ELRC644-20/21 EC
Text
ELRC 393-21/22GP
Award Date:
11 February 2022
IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD GAUTENG WEST DISTRICT OFFICE (KRUGERSDORP)
Case No ELRC 393-21/22GP
In the matter between
GAUTENG DEPT OF EDUCATION EMPLOYER
and
ITUMELENG SELOKELO EMPLOYEE
ARBITRATOR: Monde Boyce
HEARD: 27 October 2021 & 21 January 2022
CLOSING ARGUMENTS: 31 January 2022
DATE OF AWARD: 11 February 2022
AWARD
PARTICULARS OF PROCEEDINGS AND REPRESENTATION:
[1] The ELRC scheduled the matter for a hearing in terms of Section 188A of the Labour Relations Act 66 of 1995 as amended (LRA). The enquiry was held at the Gauteng West District offices in Krugersdorp on 27 October 2021 and on 21 January 2022. Parties attended on both dates and Miss Pulane Tafane, a Senior Labour Relations Practitioner, appeared for the employer while Mr Kgosinkwe Mahuma, a SADTU trade union official appeared for the employee.
[2] Only the employer submitted a bundle of documents. The proceedings were digitally recorded, and an interpreter was available to provide interpretation services. Before commencement of the hearing, I established that the learner witnesses were both twenty (20) years old and they both confirmed that they were comfortable giving evidence. A total of ten (10) witnesses were to be called to testify.
THE ISSUE TO BE DECIDED:
[3] Whether the employee is guilty or not of the charges preferred against him by the department, and I am required to make the appropriate award.
THE BACKGROUND TO THE DISPUTE:
[4] The employee is currently employed as an educator at Kagiso Senior Secondary School in Kagiso. In this inquiry, six (06) charges were preferred against the employee. On reading out the charges and on asking the employee whether he understood the charges and what his plea was on each of the charges, the employee pleaded guilty to all the six (06) charges preferred against him. The following charges were preferred against the employee:
Charge 1
“You are charged with misconduct of improper, disgraceful and unacceptable conduct in that, during the year 2019 or anytime incidental thereto, as an educator at Kagiso Senior Secondary School, you asked a female learner, Learner A, if she gave her p…sy to Mr Thabang Radebe and when will you also get it, whilst you knew or ought to have known that it was wrong to do so. Your action constitutes misconduct.
In view of the above, you are charged with misconduct in terms of Section 18(1)(q) of the Employment of Educators Act 76 of 1998 as amended.”
Charge 2
“You are charged with misconduct of improper, disgraceful and unacceptable conduct in that during the year 2019 or anytime incidental thereto, as an educator at Kagiso Senior Secondary School, you asked a female learner, (Learner A), if you can book a room for you and her on a Sunday, while you knew or ought to have known that it was wrong to do so. Your action constitutes misconduct.
In view of the above, you are charged with misconduct in terms of Section 18(1)(q) of the Employment of Educators Act 76 of 1998 as amended.”
Charge 3
“You are charged with misconduct of improper, disgraceful and unacceptable conduct in that during the year 2019 or anytime incidental thereto, as an educator at Kagiso Senior Secondary School, you told a female learner, (Learner B), that she has a nice body and asked her to send you her nude pictures whilst you knew or ought to have known that it is wrong to do so. Your action constitutes misconduct.
In view of the above, you are charged with misconduct in terms of Section 18(1)(q) of the Employment of Educators Act 76 of 1998 as amended.”
Charge 4
“You are charged with misconduct of improper, disgraceful and unacceptable conduct in that during February 2020 or anytime incidental thereto, as an educator at Kagiso Senior Secondary School, you grabbed and tried to kiss a female learner, (Learner B), in your office whilst you knew or ought to have known that it is wrong to do so. Your action constitutes misconduct.
In view of the above, you are charged with misconduct in terms of Section 18(1)(q) of the Employment of Educators Act 76 of 1998 as amended.”
