ELRC644-20/21 EC
Text
ELRC433-21/22KZN
Award Date:
15 February 2022
IN THE ELRC: INQUIRY BY ARBITRATOR BETWEEN:
THE HEAD OF THE
DEPARTMENT OF EDUCATION – KWAZULU-NATAL The Employer
and
D GYANISHWAR The Employee
Inquiry by arbitrator-finding
Case Number: ELRC433-21/22KZN
Dates of arbitration: 17 January & 14 February 2022
Date of award: 15 February 2022
J KIRBY
ELRC Arbitrator
Education Labour Relations Council
ELRC Building
261 West Avenue
Centurion
Tel: 012 663 0452
Fax: 012 643 1601
DETAILS OF HEARING AND REPRESENTATION
1. The inquiry by arbitrator was held on 17 January and 14 February 2022. On 17 January 2022 the charge was put to the Employee who pleaded and provided his plea explanation. The hearing of evidence took place on 14 February 2022. The evidence of the child witness was heard remotely. After she had testified the hearing re-convened at the Durban Teachers’ Centre.
2. The Employee was represented by Mr Xaba, a trade union official.
3. The Employer, the Head of the KwaZulu-Nata l Department of Education was represented by its employee, Mr Pillay.
4. The learner referred to in these proceedings is approximately 16 years old and in order to protect her privacy I shall refer to her throughout this award as “the Learner.” She testified with the assistance of an intermediary, Ms Phakathi
5. The proceedings were digitally recorded.
EXPLANATION OF THE EMPLOYEES’ RIGHTS
6. At the commencement of the hearing and when the hearing reconvened, I explained the following rights to the Employee, who confirmed that he was aware of and understood these rights:
6.1. The rights to question witnesses of the Employer and to dispute any documentary evidence. In particular, the need to ensure that any evidence with which he did not agree was disputed by his representative and the need to ensure that his version was put to each witness; and
6.2. The right to give evidence and to call witnesses.
7. The Applicant confirmed that he had been given written notice of the alleged misconduct and that he had appointed his trade union to represent him.
8. It was explained to both parties, who indicated that they understood that:
8.1. A separate hearing in respect of sanction in event of a finding of guilty, would not be held. Evidence in mitigation and aggravation of sentence would be presented prior to a finding on the merits of the case having been given;
8.2. They could make closing arguments after all evidence had been heard; and
8.3. In terms of section 120 of the Children’s Act I, as the arbitrator, acting on my own or on application of the Employer may make a finding that the Employee is unsuitable to work with children. It was further explained in this regard that a separate hearing would not be held.
THE CHARGE AND PLEA
9. The Employee was charged as follows:
“Charge 1
It is alleged that on 19 April 2021 on or around midday at 10 Magnolia Street, Mobeni you committed an act of sexual assault on a learner from Southlands Secondary School. You thus committed an offence in terms of section 17(1)(b) of the Employment of Employees Act.
Alternatively
It is alleged that on 19 April 2021 on or about midday at 10 Magnolia Street, Mobeni you prejudiced the discipline, efficiency and administration of the Department by engaging in inappropriate behaviour with a learner from Southlands Secondary School. You thus committed an offence in terms of section 18(1)(f).”
10. The Employee pleaded not guilty to both the main and alternative counts and submitted in explanation of his plea that:
10.1. At the time of the alleged incident he was engaged to the sister of the learner;
10.2. He resided in an outbuilding of the residence of the learner and her family;
10.3. On 19 April 2021 he had collected the learner from her school and returned to their residence. He had proceeded to the outbuilding and the learner had entered the main residence;
10.4. After a while he realized that the battery of his cellphone was running low, so he entered the main building to charge the phone.
10.5. He entered the main building to find the learner crying. He asked her why she was crying. The learner grabbed his private parts and tried to kiss him. He pushed her away and ran outside.
10.6. The mother of the learner returned to the residence at approximately 3 pm and at approximately 6 pm he had taken her and the learner to the temple. Sometime thereafter the two returned to the residence with other members of the family. They accused him of having raped the learner and assaulted. He was taken to the police station by his own father.
