ELRC 400-21/22GP
Text
ELRC 400-21/22GP
Award Date:
30 May 2022
IN THE EDUCATION LABOUR RELATIONS COUNCIL ARBITRATION MEETING HELD VIRTUALLY ON 12 MAY 2022
Case Number: ELRC197-20/21KZN
Arbitrator: Moraka Abel Makgaa
Date: 30 May 2022
In the matter between: -
Sanele Wiseman Xaba Applicant
And
Education Department of KwaZulu-Natal Respondent
ARBITRATION AWARD
DETAILS OF THE ARBITRATION AND REPRESENTATION
1 The arbitration hearing was held virtually on 12 May 2022. The employee was present, and represented by Mr Shahil Hiralall, from Hiralall Attorneys Inc. The Respondent was represented by Mr Don Mpembe, employed by the respondent as an Assistant Director: Employee Relations.
2 The respondent submitted a bundle of documents which was marked as Bundle R, made up of 29 pages. The applicant submitted a bundle of documents which was marked as Bundle A, made up of 27 pages.
3 The proceedings were digitally recorded and conducted in English. Both parties filed written closing arguments, which have been taken into consideration in arriving at the conclusions herein.
ISSUES TO BE DECIDED
4 I am required to determine whether the dismissal of the applicant was substantively fair. Should I find that the dismissal was unfair, I am required to determine the appropriate remedy.
BACKGROUND TO THE MATTER
5 The applicant was apparently placed on a precautionary suspension pending the outcome of the investigation into allegations of sexual misconduct and/or conclusion of the disciplinary enquiry. The following charges of misconduct were preferred against the applicant:
“ You committed an act of serious misconduct in that on or about the period of November 2017 at or near Ixopo High School ( Harry Gwala District) you contravened section 17(b) of the Employment of Educators Act No. 76 of 1998 as amended by committing an act of sexual assault on a student, or alternatively section 18(q)- sexual harassment”.
6 The disciplinary hearing was held on 30 August 2018. He was found guilty of the alternative charge and dismissed. He appealed against both the guilty finding. On 24 July 2020 the Member of Executive Council confirmed both the finding and the resultant sanction of dismissal. Aggrieved by this decision, the applicant referred a dispute of alleged unfair dismissal to the ELRC, which could not be resolved at the conciliation stage, hence it was referred to arbitration and came before me on 12 May 2022.
7 The applicant challenges substantive fairness only, contending that he did not commit the alleged misconduct. The applicant is seeking the relief of reinstatement with back pay or maximum compensation.
8 Upon receipt of the parties’ closing arguments, I wrote an email to representatives of both parties requesting clarity on the charge(s) preferred against the applicant, as well as the charge(s) for which the applicant was found guilty and dismissed for. I asked this question because of the apparent differences between the submissions of the parties on these issues. Mr Hiralall’s response, which I got on 23 May 2022, reads as follows: “On reading the charges independently, they appear to be the same charge in different versions of the Act, which is why it was not raised as a procedural issue”. Mr Mpembe’s response was received on 25 May 2022, and can be summarized as follows. The applicant was initially charged with section 17 (1) (b) of the EEA. There were negotiations with Mr MSD Mdunge, who was the Employer Representative during the internal disciplinary hearing proceedings, which resulted with an agreement that section 18(1)(q) be included as an alternative charge.
9 From the responses of the parties’ representatives, it appears as if both Messrs Hiralall and Mpembe are in agreement that the applicant faced the two charges. It also appears to be common cause that the applicant was found guilty and dismissed for conducting himself in an improper, disgraceful or unacceptable manner, while on duty.
SURVEY OF THE RESPONDENT’S EVIDENCE AND ARGUMENT
10 Sanele Mkhize’s (“Sanele”) evidence can be summarised as follows. During October 2017, he was a learner at Ixopo High School, doing Grade 11. The applicant was his Geography teacher. Regarding the incidents of the 09 October 2017, he testified that the applicant performed acts of a sexual nature on four separate occasions during two different incidents in the book room. In as far as the first incident is concerned, the applicant came to the classroom during his Geography lesson and asked Sanele to go with him to the bookroom so as to help him with capturing of learners’ marks.
11 Upon arrival, the applicant requested him to clean the bookroom as it was a bit untidy. While bending down, the applicant got behind him and started doing sexual movements on him. The applicant’s hands were around Sanele’s waist, with the applicant’s front part touching Sanele’s buttocks. The applicant was moving back-and-forth repeatedly. When asking the applicant as to what was it that he was doing, the applicant was just laughing.
12 The applicant repeated the same sexual movements when Sanele was approaching the bookroom door on his way out to the classroom. In class the other learners could see that he was disturbed and disorientated, and Asisipho was one of those learners. She asked him as to why was he looking disturbed. He told her that he was indeed disturbed because the applicant was doing weird things in the bookroom. While they were still talking, the applicant walked into the classroom, and said that he needed some assistance with something else. He asked Sanele and Asisipho to go with him to the bookroom.
13 On their way to the bookroom he told Asisipho more information about what was happening in the bookroom. He also told her to stay close to him so that if he sees something strange happening which makes him uncomfortable, he could be able touch or tap her. In the bookroom Asisipho was standing next to him while he was seated on the chair. Asisipho was reading the marks whilst he was capturing or verifying those marks in the computer. The applicant was busy writing marks on the paper. While entering the marks on the computer he made a mistake and asked the applicant to help him correct the error. The applicant came and stood behind him. The applicant put one of his hands on the computer, used the other hand to take Sanele’s shirt out of his pants. The applicant’s hand was put deep into Sanele’s pants, touching his buttocks. He wanted to tap Asisipho, who was a bit too far from him, but he realized that he could not do that without the applicant seeing him.
14 As time went on, the applicant also made a mistake and sent Asisipho to go and ask for a tippex. Asisipho went to mam Ngcobo’s class, and he remained behind with the applicant. While Asisipho was out of the bookroom the applicant made the same sexual movements against his buttocks. He kept on asking the applicant as to what was it that he was doing. The applicant asked him as to whether he did not like it. The applicant stopped doing those sexual movements when Asisipho was entering into the bookroom, and they remained standing.
15 When they were on their way to the classroom Asisipho asked him as to what did the applicant mean when he was asking what was it that he did not like. He told her that the applicant was doing the same sexual movements. He told a couple of his friends about the incidents who encouraged him to tell Mr Gumede since he was kind of close to him. They had a Maths Lit class with Mr Gumede that day. He went to Mr Gumede so as to tell him about the bookroom incidents. Mr Gumede said that they should not talk about the incidents at that time and promised to call him later, which he ultimately did. Upon arrival he found Mr Gumede with Ms Strydom, and he told them about the bookroom incidents. The matter was ultimately reported to the school principal.
16 He was shocked when he heard about the stick fighting story because there were no sticks in the book room. Secondly, he knew nothing about what stick fighting is all about because he grew up in a location where they were not doing such kind of games. The only thing he knew is that it has something to do with sticks, but he has never played such a game. Thirdly, he did not have such kind of a relationship with the applicant and he had never spoken to the applicant outside of the classroom. Lastly, he was afraid of the applicant so much.
17 After the matter was reported to the principal, the applicant called him and apologized. He also asked him to drop the case because it was getting the applicant into serious trouble. Other teachers also called him and requested him to drop the case because it was getting the applicant into serious trouble.
18 Under cross examination, he testified that he could not refuse to go back to the bookroom because he was afraid of the applicant. He described the applicant as one of the most feared teachers at school because he used to punish learners a lot with anything he could come across in class including computer cables. He could not recall whether he gave this reason or whether he was asked about this reason during the disciplinary hearing or when making his statement in relation to the criminal case. He insisted that he could not refuse to go back to the bookroom as he was afraid of the applicant, and because there was another person with him. He felt a bit safer.