Charge 5
“You are charged with misconduct of improper, disgraceful and unacceptable conduct in that during the year 2019 or anytime incidental thereto, as an educator at Kagiso Senior Secondary School, you texted (Learner B) that she should lie to her parents that she had extra classes so can book a room for you and her whilst you knew or ought to have known that it is wrong to do so. Your action constitutes misconduct.
In view of the above, you are charged with misconduct in terms of Section 18(1)(q) of the Employment of Educators Act 76 of 1998 as amended.”
Charge 6
“You are charged with misconduct of improper, disgraceful and unacceptable conduct in that during the period 2019 or anytime incidental thereto, as an educator at Kagiso Senior Secondary School, you told (Learner B) that you would make her pass Grade 11 if she agreed to be intimate with you whilst you knew or ought to have known that it is wrong to do so. Your action constitutes misconduct.
In view of the above, you are charged with misconduct in terms of Section 18(1)(q) of the Employment of Educators Act 76 of 1998 as amended.”
On charge 4, the employee requested time with his representative to discuss the charge before registering his plea. After the adjournment, the employee registered a guilty plea to charge 4 as well. The only issue he raised was that of alleged unfairness of his suspension. That became the only issue left for determination, and I called for evidence to be led in respect of the alleged unfair suspension.
SURVEY OF EVIDENCE AND ARGUMENT:
Employer’s Evidence
[5] Miss Pulane Tafane, testified that she is employed by the department as the Senior Labour Relations Specialist. Page 5 of the common bundle submitted contains a precautionary transfer signed by the Head of Department and dated 17 May 2021. The employee received the precautionary suspension and signed acknowledgement on the very same date. The employee received the charges on 15 August 2021. There was closures of schools from June 2021 to July 2021 and there was no activity at schools and as such, the charges could not be served earlier. If there was no such challenge the issue of the 90 days would not have arisen.
Employee’s Evidence
[6] The employee, Mr Itumeleng Jafta Selokela, testified that since he was called to the principal’s office to when he was served the charges by Miss Tafane, he was under the impression that same would happen within 90 days. It is nine months since he was placed on precautionary suspension. He thus believed his suspension was unfair in that regard.
ANALYSIS OF THE EVIDENCE AND ARGUMENT
[7] In the present hearing, the employee pleaded guilty to all the charges preferred against him. In registering the plea of guilt, I did not get the impression that the employee and the representative did not understand the charges and that they did not understand the implications of pleading guilty to the charges.
[8] The employee was afforded an opportunity to consult with his representative when he appeared to be hesitant or unsure of what plea to register in respect of the charges, and it was charge 4 that the employee sought an adjournment to consult with his representative. While the employee pleaded guilty to each of the charges and while, to that extent, no evidence was led, and while the employer made reference only to Section 18(1)(q) of the Employment of Educators, careful reading of each of the charges preferred against the employee does point to the conduct complained of also as misconduct as provided for in Section 17(1)(b)(c). The employee not only engaged in sexual assault against the learners, by grabbing and trying to kiss Learner B for an example as set out in charge 4, the employer further engaged in serious acts of misconduct that was of a sexual nature when he texted one of the learners and promising to make Learner B pass Grade 11 should she agree to be intimate with him. This conduct amounts to serious violation of the dignity of learners.
[9] I have had regard to submissions made in mitigating and aggravation of sanction. Having read the arguments, I am not persuaded that the sanction to be met out should be any lesser than a dismissal. In any event, an arbitrator does not have discretion but to impose a dismissal sanction where an employee is found guilty of misconduct in terms of Section 17 of the Employment of Educators Act 76 of 1998. Even if I were to confine myself to Section 18(1)(q) of the above Act, and as such, entitled to exercise discretion, I would still find that dismissal is warranted a sanction given the gravity of the offence. The employee, as an educator, had amongst his primary responsibilities, protection of and safeguarding of interests of learners. Given the instances that the employee engaged in the inappropriate conduct with the learners, imposition of the harshest sanction is warranted. An educator can have no excuse for engaging in sexually inappropriate relationships with learners. As such, in the present case, I find dismissal to be warranted irrespective of the mitigating factors set out in the employee’s closing arguments.