10.7. The Employee had been injured in a motor vehicle collision. He speculates that this false accusation had been made against him as a ploy to extort a payment of money from the proceeds of an anticipated Road Accident Fund payment.
SUMMARY OF EVIDENCE AND ARGUMENTS
The Employer’s case
11. The Learner is 16 years old and attends Southlands Secondary School.
12. At the date of the alleged incident, the Employee was his sister’s fiancée and he stayed in an outbuilding of their residence.
13. On 21 April 2021 she had written an examination and it was arranged that the Employee would collect her from her school. Her mother had told him to drop her off at her place of work. When he had collected the Learner, however, he had taken her to their residence.
14. Once they had arrived at their residence, the Employee had followed the Learner into the lounge. He had taken her by the hand and led her to her bedroom. He had then pushed her on to a bed. He had tried to unbuckle her shirt and pull down her pants. She had resisted and he had taken out his private part from his pants and put it into her mouth. He had used his hand to move her head up and down. He had messed on her shirt. He told her to take off her shirt and that he’d clean it. She then went to the lounge and the Employee went to his room in the outbuilding.
15. The learner had then notified a friend of what had happened. The friend advised her to tell a family member. She had told her sister-in-law who in turn advised her to tell her mother. After her mother had returned from work, the Applicant had taken her and her mother to their temple.
16. The Learner could not recall the exact date of the incident and thought that it might have occurred on 12 April 2021.
17. The learner had regarded the Employee as a brother and trusted him.
18. Under cross-examination the Learner had stated that she was scared to inform her parents of the assault. The Employee had said that she was not to tell anyone and that if she did, he would leave. She did not know how to tell her parents. On the advice of her friend she had told her sister-in-law who had informed her parents.
19. Despite having been reminded of the plea explanation given by the Employee and the advisability of giving the Learner an opportunity to comment on it, the version was not put to her.
The Employee’s case
20. The Employee denies the charge.
21. On 19 April 2021 the Learner’s father had asked him to collect the Learner from her school as she was writing an examination and would finish school early. Although he understood that he was to take her to her mother’s place of work, when he had collected the Learner she had asked to be taken home. He had done so and informed her father.
22. Once at the residence, he had gone to the outbuilding and the Learner had entered the main residence. He was communicating with his then fiancée by cellphone. As the phone’s battery was running low, he had entered the main residence to charge it. He had entered the Learner’s bedroom to do so. On entering the bedroom, he found the Learner there. She was crying. When he had asked her why she was crying, she had jumped up and tried to kiss him. He had pushed her away as she was a minor and run to the outbuilding. He had sent a message to his then fiancée that he needed to talk to her.
23. The Learner’s mother arrived home at about 3 pm and he had taken her and the Learner to their temple at about 6 pm and he returned home. At about 6:30 pm they had arrived back at the residence with the Learner’s father, brother and others. They accused him of having raped the Learner and he was assaulted.
24. His father had arrived at the residence and taken him to the police station, where he was detained and later appeared in court. The charge was withdrawn at his second court appearance pending the receipt of DNA results.
25. He believed that the Learner had developed feelings for him as he took her to the casino and she had seen how well he treated her sister.
26. Under cross-examination he agreed that his version had not been put to the Learner.
27. He had been injured in 2017 and he had told the Learner’s family that he expected to receive compensation of approximately R2 million.
28. The Employee did not know why the Learner had been crying when he had entered her bedroom. He had not notified her mother that she had been upset as he was more concerned about her approaching him and he had wanted to discuss this first with her sister (his fiancée.)
SUMMARY OF ARGUMENTS
The Employer
29. The Department submitted that the version of the Learner had not been challenged and that there was no plausible explanation as to why she would lie. It had been established on a balance of probabilities that the Employee had sexually assaulted the Learner. Further in this regard, the Employee had not raised the alarm with regards to the Learner’s conduct with his fiancée or the Learner’s parents. His version ought to be rejected.
30. Sexual assault of a child is a serious offence and in line with the provisions of section 28(2) of the Constitution, 1996, the Employee should not be allowed to work with children. He had stood in a position of in loco parentis and abused this position. As an educator he would act in loco parentis with regards to learners and he cannot be allowed to again act in such a role.
