ELRC644-20/21 EC
Text
ELRC170-21-22 KZN
Award Date:
26 January 2022
IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD IN DURBAN
Case No ELRC170-21-22 KZN
In the matter between
DEPARTMENT OF EDUCATION-KZN Applicant
and
DOUGLAS BONINKOSI LUTHULI Respondent
ARBITRATOR : AS Dorasamy
HEARD : 6, 12 OCTOBER 2021 & 09/10 DECEMBER 2021
DATE OF AWARD : 26 JANUARY 2022
SUMMARY : INQUIRY BY ARBITRATOR
ARBITRATION AWARD
PARTICULARS OF PROCEEDINGS AND REPRESENTATION
1 This matter was set down for arbitration on various dates and on the 10 December 2021 and the evidence was completed at the Durban Teacher’s Centre in Durban and under the auspices of the Education Labour Relations Council (ELRC). Ms Khethiwe Sikhosana an attorney represented Mr Douglas Boninkosi Luthuli (respondent/ employee) hereinafter referred to as the educator, Ms Jabu Dumisa represented the Department of Education KZN (applicant/ employer) hereinafter referred to as the employer. The parties were to submit written closing arguments by the 17 December 2021. The party’s submissions and the applicable provisions of the Collective Agreement No. 3 of 2018 (Inquiry by Arbitrator) were considered when I arrived at my decision.
THE ISSUE IN DISPUTE
2 I am required to determine whether the educator is guilty as charged and dependent thereon
the appropriate relief may be determined.
THE BACKGROUND TO THE DISPUTE
3.1 This is a disciplinary process in the form of an arbitration, as outlined in ELRC Collective Agreement No.3 of 2018. The inquiry is conducted in terms of the ELRC’s dispute resolution processes. The outcome of this inquiry is final and binding and has the same status as an arbitration award, meaning there is no appeal and can only be reviewed by the Labour Court.
3.2. All documents referred to had been made available to the parties at arbitration. The markings of the documents was standardised with the parties at the arbitration.
3.3. The educator was charged as follows:
In that during the period at or near Qhubakahle Primary School, you committed sexual misconduct against a learner in your school you thereby contravened section 17 (1) (b) of the Employment of Educator’s Act.
3.4. There was an intermediary present at the hearing.
3.5. The employer is hereinafter referred to as the applicant and the educator is referred to as the respondent.
APPLICANT’S (EMPLOYER) OPENING STATEMENT
4. Mr Douglas Boninkosi Luthuli is an educator at Qhubakahle Primary School under the Ilembe District. It is an allegation of sexual assault levelled against him. Learner A at the time was in grade 7. The Department of Education suspended the respondent and he is still on suspension. The learner has since passed away.
5. The applicant prays that should the respondent be found guilty the sanction is mandatory that is dismissal.
RESPONDENT’S (EMPLOYEE’S) OPENING STATEMENT
6. The respondent pleads not guilty to the charge. He would be using two letters by Learner A to rebut the charges.
He seek full re-instatement in his previous duties as an educator.
SUMMARY OF EVIDENCE AND ARGUMENT
EVIDENCE ON BEHALF OF THE APPLICANT (EMPLOYER)
THE SALIENT ASPECTS OF THE EVIDENCE ARE RECORDED BELOW.
Ms THOKOZANI PATRICIA LINDA
Ms Linda testified to the following effect:
7. She is the principal of the school since 1 December 2016 and knows the respondent as an educator at the school. He is her colleague and no vendetta against him. The Learner A is known to her. (NOKUBONGA DLAMINI)
8. She submitted a report as the mother reported the matter telephonically on the 27 August 2020 around 16H00. She reported that there was a relationship between the learner and the respondent a teacher at the school. She said that they were having an affair. The next morning she called the learner to confirm the parent’s submission.
9. She called the learner to her office and asked her what had happened at home. She said she got beaten by her parents because she was accused of having a relationship with the educator. When she was investigating the child she took a video to record what was said by the learner as she did not want to spoon feed her.
