be used as evidence. I named the applicant’s bundle as “Bundle A”, and the employer’s “Bundle R”.
ISSUES TO BE DECIDED
5. I am required to determine whether or not the suspension of the applicant was substantively and procedurally fair.
6. If not, I am required to determine the appropriate relief.
BACKROUND TO THE DISPUTE
7. The applicant is employed by the respondent as an educator from 1992. He was suspended for a period of 3 (three) months without pay after being found guilty of misconduct. The charge sheet which led to the suspension of the applicant reads as follows:
“You contravened the provisions of Section 18 (1) (a) of the Act in that on or around 31st July 2014 or at any period incidental thereto, at or near Chumana Primary School, you failed to comply with or contravened the South African Council of Educators Act 31 of 2000 in that you touched the thighs of Ms Shadung K.M without her consent, and therefore you contravened “Code of Professional Ethics”, item 6.4 by failing to promote gender equity and refrain from sexual harassment (physical or otherwise of your colleague”.
8. Dissatisfied with his suspension, the applicant filed a dispute referral with the Education Labour Relations Council (ELRC). The applicant seeks to be paid the salaries he lost due to the suspension in the event I find in his favour.
SURVEY OF EVIDENCE AND ARGUMENT
9. What follows is a summary of evidence presented at the arbitration hearing on those aspects I perceived to be pertinent to the issues I am required to determine. The respondent led testimony of 6 (six) witnesses, namely, Mr. Ntshifhefhe Mbengeni Gravis (Mr. Ntshifhefhe), Ms. Shella Elaine Maria Ngomane (Ms. Ngomane), Ms Florence Chueu (Ms. Chueu), Mr. Phethani Patrick Netshiomvani (Mr. Netshiomvani), Ms. Khumotso Marriam Shadung (Ms. Shadung), Mr. Mihloti Daniel Chauke (Mr. Chauke). The applicant gave his own testimony and called three witnesses, Ms. Tracy Kgadi Hlongwane (Ms. Hlogwane), Ms. Lisbeth Ngobeni (Ms. Ngobeni) and Mr. Phalane Raymond (Mr. Phalane).
Respondent’s case
Ms. Ntshifhefhe Mbengeni Gravis (Mr. Ntshifhefhe), testified under oath as follows:
10. He is employed by the respondent as Deputy Director: Conduct Management. He investigated the alleged misconduct of the applicant. Upon investigation, other staff members from the school (Chumana Primary School) indicated to him that they had not seen the applicant harassing (touching the thighs) of Ms. Shadung (the victim). Only Mr. Chauke was the only one who said he had knowledge since the victim reported the incident to him.
11. Upon investigation, he also managed to interview Mr. Mphago who denied the allegations. He informed him that Ms. Shadung was the one who insulted him.
12. Under cross-examination he testified that during his investigation, staff members of the school informed him that the learners (eye witnesses) could not be located. That was also confirmed by Mr. Chauke who was the acting principal on 31 July 2014.Chauke also failed to assist him in locating those learners.
13. From the statement made by the victim with the South African Police Services (SAPS), she did not mention that the employee touched her thighs. He was not aware of her reasons of omitting that in her statement.
Ms. Shella Elaine Maria Ngomane testified under oath as follows:
14. At the time of the incident, she was working at Tshamahansi Clinic as a Love Life coordinator in charge of visiting schools to teach learners on Love Life programmes. Since Mr. Mphago was the one teaching learners life skills subject he assisted them with coordination of the programme.
15. She was also a victim of being sexual harassed by the employee. She further indicated that, at one stage, Mr. Mphago whispered in her ear and told her that, “O Pakile and opare tight pants” loosely translated as “you have big buttocks and you are wearing tight Pants”. She felt humiliated by what was said by Mr. Mphago and later reported the incident to the principal who requested her to file her complaint in writing, which she did.
16. Knowing the applicant, she will not dispute the allegations which were levelled against him.
17. During cross-examination she testified that she was not present when Mphago touched the thighs of Shadung, as such she did not witness the incident.