The Employee
31. The Employee submitted that he had been an educator for approximately 8 years and that he wanted to continue teaching.
32. After the Learner had tried to kiss him he had immediately told her sister (and his fiancée) that he needed to speak to her.
33. He denied having assaulted the Learner.
ANALYSIS OF EVIDENCE AND ARGUMENT
34. The Employer is required to prove on a balance of probabilities that the Employee is guilty of the alleged misconduct with which he has been charged.
35. The Employee is charged with having committed “an act of sexual assault on a learner” and in so doing had contravened section 17(1)(b) of the Employment of Educators Act 76 of 1998. The said section 17(1)(b) provides that an Educator must be dismissed if he is found to be guilty of “committing an act of sexual assault on a learner, student or other employee.” It is immaterial whether or not the educator and learner are at the same school.
36. It is evident from the provisions of section 17(1)(b) of the Act that an essential element of the alleged misconduct of the Employer is that he committed an act of sexual assault. As such it was required of the Employer to establish that the Employee committed an act of a sexual nature against the consent of the Learner.
37. in this case both parties relied upon the evidence of a single witness. The evidence of each witness is in all material respects inconsistent with the evidence of the other. I need to consider the reliability and credibility of each witness and the overall probabilities of each version. Having considered these aspects of the evidence I need to determine whether the Employer has established on a balance of probabilities that the Employee committed the act of misconduct as alleged by it.
38. It was evident that the Learner was nervous in giving her evidence. During her evidence the hearing was adjourned for a short period to allow her to compose herself. She nevertheless gave her evidence in a clear and consistent fashion. She in no way gave the impression that she was attempting to embellish her evidence and she freely admitted that she was unsure of the exact date on which the incident had occurred.
39. The evidence of the Learner was that after having been collected from her school by the Educator they had returned to their residence. The Educator had entered the main residence from the outbuilding where he stayed and taken her to her bedroom. There he had attempted to remove her clothing. She had resisted. He had ultimately placed his penis in her mouth. Immediately after the incident she had informed a friend who had advised her to tell a family member about what had happened. She had told her sister-in-law who in turn had informed her parents. She had been scared to speak to her parents about the incident. The challenge to this evidence was largely confined to her failure to immediately report the alleged assault to her parents. The response of the Learner was that she did not feel comfortable doing so herself. As already indicated, the version of the Employee was not put to the Learner despite me having reminded the Employee of the importance of doing so.
40. The evidence of the Employee is that the Learner’s version is a fabrication and that it is she who had attempted to kiss him when he had entered her bedroom to charge his cellphone. He surmised that in falsely accusing him, the Learner was party to a conspiracy with other family members to extort money from him in anticipation of a payout from the Road Accident Fund.
41. In assessing the evidence of the Employee I am struck by the improbability of it being necessary for him to enter the Learner’s bedroom in order to charge his cellphone. It is common cause that he stayed in the outbuilding. I would expect his battery charger to be in his and not the Learner’s room. No explanation was given as to why the charger was in the bedroom of the Learner. Further, if the Learner was party to the scheme to falsely implicate the Employee, why did she choose the same day on which the so called false allegation is said to have occurred, to attempt to kiss him as he alleges? This version was not put to her so she was not given an opportunity to comment on it. Lastly, with regards to the Employee’s evidence, he speculated that the alleged false allegation was an attempt to extort money from him but he gave no evidence that any such attempt was subsequently made. On his own evidence his father had arrived at the residence and taken him to the police station. He subsequently appeared in court. There is no evidence of any demand for the payment of money having been made by the Learner’s family. As a consequence hereof, I find that the version of the Employee is inherently improbable and reject it whenever it is inconsistent with the version of the Learner.
42. As already indicated, it is the evidence of the Learner that the Employee first attempted to remove her clothing and then placed his penis in her mouth without her consent. I accept this evidence. All of these actions by the Employee amount to assaults of a sexual nature.
43. I am accordingly satisfied that the Employer has established that the Employee is guilty of having committed an act of sexual assault on a learner as stipulated in section 17(1)(b) of the Act.