19 He conceded that Asisipho could not see what was happening during the second instance. She only heard when the applicant asked as to what was it that Sanele did not like. He further testified that Asisipho could not see what was happening because she was standing at the table with him, facing forward at the computer, and that the applicant’s hand was behind them.
20 He could not ask the applicant as to what was it that he was doing because when one is in such a situation, he or she gets confused, and that anyone who had been assaulted would understand what he was talking about. As to the version that it would not have been unusual for him to ask the applicant such a question because he previously did that, his answer was that he was also afraid that bringing Asisipho into the picture could have resulted in the applicant assaulting both of them.
21 He could not offer to go and get the tippex because he was afraid of the applicant. Secondly, it was the applicant who had to decide as to who must go and who must stay. Another reason was that the applicant had a tendency of turning learners off.
22 As to the applicant’s version that he was mimicking or showing him as to how stick fighting is being played, he reiterated that he did not have such kind of a relationship with the applicant. He had never spoken to the applicant outside of the class, he therefore did not see any reason as to why the applicant could have decided to choose him for stick fighting. Lastly, he denied that the applicant chose him because he was one of the best students in class because he was struggling a lot with Geography.
23 Asisipho Potwana’s (“Asisipho”) evidence corroborated that of Sanele Mkhize except in a few respects where she either introduced new evidence or where there were some contradictions with Sanele’s evidence, which included the following. When she went to borrow a tippex, the door was open but when returning the door was closed. When entering the bookroom she heard the applicant saying to Sanele ‘don’t you like it’. Sanele was moving around, the applicant was behind him, and Sanele looked uncomfortable. On their way back to the classroom, Sanele told her that the applicant put his hand into Sanele’s shirt and fondled him, and doing sexual positions on him.
24 Under cross examination, she conceded that she did not see the applicant making sexual advances on Sanele. She also conceded that on their way to the bookroom Sanele said he will tell her if the applicant continues to make the sexual positions on him. In the bookroom Sanele did not tell her that something wrong was happening. She was not too far from Sanele. Their proximity to one another was less than an arm’s length. Sanele could have not tapped her arm if something wrong was happening because the applicant was watching. Sanele could have not been able to tap her hand without the applicant observing him.
SURVEY OF THE APPLICANT’S EVIDENCE AND ARGUMENT
25 The applicant’s testimony can be summarized as follows. He was employed by the respondent as a teacher at Ixopo High School for a period of almost 11 years. He was teaching Geography in Grades 10 to 12, and social sciences in Grades 8 to 9. The alleged incidents of 09 October 2017 occurred during the time of the examinations. Teachers were busy with examination related work including capturing of the marks. While in the bookroom he realized that he needed extra hands to help him in the capturing of the learners’ marks in the computer, as the deadline for submission was fast approaching.
26 On that day he had a Geography lesson with the Grade 11 learners. He arrived late by about 20 minutes. He first asked Sanele Mkhize to accompany him to the bookroom, but when he was just on the door step of the class, he realized that he needed at least two learners to help one another. He then went back to the class and asked Asisipho to come along with Sanele. Upon arrival in the bookroom they all seated and started working. The learners were at the computer helping one another, and he was seated a little bit far from them doing some other work.
27 While they were busy, Asisipho made an error and asked him if she could go and get a tippex. He allowed her and she left for about 20 minutes. After she had left, he and Sanele started talking about stick fighting, but he did not remember as to what caused that topic. He started to demonstrate to Sanele as to how stick fighting is being played. Asisipho came back and they continued with the work until the bell rung, and thereafter left the bookroom.
28 After almost two weeks he heard from one of his colleagues, Mr Nkandi, that Sanele was accusing him of sexual harassment. Mr Nkandi advised him to apologize to Sanele in order to cut the matter short, which he ultimately did. He acknowledged that he was a strict teacher at school, but he did not remember a single day where he had been called by the principal saying that he had punished a learner. He had a clean disciplinary record. He believes that Sanele was used by some of his colleagues, particularly Mr Gumede, to get rid of him.
29 He did not believe Sanele’s version that he could not tap Asisipho without being seen by the applicant because Sanele and Asisipho were seated close to one another while he was on the right hand side of Sanele. He found this version to be strange.
30 Under cross examination, he conceded that according to the statement he wrote on 20 November 2017 concerning these allegations of sexual assault , Asisipho had to go back to the classroom in order to fetch something that she had forgotten. As to why his testimony at arbitration is now different from that statement, he testified that the statement was informed by what Asisipho told him when they were in the bookroom, but it was later realized that Asisipho had gone to fetch a tippex from Ms Ngcobo in order to fix the error which she had made. He testified that the correct statement is the one about going out to fetch a tippex, hence he had even corrected his initial statement when writing the affidavit relating to the criminal case.
31 He further testified that he never had any conversation with Asisipho about the issue of the tippex, but he got the information from Asisipho’s statement when they were in court. When he read about Asisipho’s statement which was made to the investigating officer he remembered that Asisipho told him that he made a mistake and requested to go and get a tippex. He denied that the statement of 20 November 2017 was a false statement which was corrected after seeing Asisipho’s statement. He also denied that he requested Asisipho to go and get a tippex so that he could get the opportunity to prey on Sanele.
32 He agreed that he had no grudges or animosity with Sanele because if that was the case, he would have not requested Sanele to help him with capturing of learners’ marks. The fact that Mr Gumede was the first person to whom Sanele reported the matter made him suspicious that Sanele and Mr Gumede had a special relationship which Mr Gumede used to portray the applicant as a bad person. If that was not the case Sanele would have followed proper protocol of reporting the matter through the Learner Representative Council or the Teacher Liaison Officer, Mr Nkandi, instead of reporting the matter to Mr Gumede.
33 He insisted that even if the bookroom was a confined area, it was possible for him to show or demonstrate as to how stick fighting should be played. As to whether it was in his nature to play stick fighting games with learners, he testified that there was a time he was strict and a time he would allow children to show their potential. He did not see anything wrong in demonstrating stick fighting even if he was under pressure of submitting marks because he was being assisted by two learners. He stopped demonstrating the mimicking with stick fighting when Asisipho entered the bookroom so that they could continue with the work.
34 As to why did he have to go to Sanele to apologize, he testified that after hearing about the allegations of sexual harassment he decided to call Sanele to ask him as to what happened in the bookroom. Sanele said he did not like the way the applicant touched him. He told Sanele that he couldn’t remember touching him in a wrong way. He knew that he was innocent because he didn’t do anything wrong, but he decided to apologize to cut the matter short. He further testified that he did not know that sexual harassment was a serious matter. He only realized the seriousness of the allegations of sexual harassment when he was issued with a letter of precautionary suspension.
ANALYSIS OF EVIDENCE AND ARGUMENT
35 The fact that the existence of the dismissal is not in dispute means that the respondent bears the onus in terms of section 192(2) of the Labour Relations Act 66 of 1995 of proving that the dismissal was fair. The respondent is required to discharge this burden of proof on a balance of probabilities.
36 I agree with Mr Hiralall’s overall analysis that there are some contradictions and inconsistencies in the evidence of the respondent’s two witnesses, especially with regard to the third incident which is said to have occurred in the presence of Asisipho. I, however, hold a different view as to whether such discrepancies are fatal to the general probabilities which must be drawn in favour of the respondent’s case.
37 Starting with the evidence of Asisipho, I agree that her evidence could not be conclusively relied on for purposes of establishing that one or more of the acts of misconduct which are the subject of the current dispute have indeed been committed. It appears to me that Asisipho’s evidence was intended to corroborate the evidence of Sanele, and I am satisfied that the respondent has achieved this objective. I do not think it is necessary to traverse Asisipho’s evidence beyond the issue of corroboration except with regard to what she said she saw happening between Sanele and the applicant when returning from the tippex trip.
