ELRC644-20/21 EC
Text
ELRC760-21/22WC
Award Date:
22 March 2022
Case No ELRC760-21/22WC
In the matter between
S. Lubanga Employee
and
DOE-WC Employer
Date of Award: 22 March 2022
Arbitrator: A.Singh-Bhoopchand
ARBITRATION AWARD
DETAILS OF HEARING AND REPRESENTATION
1. This Inquiry by Arbitrator was convened for hearing on 1 March 2022 in terms of the provisions of section 188A of the Labour Relations Act no.66 of 1995, as amended (LRA) read together with the provisions of Collective Agreement 3 of 2018, at the offices of the Western Cape Education Department in Cape Town. Mr Lubanga (hereinafter referred to as the employee) presented his own case. The employer was represented by Mr N. Mbobo, a professional officer within the Labour Relations Directorate of the employer.
2. The minor learner, the complainant in this matter, was assisted by an intermediary, Ms B. Manlay. An interpreter, Ms D. Xego was also present to assist with translation of the learner’s evidence.
3. In keeping with ELRC policy, the identity of the minor learner is protected, and she shall accordingly be referred to as learner “A”.
4. One bundle of documents was handed as evidence and shall be referred to where necessary.
THE ALLEGATIONS
CHARGE 1
It is alleged that you are guilty of misconduct in terms of Section 17(1)(b) of the Employment of Educators Act, no 76 of 1998 (hereinafter referred to as the Act), in that during the1st and/or2nd term of 2021, you committed an act of sexual assault on a grade 7 learner “A” at the Emithini Primary School by:
a). Touching and/or grabbing and/or pressing her thigh; and/or
b). Lifting her skirt with your hands
ALTERNATIVE TO CHARGE 1
It is alleged that you are guilty of misconduct in terms of Section 18(1)(q) of the Act, in that during the 1st and/or 2nd term of 2021, while on duty, you conducted yourself in an improper, disgraceful, or unacceptable manner, in that you sexually assaulted a grade 7 learner A at the Emthini Primary School by:
a). Touching and/or grabbing and/or pressing her thigh; and/or
b) Lifting her skirt with your hand.
.
ISSUE IN TO BE DETERMINED
5. I must determine whether the employee is guilty of the allegations against him, and if so, the appropriate sanction.
BACKGROUND
6. The employee was employed as an educator at the Emthini Primary School. He was suspended from service on 20 January 2022 after an investigation into the allegations which were reported during November 2021.
7. He denies the allegations against him.
EVIDENCE
The Employer’s Evidence
Three witnesses testified on behalf of the employer namely the school principal of Emthini Primary School, Mr Makosinii Maci, an educator, Ms Nonthandlo Zilimblu and learner A. I provide only a brief summary of the relevant evidence.
8. Makosini Maci: He testified that during November 2021 an event took place at their school wherein learners were addressed and informed of issues regarding gender- based violence. Shortly after the event, he was made aware at a function, that a learner had reported an incident that happened in March that year. He was told that the learner said that an educator had touched her on her thigh and that he had lifted her skirt. He was also told that the learner had “opened up” after listening to the awareness speech that she had reported the incident to educator Zilimblu. Subsequently upon his return to school, Ms Zilimblu confirmed that the incident had indeed been reported to her and that she had completed the necessary form to report the incident. She also said that the learner told her that the incident happened in the computer room and that the learner reported the incident to an educator, Mrs Smith, on the day that it happened. The learner reported that Mrs Smith told her told her that she should report the incident to another teacher.
9. He was upset and disappointed when he heard that Mrs Smith had not reported the incident as all educators are made aware of the protocol when such incidents are reported by learners.
10. Nonthandlo Zilumblu: She testified that towards the end of November last year an event took place at their school where learners were addressed on issues of gender- based violence. After the event, learner A approached her and told her that Mr Lubanga had touched her on the thigh and that he had also lifted her skirt. The learner said that she had stopped him from going any further and that the incident had happened in the computer room. Learner A cried as she spoke -she was shaking and appeared devastated. She then took the learner with her to complete the necessary form to report such incidents. The learner reported that the incident had happened during March and that she had reported the incident to Mrs Smith at the time. However, Mrs Smith told her to report it to another teacher which she did not do. She said that when she heard the speech about gender- based violence, she felt emotional and decided to report it.