FINDING
44. The Employee, Darshin Gyanishwar, is guilty of having contravened the provisions of section 17(1)(b) of the Employment of Educators Act 76 of 1998, in that he committed an act of sexual assault on a learner and he is dismissed.
INQUIRY IN TERMS OF SECTION 120 OF THE Children’s Act 38 Of 2005, AS AMENDED
45. Section 120(1)(c) of the Children’s Act provides that a finding that a person is unsuitable to work with children may be made by any “forum established or recognized by law in any disciplinary proceedings concerning the conduct of that person relating to a child.” This inquiry by arbitrator is such a forum established in terms of section 188A of the Labour Relations Act 66 of 1995.
46. At the commencement of this hearing the parties were informed that such an inquiry would be held and that they should submit evidence and make submissions in this regard during the hearing. At the closure of the Employee’s case the parties were again reminded of this and the arguments detailed above were also submitted in respect of this inquiry.
47. I have had regard to the evidence presented and the submissions made during the inquiry by arbitrator, which in addition to the nature of the assault establishes that the assault took place in the home of the child.
48. In terms of section 120 of the Children’s Act 38 of 2005, as amended, I find that the Employee, Darshin Gyanishwar, is unsuitable to work with children.
ORDER IN TERMS OF SECTION 120 OF THE CHILDREN’S ACT 38 OF 2005, AS AMENDED
49. Darshin Gyanishwar (Persal No 65234634) is found unsuitable to work with children in terms of section 120 of the Children’s Act 38 of 2005, as amended.
50. The General-Secretary of the ELRC must in terms of section 122(1) of the Children’s Act 38 of 2005, as amended, notify the Director General of the Department of Social Development in writing of the finding of this forum made in terms of section 120 of the Children’s Act 38 of 2005, as amended, that Darshin Gyanishwar (Persal No 65234634) is unsuitable to work with children, for the Director General to enter his name in part B of the register as contemplated in section 120 of Children’s Act 38 of 2005, as amended.
51. Darshin Gyanishwar is advised that in terms of section 121 of the Children’s Act 38 of 2005, as amended, he may have my finding in terms of section 120 of the said Act reviewed by a court.
J Kirby
Arbitrator 15 February 2022
ELRC433-21/22KZN
THE HEAD OF THE
DEPARTMENT OF EDUCATION – KWAZULU-NATAL The Employer
and
D GYANISHWAR The Employee
Inquiry by arbitrator-finding
Case Number: ELRC433-21/22KZN
Dates of arbitration: 17 January & 14 February 2022
Date of award: 15 February 2022
J KIRBY
ELRC Arbitrator
Education Labour Relations Council
ELRC Building
261 West Avenue
Centurion
Tel: 012 663 0452
Fax: 012 643 1601
DETAILS OF HEARING AND REPRESENTATION
1. The inquiry by arbitrator was held on 17 January and 14 February 2022. On 17 January 2022 the charge was put to the Employee who pleaded and provided his plea explanation. The hearing of evidence took place on 14 February 2022. The evidence of the child witness was heard remotely. After she had testified the hearing re-convened at the Durban Teachers’ Centre.
2. The Employee was represented by Mr Xaba, a trade union official.
3. The Employer, the Head of the KwaZulu-Nata l Department of Education was represented by its employee, Mr Pillay.
4. The learner referred to in these proceedings is approximately 16 years old and in order to protect her privacy I shall refer to her throughout this award as “the Learner.” She testified with the assistance of an intermediary, Ms Phakathi
5. The proceedings were digitally recorded.
EXPLANATION OF THE EMPLOYEES’ RIGHTS
6. At the commencement of the hearing and when the hearing reconvened, I explained the following rights to the Employee, who confirmed that he was aware of and understood these rights:
6.1. The rights to question witnesses of the Employer and to dispute any documentary evidence. In particular, the need to ensure that any evidence with which he did not agree was disputed by his representative and the need to ensure that his version was put to each witness; and
6.2. The right to give evidence and to call witnesses.
7. The Applicant confirmed that he had been given written notice of the alleged misconduct and that he had appointed his trade union to represent him.