10. After that as the principal she reported the matter to the circuit manager Mr Msane that there were allegations against Mr Luthuli. He wanted it in writing. She compiled the report and sent it to the Department.
11. The learner confirmed the allegation that she was in love with the teacher. She had sex with the teacher in his motor vehicle and the next time at his house and they used condoms. She said she visited the teacher on Sundays when her parents went to church. She was 14 years old at the time and one member of the family went to her house and they found her hanging in a room that had no roof, deserted house.
12. The parent said that they were moving from the area. The parents did not open a criminal case because they will not open a case against the respondent. They were afraid but did not say to her when the incident was reported to the mother. There was a grand-parent living with the learner and who passed away.
Under cross examination she stated as follows:
13. She worked with the respondent since 2013 and they had a fall out because he did not submit his file and she called him and nothing happened since that incident.
14. In 2019 she discovered that when he was not submitting his work and he said he was divorcing his wife. She asked him if he needed EAP and he said he will try and do his work. He was often away from school. She does not know his marital status. He has two children and an ex-wife who live together. She has not had him in school for a year.
15. The learner and the respondent were in the class as teacher and learner. He taught her for at-least two years ago. There were no issues prior to the incident.
16. The learner willingly divulged the information. The learner was scared to confide with her. She asked her not to tell anyone. She interviewed the learner on the first day for one hour.
17. She took time and was crying since she was scared to divulge any information. The learner told her a different story before she told the truth. She was not going to hit the child but wanted her to tell the truth.
18. The learner was outspoken and was a good writer and she did not know who helped her with her writing. She was writing in Isizulu and English.
19. The learners were scared to go to the respondent.
20. The Department asked for the mother and child to be brought to the District office. She was not present when they spoke to them.
21. She knows Ms Khanyile an educator at the school and knows the letters which was given to her. She forwarded it to the police and the District. She read the letters.
22. The learner was worried about what she said to the principal.
23. After the learner’s death the letter came to her knowledge around November last year. The learner died in January 2021.
24. She is clear the learner told her everything. Ms Khanyile did not know what to do with the letters as she was confused. In the letter the learner said that she was going to commit suicide. In the letter she said that she lied about everything. The period of her meeting the Department and the passing away was about a month. During that time charges were served on the respondent. He was already on suspension.
Ms NONTOBEKO MAGOSO
The salient aspects of her evidence are recorded below.
25. She is the Assistant Manager Employee Relations and investigated the matter.
26. She met the learner last year and interviewed her. She said that she was in a relationship with the respondent since 2019 and he once took her to his house where they had sex. She said they consented to have sex and the second time there was no consent.
27. She described the respondent’s house in detail and there were cupboards, fridge and sofas covered in brown cloth and a big screen TV.
28. When she interviewed her she was not threatened. The learner came with her parents and she was asked if she was comfortable talking in front of her parents. She said that she wanted to speak alone with her. She wanted to say everything and someone who will not judge her.
29. She then spoke to the parent not the biological parent but her aunt. Her parent was still alive but she was looked after by her aunt. The aunt said that they found the child had a sexual relationship with the teacher.
30. They wanted the Department to take steps but were afraid of the child and the teacher may threaten the child or her family will be killed by the educator (respondent).
31. The learner said she was afraid to report the matter and said it was the second time the educator abused her. She was afraid to report it because of the allegation that the teacher had dealt with people in the same way before the incident.
32. She advised her to go to the police, social workers but they told her they were fearing to go there because the teacher knew people to help him. They said the child will die. Those were the words of the child and her aunt.
Under cross examination she stated as follows:
33. She interviewed the learner on one day. There was no investigation and she received and drafted the charges and had to interview the child as she wanted to clear certain things.
34. She received a report from the District office and interviewed the principal Ms Linda at the school. She said that she had spoken to the child.
35. She drew an inference of sexual misconduct between the educator and the learner. The principal told her that she recorded the interview and she told her to send it to the District office and she sent it to the office and she excused herself from the case and Ms Dumisa was appointed to the case. She did not listen to the video recording.
