PSES115-18/19WC
Text
ELRC 990-21/22GP
Award Date:
09 May 2022
IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD IN ROODEPOORT (GAUTENG)
Case No ELRC 990-21/22GP
In the matter between
GAUTENG DEPT OF EDUCATION EMPLOYER
and
S RASEKHULA EMPLOYEE
ARBITRATOR: Monde Boyce
HEARD: 25 April 2022
CLOSING ARGUMENTS: 25 April 2022
DATE OF AWARD: 10 May 2022
____________________________________________________________________________________
AWARD
____________________________________________________________________________________
PARTICULARS OF PROCEEDINGS AND REPRESENTATION:
[1] The matter was scheduled in terms of Section 188A of the Labour Relations Act 66 of 1995 as amended (LRA) and the inquiry was held on 25 April 2022 at the Johannesburg West District offices in Roodepoort. Mr Hlungwani, a trade union representative from the trade union SADTU, appeared for the employee while Miss Valerie Mnisi, a Deputy Chief Education Specialist, appeared for the employer.
[2] Only the employer submitted a bundle of documents, and which bundle was accepted into evidence. There were no issues with the bundle and it was confirmed by both parties as what it purport to be. An interpreter was also present. I should also mention that the complainant is no longer a learner at the school since she passed her Grade 12 and is currently 19 years of age. While the complainant indicated that she did not need assistance by an intermediary, and while she did not have a problem testifying in the presence of the educator, I deem it necessary to hide her identify and shall accordingly refer to or identify her as Miss P in the award.
THE ISSUE TO BE DECIDED:
[3] I am required to decide whether the employee is guilty of the two charges preferred against him by the department, and to make the appropriate award.
THE BACKGROUND TO THE DISPUTE:
[4] The employee is employed as an educator at Letsibogo Girls Secondary School in Dobsinville. He has been employed by the Department since April 2016 and is teaching Maths Literacy, Sepedi home language and Technology. In this enquiry, the employee had the following charges preferred against him:
(1) “It is alleged that during the period of October 2021, you had a sexual relationship with a Grade 12 Learner, (Miss P), from Letsibogo Girls Secondary School where you are currently employed.
In view of your actions, you are thus charged with misconduct in terms of Section 17(1)(c) of the Employment of Educators Act, 76 of 1998 as amended.
[5] The employee pleaded NOT GUILTY to the charge. I should mention that while the employee initially pleaded not guilty to the charge, he changed his plea and pleaded GUILTY to the charge after Miss P had given her evidence-in-chief.
SURVEY OF EVIDENCE AND ARGUMENT:
Employer’s Evidence
[6] Miss P, testified that she was a learner at Letsibogo Girls Secondary school and left the school in 2021. The employee taught her Maths Literature at Grade 11. The employee then taught her in extra classes that took place on Saturdays. She had been a learner at the abovementioned school for five years. It is true that she had a sexual relationship with the employee. Around August 2021 during her Grade 12 studies, the employee started calling her “my size”, “Motho waka” (my girlfriend) and that he wanted her to be his girlfriend. She did not entertain the advances. Her friend was selling sweets, and she would focus on helping her fried sell the sweets to distract the employee and to ward off his advances.
[7] During the middle of October 2021 she had gone to another block during a vernacular class and the employee’s office is next to the vernacular class. She had just gone out of the class and was selling sweets when the employee approached her asking her to sell him sweets. She was about to take the sweets out when the employee asked her to accompany him to his office so that other leaners would not see them. Before they reached the office, the employee asked her to put her numbers on his cellular phone. She did as the employee asked. The employee took time to text her after he took her contact number, and she had asked him why he took time to text her. The employee’s response was that he was still gathering up enough courage to text her. They thereafter started having conversations of a sexual nature. At some point, the employee arranged for them to sleep at a guesthouse in Dobsinville. The employee requested Bolt to take her to the guesthouse and, on arrival, they went to a room the employee had booked. The employee started kissing her and she kissed him back. They ended up engaging in sexual intercourse. She was initially shocked but ended up agreeing to have sexual intercourse after the employee had told her to relax. She did not have a boyfriend at the time, and it was the first time she had ever had sex.
[8] The employee would not be telling the truth if he denied that they had a sexual relationship. There were text messages that the employee sent her where he explained what sex positions he would like them to try. The employee, on 17 November 2021, sent her a picture of his private part asking her if she still remembered it. This was after the first time they had had sex. The employee also sent her explicit pictures of a sexual nature on 20 November 2021. She had given a statement where she confirrmed the relationship she had with the employee and where she confirmed the details of their relationship and how it started. She later discovered that the employee was using her for sex and that he was married with three (03) kids and that he (employee) had also requested her friend’s contact number.