8. It was explained to both parties, who indicated that they understood that:
8.1. A separate hearing in respect of sanction in event of a finding of guilty, would not be held. Evidence in mitigation and aggravation of sentence would be presented prior to a finding on the merits of the case having been given;
8.2. They could make closing arguments after all evidence had been heard; and
8.3. In terms of section 120 of the Children’s Act I, as the arbitrator, acting on my own or on application of the Employer may make a finding that the Employee is unsuitable to work with children. It was further explained in this regard that a separate hearing would not be held.
THE CHARGE AND PLEA
9. The Employee was charged as follows:
“Charge 1
It is alleged that on 19 April 2021 on or around midday at 10 Magnolia Street, Mobeni you committed an act of sexual assault on a learner from Southlands Secondary School. You thus committed an offence in terms of section 17(1)(b) of the Employment of Employees Act.
Alternatively
It is alleged that on 19 April 2021 on or about midday at 10 Magnolia Street, Mobeni you prejudiced the discipline, efficiency and administration of the Department by engaging in inappropriate behaviour with a learner from Southlands Secondary School. You thus committed an offence in terms of section 18(1)(f).”
10. The Employee pleaded not guilty to both the main and alternative counts and submitted in explanation of his plea that:
10.1. At the time of the alleged incident he was engaged to the sister of the learner;
10.2. He resided in an outbuilding of the residence of the learner and her family;
10.3. On 19 April 2021 he had collected the learner from her school and returned to their residence. He had proceeded to the outbuilding and the learner had entered the main residence;
10.4. After a while he realized that the battery of his cellphone was running low, so he entered the main building to charge the phone.
10.5. He entered the main building to find the learner crying. He asked her why she was crying. The learner grabbed his private parts and tried to kiss him. He pushed her away and ran outside.
10.6. The mother of the learner returned to the residence at approximately 3 pm and at approximately 6 pm he had taken her and the learner to the temple. Sometime thereafter the two returned to the residence with other members of the family. They accused him of having raped the learner and assaulted. He was taken to the police station by his own father.
10.7. The Employee had been injured in a motor vehicle collision. He speculates that this false accusation had been made against him as a ploy to extort a payment of money from the proceeds of an anticipated Road Accident Fund payment.
SUMMARY OF EVIDENCE AND ARGUMENTS
The Employer’s case
11. The Learner is 16 years old and attends Southlands Secondary School.
12. At the date of the alleged incident, the Employee was his sister’s fiancée and he stayed in an outbuilding of their residence.
13. On 21 April 2021 she had written an examination and it was arranged that the Employee would collect her from her school. Her mother had told him to drop her off at her place of work. When he had collected the Learner, however, he had taken her to their residence.
14. Once they had arrived at their residence, the Employee had followed the Learner into the lounge. He had taken her by the hand and led her to her bedroom. He had then pushed her on to a bed. He had tried to unbuckle her shirt and pull down her pants. She had resisted and he had taken out his private part from his pants and put it into her mouth. He had used his hand to move her head up and down. He had messed on her shirt. He told her to take off her shirt and that he’d clean it. She then went to the lounge and the Employee went to his room in the outbuilding.
15. The learner had then notified a friend of what had happened. The friend advised her to tell a family member. She had told her sister-in-law who in turn advised her to tell her mother. After her mother had returned from work, the Applicant had taken her and her mother to their temple.
16. The Learner could not recall the exact date of the incident and thought that it might have occurred on 12 April 2021.
17. The learner had regarded the Employee as a brother and trusted him.
18. Under cross-examination the Learner had stated that she was scared to inform her parents of the assault. The Employee had said that she was not to tell anyone and that if she did, he would leave. She did not know how to tell her parents. On the advice of her friend she had told her sister-in-law who had informed her parents.
19. Despite having been reminded of the plea explanation given by the Employee and the advisability of giving the Learner an opportunity to comment on it, the version was not put to her.
The Employee’s case
20. The Employee denies the charge.
21. On 19 April 2021 the Learner’s father had asked him to collect the Learner from her school as she was writing an examination and would finish school early. Although he understood that he was to take her to her mother’s place of work, when he had collected the Learner she had asked to be taken home. He had done so and informed her father.