36. She did not interview Ms Khanyile or see the letters sent to her.
37. The learner described the respondent’s house but she did not go to his house. She did not interview the educator.
EVIDENCE ON BEHALF OF THE RESPONDENT/ EDUCATOR
DOUGLAS BONINKOSI LUTHULI
The salient aspects of his testimony are recorded below.
38. He is an educator at the school since 2002 and this is his first disciplinary hearing. He knows learner A who wrote the letters as a learner at the school and taught her in grade six and seven. She wrote poems and went to him for assistance once or twice.
39. He did not have any interaction with her outside the classroom> Ms Linda the principal testified on him as an individual and his relationship with her good. She did not speak to him about the learner and he came to know about the allegations only when he received his letter of suspension on the 14 September 2020.
40. At school he does not like to talk but does his work. Sometimes people would say he is rude and his relationship with his learners are good. He received the suspension letter and understood it. He thought the reason was that the name of the person recorded was Nokulunga Dlamini who he does not know. There is no such learner. He did not have sexual relationship with his learners. This was the first time such allegation was put to him.
41. He is married, has children and would be upset if it happened to his child. The charge sheet refers to Nokulunga Dlamini and the letters were written by Nokubanga Dlamini.
42. On pages 35 and 36 are the two letters which he saw when he received an email from Ms Abagail Nomfundu from the District office. On page 26 Ms Khanyile a teacher at the school and the learner were familiar with each other and she worked at the same school.
43. When he received the letters he was on suspension and living at his home while he was away from school. When he was on suspension he had no contact with the learner or other learners. Ms Linda said the learner went to his home on a Sunday and had sexual relationship. He did not have a sexual relationship with her. On Sundays he awakes, eats, wash his car and around 3pm he watches soccer. During this time he would be with his friends.
Under cross examination he stated as follows:
44. He is a very quiet person and has a learner-educator relationship. The learner A was not close to him. In the letter she indicated that she kissed him. That did not happen. The letters are not true. He had no vendetta with the learner. He has a motor vehicle and does not go to church. The learner did not visit him at his house. She lied about having sex with him and the layout of his house.
45. He and Ms Khanyile have worked together for ten years. She is his colleague.
46. The learner had passed away and he saw the letters in June 2021.12.20
Ms LUNGILE CHARITY KHANYILE
The salient aspects of her evidence are recorded below.
47. She has worked as an educator for 14 years. She has a good relationship with the respondent as colleagues. He is quiet and does not talk much. Most of the time he sits in his car.
48. He is friendly but strict with learners. There were two letters sent to her. When the learner gave her the letters she was down on the day. She read the letters and called her and asked her about the letters. She did not want to discuss the letters and went away. She taught the learner in grade four.
Under cross examination she stated as follows:
49. She received the letters and gave it to the principal. She did not discuss the letters with Mr Luthuli (respondent). She did not call him. He was not at school.
50. When she asked the learner about the letter she said everything will be fine. She did not tell her to take the letter to the principal.
51. She said that she hopes everyone who reads the letter will help her and Mr Luthuli to go back to work and apologised in the end.
52. She does not know if Mr Luthuli and the learner had sex.
CLOSING ARGUMENTS
53. The parties submitted written closing arguments that were considered in arriving at my decision. The parties must be complimented for submitting comprehensive arguments.
ANALYSIS OF EVIDENCE AND ARGUMENT
SURVEY OF EVIDENCE AND ARGUMENT
54. The applicant/employer sought the educator’s dismissal.
55. The respondent/educator sought the charge to be dismissed.
ANALYSIS OF EVIDENCE AND ARGUMENT
56. This matter was cited as an inquiry by an arbitrator in terms of Collective Agreement No. 3 of 2018.
57 The term sexual misconduct refers to a romantic or sexual relationship between a teacher and a
learner. This also includes inappropriate misconduct such as sending text message to learners;
communication on social platforms such as WhatsApp that is of a sexual nature; taking and sending
nude photographs and/or videos; propositioning a learner and inappropriate touching.