[9] The applicant had not used protection on the second and third occasions they had sex. She was afraid of getting pregnant and decided to report the relationship to her aunt because she feared that she would not know how to face her mother if she fell pregnant while still a learner. She had requested her aunt not to tell her mother, but her aunt told her that the issue was too serious not to tell the mother. Her aunt and mother almost beat her and went on to confront the employee on why he slept with her. The employee had told her aunt and mother that he was not teaching at her school and that he taught at a different school. When they told him that she was a virgin, the employee, told them that she was not a virgin and lied to them. Her mother and aunt got numbers of the principal and reported what happened. She was later asked to go and explain what happened. A pregnancy test was done, and the test had come back negative. Her aunt had later taken her phone and tried to call the employee, but the employee did not answer the calls.
[10] On 23 November 2021 after having written the statement, she was about to go home after having written exams when he met the employee who was standing at the balcony of the building next to the gate. She had just exited the gate with her friend when the employee approached her asking about what she had said in her statement and whether she had not lied. She told him that she had told the truth and proceeded to tell him that whatever happened, he must not harm her. This was the last time she spoke to the employee.
[11] On the same date of 23 November 2021 and while she was studying at home a lady who identified herself as the employee’s wife arrived and approached her, asking if she knew that the employee had a wife and further asked her why she reported the employee. The lady had asked her what was going on between her and the employee and why she was sleeping at guesthouses with him. She told the lady that the employee had taken advantage of her, and that the employee had told her that he was not married and that he only had children with her. The lady then showed her pictures of her and the employee on her phone and accused her of being a homewrecker. The employee’s wife had then asked for her mother’s contact number and told her she would come back and speak to her mother. After the employee’s wife left, she could not continue studying as she was in shock. She stood outside waiting for her mother to come back home, and before her mother arrived, she saw the employee’s wife being dropped off by the employee who was driving his car.
[12] When her mother arrived and had a conversation with the employee’s wife. Her aunts came and joined her mother and the employee’s wife and there was a discussion that took place. It came out of the discussion that the employee had a child with another learner at another school. The discussion ended when the employee’s wife indicated that she would bring the employee’s family elders for further discussion to be held. A delegation of elders from the employee’s family later arrived at her home. She told them that she had a relationship with the employee. One of the employee’s family members had asked if they could pay damages and apologize. Her mother told the delegation that the issue was out of her hands, and that it was up to the school to decide what to do about the incident.
Employee’s Evidence
[13] The employee did not state his case, he instead, opted to change his plea and plead guilty to the charge after Miss P’s evidence-in-chief and after the employee’s representative’s brief cross examination.
ANALYSIS OF THE EVIDENCE AND ARGUMENT
[12] I have before me only the version presented by the employer, given that the employee decided to plead guilty to the charge preferred against him. It is accordingly not in dispute that the employee had a sexual relationship with the Miss P who was a Grade 12 learner at the time. In engaging in a sexual relationship with Miss P, the employee breached provisions of Section 17(1)(c) of the Employment of Educators Act, 76 of 1998 as amended (the EEA). Section 17(1)(c) provides as follows:
“Serious misconduct. — (1) An educator must be dismissed if he or she is found guilty of—
(c) having a sexual relationship with a learner of the school where he or she is employed;”
[13] The above section not only identifies an educator having a sexual relationship with a learner as serious misconduct, but it goes further to provide that an educator found guilty of this offence must be dismissed. (My emphasis and underlining). The provisions of this section are peremptory, and for good reasons. As I often state, an educator is no ordinary employee. Of all the professions, the teaching profession stands out. It holds a very unique position in society because society at large relies on the profession to mould future leaders and exemplary citizenry. Learners spend a considerable amount of time at school and are often left at the mercy of teachers who should and are expected to look after their welfare. As such, parents and society at large place their trust on educators and expect of educators to, at all times, act in a manner befitting the position of trust that they are placed in. Educators are accordingly held to higher standards than other professions. As such, even the slightest of betrayal of this trust should not only be frowned upon but should be harshly dealt with. It is in this context that the conduct by the employee should be understood.
[14] With the employee having pleaded guilty, the only issue left for determination is that of sanction. While I had submissions from the applicant in mitigation of sanction, Section 17(1)(c) provides that once an educator is found guilty of having a sexual relationship with a learner, such educator must be dismissed. In other words, an arbitrator has no discretion to decide on the sanction except imposing the sanction of dismissal. But even if I had such discretion, the gravity of the misconduct is such that I would not have considered any lesser sanction than that of dismissal. The employee, contrary to his submissions in mitigation of sanction to the effect that he was still young and not properly orientated, appears to have carefully planned and set out the scene leading to the sexual relationship he had with Miss P.