11. Learner A: She is 13 years old and will turn 14 on 9 September. Mr Lubanga was her maths teacher from grade 4 to grade 7. She liked him as her teacher but after the incident she no longer likes him. She was in the computer room alone with Mr Lubanga as she was completing her assignment. She was the only learner in her class that had not completed the assignment, hence she was alone. She was seated on the chair when Mr Lubanga came to her and crouched before her and touched her thigh. Another learner, Yolanda, then came in and Mr Lubanga went to assist her. When he was done with assisting Yolanda, he came back to her and crouched again. This time he lifted her dress. She pushed him away. She told Yolanda what had happened. Yolanda said that she should not tell anyone otherwise Mr Lubanga could lose his job. However, she did tell Mrs Smith. Mrs Smith said that she should report it to Mrs Labila. She was not comfortable with that, so she kept quiet.
12. During the gender-based violence event that took place in November, she became emotional. She then reported what had happened to her to Ms Zilumblu. She also went home that day and told her mother about the incident. She said that she felt afraid after the incident and that she often cried.
13. It was put to her during cross examination that Yolanda is in another class. She confirmed that Yolanda is indeed in another class but that she had also not completed her assignment. She said that Mr Lubanga had come to the lab towards the end of school and that he had asked for the assignment.
The Employees Evidence
14. Sihle Lubanga: He testified that he started his teaching career at Emthini Primary in January 2019 after graduating in 2018. He taught learner A in 2020 and continued teaching her the following year while she was in grade 7. He did not have any problem with her – she appeared to be a happy child.
15. He said that it was unlikely that he had gone to the lab to collect an assignment as he usually sent his assistant to collect work. His workload had been lightened around this time as he was suffering from depression and was attending the Employee Assist Programme.
16. He said that he enjoys his job and that he is committed to the well- being of learners. He also said that that it is unlikely that he would do something like this when his girlfriend is also an educator at the school.
17. In response to a question as to why the learner would fabricate the incident, his response was that many learners considered him attractive. Other than that, he could find no reason.
ANALYSIS OF EVIDENCE AND ARGUMENT
The applicable legal principles
18. The employer bears the onus to prove the allegations on a balance of probabilities. Any misconduct of a sexual nature is viewed in a very serious light in terms of the Employment of Employment Act to the extent that the sanction of dismissal is mandatory if the employee is found guilty.
19. Section 17(1)(b) of the Employment of Educators Act 96 0f 1998 (as amended) reads as follows:
An educator must be dismissed if he or she is found guilty of committing an act of sexual assault on a learner, student, or other employee.
20. Assault is defined in our law as the unlawful and intentional act which results in another person’s bodily integrity being impaired, or which inspires in another person a belief that such impairment of his bodily integrity is immediately to take place. Sexual assault is any form of assault committed in circumstances of a sexual nature so that the sexual integrity the victim is violated or threatened. The element of unlawfulness means that there must not be a justification ground for the action, such as for example consent by the victim or lack of intention to commit the misconduct -in other words accidental unintentional bodily contact is excluded from the definition.
21. As far as acts of a sexual nature being perpetrated on minors, there can be no question of such conduct being “mutually acceptable” as minors are not capable of granting permission. Conduct of a sexual nature perpetrated on learners is also prohibited in terms of the SACE Code of Ethics to which all educators are enjoined to adhere to.
22. The test to be applied in determining whether conduct has the requisite sexual nature is an objective one, viewed in the light of all the circumstances. The part of the body touched, the nature of the contact, the situation in which it occurred, the words and gestures accompanying the act and the circumstances surrounding the conduct.
23. The alternative charge is in terms of section 18(1)(q) of the Employment of Educators Act (as amended), which reads as follows:
Misconduct refers to a breakdown in the employment relationship and an educator commits misconduct if he or she-
(q). while on duty, conducts himself or herself in an improper, disgraceful, or unacceptable manner.
In this charge, the sanction of a dismissal is not mandatory, but the arbitrator maintains the discretion to impose an appropriate sanction after a consideration of mitigating and aggravating circumstances and the surrounding factors and circumstances.
Is the employee guilty of the allegations?
24. In terms of the cautionary rule relating to the evidence of children, I have applied the necessary caution in evaluating the evidence of learner A. She impressed me as a witness. She was clear and consistent and did not deviate from her version. There does not appear to be any plausible reason why she would fabricate these allegations against an educator whom she said she had liked. The employee’s attempt to provide a possible reason is rejected. He made a bald statement that many learners are attracted to him, without providing any casual nexus between his statement and the allegations.
