ELRC644-20/21 EC
Text
ELRC19-21/22 FS
Award Date:
22 March 2022
Arbitrator: SHIRAZ MAHOMED OSMAN Case Reference No: ELRC19-21/22 FS
Date of Ruling: 22 MARCH 2022
In the arbitration between:
Mr. N A Tonisi Employee party
and
Department of Education – Free State Employer party
DETAILS OF HEARING AND REPRESENTATION
1. The present dispute between Mr. N A Tonisi (hereinafter referred to as the employee) and The Department of Education-Free State (hereinafter referred to as the employer) was referred to, Inquiry by Arbitrator, in terms of Section 188A, of the Labour Relations Act no.66 of 1995, as amended (the Act); read with Collective Agreement 3 of 2018. At the Inquiry by Arbitrator hearing, which was held at the Boardroom of the employer, in Bloemfontein on, 29 September 2021, and 4 March 2022, the employee was represented by Mr. M Frans, of SADTU, a trade union, and the employer, was represented by Mr. T Mokoena.
2. On the first occasion of the hearing testimony was presented in relation to Charge 2, and I had to subsequently consider an application to submit hearsay evidence.
3. On this occasion the arbitration concluded after testimonies were concluded and closing arguments in relation to Charge 1.
4. For the purposes of the award the learners in Charges 1 & 2 shall be called Ms. X and Ms. Y.
5. Herewith, brief reasons for my decision in terms of Section 138 (7) of the Act.
THE CHARGES TO BE DECIDED:
6. I am to decide whether the employee, is indeed guilty of the following:
Charge 1
You have contravened section 17 (1) (c) of the Employment of Educators Act 76 of 1998 in that since September 2019, you had a sexual relationship with a learner (Ms. X ) who was a learner at the school where you are employed.
Charge 2
You have contravened section 18 (1) (q) of the Employment of Educators Act 76 of 1998, in that during December 2019, at the time of issuing of learner reports, in that while on duty you conducted yourself in an improper, disgraceful and unacceptable manner when you proposed to have a sexual relationship with a learner (Ms. Y) who was a learner at the school where you are employed
PLEA
7. The applicant pleaded not guilty to both charges which were read out to him.
BACKGROUND
8. The employee is an educator and was charged on, 3 November 2020, as per the above allegations.
9. He was charged in terms of Sections 17 & 18 of the Employment of Educators Act no. 78, of 1998 (the EEA). He was charged for having a sexual relationship with a learner, Ms. X and where it is alleged that he proposed a sexual relationship with Ms. Y.
10. The employee is still employed as an educator. He is the head of department in Life Orientation and Afrikaans.
11. The matter was referred to Council by the employer, in terms of Collective Agreement 3 of 2018; read with Section 188A, of the Act, an Inquiry by Arbitrator.
12. At the initial sitting of the Arbitration I heard the evidence in respect of Charge 2, to expedite the proceedings since the employer had made an application for hearsay evidence to be led. A ruling allowing hearsay evidence was subsequently issued.
13. On this occasion I concluded the testimonies in Charge 1 and the oral arguments of the parties.
SURVEY OF EVIDENCE AND ARGUMENT
Charge 1
14. The employer’s witness, whom I shall refer to as Ms. W, to protect further the identity of the complainant Ms. X’s, friend, testified that the employee had was her educator and the complainant Ms. X was her friend. Ms. W insisted that she was aware of a sexual relation between Ms. X and the educator. The affair started in the fourth term of 2019. Ms. X confided in Ms. W about everything.
15. Ms. W testified that Mr. Tonisi had asked Ms. X for her contact details which Ms. X provided to him. Mr. Tonisi would send Ms. X to the café to do purchases for him and would ask Ms. X to keep the change, which would not ordinarily be small amounts of money. It was not disputed that Mr. Tonisi had given Mr. X the charge after she, would do, the purchases for him, nor was it disputed that he had asked Ms. X for her contact details. Therefore, I am obliged to accept these versions.