Ms Florence Chueu testified under oath as follows:
18. She is employed by the respondent as an Administration Clerk deployed at Chumana Primary School.
19. Her relationship with the applicant was good and bad at the same time. That came after he proposed love to her and she refused. He used to offer her lifts from Tshamahansi to town. One day whilst driving together, he touched her thighs. She further submitted that, she had to put her bag on her lap, but Mr. Mphago forcefully removed it and at that stage, Mr. Mphago was fully erected. That also repeated on other day were he pushed his hands inside her panties.
20. She threatened him that the following she was going to report the incident to the school principal. Mphago begged her not to do that and she understood. In the other incident he tried to kiss her whist she was making photo copies in the principal’s office.
21. Whilst still a member of the School Governing Body, it was reported by one of the parents that her child who was at grade 7 was harassed by the employee. Her sister also shared that she experienced the same harassment. Most of the things in the school are not investigated for fear of victimisation after reporting.
22. Although, she never witnessed Ms. Shadung’s harassment, the victim used to share with her the sad experiences caused by Mphago.
23. Under cross-examination she testified that she could not include all her sexual harassment in the statement because the police officer in charge requested her only to write what transpired on the day involving the altercation between Shadung and Mphago over a veranda. Further that her encounters were not reported to the principal.
Mr. Phethani Patrick Netshiomvani testified under oath as follows:
24. His role on the matter was chairing of the applicant’s disciplinary hearing. The disciplinary hearing was postponed several times. On 02 August 2019 the disciplinary hearing was heard and finalised. On this day, the applicant was present and represented by Mr. Phalane Raymond, a union representative from SADTU. The employee’s representative made an application for postponement. He submitted that Mr. Thamaga (the initial representative) informed him in the morning of the hearing that he was going to Pretoria. The application was not supported by any document.
25. He issued an ex tempore ruling to the effect that in the interest of leaners and finality the matter should proceed, but only the employer’s case will be heard on that day.
26. The applicant’s representative submitted that if indeed the matter was to proceed, they would walk out of the hearing since that would be unfair to the employee. He warned them about the implications thereof, but despite that, they walked out.
Ms. Khumotso Marriam Shadung testified under oath as follows:
27. Before being transferred to Ithuteng Junior Primary (the new school), she worked with the applicant as an educator at another school. Later she was transferred to Chumana Primary School. Her transfer to the new school was triggered by conflicts between her and Mphago (including sexual harassment) and other staff members. However, she never hated Mr. Mphago, but his conduct and behaviour.
28. Upon her arrival at Chumana, the employee used to applaud her attire and also called her “cousin”. This was followed by inappropriate touching and requests to have sexual intercourse with her. She refused and informed him that she is married and also knows his wife. Dissatisfied with her answer, the applicant would say that anyway, he was not going to take that thing (referring to her female private parts), she thinks she was better than other women.
29. On the other day, whilst she was in class, the applicant came and stood next to her. He took her hands and placed them in his genitals. The touching of thighs also happened in the classroom. The applicant would say to her that her hip curves drove him crazy. Thereafter, he would apologise. Further, that her husband is not performing well in bed. If she could have sexual intercourse with him, she would lose weight. At that time when she thought of reporting the applicant, she would think of the learners, his wife, her colleagues, her husband and the community. As such she would keep her silence.
30. The applicant also shared with her that he had sexual intercourse with another colleague, known to her as Gift on the backseat of the mini bus on their trip to Durban. She reprimanded him about his actions of sexual nature. Realising that he was persistent, she later shared her experience with her colleagues Mr. Mokwele, Mr. Macheke, Mr. Mkhondo, Ngobeni, and Ms. Choeu. Most her colleagues never took the allegations serious and they simple said they know him to be just like that. However, Ms. Chueu said to her that she was also experiencing the same harassment from the employee. She felt humiliated by the actions of the applicant.
31. Under cross-examination she testified that she could not lie about the accusations of being sexually harassed because it also embarrasses her. That was the reason she took long to report the incidents to the relevant authority. After reporting the matter to the acting principal (Mr. Chauke), she was asked to make a formal statement which was written by Mr. Chauke. She was not aware of Chauke’s reasons of writing that the applicant tried to touch her thighs whilst in fact he did.