[10] The Constitution of the republic does state that interests of a child take paramount importance. That children should be protected from any ill treatment including sexual abuse is provided for in the Constitution. It can never be gainsaid that the employee had a duty to uphold these provisions. In keeping with the said provisions of the Constitution, the South African Council of Educators (SACE) deemed in necessary to include the following in its Code that educators must “refrain from any form of sexual harassment (physical or otherwise) of learners, and to refrain from any form of sexual relationship with learners from any school. Consideration of any lesser sanction, even I had discretion, would be against the spirit of the Constitution and that of SACE’s Code of Conduct for educators.
[11] Regarding the claim of unfair suspension, I cannot find that the employee’s suspension was unfair. On the contrary, I am persuaded by the employer’s claim that charges were not served earlier because schools were closed between June and July 2021 as per the National Disaster Regulations. In any event, service of the charges would have delayed by only two days if one has regard to the fact that the employee was served with his suspension on 17 May 2021 and served with the disciplinary charges on 15 August 2021. applicant substantiated the claim. I also cannot find that the employee suffered any prejudice. He was suspended on full pay and enjoyed all of his benefits, the difference being that he was not teaching but based in the Gauteng South District office.
[12] In the premises, I make the following award:
AWARD
[13] The employee guilty of all the six (06) charges preferred against him and I, as a consequence, impose a sanction of summary dismissal effective from 14 February 2022.
[14] The General Secretary of the ELRC must, within 14 days of receipt of this award, report or refer the award to the educators’ professional body, SACE for consideration of action to be taken in terms of its Code of Conduct for educators.
[15] The employee has the right to take this award on review to the Labour Court as envisaged in Section 145 of the LRA and must do so within the prescribed timeframe should he so wish.
Monde Boyce
Panelist: ELRC
Case No ELRC 393-21/22GP
In the matter between
GAUTENG DEPT OF EDUCATION EMPLOYER
and
ITUMELENG SELOKELO EMPLOYEE
ARBITRATOR: Monde Boyce
HEARD: 27 October 2021 & 21 January 2022
CLOSING ARGUMENTS: 31 January 2022
DATE OF AWARD: 11 February 2022
AWARD
PARTICULARS OF PROCEEDINGS AND REPRESENTATION:
[1] The ELRC scheduled the matter for a hearing in terms of Section 188A of the Labour Relations Act 66 of 1995 as amended (LRA). The enquiry was held at the Gauteng West District offices in Krugersdorp on 27 October 2021 and on 21 January 2022. Parties attended on both dates and Miss Pulane Tafane, a Senior Labour Relations Practitioner, appeared for the employer while Mr Kgosinkwe Mahuma, a SADTU trade union official appeared for the employee.
[2] Only the employer submitted a bundle of documents. The proceedings were digitally recorded, and an interpreter was available to provide interpretation services. Before commencement of the hearing, I established that the learner witnesses were both twenty (20) years old and they both confirmed that they were comfortable giving evidence. A total of ten (10) witnesses were to be called to testify.
THE ISSUE TO BE DECIDED:
[3] Whether the employee is guilty or not of the charges preferred against him by the department, and I am required to make the appropriate award.
THE BACKGROUND TO THE DISPUTE:
[4] The employee is currently employed as an educator at Kagiso Senior Secondary School in Kagiso. In this inquiry, six (06) charges were preferred against the employee. On reading out the charges and on asking the employee whether he understood the charges and what his plea was on each of the charges, the employee pleaded guilty to all the six (06) charges preferred against him. The following charges were preferred against the employee:
Charge 1
“You are charged with misconduct of improper, disgraceful and unacceptable conduct in that, during the year 2019 or anytime incidental thereto, as an educator at Kagiso Senior Secondary School, you asked a female learner, Learner A, if she gave her p…sy to Mr Thabang Radebe and when will you also get it, whilst you knew or ought to have known that it was wrong to do so. Your action constitutes misconduct.