58. In terms of Section 17 of the Employment of Educators Act 76 of 1998 dismissal is mandatory if a
teacher is found guilty of sexual misconduct.
59. The arbitrator has a duty to determine if the teacher is fit to work with children. Once declared
unsuitable the ELRC has a duty to submit a report to the Director-General of Social Development to
be added to the National Register For sex Offenders (NRSO).
60. Arising from the above it is important for arbitrator’s to apply their minds carefully because of the
consequences of a guilty finding.
61. In respect of the current matter, the enquiry is required to ascertain whether the educator is guilty as
charged based on the evidence tendered at the arbitration.
62. I record that I have taken note of oral and documentary evidence and record the following for completeness and in determining this matter:
Section 138 General provisions for arbitration proceedings
(1) The commissioner may conduct the arbitration in a manner that the commissioner considers appropriate in order to determine the dispute fairly and quickly, but must deal with the substantial merits of the dispute with the minimum of legal formalities.
(7) Within 14 days of the conclusion of the arbitration proceedings-
(a) the commissioner must issue an arbitration award with brief reasons, signed by the
commissioner.
(10) The commissioner may make an order for the payment of costs according the
requirements of law and fairness..............
63. In this matter the learner in question did not testify as she passed away in January 2021. In her
letters to Ms Khanyile she did not mention that there was no sexual intercourse between her and the
educator.
64. The employer’s case depended on the submission by Ms Linda and Mrs Magoso. Both of them did
not probe whether sexual intercourse took place. Further they did not interview the respondent and
get his version whether there was sexual impropriety between herself and the educator.
65. In this matter it is clear from the submissions submitted by the parties that the following may be
reasonably gleaned.
66. In a matter of this nature if the evidence points to the definition of sexual misconduct then the inquiry ends there and then and the educator should be found guilty and it is mandatory that he be dismissed and the other requirement be followed up.
67. I have taken into account that Mrs Magoso and Ms Linda had not made a thorough investigation into the matter. They did not interview crucial witnesses like Ms Khanyile and the custodians of the learner. Further the alleged recording of the interview between the principal and learner were not produced. The persons from the District office did not testify and the investigation by the District office was not divulged.
68. An inquiry of this nature is very serious as it may have drastic consequences for the educator. I am not suggesting that real perpetrators with proper evidence should not be punished as per collective agreement but that it weakens the employer’s case if the affected learner fails to corroborate the employer’s version. In the absence of corroboration what remains is hearsay evidence and the applicable provisions must apply.
69. In this case the employer had ample opportunity to obtain credible evidence as there was sufficient time between to allegation surfacing and the death of the learner. One must be mindful that learner are at a tender age and have flights of fancy and may make allegation where none exit. It is important to confirm that sexual impropriety had taken place before adverse conclusions may be reached.
70. I have taken into account the applicant’s testimony and am not convinced that any sexual impropriety had taken place and this was denied by the deceased learner and she wished the respondent well. This is not a sign that she wanted the respondent to be punished. It is unfortunate that greater care was not taken to prevent the demise of the learner.
71. The employer/applicant failed to discharge the onus that there was sufficient evidence to find the educator guilty. The educator had submitted sufficient evidence that the allegations against him was not properly founded and as such should be found not guilty and exonerated.
72. As a consequence of the above the employer must within FOURTEEN (14) days of receipt of this
award contact the applicant and make the necessary arrangements for the applicant’s return to work in the new year.
COSTS
73. I have considered the issue of wasted costs and do not believe that any party acted unreasonably
and direct in terms of law and fairness that neither party should be burdened with a cost order
against it and should pay its own costs.
AWARD
74. I find that the respondent/educator not guilty of the charge he faced in this inquiry.
75. The the educator must report for duty at the school where he was employed prior to his suspension within 2 working days of receipt of this award
76. Each party should pay its own costs.
DONE AND SIGNED IN DURBAN ON THIS 26 DAY OF JANUARY 2022.