Mr. Mihloti Daniel Chauke testified under oath as follows:
32. He is employed by the Department as an educator at Chumana Primary School. Ms. Shadung informed him that Mphago came in the grade 6 class were she was sited doing her work. He sat in front of her and put his hands below the table where she was sited and touched her thighs. Ms. Shadung came and reported that she was abused by the applicant. He wrote the statement of what was reported to him in Sepedi into English. The language of Sepedi confuses him sometimes, he wrote the statement the way he understood Ms. Shadung.
33. Although he never witnessed the incident, based on the character of Mr. Mphago, he had no reason not to believe her because that corroborated the allegations which were levelled against the applicant by other leaners, Mufamadi and Matseu.
34. After the first sitting of this hearing, he was called by Mr. Thamaga three times to discuss this matter. Unfortunately they could not meet because Thamaga was aware that he was a witness of the employer in the matter.
35. During cross-examination he testified that he wrote the statement the way he understood Ms. Shadung.
Applicant’s case
Mr. Kgathi Phillius Mphago testified under oath as follows:
36. He is employed by the respondent as an educator since 1992 and was transferred to Chumana Primary School in 2003.
37. On 02 August 2019, he attended his disciplinary hearing with his union representative (Mr. Phalane). On the day in question, Mr. Phalane requested for postponement of the matter since his initial representative (Mr. Thamaga) was not available. He submitted that Mr. Thamaga went to Pretoria as such he was not available.
38. The chairperson of the hearing denied postponement and ruled that the matter would be partly heard and they can leave. They left at the advice of the chairperson and the matter proceeded in their absence. He was found guilty and a sanction of 3 (three) months without pay was imposed. He feels that was not fair because he was not afforded an opportunity to be heard.
39. He denied having touched the thighs of anyone or having sexually assaulted anyone including Ms. Shadung. The touching of thighs could not have been possible because at the school, teachers exchange classrooms and that he never shared any table or sat next to her. He was in good terms with Ms. Shadung except the fact that they once had an altercation involving the veranda. For instance, he once helped her after she collapsed by taking her to the doctor.
40. In his view, these whole allegations were orchestrated and led by Mr. Chauke after he failed to support him on his quest for the position of the school principal. He was surprised why the relevant leaners were not interviewed since the incident is alleged to have taken place in the classroom.
41. Under cross-examination he testified that their purpose of attending the hearing on 02 August 2019 was to request for postponement but they were not having any supporting documents.
42. The sexual harassment accusations were orchestrated by Chauke because they were not getting along over the position of school principal and that the alleged victims never reported to anyone.
Ms. Tracy Kgadi Hlongwane testified under oath as follows:
43. In 2014, she was a leaner at Chumana Primary School at grade 6A. Mr. Mphago used to teach her life skills whilst Ms. Shadung thought her Sepedi.
44. She never saw Mr. Mphago touching the thighs of Shadung in the classroom. She also does not recall Mphago taking a chair in the classroom and sat next to Shadung. In her view, Mr. Mphago is not capable of conducting himself in the manner alleged by the respondent.
45. During cross-examination she testified that she never missed even a single class in that year. Further that it was not possible that she could see the hands of a person under the table facing an opposite direction.
Ms. Lisbeth Ngobeni testified under oath as follows:
46. In the year 2014, she was attending school in Chumana Primary School at grade 6B. She never witnessed Mr. Mphago taking a chair and sitting next to Shadung. Neither did she witness him touching Ms. Shadung’s thighs in their classroom. Mphago is not capable of doing that because he gave them love and education.
47. During cross-examination she testified that she attended all her classes in 2014. Further that Ms. Ngomane is a good person not capable of lying. The same goes to Ms. Shadung. Ms. Chueu looked like a good person, but she never spoke to her.
Mr. Phalane Raymond testified under oath as follows:
48. He is an educator who was seconded to the trade union (SADTU) Western Region. His duties also include representation of union members in legal proceedings such as disciplinary hearings and arbitrations.