16. Mr. Tonisi had then requested Ms. X to meet him at the Link Mall. Ms. X was told by Mr. Tonisi to travel by taxi, which again was not disputed by the employee. From there Mr. Tonisi and Ms. X proceeded to Siwelele Guest House. After some fondling, they had had sex. Normally when Mr. Tonisi would get paid he would send money to Ms. X, via Mr. Lovey the school security guard. Indeed, the witness saw Mr. Lovey give Ms X the money and told her that it was from Mr. Tonisi. He continued to give Ms. X money till the end of December 2019. IT remained unchallenged that the witness had seen the transaction, therefore I am obliged to accept the version.
17. At cross examination, the witness testified that she had had no animosity against Mr. Tonisi. She insisted that she had not fabricated the version and I am inclined to believe that she had not as she presented a concise and elaborate version of events, which in my opinion if fabricated would have emerged as such at cross-examination. Obviously, the witness had not experienced the affair first hand therefore the application was made for hearsay evidence to be admitted. The line of questioning did not extrapolate anything new or anything that contradicted the witnesses’ testimony in chief.
18. The witness was told by Ms. X about the guest house incident in November 2019. Ms. X was indeed having financial problems at home. This elaborates the reason why Ms. X would have had an affair with Mr. Tonisi as she needed the money in her financial difficulty. The educator had taken advantage of the situation, in my opinion. She had not spoken to Ms. X regularly as Ms. X did not have a cell phone. This indicates to me that the complainant’s financial situation was indeed not good at all. The witness went to deliver a tie at the complainant’s home and had not spoken about the witness testifying at the arbitration as they were mourning the loss of a family member. This assertion is plausible.
19. The witness testified that normally educators would send lenders to the café and tip at around R 2, whilst Mr. Tonisi would tip Mr. X about R 50. The witness asserted that if Mr. Tonisi was interested in the financial welfare of the family then he should have indeed approached the family to assist them. This suggests to me that Mr. Tonisi was exploiting the complainant’s financial difficulties and saw the opportunity to reward the complainant with money for sex. The witness had no interest in exposing the affair, as her friend was enjoying the financial benefits of the arrangements between Ms. X and Mr. Tonisi. Obviously, the witness had a justifiable reason for not exposing the arrangement as her friend was benefitting from the arrangement financially in view of her financial distress at home. Ms. X would also show the money the money given to Ms. X by Mr. Tonisi. This version was neither disputed and therefore must be accepted.
20. Mr. Tonisi denied his relationship with Ms. X. He had no other basis for a defence. He denied calling her to the mall or taking her to a guest house. Indeed, he knows the Mr. Lovey the security guard and that he would just greet him and pass the fence. He contradicted this version when at cross examination, he admitted that he would have “small chat”. When at cross he insisted that he had mentioned “small talk” in his testimony in chief but I am satisfied that he had not mentioned that. This evidence is material in view of the fact that it is alleged that Mr. Lovey was the go between in passing money to Ms. X. Therefore, the contradiction is material. He admitted that he did send learners to the shop for him but he did not remember that he had sent Ms. X to the shop for him. He did not refute this version when Ms. X’s friend testified about Mr. Tonisi giving Ms. X large sums of money as a tip. Surely, he would have put it to the witness that he did not give Ms X large tips as he did not remember sending her to the shop for him. The evidence of Mr. Tonisi is riddled with inconsistencies. In fact he testified that he did not give learners money when he sent them to the shops. This version was not put to the employer’s witness. He testified that he did not know why such allegations were made against him, which is in direct contradiction when in his testimony on Charge two he alleged that two female teachers had had bad blood with him and his accusers were close to these teachers. Again, a material contradiction.
21. At cross-examination, the contradictions which emerged have already being discussed above, mainly: That he contradicted himself about the small talk he would have with Mr. Lovey; that he could not remember sending Ms. X to the shop therefore not putting that he had not given substantial amounts of money to Ms. X; that he gave no money to any learners as tips,; that he had had bad blood with teachers who had conspired with the learners to make false accusations against him. These are all material facts which the employee negated to challenge. He also denied buying her takkies for R 700.00 and also paying for her uniform.
22. It is not plausible that these learners would come up with such an elaborate plan to fabricate a version against the employee. The evidence against the employee is overwhelming and highly plausible.