Arbitrator: Anand Dorasamy
Case No ELRC170-21-22 KZN
In the matter between
DEPARTMENT OF EDUCATION-KZN Applicant
and
DOUGLAS BONINKOSI LUTHULI Respondent
ARBITRATOR : AS Dorasamy
HEARD : 6, 12 OCTOBER 2021 & 09/10 DECEMBER 2021
DATE OF AWARD : 26 JANUARY 2022
SUMMARY : INQUIRY BY ARBITRATOR
ARBITRATION AWARD
PARTICULARS OF PROCEEDINGS AND REPRESENTATION
1 This matter was set down for arbitration on various dates and on the 10 December 2021 and the evidence was completed at the Durban Teacher’s Centre in Durban and under the auspices of the Education Labour Relations Council (ELRC). Ms Khethiwe Sikhosana an attorney represented Mr Douglas Boninkosi Luthuli (respondent/ employee) hereinafter referred to as the educator, Ms Jabu Dumisa represented the Department of Education KZN (applicant/ employer) hereinafter referred to as the employer. The parties were to submit written closing arguments by the 17 December 2021. The party’s submissions and the applicable provisions of the Collective Agreement No. 3 of 2018 (Inquiry by Arbitrator) were considered when I arrived at my decision.
THE ISSUE IN DISPUTE
2 I am required to determine whether the educator is guilty as charged and dependent thereon
the appropriate relief may be determined.
THE BACKGROUND TO THE DISPUTE
3.1 This is a disciplinary process in the form of an arbitration, as outlined in ELRC Collective Agreement No.3 of 2018. The inquiry is conducted in terms of the ELRC’s dispute resolution processes. The outcome of this inquiry is final and binding and has the same status as an arbitration award, meaning there is no appeal and can only be reviewed by the Labour Court.
3.2. All documents referred to had been made available to the parties at arbitration. The markings of the documents was standardised with the parties at the arbitration.
3.3. The educator was charged as follows:
In that during the period at or near Qhubakahle Primary School, you committed sexual misconduct against a learner in your school you thereby contravened section 17 (1) (b) of the Employment of Educator’s Act.
3.4. There was an intermediary present at the hearing.
3.5. The employer is hereinafter referred to as the applicant and the educator is referred to as the respondent.
APPLICANT’S (EMPLOYER) OPENING STATEMENT
4. Mr Douglas Boninkosi Luthuli is an educator at Qhubakahle Primary School under the Ilembe District. It is an allegation of sexual assault levelled against him. Learner A at the time was in grade 7. The Department of Education suspended the respondent and he is still on suspension. The learner has since passed away.
5. The applicant prays that should the respondent be found guilty the sanction is mandatory that is dismissal.
RESPONDENT’S (EMPLOYEE’S) OPENING STATEMENT
6. The respondent pleads not guilty to the charge. He would be using two letters by Learner A to rebut the charges.
He seek full re-instatement in his previous duties as an educator.
SUMMARY OF EVIDENCE AND ARGUMENT
EVIDENCE ON BEHALF OF THE APPLICANT (EMPLOYER)
THE SALIENT ASPECTS OF THE EVIDENCE ARE RECORDED BELOW.
Ms THOKOZANI PATRICIA LINDA
Ms Linda testified to the following effect:
7. She is the principal of the school since 1 December 2016 and knows the respondent as an educator at the school. He is her colleague and no vendetta against him. The Learner A is known to her. (NOKUBONGA DLAMINI)
8. She submitted a report as the mother reported the matter telephonically on the 27 August 2020 around 16H00. She reported that there was a relationship between the learner and the respondent a teacher at the school. She said that they were having an affair. The next morning she called the learner to confirm the parent’s submission.
9. She called the learner to her office and asked her what had happened at home. She said she got beaten by her parents because she was accused of having a relationship with the educator. When she was investigating the child she took a video to record what was said by the learner as she did not want to spoon feed her.