25. Learner A clearly felt uncomfortable about what happened as she pushed him away. It is unfortunate that she was let down by the educator Mrs Smith to whom she reported the incident. I have been informed that Mrs Smith is being disciplined for her failure to act. The fact that what she learnt in the gender-based violence event triggered emotion in her, is suggestive of the extent to which she had been affected by the incident. Educator Zilumblu also confirmed that learner was emotional as she reported the incident to her and that she was crying and appeared devastated. This strong emotional reaction is further confirmation that something did indeed happen.
26. As for the employee, other than a bare denial, there was no version that he presented. Whilst a bare denial does not necessarily mean that he is not telling the truth, this must be weighed against the version of the learner which I find to be the more likely version. There can be no innocent explanation for lifting the learner’s skirt and for touching her thigh in a manner that made her uncomfortable. The employee intentionally violated the learner’s bodily integrity. I find that the acts are sexual in nature and accordingly find the employee guilty of sexual assault.
27. Section 28(2) of the Republic of South Africa provides that the best interests of the child are of paramount importance in every matter concerning the child. I have accordingly considered the effect that this decision will have on the life of this child as well as the other children in that school and any other that the educator may be tasked to teach in his teaching career. Children have a right to be protected, more especially in the school environment where they are placed in the care of educators.
SANCTION
28. I have already stated that in terms of Section 17 (1) Employment of Educators Act, an educator must be dismissed if he or she is found guilty of misconduct of a sexual nature with a learner of a school where he or she is employed.
29. There is no discretion for the arbitrator to consider any other alternative sanction, short of dismissal. Dismissal is the statutory sanction.
AWARD
1. The employee, Mr S. Lubanga, is found guilty of Charge 1.
2. The employee, Mr S. Lubanga, is dismissed with immediate effect.
3. The employer, The Western Cape Education Department must inform the employee, Mr S. Lubanga of his dismissal immediately upon receipt of this award.
4. The Education Labour Relations Council as the Administrator of this Section 188A inquiry is entitled:
• In terms of section 122 of the Children’s Act, Act 38 of 2005, to notify the Director General: Department of Social Development, in writing of the findings of this Tribunal.
• To send a copy of this arbitration award to the South African Council for Educators (SACE) for the revoking of Mr S. Lubanga’s SACE Certificate.
A. Singh-Bhoopchand
Arbitrator
ELRC Panellist
In the matter between
S. Lubanga Employee
and
DOE-WC Employer
Date of Award: 22 March 2022
Arbitrator: A.Singh-Bhoopchand
ARBITRATION AWARD
DETAILS OF HEARING AND REPRESENTATION
1. This Inquiry by Arbitrator was convened for hearing on 1 March 2022 in terms of the provisions of section 188A of the Labour Relations Act no.66 of 1995, as amended (LRA) read together with the provisions of Collective Agreement 3 of 2018, at the offices of the Western Cape Education Department in Cape Town. Mr Lubanga (hereinafter referred to as the employee) presented his own case. The employer was represented by Mr N. Mbobo, a professional officer within the Labour Relations Directorate of the employer.
2. The minor learner, the complainant in this matter, was assisted by an intermediary, Ms B. Manlay. An interpreter, Ms D. Xego was also present to assist with translation of the learner’s evidence.
3. In keeping with ELRC policy, the identity of the minor learner is protected, and she shall accordingly be referred to as learner “A”.
4. One bundle of documents was handed as evidence and shall be referred to where necessary.
THE ALLEGATIONS
CHARGE 1
It is alleged that you are guilty of misconduct in terms of Section 17(1)(b) of the Employment of Educators Act, no 76 of 1998 (hereinafter referred to as the Act), in that during the1st and/or2nd term of 2021, you committed an act of sexual assault on a grade 7 learner “A” at the Emithini Primary School by:
a). Touching and/or grabbing and/or pressing her thigh; and/or
b). Lifting her skirt with your hands
ALTERNATIVE TO CHARGE 1
It is alleged that you are guilty of misconduct in terms of Section 18(1)(q) of the Act, in that during the 1st and/or 2nd term of 2021, while on duty, you conducted yourself in an improper, disgraceful, or unacceptable manner, in that you sexually assaulted a grade 7 learner A at the Emthini Primary School by:
a). Touching and/or grabbing and/or pressing her thigh; and/or
b) Lifting her skirt with your hand.
.
ISSUE IN TO BE DETERMINED
5. I must determine whether the employee is guilty of the allegations against him, and if so, the appropriate sanction.
BACKGROUND
6. The employee was employed as an educator at the Emthini Primary School. He was suspended from service on 20 January 2022 after an investigation into the allegations which were reported during November 2021.