23. For the brief, but compelling reasons above, I am persuaded that the employee is guilty of the charge.
Charge 2
24. Ms. Y testified for the respondent that the applicant Mr. Tonisi had proposed to her and had informed her that he had also had a relationship with Ms. X, her friend. Mr. Tonisi told her that her friend Ms. X “she loves me”. Apparently he told asked her why was she was not able to make him happy as pupils in the previous school. He had also told her he loved her. He showed her his phone and the children he was having relationships with. He spoke about the girls and showed her one girl. He confessed to her that he loves children and that that was his personality.
25. He asked her to become like the others and that he would spend money on her. She insisted that she had no reason to lie or fabricate her version.
26. At cross-examination, which failed to extrapolate any material evidence, the learner had informed her friend about the incident in late 2019. The learner suggested that he had shown her the photos and proposed to at the gate of the school premises. She had come to collect report and leave. He used to by stuff for Ms. X to eat and on one occasion he bought for all of them. She confirmed that she he told her he loved her and asked her stop using the illegal taxis.
27. There was no one else there. The applicant failed to dispute that he had attempted to solicit the learner or that he did not show her a picture on his phone of one of the girls. Therefore, I am obliged to accept same. Moreover, he did not dispute that the conversation Indeed took place but, was rather interested in where the conversation had happened. In view of the fact that the material evidence was not challenged, I am persuaded to accept the applicant’s version.
28. Mr. Tonisi denied that he had proposed to any learner at school. He testified that the learner approached him in his office on one occasion but he had dismissed as he was very busy. This version was not put to Ms. Y. Therefore, I am inclined not to accept it. He also suggested that due to the size of the school, there must have been others and they did not meet at the gate. I need to remind the dishonest Mr. Tonisi that there was no COVID in 2019. Strict level 5 COVID protocols were introduced in late March 2020. Therefore, Mr. Tonisi’s version cannot be accepted.
29. Mr. Tonisi denied that he bought food at the school for any of the learners at the school. He insisted that the story was fabricated against him by a colleague since he had arrived at the school she refused to cooperate with him. This version he did not put to Ms. Y, though he alleged that he would see Ms. Y with that colleague on various occasions. His claim that the two colleagues were venomous and that Ms. Y was often seen with them was not put to the learner. Therefore, I must not accept the version. The pictures he had of the learners, he took these during a project. He had no sexual relationship with the learners. This version suggests to me that he shown pictures of children to Ms. Y as he admits he had pictures of children on his phone. I find that he was involved in a project as a lame excuse. It is not denied that he did not have pictures of children on his phone, which in my opinion gives impetus to the learner’s claim that indeed Mr. Tonisi had shown her a picture of a school pupil.
30. At cross-examination, Mr. Tonisi admitted his contradiction that there were no screens in school in 2019. Mr. Tonisi besides his word could not provide any proof of the elaborate fabrication of events purportedly concocted by his two colleagues and both the learners, in Charges 1 & 2. I am of the opinion that there educators and learners would be concoct such an elaborate story as related by both the learners, including the pictures of learners on his phone. How would it be possible for any of the above persons having known that Mr. Tonisi had pictures of learners, on his cellphone.
31. Finally, Mr. Tonisi could not give a coherent or satisfactory reason as to why he did not discipline his colleagues who happened to be his subordinates. Mr. Tonisi in my considered opinion has presented a deplorable defence to the sequence of events that the learners put before me.
32. For these brief but compelling reasons, I must find the applicant guilty of both charges.
SANCTION
33. In terms of Section 17 (1) of the EEA, an educator must be dismissed if he or she is found guilty of -
(c) having a sexual relationship with a learner of a school where he or she is employed
34. There is no discretion for the Arbitrator to consider any other alternative sanction, short of dismissal.
35. In any event, I am of the considered opinion after analysing the sequence of events and the evidence that the employee is not fit to work with school children.