38 The essence of Sanele’s evidence is that the applicant performed a total of four sexual acts on him ( or what he described as the back-and-forth sexual movements against his buttocks) during the first and second encounters, three of which are said to have happened in the absence of Asisipho. As it will soon become apparent, when the versions of the parties are considered in their totality, the applicant did not offer any countervailing version about what really happened on that fateful day, especially in the bookroom. The applicant’s version is, in the main, to the effect that he did not touch, or he could not remember touching Sanele improperly on that day.
39 A resolution to these factual disputes is dependent upon the circumstances surrounding the calling of Sanele and Asisipho to the bookroom, the tippex incident , the mimicking with stick fighting and the apology made to Sanele by the applicant. There is no doubt that the versions of the parties’ witnesses in as far as these issues are concerned, are irreconciliable and mutually destructive. In Stellenbosch Farmers Winery v Martell et Cie 2003 (1) SA 11 (SCA), the Supreme Court of Appeal, per Nienaber JA at para 5, said the following about irreconciliable and mutually destructive evidence at arbitration proceedings:-
“To come to a conclusion on the disputed issues a court must make findings on (a) the credibility of the various factual witnesses; (b) their reliability; and (c) the probabilities. As to (a), the court’s finding on the credibility of a particular witness will depend on its impression about the veracity of the witness. That in turn will depend on a variety of subsidiary factors, not necessarily in order of importance, such as (i) the witness’s candour and demeanour in the witness-box, (ii) his bias, latent and blatant, (iii) internal contradictions in his evidence, (iv) external contradictions with what was pleaded or put on his behalf, or with established fact or with his own extracurial statements or actions, (v) the probability or improbability of particular aspects of his version, (vi) the calibre and cogency of his performance compared to that of other witnesses testifying about the same incident or events. As to (b), a witness’s reliability will depend, apart from the factors mentioned under (a)(ii), (iv) and (v) above, on (i) the opportunities he had to experience or observe the event in question and (ii) the quality, integrity and independence of his recall thereof. As to (c), this necessitates an analysis and evaluation of the probability or improbability of each party’s version on each of the disputed issues. In the light of its assessment of (a), (b) and (c) the court will then, as a final step, determine whether the party burdened with the onus of proof has succeeded in discharging it. The hard case, which will doubtless be the rare one, occurs when a court’s credibility findings compel it in one direction and its evaluation of the general probabilities in another. The more convincing the former, the less convincing will be the latter. But when all factors are equipoised probabilities prevail”.
40 Admittedly, as correctly pointed out by Mr Hiralall, Sanele’s conduct, either explicitly or by necessary implication, attracts some criticism. In the normal cause of events, someone whose human dignity had been violated would have not voluntarily agreed to go back to the same bookroom for the second time within such short space of time. Secondly, the presence of Asisipho during the second encounter should have given Sanele more courage to either do something to attract the attention of Asisipho, including taping her hand, or by asking the applicant as to what was it that the applicant was doing to him, like it is said he had previously done that in the absence of Asisipho. If the same questions are answered from the point of view of Sanele’s explanation that he was confused and disorientated ( if indeed the first two incidents had occurred), and that the applicant was one of the most feared teachers at school, it would not be unreasonable to conclude that there is some merit in the reasons given by Sanele for failing to immediately expose the applicant in the presence of Asisipho.
41 The question is whether the aspersions cast on Sanele’s conduct and other contradictions emanating from the evidence of the respondent’s witnesses should be regarded as being so fatal to the respondent’s case, to the extent that it could be argued that at the close of the respondent’s case, the respondent had failed to make out a prima facie case against the applicant. Put differently, can it be argued that at the close of the respondent’s case there was no shred of evidence suggesting or proving that the applicant had committed any of the acts of sexual misconduct he is accused of. I do not think so.
42 The first fundamental problem with the applicant’s strategy was, as correctly pointed out by Mr Mpembe, the applicant’s general failure to contradict the evidence of the respondent’s witnesses or to put the applicant’s version to the respondent’s witnesses, particularly with regard to the damaging factual allegations made against the applicant during such witnesses’ examination-in-chief. The wide ranging factual allegations, which the applicant chose not to dispute, were not only limited to the incidents of 09 October 2017, but they also included the character and personality of the applicant. In Small v Smit 1954 (3) SA 434 (SWA) , Case No: JR261/07, the Court said the following about the importance of challenging the opponent’s evidence :
“ “It is, in my opinion, elementary and standard practice for a party to put to each opposing witness so much of his own case or defence as concerns that witness and if need be, to inform him, if he has not been given notice thereof, that other witnesses will contradict him, so as to give him fair warning and an opportunity of explaining the contradiction and defending his own character. It is grossly unfair and improper to let a witness's evidence go unchallenged in cross-examination and afterwards argue that he must be disbelieved. Once a witness's evidence on a point in dispute has been deliberately left unchallenged in cross-examination and particularly by a legal practitioner, the party calling that witness is normally entitled to assume in the absence of notice to the contrary that the witness's testimony is accepted as correct. More particularly this is the case if the witness is corroborated by several others, unless the testimony is so manifestly absurd, fantastic or of so romancing a character that no reasonable person can attach any credence to it whatsoever”.
43 In casu, there are only two versions which were put to the respondent’s witnesses under cross examination, which relates to the mimicking with stick fighting and the reasons why the applicant had preferred Sanele over any other learner. I intend to deal with these versions shortly.
44 The net effect of the approach adopted by the applicant is that the evidence of the respondent’s witnesses on the other allegations remain unchallenged, in circumstances where the applicant was represented by a legal practitioner. The applicant’s version that he called Sanele and Asisipho at the same time, suggesting that he only had one encounter with the two learners on that day as regards the tasks in the bookroom, is not only belated. The applicant’s cross examination on this issue was clearly based on an acknowledgement that Sanele and Asisipho were called to the bookroom on two separate occasions. The learners’ testimonies on whether they were called simultaneously or separately on two different occasions as well as whose mistake had occasioned the borrowing of the tippex are accepted as the correct version. The only adverse inference which must be drawn against the applicant, at this stage, is that he is already limping on the credibility assessment.
45 Another issue which is also linked to the applicant’s credibility problems, is the reasons why Sanele appeared to have been the most preferred learner to assist with the capturing of the learners marks on that day and as to why the mimicking with stick fighting lesson was only given to him to the exclusion of Asisipho. Sanele disputed the proposition that he was chosen because he was “ a very smart, educated, and the best learner” because he was struggling a lot in Geography. The applicant never persisted with this proposition both during cross examination and when the applicant was testifying. It effectively means that the respondent’s suspicions about the real motive for choosing Sanele remained unanswered. As to why did the mimicking with stick fighting practical lesson started once Asisipho had left the bookroom, and why did the lesson have to stop when Asisipho entered the bookroom, just like Mr Mpembe, I also find the applicant’s decision to be strange. I do not understand why has the applicant has elected not to clarify these questions.
46 I find the applicant’s explanation for the contradictory versions as regards the statement he wrote on 20 November 2017 in response to the allegations of sexual harassment and the evidence he gave at arbitration, to be completely without merit. Besides the fact that the applicant tried to find refuge in being forgetful, probably as a result of what he described as shallow memory, this version was never put to the respondent’s witnesses. The evidence relating to the tippex saga is therefore regarded as being an afterthought which must be rejected.
47 I am not inclined to accept Mr Mpembe’s proposition that the error, which was made by the applicant, was made for an ulterior purpose, which the applicant sought to achieve by sending Asisipho to go and borrow a tippex so that he could have the opportunity to prey on Sanele. I do not think the tippex incident should be stretched beyond the credibility assessment.
48 On the issue of mimicking with stick fighting, I am inclined to accept Sanele’s version that the applicant had neither demonstrated nor had any conversation with him about the stick fighting. The applicant did not dispute Sanele’s version that there were no sticks in the bookroom and that they did not have such kind of a relationship. Besides the applicant’s version being highly improbable, I do not understand the purpose sought to be achieved by the applicant with this evidence, especially given the urgent and serious nature of the task to be performed by the two learners. As correctly argued by Mr Mpembe, if ever mimicking with stick fighting was an important lesson to be given to Sanele, why was Asisipho not given the opportunity to also benefit from such an important lesson? The explanation as to why did it suddenly become necessary for the applicant to do such a demonstration in circumstances where he was chasing after submission deadlines was simply illogical. I am of the view that Sanele’s version on this issue makes a lot of sense as compared to that of the applicant.