[15] I find the employee to have taken advantage of Miss P’s naivety and abused his position as a teacher. This finding is not misplaced but is informed by what Miss P raised in her evidence-in-chief and during cross examination when she stated that she did not have a crush on the employee, but that she liked him because of the way he taught the Maths Literature subject. But she had another reason for succumbing to the advances by the employee. She stated, during her evidence-in-chief and during cross examination, that she feared that if she did not give the employee her contact number, the employee would drop her marks or fail her. Also, if one has regard to the text messages exchange between the employee and Miss P, no other conclusion can be reached except that the employee was sexually grooming Miss P. This, in my considered view, aggravates the conduct. An educator who knowingly grooms and engages in a sexual relationship with a learner does not deserve to be in the teaching profession.
[16] Learners are vulnerably. They spend a lot of time with the educators and look upon them for guidance and the nature of the teacher/learner relationship is such that Miss P’s reaction to advances by the employee is understandably. It is also not uncommon for learners to idolise their teachers as it, somehow, appears to be the case with Miss P, but same cannot be motivation for an educator to take advantage of such situations. While the employee, in mitigation of sanction, submitted that Miss P may not be an innocent party by suggesting that she played a role in what happened when she agreed to take a Bolt taxi to the guesthouse, it is my finding that such an argument should be dismissed outright. Miss P was a learner and, irrespective of whether she had a hand or played part in the relationship happening, same does not absolve the employee. He had no business engaging in a sexual relationship with a learner.
[17] The South African Council of Educators (SACE) Code of Professional Ethics provides that educators: “respect the dignity, beliefs and constitutional rights of learners and in particular children” and that educator 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.” This provision is founded on the Constitution of the republic which provides for protection of learners from being abused or taken advantage of. It therefore follows that any educator found to have infringed a learner’s right to dignity and sexually exploiting or abusing learners should be made an example of by the harshest of sanction being imposed on him.
[18] In the premises, I make the following award:
AWARD
[19] The sanction of dismissal is imposed effective from 10 May 2022.
[20] 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 its consideration of appropriate action to be taken.
[21] The employee has the right to take this award on review to the Labour Court as envisaged in Section 145 of the LRA and to do so within the prescribed timeframe.
Monde Boyce
Panelist: ELRC
Case No ELRC 990-21/22GP
In the matter between
GAUTENG DEPT OF EDUCATION EMPLOYER
and
S RASEKHULA EMPLOYEE
ARBITRATOR: Monde Boyce
HEARD: 25 April 2022
CLOSING ARGUMENTS: 25 April 2022
DATE OF AWARD: 10 May 2022
____________________________________________________________________________________
AWARD
____________________________________________________________________________________
PARTICULARS OF PROCEEDINGS AND REPRESENTATION:
[1] The matter was scheduled in terms of Section 188A of the Labour Relations Act 66 of 1995 as amended (LRA) and the inquiry was held on 25 April 2022 at the Johannesburg West District offices in Roodepoort. Mr Hlungwani, a trade union representative from the trade union SADTU, appeared for the employee while Miss Valerie Mnisi, a Deputy Chief Education Specialist, appeared for the employer.
[2] Only the employer submitted a bundle of documents, and which bundle was accepted into evidence. There were no issues with the bundle and it was confirmed by both parties as what it purport to be. An interpreter was also present. I should also mention that the complainant is no longer a learner at the school since she passed her Grade 12 and is currently 19 years of age. While the complainant indicated that she did not need assistance by an intermediary, and while she did not have a problem testifying in the presence of the educator, I deem it necessary to hide her identify and shall accordingly refer to or identify her as Miss P in the award.
THE ISSUE TO BE DECIDED:
[3] I am required to decide whether the employee is guilty of the two charges preferred against him by the department, and to make the appropriate award.
THE BACKGROUND TO THE DISPUTE:
[4] The employee is employed as an educator at Letsibogo Girls Secondary School in Dobsinville. He has been employed by the Department since April 2016 and is teaching Maths Literacy, Sepedi home language and Technology. In this enquiry, the employee had the following charges preferred against him:
(1) “It is alleged that during the period of October 2021, you had a sexual relationship with a Grade 12 Learner, (Miss P), from Letsibogo Girls Secondary School where you are currently employed.
In view of your actions, you are thus charged with misconduct in terms of Section 17(1)(c) of the Employment of Educators Act, 76 of 1998 as amended.