36. Therefore, dismissal is the statutory sanction.
AWARD
37. The applicant is found guilty of both Charges, 1 & 2.
38. The applicant is dismissed with immediate effect.
Signed at Kimberley on this 22 day of March 2022
ELRC PANELLIST
SHIRAZ MAHOMED OSMAN
Date of Ruling: 22 MARCH 2022
In the arbitration between:
Mr. N A Tonisi Employee party
and
Department of Education – Free State Employer party
DETAILS OF HEARING AND REPRESENTATION
1. The present dispute between Mr. N A Tonisi (hereinafter referred to as the employee) and The Department of Education-Free State (hereinafter referred to as the employer) was referred to, Inquiry by Arbitrator, in terms of Section 188A, of the Labour Relations Act no.66 of 1995, as amended (the Act); read with Collective Agreement 3 of 2018. At the Inquiry by Arbitrator hearing, which was held at the Boardroom of the employer, in Bloemfontein on, 29 September 2021, and 4 March 2022, the employee was represented by Mr. M Frans, of SADTU, a trade union, and the employer, was represented by Mr. T Mokoena.
2. On the first occasion of the hearing testimony was presented in relation to Charge 2, and I had to subsequently consider an application to submit hearsay evidence.
3. On this occasion the arbitration concluded after testimonies were concluded and closing arguments in relation to Charge 1.
4. For the purposes of the award the learners in Charges 1 & 2 shall be called Ms. X and Ms. Y.
5. Herewith, brief reasons for my decision in terms of Section 138 (7) of the Act.
THE CHARGES TO BE DECIDED:
6. I am to decide whether the employee, is indeed guilty of the following:
Charge 1
You have contravened section 17 (1) (c) of the Employment of Educators Act 76 of 1998 in that since September 2019, you had a sexual relationship with a learner (Ms. X ) who was a learner at the school where you are employed.
Charge 2
You have contravened section 18 (1) (q) of the Employment of Educators Act 76 of 1998, in that during December 2019, at the time of issuing of learner reports, in that while on duty you conducted yourself in an improper, disgraceful and unacceptable manner when you proposed to have a sexual relationship with a learner (Ms. Y) who was a learner at the school where you are employed
PLEA
7. The applicant pleaded not guilty to both charges which were read out to him.
BACKGROUND
8. The employee is an educator and was charged on, 3 November 2020, as per the above allegations.
9. He was charged in terms of Sections 17 & 18 of the Employment of Educators Act no. 78, of 1998 (the EEA). He was charged for having a sexual relationship with a learner, Ms. X and where it is alleged that he proposed a sexual relationship with Ms. Y.
10. The employee is still employed as an educator. He is the head of department in Life Orientation and Afrikaans.
11. The matter was referred to Council by the employer, in terms of Collective Agreement 3 of 2018; read with Section 188A, of the Act, an Inquiry by Arbitrator.
12. At the initial sitting of the Arbitration I heard the evidence in respect of Charge 2, to expedite the proceedings since the employer had made an application for hearsay evidence to be led. A ruling allowing hearsay evidence was subsequently issued.
13. On this occasion I concluded the testimonies in Charge 1 and the oral arguments of the parties.
SURVEY OF EVIDENCE AND ARGUMENT
Charge 1
14. The employer’s witness, whom I shall refer to as Ms. W, to protect further the identity of the complainant Ms. X’s, friend, testified that the employee had was her educator and the complainant Ms. X was her friend. Ms. W insisted that she was aware of a sexual relation between Ms. X and the educator. The affair started in the fourth term of 2019. Ms. X confided in Ms. W about everything.
15. Ms. W testified that Mr. Tonisi had asked Ms. X for her contact details which Ms. X provided to him. Mr. Tonisi would send Ms. X to the café to do purchases for him and would ask Ms. X to keep the change, which would not ordinarily be small amounts of money. It was not disputed that Mr. Tonisi had given Mr. X the charge after she, would do, the purchases for him, nor was it disputed that he had asked Ms. X for her contact details. Therefore, I am obliged to accept these versions.