49 One of the most reasonable inferences that may be drawn regarding the mimicking with stick fighting conundrum, is that it is true that when Asisipho was returning to the bookroom with the tippex she found the applicant and Sanele moving around or standing up under suspicious circumstances. The applicant may have thought that the best that he could do was to provide some kind of an explanation as to why Asisipho found them standing or following one another instead of focusing on the work that had to be done.
50 The evidence of the respondent’s witnesses was forth right, and they did not dilly dally, when answering questions. Their evidence was generally consistent, both during examination-in-chief and under cross examination. They were quick to make concessions in instances where it was necessary for them to do so. The applicant’s performance, as a witness, was generally unsatisfactory. He, for instance, found it difficult to answer simple and straight forward questions including those that required a yes or no answer. There were instances where the applicant was evasive, argumentative and dismissive of the questions asked to him during cross examination. His evidence was also characterized by bare denials and contradictions.
51 Turning to the question whether the applicant had committed the sexual misconduct, which is the subject of this enquiry, the first area where the applicant must be criticized, is his dismal failure to proffer a countervailing version in response to Sanele’s wide ranging allegations of sexual harassment or sexual assault. Secondly, the applicant did not unequivocally and unambiguously dispute such allegations. The least he could say was that, at the time of writing his statement of case on 20 November 2017, as well as when he met with Sanele to find out as to what happened in the bookroom, he did not remember touching Sanele in any improper manner. He sought to refute Mr Mpembe’s assertion that the applicant seemed to have a mysterious memory as regards some of the controversial things which are said to have happened in the bookroom, by giving a brief lecture on deep memory and shallow memory, probably in an attempt to suggest that he should be understood as having a shallow memory. He appears to have persisted with this tendency of trying to portray himself as a forgetful and innocent victim of circumstances before and during the internal disciplinary hearing as well as during the arbitration proceedings.
52 The last issue which I think serves as the last fatal blow on the applicant’s defense of victimhood is the real reason why he had to apologize to Sanele. The applicant’s version that he was reluctant to apologize to Sanele because he knew that there was nothing wrong which he did, but he did so after being persuaded by Mr Nkandi in order to cut the matter short, is not only illogical but it is also ironical because it is the same error of judgment which has cut short his teaching career with the respondent. The applicant’s testimony that he was not aware of the seriousness of allegations of sexual harassment, including the fact that this is a dismissible offence, is also characteristic of the same absurdity. Just like Sanele, I am also of the view that the applicant’s apology was not a sincere apology but an attempt to do a belated damage control to save his teaching career on the edge of a precipice.
53 The applicant’s allegation that Sanele had conspired with Mr Gumede against him is completely ill-conceived. None of the witnesses, including the applicant himself, had tendered any shred of evidence suggesting or proving a specific role, actively or clandestinely, that may have been played by Mr Gumede in the incidents which are said to have occurred in the bookroom on 09 October 2017 or at any period incidental thereto. The evidence of Sanele and that of the applicant could not go beyond the fact that Mr Gumede was the first teacher to whom the matter was reported. I agree with Mr Mpembe that there is no merit in casting aspersions on Sanele’s decision for bringing the matter to the attention of Mr Gumede. In any event, Sanele has given three reasons, which I accept as being valid and convincing, which are: (i) he was encouraged by other learners to report the matter to Mr Gumede, (ii) the next period after the alleged ordeal was that of Mr Gumede, (iii) the applicant was close to Mr Gumede. These are objective facts which were never challenged by the applicant during cross examination.
54 If ever the applicant was believing in conspiracy theories, the person that the applicant could have blamed, is Mr Nkandi for persuading him to accept culpability and to apologize for a sexual misconduct which the applicant knew or believed that it was the result of a well-orchestrated plan to get rid of him from the employ of the respondent.
55 It is my conclusion that the comparative credibility of the parties’ witnesses; their reliability and the probabilities of their versions support a finding to the effect that the applicant had indeed performed acts of a sexual nature against a learner in the name of Sanele Mkhize. This was done during two separate sessions in the bookroom on 09 October 2017. By doing that the applicant had, while on duty, conducted himself in an improper, disgraceful or unacceptable manner in contravention of section 18(1) (q) of the EEA.
56 The next question I wish to deal with is the appropriateness of the sanction of dismissal. According to item 3(5) of Schedule 8 to the Labour Relations Act (Code of Good Practice: Dismissal),“when contemplating whether or not to impose the penalty of dismissal, the employer should in addition to the gravity of the misconduct, consider factors such as the employee’s circumstances (including length of service, previous disciplinary record and personal circumstances), the nature of the job and the circumstances of the infringement itself”.
57 In the instant case, the applicant elected not to lead any evidence during arbitration or to canvass any mitigating factors in their closing argument with regard to the appropriateness of the sanction. This approach was, probably, adopted as a result of a strong belief that the respondent had failed to prove that the applicant was guilty of any sexual misconduct. The only argument made by Mr Hiralall with regard to the appropriateness of the sanction is this: ‘the employer who wishes to rely on a breach or breakdown of the trust relationship must lead evidence in that regard. It is further argued that the respondent’s failure to lead evidence in support of a contention of irretrievable breakdown of the employment relationship suggests or proves that the trust relationship is still intact’. Broadly speaking, there may be some merit in the argument advanced obo the applicant. I am, however, of the view that the argument that the trust relationship remains intact is clearly oversimplistic. The fact of the matter is that the applicant’s employment relationship with the respondent has been in trouble since 2017 and he was ultimately dismissed since 24 July 2020, which is a period of more than five years.
58 Another painful reality is the fact that all acts of misconduct under section 18(1) of the EEA are described as constituting a breakdown in the employment relationship, which suggests that an employee who has been found guilty of any of the offences specified therein is generally confronted with the possibility of a dismissal. It is this possibility which suggests that an employee found guilty of a section 18(1) offence has a responsibility to bring as much evidence as possible in support of a contention that the circumstances of his or her case justify imposing a sanction short of dismissal.
59 The only factors which the applicant testified about is the length of service and a clean disciplinary record. The fundamental problem is that such evidence was not based on an acknowledgement of wrongdoing on the part of the applicant. It was perhaps intended to suggest ( without even looking at the merits of the case) that it was highly unlikely for the applicant to have committed any misconduct. In the absence of any evidence or submissions on the part of the applicant regarding the appropriateness of the sanction, the only objective consideration that one may take into account is the issue of remorse. In De Beers Consolidated Mines v Commission for Conciliation Mediation and Arbitration and Others (JA68/99) [2000] ZALAC 10 (3 March 2000), the Labour Court at para 25, emphasized the importance of remorse and the consequences of lack remorse in the following terms:
“It would in my view be difficult for an employer to re-employ an employee who has shown no remorse. Acknowledgement of wrong doing is the first step towards rehabilitation. In the absence of a recommitment to the employer’s workplace values, an employee cannot hope to re-establish the trust which he himself has broken. Where, as in this case, an employee, over and above having committed an act of dishonesty, falsely denies having done so, an employer would, particularly where a high degree of trust is reposed in an employee, be legitimately entitled to say to itself that the risk of continuing to employ the offender is unacceptably great”.
60 As already indicated the applicant has regardless of overwhelming evidence, led by the respondent, and in some respects on his own version, persisted with his belief that there was nothing wrong which he did in this case, which suggests that he was not remorseful at all. In the circumstances, there would be no valid justification warranting interfering with the sanction imposed by the respondent. The applicant was therefore dismissed for a fair reason in accordance with a fair procedure.