10. After that as the principal she reported the matter to the circuit manager Mr Msane that there were allegations against Mr Luthuli. He wanted it in writing. She compiled the report and sent it to the Department.
11. The learner confirmed the allegation that she was in love with the teacher. She had sex with the teacher in his motor vehicle and the next time at his house and they used condoms. She said she visited the teacher on Sundays when her parents went to church. She was 14 years old at the time and one member of the family went to her house and they found her hanging in a room that had no roof, deserted house.
12. The parent said that they were moving from the area. The parents did not open a criminal case because they will not open a case against the respondent. They were afraid but did not say to her when the incident was reported to the mother. There was a grand-parent living with the learner and who passed away.
Under cross examination she stated as follows:
13. She worked with the respondent since 2013 and they had a fall out because he did not submit his file and she called him and nothing happened since that incident.
14. In 2019 she discovered that when he was not submitting his work and he said he was divorcing his wife. She asked him if he needed EAP and he said he will try and do his work. He was often away from school. She does not know his marital status. He has two children and an ex-wife who live together. She has not had him in school for a year.
15. The learner and the respondent were in the class as teacher and learner. He taught her for at-least two years ago. There were no issues prior to the incident.
16. The learner willingly divulged the information. The learner was scared to confide with her. She asked her not to tell anyone. She interviewed the learner on the first day for one hour.
17. She took time and was crying since she was scared to divulge any information. The learner told her a different story before she told the truth. She was not going to hit the child but wanted her to tell the truth.
18. The learner was outspoken and was a good writer and she did not know who helped her with her writing. She was writing in Isizulu and English.
19. The learners were scared to go to the respondent.
20. The Department asked for the mother and child to be brought to the District office. She was not present when they spoke to them.
21. She knows Ms Khanyile an educator at the school and knows the letters which was given to her. She forwarded it to the police and the District. She read the letters.
22. The learner was worried about what she said to the principal.
23. After the learner’s death the letter came to her knowledge around November last year. The learner died in January 2021.
24. She is clear the learner told her everything. Ms Khanyile did not know what to do with the letters as she was confused. In the letter the learner said that she was going to commit suicide. In the letter she said that she lied about everything. The period of her meeting the Department and the passing away was about a month. During that time charges were served on the respondent. He was already on suspension.
Ms NONTOBEKO MAGOSO
The salient aspects of her evidence are recorded below.
25. She is the Assistant Manager Employee Relations and investigated the matter.
26. She met the learner last year and interviewed her. She said that she was in a relationship with the respondent since 2019 and he once took her to his house where they had sex. She said they consented to have sex and the second time there was no consent.
27. She described the respondent’s house in detail and there were cupboards, fridge and sofas covered in brown cloth and a big screen TV.
28. When she interviewed her she was not threatened. The learner came with her parents and she was asked if she was comfortable talking in front of her parents. She said that she wanted to speak alone with her. She wanted to say everything and someone who will not judge her.
29. She then spoke to the parent not the biological parent but her aunt. Her parent was still alive but she was looked after by her aunt. The aunt said that they found the child had a sexual relationship with the teacher.
30. They wanted the Department to take steps but were afraid of the child and the teacher may threaten the child or her family will be killed by the educator (respondent).
31. The learner said she was afraid to report the matter and said it was the second time the educator abused her. She was afraid to report it because of the allegation that the teacher had dealt with people in the same way before the incident.
32. She advised her to go to the police, social workers but they told her they were fearing to go there because the teacher knew people to help him. They said the child will die. Those were the words of the child and her aunt.
Under cross examination she stated as follows:
33. She interviewed the learner on one day. There was no investigation and she received and drafted the charges and had to interview the child as she wanted to clear certain things.
34. She received a report from the District office and interviewed the principal Ms Linda at the school. She said that she had spoken to the child.
35. She drew an inference of sexual misconduct between the educator and the learner. The principal told her that she recorded the interview and she told her to send it to the District office and she sent it to the office and she excused herself from the case and Ms Dumisa was appointed to the case. She did not listen to the video recording.