16. Mr. Tonisi had then requested Ms. X to meet him at the Link Mall. Ms. X was told by Mr. Tonisi to travel by taxi, which again was not disputed by the employee. From there Mr. Tonisi and Ms. X proceeded to Siwelele Guest House. After some fondling, they had had sex. Normally when Mr. Tonisi would get paid he would send money to Ms. X, via Mr. Lovey the school security guard. Indeed, the witness saw Mr. Lovey give Ms X the money and told her that it was from Mr. Tonisi. He continued to give Ms. X money till the end of December 2019. IT remained unchallenged that the witness had seen the transaction, therefore I am obliged to accept the version.
17. At cross examination, the witness testified that she had had no animosity against Mr. Tonisi. She insisted that she had not fabricated the version and I am inclined to believe that she had not as she presented a concise and elaborate version of events, which in my opinion if fabricated would have emerged as such at cross-examination. Obviously, the witness had not experienced the affair first hand therefore the application was made for hearsay evidence to be admitted. The line of questioning did not extrapolate anything new or anything that contradicted the witnesses’ testimony in chief.
18. The witness was told by Ms. X about the guest house incident in November 2019. Ms. X was indeed having financial problems at home. This elaborates the reason why Ms. X would have had an affair with Mr. Tonisi as she needed the money in her financial difficulty. The educator had taken advantage of the situation, in my opinion. She had not spoken to Ms. X regularly as Ms. X did not have a cell phone. This indicates to me that the complainant’s financial situation was indeed not good at all. The witness went to deliver a tie at the complainant’s home and had not spoken about the witness testifying at the arbitration as they were mourning the loss of a family member. This assertion is plausible.
19. The witness testified that normally educators would send lenders to the café and tip at around R 2, whilst Mr. Tonisi would tip Mr. X about R 50. The witness asserted that if Mr. Tonisi was interested in the financial welfare of the family then he should have indeed approached the family to assist them. This suggests to me that Mr. Tonisi was exploiting the complainant’s financial difficulties and saw the opportunity to reward the complainant with money for sex. The witness had no interest in exposing the affair, as her friend was enjoying the financial benefits of the arrangements between Ms. X and Mr. Tonisi. Obviously, the witness had a justifiable reason for not exposing the arrangement as her friend was benefitting from the arrangement financially in view of her financial distress at home. Ms. X would also show the money the money given to Ms. X by Mr. Tonisi. This version was neither disputed and therefore must be accepted.
20. Mr. Tonisi denied his relationship with Ms. X. He had no other basis for a defence. He denied calling her to the mall or taking her to a guest house. Indeed, he knows the Mr. Lovey the security guard and that he would just greet him and pass the fence. He contradicted this version when at cross examination, he admitted that he would have “small chat”. When at cross he insisted that he had mentioned “small talk” in his testimony in chief but I am satisfied that he had not mentioned that. This evidence is material in view of the fact that it is alleged that Mr. Lovey was the go between in passing money to Ms. X. Therefore, the contradiction is material. He admitted that he did send learners to the shop for him but he did not remember that he had sent Ms. X to the shop for him. He did not refute this version when Ms. X’s friend testified about Mr. Tonisi giving Ms. X large sums of money as a tip. Surely, he would have put it to the witness that he did not give Ms X large tips as he did not remember sending her to the shop for him. The evidence of Mr. Tonisi is riddled with inconsistencies. In fact he testified that he did not give learners money when he sent them to the shops. This version was not put to the employer’s witness. He testified that he did not know why such allegations were made against him, which is in direct contradiction when in his testimony on Charge two he alleged that two female teachers had had bad blood with him and his accusers were close to these teachers. Again, a material contradiction.
21. At cross-examination, the contradictions which emerged have already being discussed above, mainly: That he contradicted himself about the small talk he would have with Mr. Lovey; that he could not remember sending Ms. X to the shop therefore not putting that he had not given substantial amounts of money to Ms. X; that he gave no money to any learners as tips,; that he had had bad blood with teachers who had conspired with the learners to make false accusations against him. These are all material facts which the employee negated to challenge. He also denied buying her takkies for R 700.00 and also paying for her uniform.
22. It is not plausible that these learners would come up with such an elaborate plan to fabricate a version against the employee. The evidence against the employee is overwhelming and highly plausible.