AWARD
61 The applicant’s dispute of alleged unfair dismissal is dismissed.
MORAKA ABEL MAKGAA
ELRC PANELIST
Case Number: ELRC197-20/21KZN
Arbitrator: Moraka Abel Makgaa
Date: 30 May 2022
In the matter between: -
Sanele Wiseman Xaba Applicant
And
Education Department of KwaZulu-Natal Respondent
ARBITRATION AWARD
DETAILS OF THE ARBITRATION AND REPRESENTATION
1 The arbitration hearing was held virtually on 12 May 2022. The employee was present, and represented by Mr Shahil Hiralall, from Hiralall Attorneys Inc. The Respondent was represented by Mr Don Mpembe, employed by the respondent as an Assistant Director: Employee Relations.
2 The respondent submitted a bundle of documents which was marked as Bundle R, made up of 29 pages. The applicant submitted a bundle of documents which was marked as Bundle A, made up of 27 pages.
3 The proceedings were digitally recorded and conducted in English. Both parties filed written closing arguments, which have been taken into consideration in arriving at the conclusions herein.
ISSUES TO BE DECIDED
4 I am required to determine whether the dismissal of the applicant was substantively fair. Should I find that the dismissal was unfair, I am required to determine the appropriate remedy.
BACKGROUND TO THE MATTER
5 The applicant was apparently placed on a precautionary suspension pending the outcome of the investigation into allegations of sexual misconduct and/or conclusion of the disciplinary enquiry. The following charges of misconduct were preferred against the applicant:
“ You committed an act of serious misconduct in that on or about the period of November 2017 at or near Ixopo High School ( Harry Gwala District) you contravened section 17(b) of the Employment of Educators Act No. 76 of 1998 as amended by committing an act of sexual assault on a student, or alternatively section 18(q)- sexual harassment”.
6 The disciplinary hearing was held on 30 August 2018. He was found guilty of the alternative charge and dismissed. He appealed against both the guilty finding. On 24 July 2020 the Member of Executive Council confirmed both the finding and the resultant sanction of dismissal. Aggrieved by this decision, the applicant referred a dispute of alleged unfair dismissal to the ELRC, which could not be resolved at the conciliation stage, hence it was referred to arbitration and came before me on 12 May 2022.
7 The applicant challenges substantive fairness only, contending that he did not commit the alleged misconduct. The applicant is seeking the relief of reinstatement with back pay or maximum compensation.
8 Upon receipt of the parties’ closing arguments, I wrote an email to representatives of both parties requesting clarity on the charge(s) preferred against the applicant, as well as the charge(s) for which the applicant was found guilty and dismissed for. I asked this question because of the apparent differences between the submissions of the parties on these issues. Mr Hiralall’s response, which I got on 23 May 2022, reads as follows: “On reading the charges independently, they appear to be the same charge in different versions of the Act, which is why it was not raised as a procedural issue”. Mr Mpembe’s response was received on 25 May 2022, and can be summarized as follows. The applicant was initially charged with section 17 (1) (b) of the EEA. There were negotiations with Mr MSD Mdunge, who was the Employer Representative during the internal disciplinary hearing proceedings, which resulted with an agreement that section 18(1)(q) be included as an alternative charge.
9 From the responses of the parties’ representatives, it appears as if both Messrs Hiralall and Mpembe are in agreement that the applicant faced the two charges. It also appears to be common cause that the applicant was found guilty and dismissed for conducting himself in an improper, disgraceful or unacceptable manner, while on duty.
SURVEY OF THE RESPONDENT’S EVIDENCE AND ARGUMENT
10 Sanele Mkhize’s (“Sanele”) evidence can be summarised as follows. During October 2017, he was a learner at Ixopo High School, doing Grade 11. The applicant was his Geography teacher. Regarding the incidents of the 09 October 2017, he testified that the applicant performed acts of a sexual nature on four separate occasions during two different incidents in the book room. In as far as the first incident is concerned, the applicant came to the classroom during his Geography lesson and asked Sanele to go with him to the bookroom so as to help him with capturing of learners’ marks.
11 Upon arrival, the applicant requested him to clean the bookroom as it was a bit untidy. While bending down, the applicant got behind him and started doing sexual movements on him. The applicant’s hands were around Sanele’s waist, with the applicant’s front part touching Sanele’s buttocks. The applicant was moving back-and-forth repeatedly. When asking the applicant as to what was it that he was doing, the applicant was just laughing.
12 The applicant repeated the same sexual movements when Sanele was approaching the bookroom door on his way out to the classroom. In class the other learners could see that he was disturbed and disorientated, and Asisipho was one of those learners. She asked him as to why was he looking disturbed. He told her that he was indeed disturbed because the applicant was doing weird things in the bookroom. While they were still talking, the applicant walked into the classroom, and said that he needed some assistance with something else. He asked Sanele and Asisipho to go with him to the bookroom.
13 On their way to the bookroom he told Asisipho more information about what was happening in the bookroom. He also told her to stay close to him so that if he sees something strange happening which makes him uncomfortable, he could be able touch or tap her. In the bookroom Asisipho was standing next to him while he was seated on the chair. Asisipho was reading the marks whilst he was capturing or verifying those marks in the computer. The applicant was busy writing marks on the paper. While entering the marks on the computer he made a mistake and asked the applicant to help him correct the error. The applicant came and stood behind him. The applicant put one of his hands on the computer, used the other hand to take Sanele’s shirt out of his pants. The applicant’s hand was put deep into Sanele’s pants, touching his buttocks. He wanted to tap Asisipho, who was a bit too far from him, but he realized that he could not do that without the applicant seeing him.
14 As time went on, the applicant also made a mistake and sent Asisipho to go and ask for a tippex. Asisipho went to mam Ngcobo’s class, and he remained behind with the applicant. While Asisipho was out of the bookroom the applicant made the same sexual movements against his buttocks. He kept on asking the applicant as to what was it that he was doing. The applicant asked him as to whether he did not like it. The applicant stopped doing those sexual movements when Asisipho was entering into the bookroom, and they remained standing.
15 When they were on their way to the classroom Asisipho asked him as to what did the applicant mean when he was asking what was it that he did not like. He told her that the applicant was doing the same sexual movements. He told a couple of his friends about the incidents who encouraged him to tell Mr Gumede since he was kind of close to him. They had a Maths Lit class with Mr Gumede that day. He went to Mr Gumede so as to tell him about the bookroom incidents. Mr Gumede said that they should not talk about the incidents at that time and promised to call him later, which he ultimately did. Upon arrival he found Mr Gumede with Ms Strydom, and he told them about the bookroom incidents. The matter was ultimately reported to the school principal.
16 He was shocked when he heard about the stick fighting story because there were no sticks in the book room. Secondly, he knew nothing about what stick fighting is all about because he grew up in a location where they were not doing such kind of games. The only thing he knew is that it has something to do with sticks, but he has never played such a game. Thirdly, he did not have such kind of a relationship with the applicant and he had never spoken to the applicant outside of the classroom. Lastly, he was afraid of the applicant so much.
17 After the matter was reported to the principal, the applicant called him and apologized. He also asked him to drop the case because it was getting the applicant into serious trouble. Other teachers also called him and requested him to drop the case because it was getting the applicant into serious trouble.
18 Under cross examination, he testified that he could not refuse to go back to the bookroom because he was afraid of the applicant. He described the applicant as one of the most feared teachers at school because he used to punish learners a lot with anything he could come across in class including computer cables. He could not recall whether he gave this reason or whether he was asked about this reason during the disciplinary hearing or when making his statement in relation to the criminal case. He insisted that he could not refuse to go back to the bookroom as he was afraid of the applicant, and because there was another person with him. He felt a bit safer.
19 He conceded that Asisipho could not see what was happening during the second instance. She only heard when the applicant asked as to what was it that Sanele did not like. He further testified that Asisipho could not see what was happening because she was standing at the table with him, facing forward at the computer, and that the applicant’s hand was behind them.