[5] The employee pleaded NOT GUILTY to the charge. I should mention that while the employee initially pleaded not guilty to the charge, he changed his plea and pleaded GUILTY to the charge after Miss P had given her evidence-in-chief.
SURVEY OF EVIDENCE AND ARGUMENT:
Employer’s Evidence
[6] Miss P, testified that she was a learner at Letsibogo Girls Secondary school and left the school in 2021. The employee taught her Maths Literature at Grade 11. The employee then taught her in extra classes that took place on Saturdays. She had been a learner at the abovementioned school for five years. It is true that she had a sexual relationship with the employee. Around August 2021 during her Grade 12 studies, the employee started calling her “my size”, “Motho waka” (my girlfriend) and that he wanted her to be his girlfriend. She did not entertain the advances. Her friend was selling sweets, and she would focus on helping her fried sell the sweets to distract the employee and to ward off his advances.
[7] During the middle of October 2021 she had gone to another block during a vernacular class and the employee’s office is next to the vernacular class. She had just gone out of the class and was selling sweets when the employee approached her asking her to sell him sweets. She was about to take the sweets out when the employee asked her to accompany him to his office so that other leaners would not see them. Before they reached the office, the employee asked her to put her numbers on his cellular phone. She did as the employee asked. The employee took time to text her after he took her contact number, and she had asked him why he took time to text her. The employee’s response was that he was still gathering up enough courage to text her. They thereafter started having conversations of a sexual nature. At some point, the employee arranged for them to sleep at a guesthouse in Dobsinville. The employee requested Bolt to take her to the guesthouse and, on arrival, they went to a room the employee had booked. The employee started kissing her and she kissed him back. They ended up engaging in sexual intercourse. She was initially shocked but ended up agreeing to have sexual intercourse after the employee had told her to relax. She did not have a boyfriend at the time, and it was the first time she had ever had sex.
[8] The employee would not be telling the truth if he denied that they had a sexual relationship. There were text messages that the employee sent her where he explained what sex positions he would like them to try. The employee, on 17 November 2021, sent her a picture of his private part asking her if she still remembered it. This was after the first time they had had sex. The employee also sent her explicit pictures of a sexual nature on 20 November 2021. She had given a statement where she confirrmed the relationship she had with the employee and where she confirmed the details of their relationship and how it started. She later discovered that the employee was using her for sex and that he was married with three (03) kids and that he (employee) had also requested her friend’s contact number.
[9] The applicant had not used protection on the second and third occasions they had sex. She was afraid of getting pregnant and decided to report the relationship to her aunt because she feared that she would not know how to face her mother if she fell pregnant while still a learner. She had requested her aunt not to tell her mother, but her aunt told her that the issue was too serious not to tell the mother. Her aunt and mother almost beat her and went on to confront the employee on why he slept with her. The employee had told her aunt and mother that he was not teaching at her school and that he taught at a different school. When they told him that she was a virgin, the employee, told them that she was not a virgin and lied to them. Her mother and aunt got numbers of the principal and reported what happened. She was later asked to go and explain what happened. A pregnancy test was done, and the test had come back negative. Her aunt had later taken her phone and tried to call the employee, but the employee did not answer the calls.
[10] On 23 November 2021 after having written the statement, she was about to go home after having written exams when he met the employee who was standing at the balcony of the building next to the gate. She had just exited the gate with her friend when the employee approached her asking about what she had said in her statement and whether she had not lied. She told him that she had told the truth and proceeded to tell him that whatever happened, he must not harm her. This was the last time she spoke to the employee.
[11] On the same date of 23 November 2021 and while she was studying at home a lady who identified herself as the employee’s wife arrived and approached her, asking if she knew that the employee had a wife and further asked her why she reported the employee. The lady had asked her what was going on between her and the employee and why she was sleeping at guesthouses with him. She told the lady that the employee had taken advantage of her, and that the employee had told her that he was not married and that he only had children with her. The lady then showed her pictures of her and the employee on her phone and accused her of being a homewrecker. The employee’s wife had then asked for her mother’s contact number and told her she would come back and speak to her mother. After the employee’s wife left, she could not continue studying as she was in shock. She stood outside waiting for her mother to come back home, and before her mother arrived, she saw the employee’s wife being dropped off by the employee who was driving his car.
[12] When her mother arrived and had a conversation with the employee’s wife. Her aunts came and joined her mother and the employee’s wife and there was a discussion that took place. It came out of the discussion that the employee had a child with another learner at another school. The discussion ended when the employee’s wife indicated that she would bring the employee’s family elders for further discussion to be held. A delegation of elders from the employee’s family later arrived at her home. She told them that she had a relationship with the employee. One of the employee’s family members had asked if they could pay damages and apologize. Her mother told the delegation that the issue was out of her hands, and that it was up to the school to decide what to do about the incident.
