ELRC 766-19/20 WC
Text
ELRC 766-19/20 WC
Award Date:
08 June 2022
Case Number: ELRC203-21/22GP
Commissioner: Luyanda Dumisa
Date of Award: 08 June 2022
In the ARBITRATION between
PSA obo Maremo
(Union/Applicant)
And
Gauteng Department of Education
(Respondent)
DETAILS OF HEARING AND REPRESENTATION
1. The arbitration proceedings were initially set down for hearing on 19, 26 and 27 August 2021 and were finalised on 23 and 24 May 2022. These arbitration proceedings were heard virtually on the Zoom platform.
2. The Applicant George Maremo (Maremo) was represented by Ololo Shiburi (Shiburi) a trade union official from PSA.
3. The Gauteng Department of Education was represented by Minnah Ralioma (Ralioma) its Labour Relations Officer.
4. The Arbitration proceedings were conducted in English and no interpretation services were required. The bundle of documents were submitted by the Respondent and both parties relied on them to substantiate their respective cases.
5. The arbitration was held under the auspices of the ELRC in terms of its Constitution and the proceedings were both digitally and manually recorded.
6. The Parties agreed to submit their closing arguments seven days after the conclusion of the arbitration proceedings. The seventh day was on 30 May 2022 and upon receipt, they were duly considered.
ISSUE TO BE DECIDED
7. I am required to determine whether the Applicant contravened sections 17(1)(b) and 18(1)(q) of the Employment of Educators Act, 76 of 1998 as amended, if not, I must decide on the appropriate remedy.
8. The Applicant sought reinstatement.
BACKGROUND TO THE DISPUTE
9. The Respondent is the Gauteng Department of Education and it has the mandate to provide basic education to all learners in Gauteng.
10. The Applicant was employed as a Principal at Tane Primmer School from 01 July 2006 and he was R561 96,44 gross per annum.
11. The Applicant was dismissed for misconduct on 09 March 2021.
Allegation 1: It is alleged that during the period 25 October 2018, you sexually assaulted Ms ME Kgoleng by fondling her thigh and vagina.
Allegation 2: It is alleged that during the period 1 February 2018 to 30 March 2018, you sexually assaulted Ms Chauke by touching her buttocks.
12. The Applicant denied the misconduct and sought reinstatement.
SURVEY OF EVIDENCE AND ARGUMENT
Respondent's case:
13. The Respondent contended that the Applicant's dismissal was substantively fair.
14. The Respondent relied on the evidence of Salamina Letoaba (Letoaba), Susan Chauke (Chauke), Piet Chauke (Chauke), Lesego Khoza (Khoza), Mapula Kgoleng (Kgoleng), Debora Rathlogo (Rathlogo), Dorcas Malepe (Malepe), Solomon Monoa (Monoa), Francina Lethole (Lithole) and Jeconiah Nthoana (Ntloana) to substantiate its case.
15. Letoaba testified under oath that she is the Deputy Director of Human Resources and Sexual Harassment Coordinator. She received a complaint of sexual assault from Chauke and she was the investigator of the allegations against the Applicant. She tried to mediate between the Applicant and the complainants but it was unsuccessful hence the matter was formally forwarded for a disciplinary hearing.
16. The allegation by Chauke was that the Applicant had asked her out for a date, he had asked for sex and he had touched her buttocks. That she was disturbed and disappointed by the advances made by the Applicant as a person whom she regarded as a father figure. She also divulged that the Applicant had done the same thing to Kgoleng.
17. She had interviewed Kgoleng on the allegations that the Applicant had sexually assaulted her. Kgoleng told her that it happened in the car travelling back to school from viewing the graduation venue. That the Applicant fondled her thigh and vagina.
18. During cross-examination, she stated that it was normal for complaints to be brought months later after the incident complained of. That complainants react differently to sexual assault.
19. Ms Chauke testified under oath that she is the Teacher at Tane Primary School and she was the complainant against the Applicant. The Applicant in the strongroom had touched her buttocks and he was breathing heavily on her neck. In the printing room, he had touched her hair. He made inappropriate comments and said she had flu because her husband was not doing a better job in bed. The Applicant also made comments about her body shape. The Applicant on WhatsApp messages had asked to have a "quickie" with her meaning quick sex. The Applicant had sent her a picture of chickens having sexual Intercourse and this got her upset. She went to the bathroom to cry whilst she was still there, she heard the Applicant laughing outside and she came out wanting to hit him with a break but she was stopped by Rathlogo.
20. She is not part of any plot to get rid of the Applicant. That she does not occupy a high position and she was fairly new at the school.
21. She reported the Applicant to SADTU and she was told that he was a comrade. She sought the intervention of Khoza as the Applicant's nephew in a bid to have the Applicant stop his conduct but he did not.