36. She did not interview Ms Khanyile or see the letters sent to her.
37. The learner described the respondent’s house but she did not go to his house. She did not interview the educator.
EVIDENCE ON BEHALF OF THE RESPONDENT/ EDUCATOR
DOUGLAS BONINKOSI LUTHULI
The salient aspects of his testimony are recorded below.
38. He is an educator at the school since 2002 and this is his first disciplinary hearing. He knows learner A who wrote the letters as a learner at the school and taught her in grade six and seven. She wrote poems and went to him for assistance once or twice.
39. He did not have any interaction with her outside the classroom> Ms Linda the principal testified on him as an individual and his relationship with her good. She did not speak to him about the learner and he came to know about the allegations only when he received his letter of suspension on the 14 September 2020.
40. At school he does not like to talk but does his work. Sometimes people would say he is rude and his relationship with his learners are good. He received the suspension letter and understood it. He thought the reason was that the name of the person recorded was Nokulunga Dlamini who he does not know. There is no such learner. He did not have sexual relationship with his learners. This was the first time such allegation was put to him.
41. He is married, has children and would be upset if it happened to his child. The charge sheet refers to Nokulunga Dlamini and the letters were written by Nokubanga Dlamini.
42. On pages 35 and 36 are the two letters which he saw when he received an email from Ms Abagail Nomfundu from the District office. On page 26 Ms Khanyile a teacher at the school and the learner were familiar with each other and she worked at the same school.
43. When he received the letters he was on suspension and living at his home while he was away from school. When he was on suspension he had no contact with the learner or other learners. Ms Linda said the learner went to his home on a Sunday and had sexual relationship. He did not have a sexual relationship with her. On Sundays he awakes, eats, wash his car and around 3pm he watches soccer. During this time he would be with his friends.
Under cross examination he stated as follows:
44. He is a very quiet person and has a learner-educator relationship. The learner A was not close to him. In the letter she indicated that she kissed him. That did not happen. The letters are not true. He had no vendetta with the learner. He has a motor vehicle and does not go to church. The learner did not visit him at his house. She lied about having sex with him and the layout of his house.
45. He and Ms Khanyile have worked together for ten years. She is his colleague.
46. The learner had passed away and he saw the letters in June 2021.12.20
Ms LUNGILE CHARITY KHANYILE
The salient aspects of her evidence are recorded below.
47. She has worked as an educator for 14 years. She has a good relationship with the respondent as colleagues. He is quiet and does not talk much. Most of the time he sits in his car.
48. He is friendly but strict with learners. There were two letters sent to her. When the learner gave her the letters she was down on the day. She read the letters and called her and asked her about the letters. She did not want to discuss the letters and went away. She taught the learner in grade four.
Under cross examination she stated as follows:
49. She received the letters and gave it to the principal. She did not discuss the letters with Mr Luthuli (respondent). She did not call him. He was not at school.
50. When she asked the learner about the letter she said everything will be fine. She did not tell her to take the letter to the principal.
51. She said that she hopes everyone who reads the letter will help her and Mr Luthuli to go back to work and apologised in the end.
52. She does not know if Mr Luthuli and the learner had sex.
CLOSING ARGUMENTS
53. The parties submitted written closing arguments that were considered in arriving at my decision. The parties must be complimented for submitting comprehensive arguments.
ANALYSIS OF EVIDENCE AND ARGUMENT
SURVEY OF EVIDENCE AND ARGUMENT
54. The applicant/employer sought the educator’s dismissal.
55. The respondent/educator sought the charge to be dismissed.
ANALYSIS OF EVIDENCE AND ARGUMENT
56. This matter was cited as an inquiry by an arbitrator in terms of Collective Agreement No. 3 of 2018.
57 The term sexual misconduct refers to a romantic or sexual relationship between a teacher and a
learner. This also includes inappropriate misconduct such as sending text message to learners;
communication on social platforms such as WhatsApp that is of a sexual nature; taking and sending
nude photographs and/or videos; propositioning a learner and inappropriate touching.