22. Once at the residence, he had gone to the outbuilding and the Learner had entered the main residence. He was communicating with his then fiancée by cellphone. As the phone’s battery was running low, he had entered the main residence to charge it. He had entered the Learner’s bedroom to do so. On entering the bedroom, he found the Learner there. She was crying. When he had asked her why she was crying, she had jumped up and tried to kiss him. He had pushed her away as she was a minor and run to the outbuilding. He had sent a message to his then fiancée that he needed to talk to her.
23. The Learner’s mother arrived home at about 3 pm and he had taken her and the Learner to their temple at about 6 pm and he returned home. At about 6:30 pm they had arrived back at the residence with the Learner’s father, brother and others. They accused him of having raped the Learner and he was assaulted.
24. His father had arrived at the residence and taken him to the police station, where he was detained and later appeared in court. The charge was withdrawn at his second court appearance pending the receipt of DNA results.
25. He believed that the Learner had developed feelings for him as he took her to the casino and she had seen how well he treated her sister.
26. Under cross-examination he agreed that his version had not been put to the Learner.
27. He had been injured in 2017 and he had told the Learner’s family that he expected to receive compensation of approximately R2 million.
28. The Employee did not know why the Learner had been crying when he had entered her bedroom. He had not notified her mother that she had been upset as he was more concerned about her approaching him and he had wanted to discuss this first with her sister (his fiancée.)
SUMMARY OF ARGUMENTS
The Employer
29. The Department submitted that the version of the Learner had not been challenged and that there was no plausible explanation as to why she would lie. It had been established on a balance of probabilities that the Employee had sexually assaulted the Learner. Further in this regard, the Employee had not raised the alarm with regards to the Learner’s conduct with his fiancée or the Learner’s parents. His version ought to be rejected.
30. Sexual assault of a child is a serious offence and in line with the provisions of section 28(2) of the Constitution, 1996, the Employee should not be allowed to work with children. He had stood in a position of in loco parentis and abused this position. As an educator he would act in loco parentis with regards to learners and he cannot be allowed to again act in such a role.
The Employee
31. The Employee submitted that he had been an educator for approximately 8 years and that he wanted to continue teaching.
32. After the Learner had tried to kiss him he had immediately told her sister (and his fiancée) that he needed to speak to her.
33. He denied having assaulted the Learner.
ANALYSIS OF EVIDENCE AND ARGUMENT
34. The Employer is required to prove on a balance of probabilities that the Employee is guilty of the alleged misconduct with which he has been charged.
35. The Employee is charged with having committed “an act of sexual assault on a learner” and in so doing had contravened section 17(1)(b) of the Employment of Educators Act 76 of 1998. The said section 17(1)(b) provides that an Educator must be dismissed if he is found to be guilty of “committing an act of sexual assault on a learner, student or other employee.” It is immaterial whether or not the educator and learner are at the same school.
36. It is evident from the provisions of section 17(1)(b) of the Act that an essential element of the alleged misconduct of the Employer is that he committed an act of sexual assault. As such it was required of the Employer to establish that the Employee committed an act of a sexual nature against the consent of the Learner.
37. in this case both parties relied upon the evidence of a single witness. The evidence of each witness is in all material respects inconsistent with the evidence of the other. I need to consider the reliability and credibility of each witness and the overall probabilities of each version. Having considered these aspects of the evidence I need to determine whether the Employer has established on a balance of probabilities that the Employee committed the act of misconduct as alleged by it.
38. It was evident that the Learner was nervous in giving her evidence. During her evidence the hearing was adjourned for a short period to allow her to compose herself. She nevertheless gave her evidence in a clear and consistent fashion. She in no way gave the impression that she was attempting to embellish her evidence and she freely admitted that she was unsure of the exact date on which the incident had occurred.
39. The evidence of the Learner was that after having been collected from her school by the Educator they had returned to their residence. The Educator had entered the main residence from the outbuilding where he stayed and taken her to her bedroom. There he had attempted to remove her clothing. She had resisted. He had ultimately placed his penis in her mouth. Immediately after the incident she had informed a friend who had advised her to tell a family member about what had happened. She had told her sister-in-law who in turn had informed her parents. She had been scared to speak to her parents about the incident. The challenge to this evidence was largely confined to her failure to immediately report the alleged assault to her parents. The response of the Learner was that she did not feel comfortable doing so herself. As already indicated, the version of the Employee was not put to the Learner despite me having reminded the Employee of the importance of doing so.