In view of the above, you are charged with misconduct in terms of Section 18(1)(q) of the Employment of Educators Act 76 of 1998 as amended.”
Charge 2
“You are charged with misconduct of improper, disgraceful and unacceptable conduct in that during the year 2019 or anytime incidental thereto, as an educator at Kagiso Senior Secondary School, you asked a female learner, (Learner A), if you can book a room for you and her on a Sunday, while you knew or ought to have known that it was wrong to do so. Your action constitutes misconduct.
In view of the above, you are charged with misconduct in terms of Section 18(1)(q) of the Employment of Educators Act 76 of 1998 as amended.”
Charge 3
“You are charged with misconduct of improper, disgraceful and unacceptable conduct in that during the year 2019 or anytime incidental thereto, as an educator at Kagiso Senior Secondary School, you told a female learner, (Learner B), that she has a nice body and asked her to send you her nude pictures whilst you knew or ought to have known that it is wrong to do so. Your action constitutes misconduct.
In view of the above, you are charged with misconduct in terms of Section 18(1)(q) of the Employment of Educators Act 76 of 1998 as amended.”
Charge 4
“You are charged with misconduct of improper, disgraceful and unacceptable conduct in that during February 2020 or anytime incidental thereto, as an educator at Kagiso Senior Secondary School, you grabbed and tried to kiss a female learner, (Learner B), in your office whilst you knew or ought to have known that it is wrong to do so. Your action constitutes misconduct.
In view of the above, you are charged with misconduct in terms of Section 18(1)(q) of the Employment of Educators Act 76 of 1998 as amended.”
Charge 5
“You are charged with misconduct of improper, disgraceful and unacceptable conduct in that during the year 2019 or anytime incidental thereto, as an educator at Kagiso Senior Secondary School, you texted (Learner B) that she should lie to her parents that she had extra classes so can book a room for you and her whilst you knew or ought to have known that it is wrong to do so. Your action constitutes misconduct.
In view of the above, you are charged with misconduct in terms of Section 18(1)(q) of the Employment of Educators Act 76 of 1998 as amended.”
Charge 6
“You are charged with misconduct of improper, disgraceful and unacceptable conduct in that during the period 2019 or anytime incidental thereto, as an educator at Kagiso Senior Secondary School, you told (Learner B) that you would make her pass Grade 11 if she agreed to be intimate with you whilst you knew or ought to have known that it is wrong to do so. Your action constitutes misconduct.
In view of the above, you are charged with misconduct in terms of Section 18(1)(q) of the Employment of Educators Act 76 of 1998 as amended.”
On charge 4, the employee requested time with his representative to discuss the charge before registering his plea. After the adjournment, the employee registered a guilty plea to charge 4 as well. The only issue he raised was that of alleged unfairness of his suspension. That became the only issue left for determination, and I called for evidence to be led in respect of the alleged unfair suspension.
SURVEY OF EVIDENCE AND ARGUMENT:
Employer’s Evidence
[5] Miss Pulane Tafane, testified that she is employed by the department as the Senior Labour Relations Specialist. Page 5 of the common bundle submitted contains a precautionary transfer signed by the Head of Department and dated 17 May 2021. The employee received the precautionary suspension and signed acknowledgement on the very same date. The employee received the charges on 15 August 2021. There was closures of schools from June 2021 to July 2021 and there was no activity at schools and as such, the charges could not be served earlier. If there was no such challenge the issue of the 90 days would not have arisen.
Employee’s Evidence
[6] The employee, Mr Itumeleng Jafta Selokela, testified that since he was called to the principal’s office to when he was served the charges by Miss Tafane, he was under the impression that same would happen within 90 days. It is nine months since he was placed on precautionary suspension. He thus believed his suspension was unfair in that regard.