20 He could not ask the applicant as to what was it that he was doing because when one is in such a situation, he or she gets confused, and that anyone who had been assaulted would understand what he was talking about. As to the version that it would not have been unusual for him to ask the applicant such a question because he previously did that, his answer was that he was also afraid that bringing Asisipho into the picture could have resulted in the applicant assaulting both of them.
21 He could not offer to go and get the tippex because he was afraid of the applicant. Secondly, it was the applicant who had to decide as to who must go and who must stay. Another reason was that the applicant had a tendency of turning learners off.
22 As to the applicant’s version that he was mimicking or showing him as to how stick fighting is being played, he reiterated that he did not have such kind of a relationship with the applicant. He had never spoken to the applicant outside of the class, he therefore did not see any reason as to why the applicant could have decided to choose him for stick fighting. Lastly, he denied that the applicant chose him because he was one of the best students in class because he was struggling a lot with Geography.
23 Asisipho Potwana’s (“Asisipho”) evidence corroborated that of Sanele Mkhize except in a few respects where she either introduced new evidence or where there were some contradictions with Sanele’s evidence, which included the following. When she went to borrow a tippex, the door was open but when returning the door was closed. When entering the bookroom she heard the applicant saying to Sanele ‘don’t you like it’. Sanele was moving around, the applicant was behind him, and Sanele looked uncomfortable. On their way back to the classroom, Sanele told her that the applicant put his hand into Sanele’s shirt and fondled him, and doing sexual positions on him.
24 Under cross examination, she conceded that she did not see the applicant making sexual advances on Sanele. She also conceded that on their way to the bookroom Sanele said he will tell her if the applicant continues to make the sexual positions on him. In the bookroom Sanele did not tell her that something wrong was happening. She was not too far from Sanele. Their proximity to one another was less than an arm’s length. Sanele could have not tapped her arm if something wrong was happening because the applicant was watching. Sanele could have not been able to tap her hand without the applicant observing him.
SURVEY OF THE APPLICANT’S EVIDENCE AND ARGUMENT
25 The applicant’s testimony can be summarized as follows. He was employed by the respondent as a teacher at Ixopo High School for a period of almost 11 years. He was teaching Geography in Grades 10 to 12, and social sciences in Grades 8 to 9. The alleged incidents of 09 October 2017 occurred during the time of the examinations. Teachers were busy with examination related work including capturing of the marks. While in the bookroom he realized that he needed extra hands to help him in the capturing of the learners’ marks in the computer, as the deadline for submission was fast approaching.
26 On that day he had a Geography lesson with the Grade 11 learners. He arrived late by about 20 minutes. He first asked Sanele Mkhize to accompany him to the bookroom, but when he was just on the door step of the class, he realized that he needed at least two learners to help one another. He then went back to the class and asked Asisipho to come along with Sanele. Upon arrival in the bookroom they all seated and started working. The learners were at the computer helping one another, and he was seated a little bit far from them doing some other work.
27 While they were busy, Asisipho made an error and asked him if she could go and get a tippex. He allowed her and she left for about 20 minutes. After she had left, he and Sanele started talking about stick fighting, but he did not remember as to what caused that topic. He started to demonstrate to Sanele as to how stick fighting is being played. Asisipho came back and they continued with the work until the bell rung, and thereafter left the bookroom.
28 After almost two weeks he heard from one of his colleagues, Mr Nkandi, that Sanele was accusing him of sexual harassment. Mr Nkandi advised him to apologize to Sanele in order to cut the matter short, which he ultimately did. He acknowledged that he was a strict teacher at school, but he did not remember a single day where he had been called by the principal saying that he had punished a learner. He had a clean disciplinary record. He believes that Sanele was used by some of his colleagues, particularly Mr Gumede, to get rid of him.
29 He did not believe Sanele’s version that he could not tap Asisipho without being seen by the applicant because Sanele and Asisipho were seated close to one another while he was on the right hand side of Sanele. He found this version to be strange.
30 Under cross examination, he conceded that according to the statement he wrote on 20 November 2017 concerning these allegations of sexual assault , Asisipho had to go back to the classroom in order to fetch something that she had forgotten. As to why his testimony at arbitration is now different from that statement, he testified that the statement was informed by what Asisipho told him when they were in the bookroom, but it was later realized that Asisipho had gone to fetch a tippex from Ms Ngcobo in order to fix the error which she had made. He testified that the correct statement is the one about going out to fetch a tippex, hence he had even corrected his initial statement when writing the affidavit relating to the criminal case.
31 He further testified that he never had any conversation with Asisipho about the issue of the tippex, but he got the information from Asisipho’s statement when they were in court. When he read about Asisipho’s statement which was made to the investigating officer he remembered that Asisipho told him that he made a mistake and requested to go and get a tippex. He denied that the statement of 20 November 2017 was a false statement which was corrected after seeing Asisipho’s statement. He also denied that he requested Asisipho to go and get a tippex so that he could get the opportunity to prey on Sanele.
32 He agreed that he had no grudges or animosity with Sanele because if that was the case, he would have not requested Sanele to help him with capturing of learners’ marks. The fact that Mr Gumede was the first person to whom Sanele reported the matter made him suspicious that Sanele and Mr Gumede had a special relationship which Mr Gumede used to portray the applicant as a bad person. If that was not the case Sanele would have followed proper protocol of reporting the matter through the Learner Representative Council or the Teacher Liaison Officer, Mr Nkandi, instead of reporting the matter to Mr Gumede.
33 He insisted that even if the bookroom was a confined area, it was possible for him to show or demonstrate as to how stick fighting should be played. As to whether it was in his nature to play stick fighting games with learners, he testified that there was a time he was strict and a time he would allow children to show their potential. He did not see anything wrong in demonstrating stick fighting even if he was under pressure of submitting marks because he was being assisted by two learners. He stopped demonstrating the mimicking with stick fighting when Asisipho entered the bookroom so that they could continue with the work.
34 As to why did he have to go to Sanele to apologize, he testified that after hearing about the allegations of sexual harassment he decided to call Sanele to ask him as to what happened in the bookroom. Sanele said he did not like the way the applicant touched him. He told Sanele that he couldn’t remember touching him in a wrong way. He knew that he was innocent because he didn’t do anything wrong, but he decided to apologize to cut the matter short. He further testified that he did not know that sexual harassment was a serious matter. He only realized the seriousness of the allegations of sexual harassment when he was issued with a letter of precautionary suspension.
ANALYSIS OF EVIDENCE AND ARGUMENT
35 The fact that the existence of the dismissal is not in dispute means that the respondent bears the onus in terms of section 192(2) of the Labour Relations Act 66 of 1995 of proving that the dismissal was fair. The respondent is required to discharge this burden of proof on a balance of probabilities.
36 I agree with Mr Hiralall’s overall analysis that there are some contradictions and inconsistencies in the evidence of the respondent’s two witnesses, especially with regard to the third incident which is said to have occurred in the presence of Asisipho. I, however, hold a different view as to whether such discrepancies are fatal to the general probabilities which must be drawn in favour of the respondent’s case.
37 Starting with the evidence of Asisipho, I agree that her evidence could not be conclusively relied on for purposes of establishing that one or more of the acts of misconduct which are the subject of the current dispute have indeed been committed. It appears to me that Asisipho’s evidence was intended to corroborate the evidence of Sanele, and I am satisfied that the respondent has achieved this objective. I do not think it is necessary to traverse Asisipho’s evidence beyond the issue of corroboration except with regard to what she said she saw happening between Sanele and the applicant when returning from the tippex trip.
38 The essence of Sanele’s evidence is that the applicant performed a total of four sexual acts on him ( or what he described as the back-and-forth sexual movements against his buttocks) during the first and second encounters, three of which are said to have happened in the absence of Asisipho. As it will soon become apparent, when the versions of the parties are considered in their totality, the applicant did not offer any countervailing version about what really happened on that fateful day, especially in the bookroom. The applicant’s version is, in the main, to the effect that he did not touch, or he could not remember touching Sanele improperly on that day.