40. The evidence of the Employee is that the Learner’s version is a fabrication and that it is she who had attempted to kiss him when he had entered her bedroom to charge his cellphone. He surmised that in falsely accusing him, the Learner was party to a conspiracy with other family members to extort money from him in anticipation of a payout from the Road Accident Fund.
41. In assessing the evidence of the Employee I am struck by the improbability of it being necessary for him to enter the Learner’s bedroom in order to charge his cellphone. It is common cause that he stayed in the outbuilding. I would expect his battery charger to be in his and not the Learner’s room. No explanation was given as to why the charger was in the bedroom of the Learner. Further, if the Learner was party to the scheme to falsely implicate the Employee, why did she choose the same day on which the so called false allegation is said to have occurred, to attempt to kiss him as he alleges? This version was not put to her so she was not given an opportunity to comment on it. Lastly, with regards to the Employee’s evidence, he speculated that the alleged false allegation was an attempt to extort money from him but he gave no evidence that any such attempt was subsequently made. On his own evidence his father had arrived at the residence and taken him to the police station. He subsequently appeared in court. There is no evidence of any demand for the payment of money having been made by the Learner’s family. As a consequence hereof, I find that the version of the Employee is inherently improbable and reject it whenever it is inconsistent with the version of the Learner.
42. As already indicated, it is the evidence of the Learner that the Employee first attempted to remove her clothing and then placed his penis in her mouth without her consent. I accept this evidence. All of these actions by the Employee amount to assaults of a sexual nature.
43. I am accordingly satisfied that the Employer has established that the Employee is guilty of having committed an act of sexual assault on a learner as stipulated in section 17(1)(b) of the Act.
FINDING
44. The Employee, Darshin Gyanishwar, is guilty of having contravened the provisions of section 17(1)(b) of the Employment of Educators Act 76 of 1998, in that he committed an act of sexual assault on a learner and he is dismissed.
INQUIRY IN TERMS OF SECTION 120 OF THE Children’s Act 38 Of 2005, AS AMENDED
45. Section 120(1)(c) of the Children’s Act provides that a finding that a person is unsuitable to work with children may be made by any “forum established or recognized by law in any disciplinary proceedings concerning the conduct of that person relating to a child.” This inquiry by arbitrator is such a forum established in terms of section 188A of the Labour Relations Act 66 of 1995.
46. At the commencement of this hearing the parties were informed that such an inquiry would be held and that they should submit evidence and make submissions in this regard during the hearing. At the closure of the Employee’s case the parties were again reminded of this and the arguments detailed above were also submitted in respect of this inquiry.
47. I have had regard to the evidence presented and the submissions made during the inquiry by arbitrator, which in addition to the nature of the assault establishes that the assault took place in the home of the child.
48. In terms of section 120 of the Children’s Act 38 of 2005, as amended, I find that the Employee, Darshin Gyanishwar, is unsuitable to work with children.
ORDER IN TERMS OF SECTION 120 OF THE CHILDREN’S ACT 38 OF 2005, AS AMENDED
49. Darshin Gyanishwar (Persal No 65234634) is found unsuitable to work with children in terms of section 120 of the Children’s Act 38 of 2005, as amended.
50. The General-Secretary of the ELRC must in terms of section 122(1) of the Children’s Act 38 of 2005, as amended, notify the Director General of the Department of Social Development in writing of the finding of this forum made in terms of section 120 of the Children’s Act 38 of 2005, as amended, that Darshin Gyanishwar (Persal No 65234634) is unsuitable to work with children, for the Director General to enter his name in part B of the register as contemplated in section 120 of Children’s Act 38 of 2005, as amended.
51. Darshin Gyanishwar is advised that in terms of section 121 of the Children’s Act 38 of 2005, as amended, he may have my finding in terms of section 120 of the said Act reviewed by a court.
J Kirby
Arbitrator 15 February 2022
ELRC433-21/22KZN