7. He denies the allegations against him.
EVIDENCE
The Employer’s Evidence
Three witnesses testified on behalf of the employer namely the school principal of Emthini Primary School, Mr Makosinii Maci, an educator, Ms Nonthandlo Zilimblu and learner A. I provide only a brief summary of the relevant evidence.
8. Makosini Maci: He testified that during November 2021 an event took place at their school wherein learners were addressed and informed of issues regarding gender- based violence. Shortly after the event, he was made aware at a function, that a learner had reported an incident that happened in March that year. He was told that the learner said that an educator had touched her on her thigh and that he had lifted her skirt. He was also told that the learner had “opened up” after listening to the awareness speech that she had reported the incident to educator Zilimblu. Subsequently upon his return to school, Ms Zilimblu confirmed that the incident had indeed been reported to her and that she had completed the necessary form to report the incident. She also said that the learner told her that the incident happened in the computer room and that the learner reported the incident to an educator, Mrs Smith, on the day that it happened. The learner reported that Mrs Smith told her told her that she should report the incident to another teacher.
9. He was upset and disappointed when he heard that Mrs Smith had not reported the incident as all educators are made aware of the protocol when such incidents are reported by learners.
10. Nonthandlo Zilumblu: She testified that towards the end of November last year an event took place at their school where learners were addressed on issues of gender- based violence. After the event, learner A approached her and told her that Mr Lubanga had touched her on the thigh and that he had also lifted her skirt. The learner said that she had stopped him from going any further and that the incident had happened in the computer room. Learner A cried as she spoke -she was shaking and appeared devastated. She then took the learner with her to complete the necessary form to report such incidents. The learner reported that the incident had happened during March and that she had reported the incident to Mrs Smith at the time. However, Mrs Smith told her to report it to another teacher which she did not do. She said that when she heard the speech about gender- based violence, she felt emotional and decided to report it.
11. Learner A: She is 13 years old and will turn 14 on 9 September. Mr Lubanga was her maths teacher from grade 4 to grade 7. She liked him as her teacher but after the incident she no longer likes him. She was in the computer room alone with Mr Lubanga as she was completing her assignment. She was the only learner in her class that had not completed the assignment, hence she was alone. She was seated on the chair when Mr Lubanga came to her and crouched before her and touched her thigh. Another learner, Yolanda, then came in and Mr Lubanga went to assist her. When he was done with assisting Yolanda, he came back to her and crouched again. This time he lifted her dress. She pushed him away. She told Yolanda what had happened. Yolanda said that she should not tell anyone otherwise Mr Lubanga could lose his job. However, she did tell Mrs Smith. Mrs Smith said that she should report it to Mrs Labila. She was not comfortable with that, so she kept quiet.
12. During the gender-based violence event that took place in November, she became emotional. She then reported what had happened to her to Ms Zilumblu. She also went home that day and told her mother about the incident. She said that she felt afraid after the incident and that she often cried.
13. It was put to her during cross examination that Yolanda is in another class. She confirmed that Yolanda is indeed in another class but that she had also not completed her assignment. She said that Mr Lubanga had come to the lab towards the end of school and that he had asked for the assignment.
The Employees Evidence
14. Sihle Lubanga: He testified that he started his teaching career at Emthini Primary in January 2019 after graduating in 2018. He taught learner A in 2020 and continued teaching her the following year while she was in grade 7. He did not have any problem with her – she appeared to be a happy child.
15. He said that it was unlikely that he had gone to the lab to collect an assignment as he usually sent his assistant to collect work. His workload had been lightened around this time as he was suffering from depression and was attending the Employee Assist Programme.
16. He said that he enjoys his job and that he is committed to the well- being of learners. He also said that that it is unlikely that he would do something like this when his girlfriend is also an educator at the school.
17. In response to a question as to why the learner would fabricate the incident, his response was that many learners considered him attractive. Other than that, he could find no reason.
ANALYSIS OF EVIDENCE AND ARGUMENT
The applicable legal principles
18. The employer bears the onus to prove the allegations on a balance of probabilities. Any misconduct of a sexual nature is viewed in a very serious light in terms of the Employment of Employment Act to the extent that the sanction of dismissal is mandatory if the employee is found guilty.