39 A resolution to these factual disputes is dependent upon the circumstances surrounding the calling of Sanele and Asisipho to the bookroom, the tippex incident , the mimicking with stick fighting and the apology made to Sanele by the applicant. There is no doubt that the versions of the parties’ witnesses in as far as these issues are concerned, are irreconciliable and mutually destructive. In Stellenbosch Farmers Winery v Martell et Cie 2003 (1) SA 11 (SCA), the Supreme Court of Appeal, per Nienaber JA at para 5, said the following about irreconciliable and mutually destructive evidence at arbitration proceedings:-
“To come to a conclusion on the disputed issues a court must make findings on (a) the credibility of the various factual witnesses; (b) their reliability; and (c) the probabilities. As to (a), the court’s finding on the credibility of a particular witness will depend on its impression about the veracity of the witness. That in turn will depend on a variety of subsidiary factors, not necessarily in order of importance, such as (i) the witness’s candour and demeanour in the witness-box, (ii) his bias, latent and blatant, (iii) internal contradictions in his evidence, (iv) external contradictions with what was pleaded or put on his behalf, or with established fact or with his own extracurial statements or actions, (v) the probability or improbability of particular aspects of his version, (vi) the calibre and cogency of his performance compared to that of other witnesses testifying about the same incident or events. As to (b), a witness’s reliability will depend, apart from the factors mentioned under (a)(ii), (iv) and (v) above, on (i) the opportunities he had to experience or observe the event in question and (ii) the quality, integrity and independence of his recall thereof. As to (c), this necessitates an analysis and evaluation of the probability or improbability of each party’s version on each of the disputed issues. In the light of its assessment of (a), (b) and (c) the court will then, as a final step, determine whether the party burdened with the onus of proof has succeeded in discharging it. The hard case, which will doubtless be the rare one, occurs when a court’s credibility findings compel it in one direction and its evaluation of the general probabilities in another. The more convincing the former, the less convincing will be the latter. But when all factors are equipoised probabilities prevail”.
40 Admittedly, as correctly pointed out by Mr Hiralall, Sanele’s conduct, either explicitly or by necessary implication, attracts some criticism. In the normal cause of events, someone whose human dignity had been violated would have not voluntarily agreed to go back to the same bookroom for the second time within such short space of time. Secondly, the presence of Asisipho during the second encounter should have given Sanele more courage to either do something to attract the attention of Asisipho, including taping her hand, or by asking the applicant as to what was it that the applicant was doing to him, like it is said he had previously done that in the absence of Asisipho. If the same questions are answered from the point of view of Sanele’s explanation that he was confused and disorientated ( if indeed the first two incidents had occurred), and that the applicant was one of the most feared teachers at school, it would not be unreasonable to conclude that there is some merit in the reasons given by Sanele for failing to immediately expose the applicant in the presence of Asisipho.
41 The question is whether the aspersions cast on Sanele’s conduct and other contradictions emanating from the evidence of the respondent’s witnesses should be regarded as being so fatal to the respondent’s case, to the extent that it could be argued that at the close of the respondent’s case, the respondent had failed to make out a prima facie case against the applicant. Put differently, can it be argued that at the close of the respondent’s case there was no shred of evidence suggesting or proving that the applicant had committed any of the acts of sexual misconduct he is accused of. I do not think so.
42 The first fundamental problem with the applicant’s strategy was, as correctly pointed out by Mr Mpembe, the applicant’s general failure to contradict the evidence of the respondent’s witnesses or to put the applicant’s version to the respondent’s witnesses, particularly with regard to the damaging factual allegations made against the applicant during such witnesses’ examination-in-chief. The wide ranging factual allegations, which the applicant chose not to dispute, were not only limited to the incidents of 09 October 2017, but they also included the character and personality of the applicant. In Small v Smit 1954 (3) SA 434 (SWA) , Case No: JR261/07, the Court said the following about the importance of challenging the opponent’s evidence :
“ “It is, in my opinion, elementary and standard practice for a party to put to each opposing witness so much of his own case or defence as concerns that witness and if need be, to inform him, if he has not been given notice thereof, that other witnesses will contradict him, so as to give him fair warning and an opportunity of explaining the contradiction and defending his own character. It is grossly unfair and improper to let a witness's evidence go unchallenged in cross-examination and afterwards argue that he must be disbelieved. Once a witness's evidence on a point in dispute has been deliberately left unchallenged in cross-examination and particularly by a legal practitioner, the party calling that witness is normally entitled to assume in the absence of notice to the contrary that the witness's testimony is accepted as correct. More particularly this is the case if the witness is corroborated by several others, unless the testimony is so manifestly absurd, fantastic or of so romancing a character that no reasonable person can attach any credence to it whatsoever”.
43 In casu, there are only two versions which were put to the respondent’s witnesses under cross examination, which relates to the mimicking with stick fighting and the reasons why the applicant had preferred Sanele over any other learner. I intend to deal with these versions shortly.
44 The net effect of the approach adopted by the applicant is that the evidence of the respondent’s witnesses on the other allegations remain unchallenged, in circumstances where the applicant was represented by a legal practitioner. The applicant’s version that he called Sanele and Asisipho at the same time, suggesting that he only had one encounter with the two learners on that day as regards the tasks in the bookroom, is not only belated. The applicant’s cross examination on this issue was clearly based on an acknowledgement that Sanele and Asisipho were called to the bookroom on two separate occasions. The learners’ testimonies on whether they were called simultaneously or separately on two different occasions as well as whose mistake had occasioned the borrowing of the tippex are accepted as the correct version. The only adverse inference which must be drawn against the applicant, at this stage, is that he is already limping on the credibility assessment.
45 Another issue which is also linked to the applicant’s credibility problems, is the reasons why Sanele appeared to have been the most preferred learner to assist with the capturing of the learners marks on that day and as to why the mimicking with stick fighting lesson was only given to him to the exclusion of Asisipho. Sanele disputed the proposition that he was chosen because he was “ a very smart, educated, and the best learner” because he was struggling a lot in Geography. The applicant never persisted with this proposition both during cross examination and when the applicant was testifying. It effectively means that the respondent’s suspicions about the real motive for choosing Sanele remained unanswered. As to why did the mimicking with stick fighting practical lesson started once Asisipho had left the bookroom, and why did the lesson have to stop when Asisipho entered the bookroom, just like Mr Mpembe, I also find the applicant’s decision to be strange. I do not understand why has the applicant has elected not to clarify these questions.
46 I find the applicant’s explanation for the contradictory versions as regards the statement he wrote on 20 November 2017 in response to the allegations of sexual harassment and the evidence he gave at arbitration, to be completely without merit. Besides the fact that the applicant tried to find refuge in being forgetful, probably as a result of what he described as shallow memory, this version was never put to the respondent’s witnesses. The evidence relating to the tippex saga is therefore regarded as being an afterthought which must be rejected.
47 I am not inclined to accept Mr Mpembe’s proposition that the error, which was made by the applicant, was made for an ulterior purpose, which the applicant sought to achieve by sending Asisipho to go and borrow a tippex so that he could have the opportunity to prey on Sanele. I do not think the tippex incident should be stretched beyond the credibility assessment.
48 On the issue of mimicking with stick fighting, I am inclined to accept Sanele’s version that the applicant had neither demonstrated nor had any conversation with him about the stick fighting. The applicant did not dispute Sanele’s version that there were no sticks in the bookroom and that they did not have such kind of a relationship. Besides the applicant’s version being highly improbable, I do not understand the purpose sought to be achieved by the applicant with this evidence, especially given the urgent and serious nature of the task to be performed by the two learners. As correctly argued by Mr Mpembe, if ever mimicking with stick fighting was an important lesson to be given to Sanele, why was Asisipho not given the opportunity to also benefit from such an important lesson? The explanation as to why did it suddenly become necessary for the applicant to do such a demonstration in circumstances where he was chasing after submission deadlines was simply illogical. I am of the view that Sanele’s version on this issue makes a lot of sense as compared to that of the applicant.