49. In the morning of the 02nd of August 2019, he was requested by Mr. Thamaga to attend the disciplinary hearing of the applicant and request a postponement. This came after Mr. Thamaga and other educators received a call from the employer to travel to Pretoria to register their Masters degrees.
50. The applicant’s application for postponement was not granted by the chairperson who reasoned that the matter needed to be finalised. That came after he consulted someone using a cellular phone.
51. Mr. Seleka who was the representing the employer indicated to the chairperson that the matter would be partly heard and they will be furnished with the recordings of the hearing. On that note, they requested to be released. Their request was granted. What surprised them is that they were not furnished with the recordings, instead they received the outcome of the hearing with a sanction.
52. During cross-examination he testified that he is aware of the employer’s disciplinary code that the disciplinary hearing may proceed in the absence of the other party. The same goes to Mr. Mphago. Further that there was no documentary evidence to prove that Mr. Thamaga was sent by the employer on the 02 August 2019 to go to Pretoria. On the day in question, they were not having any document to justify the postponement. In his view, the document was going to assist with the granting of postponement. The chairperson was not obliged to grant postponement application.
ANALYSIS OF EVIDENCE AND ARGUMENT
53. I will not regurgitate the evidence as led by the parties but only give brief reasons for my findings as required by section 138 (7) of the LRA. In my analysis and findings I have considered the evidence, witnesses and the closing arguments made by the parties.
54. In this matter the employee challenged the fairness of his suspension on two grounds. He argued that his suspension was not procedurally fair because he was not afforded the right to be heard during the disciplinary hearing. Further, that it was substantively unfair for the employer to suspend him without pay because the allegations levelled against him were not proven by the employer. The employer contended that the applicant’s suspension was both procedurally and substantively fair because he was found guilty of a serious misconduct after being afforded a fair hearing. These are two conflicting versions.
55. In Avril Elizabeth Home for the Mentally Handicapped v CCMA & others the Labour Court held that:
“When determining whether an employee is guilty of misconduct, the proper test is proof on a balance of probabilities not that of beyond reasonable doubt, which is the burden of proof as it applies in our criminal law system”.
56. When confronted with these two versions, I find that of the employer to be most probable for the reasons canvased hereunder.
57. Starting with procedural fairness, it is important to note that the chairperson of the disciplinary hearing was vested with the powers to make rulings including postponement rulings. However, such powers should be exercised along the rules of natural justice, fairness and the employer’s disciplinary code.
58. In this case, the applicant and Mr. Phalane testified that they attended the disciplinary hearing on 02 August 2019 to “request for postponement of the disciplinary hearing”. It was Mr. Phalane’s testimony that both of them were aware of the employer’s disciplinary code that disciplinary hearing may proceed in the absence of the other party. He also testified that Mr. Seleka indicated to the chairperson that the matter would be partly heard and they will be furnished with the recordings of the hearing. It should be noted that this evidence differed with that of Mr. Mphago. I fail to understand Mr. Phalane’s reasons of leaving the hearing because if they relied on the provision of recordings by the chairperson, how was the employer’s version going to be challenged i.e cross examination of the employer’s witnesses could not have been possible under the circumstances.
59. Under cross-examination they both testified that there was no documentary evidence submitted to the chairperson to substantiate their application. It was Mr. Phalane’s testimony during cross-examination that in his view, the document was going to assist with the granting of postponement and that the chairperson was not obliged to grant postponement application.
60. When analysing the contents of page 32 of Bundle A, I found that the document does not prove that Mr. Thamaga went to Pretoria on the day in question, but it only shows that an amount of R1500 was paid to the Tshwane University of Technology in the student account of Mr. Thamaga.
61. Mr. Netshiomvani testified uncontested evidence that he warned the applicant and his representative about the implications of walking out of the disciplinary hearing. Despite that, they walked out.
62. In my view, it is not important how many times the matter was postponed in favour of which party. Cardinal is the reason (and if necessary proof thereof) of postponement application. The reason should be valid, just and fair to warrant postponement. The LRA sets out in section 1(d) (iv) that one of its main objectives is “the effective resolution of labour disputes”. Ancillary to this objective is the notion of ‘expeditious resolution of labour disputes’.