19. Section 17(1)(b) of the Employment of Educators Act 96 0f 1998 (as amended) reads as follows:
An educator must be dismissed if he or she is found guilty of committing an act of sexual assault on a learner, student, or other employee.
20. Assault is defined in our law as the unlawful and intentional act which results in another person’s bodily integrity being impaired, or which inspires in another person a belief that such impairment of his bodily integrity is immediately to take place. Sexual assault is any form of assault committed in circumstances of a sexual nature so that the sexual integrity the victim is violated or threatened. The element of unlawfulness means that there must not be a justification ground for the action, such as for example consent by the victim or lack of intention to commit the misconduct -in other words accidental unintentional bodily contact is excluded from the definition.
21. As far as acts of a sexual nature being perpetrated on minors, there can be no question of such conduct being “mutually acceptable” as minors are not capable of granting permission. Conduct of a sexual nature perpetrated on learners is also prohibited in terms of the SACE Code of Ethics to which all educators are enjoined to adhere to.
22. The test to be applied in determining whether conduct has the requisite sexual nature is an objective one, viewed in the light of all the circumstances. The part of the body touched, the nature of the contact, the situation in which it occurred, the words and gestures accompanying the act and the circumstances surrounding the conduct.
23. The alternative charge is in terms of section 18(1)(q) of the Employment of Educators Act (as amended), which reads as follows:
Misconduct refers to a breakdown in the employment relationship and an educator commits misconduct if he or she-
(q). while on duty, conducts himself or herself in an improper, disgraceful, or unacceptable manner.
In this charge, the sanction of a dismissal is not mandatory, but the arbitrator maintains the discretion to impose an appropriate sanction after a consideration of mitigating and aggravating circumstances and the surrounding factors and circumstances.
Is the employee guilty of the allegations?
24. In terms of the cautionary rule relating to the evidence of children, I have applied the necessary caution in evaluating the evidence of learner A. She impressed me as a witness. She was clear and consistent and did not deviate from her version. There does not appear to be any plausible reason why she would fabricate these allegations against an educator whom she said she had liked. The employee’s attempt to provide a possible reason is rejected. He made a bald statement that many learners are attracted to him, without providing any casual nexus between his statement and the allegations.
25. Learner A clearly felt uncomfortable about what happened as she pushed him away. It is unfortunate that she was let down by the educator Mrs Smith to whom she reported the incident. I have been informed that Mrs Smith is being disciplined for her failure to act. The fact that what she learnt in the gender-based violence event triggered emotion in her, is suggestive of the extent to which she had been affected by the incident. Educator Zilumblu also confirmed that learner was emotional as she reported the incident to her and that she was crying and appeared devastated. This strong emotional reaction is further confirmation that something did indeed happen.
26. As for the employee, other than a bare denial, there was no version that he presented. Whilst a bare denial does not necessarily mean that he is not telling the truth, this must be weighed against the version of the learner which I find to be the more likely version. There can be no innocent explanation for lifting the learner’s skirt and for touching her thigh in a manner that made her uncomfortable. The employee intentionally violated the learner’s bodily integrity. I find that the acts are sexual in nature and accordingly find the employee guilty of sexual assault.
27. Section 28(2) of the Republic of South Africa provides that the best interests of the child are of paramount importance in every matter concerning the child. I have accordingly considered the effect that this decision will have on the life of this child as well as the other children in that school and any other that the educator may be tasked to teach in his teaching career. Children have a right to be protected, more especially in the school environment where they are placed in the care of educators.
SANCTION
28. I have already stated that in terms of Section 17 (1) Employment of Educators Act, an educator must be dismissed if he or she is found guilty of misconduct of a sexual nature with a learner of a school where he or she is employed.
29. There is no discretion for the arbitrator to consider any other alternative sanction, short of dismissal. Dismissal is the statutory sanction.
AWARD
1. The employee, Mr S. Lubanga, is found guilty of Charge 1.
2. The employee, Mr S. Lubanga, is dismissed with immediate effect.
3. The employer, The Western Cape Education Department must inform the employee, Mr S. Lubanga of his dismissal immediately upon receipt of this award.
4. The Education Labour Relations Council as the Administrator of this Section 188A inquiry is entitled:
• In terms of section 122 of the Children’s Act, Act 38 of 2005, to notify the Director General: Department of Social Development, in writing of the findings of this Tribunal.
• To send a copy of this arbitration award to the South African Council for Educators (SACE) for the revoking of Mr S. Lubanga’s SACE Certificate.
A. Singh-Bhoopchand
Arbitrator
ELRC Panellist