49 One of the most reasonable inferences that may be drawn regarding the mimicking with stick fighting conundrum, is that it is true that when Asisipho was returning to the bookroom with the tippex she found the applicant and Sanele moving around or standing up under suspicious circumstances. The applicant may have thought that the best that he could do was to provide some kind of an explanation as to why Asisipho found them standing or following one another instead of focusing on the work that had to be done.
50 The evidence of the respondent’s witnesses was forth right, and they did not dilly dally, when answering questions. Their evidence was generally consistent, both during examination-in-chief and under cross examination. They were quick to make concessions in instances where it was necessary for them to do so. The applicant’s performance, as a witness, was generally unsatisfactory. He, for instance, found it difficult to answer simple and straight forward questions including those that required a yes or no answer. There were instances where the applicant was evasive, argumentative and dismissive of the questions asked to him during cross examination. His evidence was also characterized by bare denials and contradictions.
51 Turning to the question whether the applicant had committed the sexual misconduct, which is the subject of this enquiry, the first area where the applicant must be criticized, is his dismal failure to proffer a countervailing version in response to Sanele’s wide ranging allegations of sexual harassment or sexual assault. Secondly, the applicant did not unequivocally and unambiguously dispute such allegations. The least he could say was that, at the time of writing his statement of case on 20 November 2017, as well as when he met with Sanele to find out as to what happened in the bookroom, he did not remember touching Sanele in any improper manner. He sought to refute Mr Mpembe’s assertion that the applicant seemed to have a mysterious memory as regards some of the controversial things which are said to have happened in the bookroom, by giving a brief lecture on deep memory and shallow memory, probably in an attempt to suggest that he should be understood as having a shallow memory. He appears to have persisted with this tendency of trying to portray himself as a forgetful and innocent victim of circumstances before and during the internal disciplinary hearing as well as during the arbitration proceedings.
52 The last issue which I think serves as the last fatal blow on the applicant’s defense of victimhood is the real reason why he had to apologize to Sanele. The applicant’s version that he was reluctant to apologize to Sanele because he knew that there was nothing wrong which he did, but he did so after being persuaded by Mr Nkandi in order to cut the matter short, is not only illogical but it is also ironical because it is the same error of judgment which has cut short his teaching career with the respondent. The applicant’s testimony that he was not aware of the seriousness of allegations of sexual harassment, including the fact that this is a dismissible offence, is also characteristic of the same absurdity. Just like Sanele, I am also of the view that the applicant’s apology was not a sincere apology but an attempt to do a belated damage control to save his teaching career on the edge of a precipice.
53 The applicant’s allegation that Sanele had conspired with Mr Gumede against him is completely ill-conceived. None of the witnesses, including the applicant himself, had tendered any shred of evidence suggesting or proving a specific role, actively or clandestinely, that may have been played by Mr Gumede in the incidents which are said to have occurred in the bookroom on 09 October 2017 or at any period incidental thereto. The evidence of Sanele and that of the applicant could not go beyond the fact that Mr Gumede was the first teacher to whom the matter was reported. I agree with Mr Mpembe that there is no merit in casting aspersions on Sanele’s decision for bringing the matter to the attention of Mr Gumede. In any event, Sanele has given three reasons, which I accept as being valid and convincing, which are: (i) he was encouraged by other learners to report the matter to Mr Gumede, (ii) the next period after the alleged ordeal was that of Mr Gumede, (iii) the applicant was close to Mr Gumede. These are objective facts which were never challenged by the applicant during cross examination.
54 If ever the applicant was believing in conspiracy theories, the person that the applicant could have blamed, is Mr Nkandi for persuading him to accept culpability and to apologize for a sexual misconduct which the applicant knew or believed that it was the result of a well-orchestrated plan to get rid of him from the employ of the respondent.
55 It is my conclusion that the comparative credibility of the parties’ witnesses; their reliability and the probabilities of their versions support a finding to the effect that the applicant had indeed performed acts of a sexual nature against a learner in the name of Sanele Mkhize. This was done during two separate sessions in the bookroom on 09 October 2017. By doing that the applicant had, while on duty, conducted himself in an improper, disgraceful or unacceptable manner in contravention of section 18(1) (q) of the EEA.
56 The next question I wish to deal with is the appropriateness of the sanction of dismissal. According to item 3(5) of Schedule 8 to the Labour Relations Act (Code of Good Practice: Dismissal),“when contemplating whether or not to impose the penalty of dismissal, the employer should in addition to the gravity of the misconduct, consider factors such as the employee’s circumstances (including length of service, previous disciplinary record and personal circumstances), the nature of the job and the circumstances of the infringement itself”.
57 In the instant case, the applicant elected not to lead any evidence during arbitration or to canvass any mitigating factors in their closing argument with regard to the appropriateness of the sanction. This approach was, probably, adopted as a result of a strong belief that the respondent had failed to prove that the applicant was guilty of any sexual misconduct. The only argument made by Mr Hiralall with regard to the appropriateness of the sanction is this: ‘the employer who wishes to rely on a breach or breakdown of the trust relationship must lead evidence in that regard. It is further argued that the respondent’s failure to lead evidence in support of a contention of irretrievable breakdown of the employment relationship suggests or proves that the trust relationship is still intact’. Broadly speaking, there may be some merit in the argument advanced obo the applicant. I am, however, of the view that the argument that the trust relationship remains intact is clearly oversimplistic. The fact of the matter is that the applicant’s employment relationship with the respondent has been in trouble since 2017 and he was ultimately dismissed since 24 July 2020, which is a period of more than five years.
58 Another painful reality is the fact that all acts of misconduct under section 18(1) of the EEA are described as constituting a breakdown in the employment relationship, which suggests that an employee who has been found guilty of any of the offences specified therein is generally confronted with the possibility of a dismissal. It is this possibility which suggests that an employee found guilty of a section 18(1) offence has a responsibility to bring as much evidence as possible in support of a contention that the circumstances of his or her case justify imposing a sanction short of dismissal.
59 The only factors which the applicant testified about is the length of service and a clean disciplinary record. The fundamental problem is that such evidence was not based on an acknowledgement of wrongdoing on the part of the applicant. It was perhaps intended to suggest ( without even looking at the merits of the case) that it was highly unlikely for the applicant to have committed any misconduct. In the absence of any evidence or submissions on the part of the applicant regarding the appropriateness of the sanction, the only objective consideration that one may take into account is the issue of remorse. In De Beers Consolidated Mines v Commission for Conciliation Mediation and Arbitration and Others (JA68/99) [2000] ZALAC 10 (3 March 2000), the Labour Court at para 25, emphasized the importance of remorse and the consequences of lack remorse in the following terms:
“It would in my view be difficult for an employer to re-employ an employee who has shown no remorse. Acknowledgement of wrong doing is the first step towards rehabilitation. In the absence of a recommitment to the employer’s workplace values, an employee cannot hope to re-establish the trust which he himself has broken. Where, as in this case, an employee, over and above having committed an act of dishonesty, falsely denies having done so, an employer would, particularly where a high degree of trust is reposed in an employee, be legitimately entitled to say to itself that the risk of continuing to employ the offender is unacceptably great”.
60 As already indicated the applicant has regardless of overwhelming evidence, led by the respondent, and in some respects on his own version, persisted with his belief that there was nothing wrong which he did in this case, which suggests that he was not remorseful at all. In the circumstances, there would be no valid justification warranting interfering with the sanction imposed by the respondent. The applicant was therefore dismissed for a fair reason in accordance with a fair procedure.
AWARD
61 The applicant’s dispute of alleged unfair dismissal is dismissed.
MORAKA ABEL MAKGAA
ELRC PANELIST