58. In terms of Section 17 of the Employment of Educators Act 76 of 1998 dismissal is mandatory if a
teacher is found guilty of sexual misconduct.
59. The arbitrator has a duty to determine if the teacher is fit to work with children. Once declared
unsuitable the ELRC has a duty to submit a report to the Director-General of Social Development to
be added to the National Register For sex Offenders (NRSO).
60. Arising from the above it is important for arbitrator’s to apply their minds carefully because of the
consequences of a guilty finding.
61. In respect of the current matter, the enquiry is required to ascertain whether the educator is guilty as
charged based on the evidence tendered at the arbitration.
62. I record that I have taken note of oral and documentary evidence and record the following for completeness and in determining this matter:
Section 138 General provisions for arbitration proceedings
(1) The commissioner may conduct the arbitration in a manner that the commissioner considers appropriate in order to determine the dispute fairly and quickly, but must deal with the substantial merits of the dispute with the minimum of legal formalities.
(7) Within 14 days of the conclusion of the arbitration proceedings-
(a) the commissioner must issue an arbitration award with brief reasons, signed by the
commissioner.
(10) The commissioner may make an order for the payment of costs according the
requirements of law and fairness..............
63. In this matter the learner in question did not testify as she passed away in January 2021. In her
letters to Ms Khanyile she did not mention that there was no sexual intercourse between her and the
educator.
64. The employer’s case depended on the submission by Ms Linda and Mrs Magoso. Both of them did
not probe whether sexual intercourse took place. Further they did not interview the respondent and
get his version whether there was sexual impropriety between herself and the educator.
65. In this matter it is clear from the submissions submitted by the parties that the following may be
reasonably gleaned.
66. In a matter of this nature if the evidence points to the definition of sexual misconduct then the inquiry ends there and then and the educator should be found guilty and it is mandatory that he be dismissed and the other requirement be followed up.
67. I have taken into account that Mrs Magoso and Ms Linda had not made a thorough investigation into the matter. They did not interview crucial witnesses like Ms Khanyile and the custodians of the learner. Further the alleged recording of the interview between the principal and learner were not produced. The persons from the District office did not testify and the investigation by the District office was not divulged.
68. An inquiry of this nature is very serious as it may have drastic consequences for the educator. I am not suggesting that real perpetrators with proper evidence should not be punished as per collective agreement but that it weakens the employer’s case if the affected learner fails to corroborate the employer’s version. In the absence of corroboration what remains is hearsay evidence and the applicable provisions must apply.
69. In this case the employer had ample opportunity to obtain credible evidence as there was sufficient time between to allegation surfacing and the death of the learner. One must be mindful that learner are at a tender age and have flights of fancy and may make allegation where none exit. It is important to confirm that sexual impropriety had taken place before adverse conclusions may be reached.
70. I have taken into account the applicant’s testimony and am not convinced that any sexual impropriety had taken place and this was denied by the deceased learner and she wished the respondent well. This is not a sign that she wanted the respondent to be punished. It is unfortunate that greater care was not taken to prevent the demise of the learner.
71. The employer/applicant failed to discharge the onus that there was sufficient evidence to find the educator guilty. The educator had submitted sufficient evidence that the allegations against him was not properly founded and as such should be found not guilty and exonerated.
72. As a consequence of the above the employer must within FOURTEEN (14) days of receipt of this
award contact the applicant and make the necessary arrangements for the applicant’s return to work in the new year.
COSTS
73. I have considered the issue of wasted costs and do not believe that any party acted unreasonably
and direct in terms of law and fairness that neither party should be burdened with a cost order
against it and should pay its own costs.
AWARD
74. I find that the respondent/educator not guilty of the charge he faced in this inquiry.
75. The the educator must report for duty at the school where he was employed prior to his suspension within 2 working days of receipt of this award
76. Each party should pay its own costs.
DONE AND SIGNED IN DURBAN ON THIS 26 DAY OF JANUARY 2022.
Arbitrator: Anand Dorasamy