23. For the brief, but compelling reasons above, I am persuaded that the employee is guilty of the charge.
Charge 2
24. Ms. Y testified for the respondent that the applicant Mr. Tonisi had proposed to her and had informed her that he had also had a relationship with Ms. X, her friend. Mr. Tonisi told her that her friend Ms. X “she loves me”. Apparently he told asked her why was she was not able to make him happy as pupils in the previous school. He had also told her he loved her. He showed her his phone and the children he was having relationships with. He spoke about the girls and showed her one girl. He confessed to her that he loves children and that that was his personality.
25. He asked her to become like the others and that he would spend money on her. She insisted that she had no reason to lie or fabricate her version.
26. At cross-examination, which failed to extrapolate any material evidence, the learner had informed her friend about the incident in late 2019. The learner suggested that he had shown her the photos and proposed to at the gate of the school premises. She had come to collect report and leave. He used to by stuff for Ms. X to eat and on one occasion he bought for all of them. She confirmed that she he told her he loved her and asked her stop using the illegal taxis.
27. There was no one else there. The applicant failed to dispute that he had attempted to solicit the learner or that he did not show her a picture on his phone of one of the girls. Therefore, I am obliged to accept same. Moreover, he did not dispute that the conversation Indeed took place but, was rather interested in where the conversation had happened. In view of the fact that the material evidence was not challenged, I am persuaded to accept the applicant’s version.
28. Mr. Tonisi denied that he had proposed to any learner at school. He testified that the learner approached him in his office on one occasion but he had dismissed as he was very busy. This version was not put to Ms. Y. Therefore, I am inclined not to accept it. He also suggested that due to the size of the school, there must have been others and they did not meet at the gate. I need to remind the dishonest Mr. Tonisi that there was no COVID in 2019. Strict level 5 COVID protocols were introduced in late March 2020. Therefore, Mr. Tonisi’s version cannot be accepted.
29. Mr. Tonisi denied that he bought food at the school for any of the learners at the school. He insisted that the story was fabricated against him by a colleague since he had arrived at the school she refused to cooperate with him. This version he did not put to Ms. Y, though he alleged that he would see Ms. Y with that colleague on various occasions. His claim that the two colleagues were venomous and that Ms. Y was often seen with them was not put to the learner. Therefore, I must not accept the version. The pictures he had of the learners, he took these during a project. He had no sexual relationship with the learners. This version suggests to me that he shown pictures of children to Ms. Y as he admits he had pictures of children on his phone. I find that he was involved in a project as a lame excuse. It is not denied that he did not have pictures of children on his phone, which in my opinion gives impetus to the learner’s claim that indeed Mr. Tonisi had shown her a picture of a school pupil.
30. At cross-examination, Mr. Tonisi admitted his contradiction that there were no screens in school in 2019. Mr. Tonisi besides his word could not provide any proof of the elaborate fabrication of events purportedly concocted by his two colleagues and both the learners, in Charges 1 & 2. I am of the opinion that there educators and learners would be concoct such an elaborate story as related by both the learners, including the pictures of learners on his phone. How would it be possible for any of the above persons having known that Mr. Tonisi had pictures of learners, on his cellphone.
31. Finally, Mr. Tonisi could not give a coherent or satisfactory reason as to why he did not discipline his colleagues who happened to be his subordinates. Mr. Tonisi in my considered opinion has presented a deplorable defence to the sequence of events that the learners put before me.
32. For these brief but compelling reasons, I must find the applicant guilty of both charges.
SANCTION
33. In terms of Section 17 (1) of the EEA, an educator must be dismissed if he or she is found guilty of -
(c) having a sexual relationship with a learner of a school where he or she is employed
34. There is no discretion for the Arbitrator to consider any other alternative sanction, short of dismissal.
35. In any event, I am of the considered opinion after analysing the sequence of events and the evidence that the employee is not fit to work with school children.
36. Therefore, dismissal is the statutory sanction.
AWARD
37. The applicant is found guilty of both Charges, 1 & 2.
38. The applicant is dismissed with immediate effect.
Signed at Kimberley on this 22 day of March 2022
ELRC PANELLIST
SHIRAZ MAHOMED OSMAN