22. She also reported the sexual assault to Rathlogo the Head of Department (the HOD) to resolve this matter but it was not resolved. The Applicant refused to apologize and told her to bring it on as he has friends in higher places.
23. During cross-examination, she stated that she mentioned Kgoleng's incident because it was similar to hers and not that she was complaining on her behalf. It was up to Kgoleng to lodge a formal complaint which she did.
24. She was not part of any plot to have the Applicant dismissed and that she will not allow herself to be used for such. All she ever wanted was the Applicant to apologise and stop his conduct.
25. Chauke testified under oath that he is the ex-husband of Ms Chauke. Ms Chauke told him that the Applicant was sending her inappropriate messages and that he had touched her buttocks and breathed heavily on her neck. He had seen the inappropriate WhatsApp messages on his ex-wife's phone.
26. During cross-examination, he stated that he did not confront the Applicant regarding these messages as he was aware it was not going to end well. He was disappointed by the conduct of the Applicant.
27. Khoza testified under oath that he is a Teacher at Tane Primary School and he is related to the Applicant. That Ms Chauke told him about the sexual assault and she showed him the messages from the Applicant. She had asked him to speak to the Applicant as his relative. That he did speak to the Applicant and the latter said he saw nothing wrong as he was joking and he was sorry.
28. That he relayed the apology of the Applicant to Ms Chauke and he was later surprised when Ms Chauke said he was still sending her inappropriate messages.
29. He was not part of any plot to get rid of the Applicant and he did not have the ambition of being a principal by getting rid of the Applicant.
30. During cross-examination, he stated that he is a member of SADTU but he held no position and the complainant is also a member. He said he feels sorry that his uncle lost his job and the worst could have been imprisonment. If he was running a money lending scheme the Applicant ought to have reported him to the District office.
31. That he was introduced to SADTU by the Applicant when he arrived at Tane Primary School. His wish was that the matter is resolved at the school level.
32. Ntloana testified under oath and stated that he is a Teacher at Tane Primary School. He was with Rathlogo when Kgoleng came to report the sexual assault by the Applicant. She told them that the Applicant fondled her thigh and vagina on their way back from viewing the graduation venue. Then Rathlogo said she will speak to the Applicant and she warned him not to share what she heard with other staff members.
33. He was not part of any plot against the Applicant. He regarded the Applicant as a committed principal and to be having the interests of the learners, staff, and the community at heart. He encouraged staff members to further their education.
34. During cross-examination, he stated that he did not confront the Applicant because Rathlogo said she will speak to the Applicant. That this matter was not reported to him but Rathlogo.
35. Rathlogo testified under oath that she is the Head of Department (Foundation Phase) at Tane Primary School. That Chauke and Kgoleng are her subordinates.
36. The allegations against the Applicant were brought to her by Chauke and Kgoleng as their HOD. She confronted the Applicant regarding these allegations and he denied them and refused to apologise.
37. She was not part of any plot against the Applicant.
38. During cross-examination, she stated that she did not report the matter to the School Governing Body because the educators' issues do not go to them but to the Human Resources department. She said the delay was in the mediation of the dispute. The delay in formal reporting did not mean that the claims were invalid.
39. Malepe testified under oath and stated that she is a teacher at Tane Primary School and confirmed that the educator misconduct issues are not dealt with by the School Governing Body.
40. Monoa testified under oath that he is an Administrative Assistant at Tane Primary School. He had heard Kgoleng asking the Applicant to apologise and the Applicant said she must bring it on.
41. During cross-examination, he conceded that he only heard the part where Kgoleng asked the Applicant to apologise as she was loud enough to be heard and the Applicant refuse to apologise.
42. Lithole testified under oath and said that she is a Grade R Practitioner at Tane Primary School. That on the day of the incident Kgoleng told her that the Applicant fondled her thigh and vagina. She advised her to report it to her parents and Rathlogo. The following day she heard that Kgoleng reported the matter to Rathlogo. She was disappointed to hear about the Applicant's conduct as he was like a father figure to them.
43. She was not part of any plot against the Applicant and she had a professional relationship with the Applicant. She has no reason to lie about what she heard.
44. During cross-examination, she said she believed Kgoleng as she told the story herself and she was even crying.
45. Kgoleng testified under oath and said that on 25 October 2020 they were preparing for the graduation of grade R, The Applicant drove her and Lithole to view the venue for grade R graduations.
46. She came back with Applicant alone since Lithole went with Malepa. On their way back to school, the Applicant started touching her thigh until he reached her vagina.
47. She told Lithole the same day and again the following day at school. Lithole advised her to report the matter to her supervisor, Ratlhogo.
48. At the time she reported the Applicant to Ratlhogo she was with Ntloana and she told them that the Applicant touched her thigh and vagina when they were coming back from viewing the graduation venue.
49. That Ratlhogo told her they must keep this matter at home, and she will confront the Applicant about this allegation.