Employee’s Evidence
[13] The employee did not state his case, he instead, opted to change his plea and plead guilty to the charge after Miss P’s evidence-in-chief and after the employee’s representative’s brief cross examination.
ANALYSIS OF THE EVIDENCE AND ARGUMENT
[12] I have before me only the version presented by the employer, given that the employee decided to plead guilty to the charge preferred against him. It is accordingly not in dispute that the employee had a sexual relationship with the Miss P who was a Grade 12 learner at the time. In engaging in a sexual relationship with Miss P, the employee breached provisions of Section 17(1)(c) of the Employment of Educators Act, 76 of 1998 as amended (the EEA). Section 17(1)(c) provides as follows:
“Serious misconduct. — (1) An educator must be dismissed if he or she is found guilty of—
(c) having a sexual relationship with a learner of the school where he or she is employed;”
[13] The above section not only identifies an educator having a sexual relationship with a learner as serious misconduct, but it goes further to provide that an educator found guilty of this offence must be dismissed. (My emphasis and underlining). The provisions of this section are peremptory, and for good reasons. As I often state, an educator is no ordinary employee. Of all the professions, the teaching profession stands out. It holds a very unique position in society because society at large relies on the profession to mould future leaders and exemplary citizenry. Learners spend a considerable amount of time at school and are often left at the mercy of teachers who should and are expected to look after their welfare. As such, parents and society at large place their trust on educators and expect of educators to, at all times, act in a manner befitting the position of trust that they are placed in. Educators are accordingly held to higher standards than other professions. As such, even the slightest of betrayal of this trust should not only be frowned upon but should be harshly dealt with. It is in this context that the conduct by the employee should be understood.
[14] With the employee having pleaded guilty, the only issue left for determination is that of sanction. While I had submissions from the applicant in mitigation of sanction, Section 17(1)(c) provides that once an educator is found guilty of having a sexual relationship with a learner, such educator must be dismissed. In other words, an arbitrator has no discretion to decide on the sanction except imposing the sanction of dismissal. But even if I had such discretion, the gravity of the misconduct is such that I would not have considered any lesser sanction than that of dismissal. The employee, contrary to his submissions in mitigation of sanction to the effect that he was still young and not properly orientated, appears to have carefully planned and set out the scene leading to the sexual relationship he had with Miss P.
[15] I find the employee to have taken advantage of Miss P’s naivety and abused his position as a teacher. This finding is not misplaced but is informed by what Miss P raised in her evidence-in-chief and during cross examination when she stated that she did not have a crush on the employee, but that she liked him because of the way he taught the Maths Literature subject. But she had another reason for succumbing to the advances by the employee. She stated, during her evidence-in-chief and during cross examination, that she feared that if she did not give the employee her contact number, the employee would drop her marks or fail her. Also, if one has regard to the text messages exchange between the employee and Miss P, no other conclusion can be reached except that the employee was sexually grooming Miss P. This, in my considered view, aggravates the conduct. An educator who knowingly grooms and engages in a sexual relationship with a learner does not deserve to be in the teaching profession.
[16] Learners are vulnerably. They spend a lot of time with the educators and look upon them for guidance and the nature of the teacher/learner relationship is such that Miss P’s reaction to advances by the employee is understandably. It is also not uncommon for learners to idolise their teachers as it, somehow, appears to be the case with Miss P, but same cannot be motivation for an educator to take advantage of such situations. While the employee, in mitigation of sanction, submitted that Miss P may not be an innocent party by suggesting that she played a role in what happened when she agreed to take a Bolt taxi to the guesthouse, it is my finding that such an argument should be dismissed outright. Miss P was a learner and, irrespective of whether she had a hand or played part in the relationship happening, same does not absolve the employee. He had no business engaging in a sexual relationship with a learner.
[17] The South African Council of Educators (SACE) Code of Professional Ethics provides that educators: “respect the dignity, beliefs and constitutional rights of learners and in particular children” and that educator 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.” This provision is founded on the Constitution of the republic which provides for protection of learners from being abused or taken advantage of. It therefore follows that any educator found to have infringed a learner’s right to dignity and sexually exploiting or abusing learners should be made an example of by the harshest of sanction being imposed on him.
[18] In the premises, I make the following award:
AWARD
[19] The sanction of dismissal is imposed effective from 10 May 2022.
[20] 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 its consideration of appropriate action to be taken.
[21] The employee has the right to take this award on review to the Labour Court as envisaged in Section 145 of the LRA and to do so within the prescribed timeframe.
Monde Boyce
Panelist: ELRC