ANALYSIS OF THE EVIDENCE AND ARGUMENT
[7] In the present hearing, the employee pleaded guilty to all the charges preferred against him. In registering the plea of guilt, I did not get the impression that the employee and the representative did not understand the charges and that they did not understand the implications of pleading guilty to the charges.
[8] The employee was afforded an opportunity to consult with his representative when he appeared to be hesitant or unsure of what plea to register in respect of the charges, and it was charge 4 that the employee sought an adjournment to consult with his representative. While the employee pleaded guilty to each of the charges and while, to that extent, no evidence was led, and while the employer made reference only to Section 18(1)(q) of the Employment of Educators, careful reading of each of the charges preferred against the employee does point to the conduct complained of also as misconduct as provided for in Section 17(1)(b)(c). The employee not only engaged in sexual assault against the learners, by grabbing and trying to kiss Learner B for an example as set out in charge 4, the employer further engaged in serious acts of misconduct that was of a sexual nature when he texted one of the learners and promising to make Learner B pass Grade 11 should she agree to be intimate with him. This conduct amounts to serious violation of the dignity of learners.
[9] I have had regard to submissions made in mitigating and aggravation of sanction. Having read the arguments, I am not persuaded that the sanction to be met out should be any lesser than a dismissal. In any event, an arbitrator does not have discretion but to impose a dismissal sanction where an employee is found guilty of misconduct in terms of Section 17 of the Employment of Educators Act 76 of 1998. Even if I were to confine myself to Section 18(1)(q) of the above Act, and as such, entitled to exercise discretion, I would still find that dismissal is warranted a sanction given the gravity of the offence. The employee, as an educator, had amongst his primary responsibilities, protection of and safeguarding of interests of learners. Given the instances that the employee engaged in the inappropriate conduct with the learners, imposition of the harshest sanction is warranted. An educator can have no excuse for engaging in sexually inappropriate relationships with learners. As such, in the present case, I find dismissal to be warranted irrespective of the mitigating factors set out in the employee’s closing arguments.
[10] The Constitution of the republic does state that interests of a child take paramount importance. That children should be protected from any ill treatment including sexual abuse is provided for in the Constitution. It can never be gainsaid that the employee had a duty to uphold these provisions. In keeping with the said provisions of the Constitution, the South African Council of Educators (SACE) deemed in necessary to include the following in its Code that educators must “refrain from any form of sexual harassment (physical or otherwise) of learners, and to refrain from any form of sexual relationship with learners from any school. Consideration of any lesser sanction, even I had discretion, would be against the spirit of the Constitution and that of SACE’s Code of Conduct for educators.
[11] Regarding the claim of unfair suspension, I cannot find that the employee’s suspension was unfair. On the contrary, I am persuaded by the employer’s claim that charges were not served earlier because schools were closed between June and July 2021 as per the National Disaster Regulations. In any event, service of the charges would have delayed by only two days if one has regard to the fact that the employee was served with his suspension on 17 May 2021 and served with the disciplinary charges on 15 August 2021. applicant substantiated the claim. I also cannot find that the employee suffered any prejudice. He was suspended on full pay and enjoyed all of his benefits, the difference being that he was not teaching but based in the Gauteng South District office.
[12] In the premises, I make the following award:
AWARD
[13] The employee guilty of all the six (06) charges preferred against him and I, as a consequence, impose a sanction of summary dismissal effective from 14 February 2022.
[14] The General Secretary of the ELRC must, within 14 days of receipt of this award, report or refer the award to the educators’ professional body, SACE for consideration of action to be taken in terms of its Code of Conduct for educators.
[15] The employee has the right to take this award on review to the Labour Court as envisaged in Section 145 of the LRA and must do so within the prescribed timeframe should he so wish.
Monde Boyce
Panelist: ELRC