63. In determining whether to grant a postponement, one must bear in mind what was said in Carephone (Pty) ltd v Marcus no & others where the head note reads as follows:
“In a court of law, the granting of an application for postponement is not a right. It is an indulgence granted by the court in the exercise of a judicial discretion. What is normally required is a reasonable explanation for the need to postpone and the capability of an appropriate costs order to nullify the opposing party's prejudice or potential prejudice”.
64. A postponement is an indulgence, and accordingly, the chairperson found no basis to grant the application for postponement. In my analysis, it is clear that the applicant and his representative were not expelled from the disciplinary hearing. They left on their own accord after their application for postponement was not granted.
65. Based on these reasons, I opine that that the applicant was afforded the right to be heard, but he waived such right. Therefore, I find the suspension of the employee to be procedurally fair.
66. Moving to substantive fairness. I should acknowledge that the employer’s case relied mostly on character evidence of the applicant. For that reason, the first point that needs to be made as was said in NUM obo Winston Busiswe Manganye v CCMA and others is that evidence to the effect that the accused has a bad character, is inadmissible, unless the character evidence has some bearing on issues unrelated to the reputation of the accused. The applicant’s defense against all the allegations amounts to a mere denial.
67. Ms. Ngomane and Ms. Chueu testified in this hearing that although they did not see Mr. Mphago touching the thighs of Ms. Shadung, they all suffered sexual harassment on different occasions perpetrated by the applicant. In my view their evidence was detailed and not exaggerated. They also appeared to be honest from their demeanor and candor. Their evidence was also corroborated by that of Ms. Shadung.
68. Under normal circumstances, it is difficult for victims and witnesses of sexual harassment to come forward and disclose openly about their experiences. This is because of the aspect of human dignity at stake.
69. In my view, the witnesses could not have made up all the detailed allegations which have the possibility of tainting their reputation, image and dignity. Ms. Shadung could not have gone further implicating her former colleagues including Gift. She had no reason to lie since she never hated the applicant. The same can be said about the applicant who testified that he was in good terms with Ms. Shadung except the fact that they once had an altercation involving the veranda. For instance, he once helped her after she collapsed by taking her to the doctor. The applicant only testified that Mr. Chauke hates him.
70. If indeed there was conspiracy against the applicant, the victims could have fabricated other grounds for the employer to find him guilty, than using sexual harassment accusations.
71. The employer’s witnesses were also corroborated by Ms. Ngobeni who testified for the applicant. She testified under cross-examination that Ms. Ngomane is a good person not capable of lying. The same goes to Ms. Shadung. She also testified further that Ms. Chueu looked like a good person, but she never spoke to her.
72. The evidence of Ms. Hlongwane and Ms. Ngobeni appeared to be somehow exaggerated because it is improbable that a leaner can attend all her classes in a year without missing a single one.
73. Mr. Chauke led important uncontested evidence after the first sitting of this hearing, that he was called by Mr. Thamaga three times to discuss this matter. Unfortunately they could not meet because Thamaga was aware that he was a witness of the employer in the matter. This in my view raises one’s eyebrows since Mr. Thamaga was well aware that the matter at that time was sub judice and that Chauke was to testify. In fact he took a witness’s stand but his testimony had to be postponed due to unavailability of an interpreter. I also did not find good reasons why Mr. Thamaga would call Chauke whilst fully aware that he hated the applicant (as per the applicant’s testimony) under the circumstances.
74. Having regard to the evidence before me, I am convinced that the respondent successfully defended its decision to suspend the applicant under the circumstances.
75. To this end, I find that the respondent succeeded in proving on a balance of probabilities that the employee’s suspension was fair.
AWARD
76. I find the suspension of the applicant to have been procedurally and substantively fair;
77. The applicant’s case is dismissed.
This done and signed at Polokwane on the 08th day of November 2021
Matloga Nicholas
Commissioner/ Panellist