50. She was scared of the Applicant because he said has friends in high places.
51. During cross-examination, she stated that it was not easy to deal with the trauma of being violated and she finally got the courage to formally complain. She denied being part of any conspiracy against the Applicant. That Applicant has destroyed her confidence.
52. The Respondent argued that the Applicant engaged in a sexual assault on employees in direct contravention of the values and obligations prescribed by the Code of Professional Ethics of Educators. The Applicant failed to act properly and brought the teaching profession into disrepute. The Code emphasizes educators refrain from any form of sexual harassment, and not abuse their positions for personal gain.
Applicant's case:
53. The Applicant challenged the substantive fairness of his dismissal. He denied having committed the misconduct he was dismissed for. He relied on his testimony and that of Charles Tlou (Tlou) to substantiate his case.
54. He testified under oath that he drove with kgoleng back to the school from viewing the graduation venue. The car he was driving was a double cab and it is spacious inside. That Kgoleng reported her matter late and she was not telling the truth but her wishful thinking. It was not the first time that he travelled with Kgoleng.
55. Kgoleng came to his office and he was warned not to discuss this matter further with anyone. Her coming to his office was solely to provoke him. He told her that he is not going to apologise.
56. He ran the school with professionalism and he had a professional relationship with the staff members. So, teachers like Rathlogo and Ntloana did not like him because he was against the corporal punishment of learners. They felt as if he was not protecting them. Rathlogo, Khoza and Ntloana were on a go-slow at work. He had also challenged the school's procurement policy.
57. Kgoleng was irregularly appointed as a teacher and he was made to complete documents for her to be absorbed at the school. Kgoleng did not like the questioning of her employment and his comment that people should be appointed on the merits of their qualification.
58. He denied having touched Chauke's buttocks and he was very helpful to her as he helped her to deal with her rape case. On the day Chauke said he touched her buttocks he was with Boya a member of the School Governing Body and Chauke did not report to him that she was sexually assaulted.
59. When Chauke entered the strongroom, he stood by the door because there was an unpleasant odour coming from the strongroom and he has sinuses hence he was breathing heavily.
60. The word "quickie" on the WhatsApp messages referred to a quick discussion to be had over coffee.
61. That Chauke made up the stories and Khoza is mad. There was a plot to have him removed as a principal
62. During cross-examination, he said the reason he refused to speak to the complainants was that the matter was still pending. He denied that at the time the complaint came to his office the matter was not reported to the District offices.
63. He said he is a spiritual person who does not engage in dirty things like touching private parts of women.
64. Tlou testified under oath that he was the chairperson of the School Governing Body in 2018, and he did not know the allegations against the Applicant. His testimony is about the character of the Applicant as a good man and he is surprised by the allegations against him.
65. During cross-examination, he conceded that he would not have known the allegation since they were between the employee and its employee. That he cannot say with certainty that the Applicant did commit the offence but it was unlike him to have done it.
66. The Applicant's representative argued that the WhatsApp conversation between the Applicant and Ms Chauke, took place on a Saturday and he was going to visit the school, he thought he could pass by her home to check her well-being, as it was a while since she was not at school. He merely suggested that they should have a quick chat over coffee, and never mentioned the word sex.
67. Ms Chauke seduced or led the Applicant, hence the evidence of the conversation that was started by Ms Chauke, this is a clear case of entrapment, and it proves that there was conspiracy or conniving against the Applicant.
68. That Ratlhogo, Kgoleng, Khoza and Chauke confronted the Applicant in his office to entrap him in admitting that he sexually abused the two complainants, and on both occasions, they left empty-handed as he denied that such actions took place.
ANALYSIS OF EVIDENCE AND ARGUMENT
69. Section 138(7) of the LRA requires me to issue an arbitration award with brief reasons. What follows is a summary of evidence and arguments presented at the arbitration relevant to my findings. Section 188(1)(a) of the LRA and Code of Good Practice: Dismissal, Item 2(4) provides that a dismissal that is not automatically unfair, is unfair if the employer fails to prove, that the reason for dismissal is a fair reason related to the employee’s conduct or capacity or based on employer’s operational requirements.
70. Section 17(1) of the Employment of Educators Act 76 of 1998 provides that an educator must be dismissed if he or she is found guilty of the following :
(a) Theft, bribery, fraud, or an act of corruption in regard to examinations or promotional reports;
(b) committing an act of sexual assault on a leaner, student or other employee;
(c) having a sexual relationship with a learner of the school where he or she is employed;
(d) seriously assaulting, with intention to cause grievous bodily harm to, a leaner, student or other employee;
(e) illegal possession of an intoxicating, illegal or stupefying substance; or
(f) causing a leaner or a student to perform any acts contemplated in paragraphs (a) to (e).
71. Section 17 (1) of the Employment of Educators Act makes it mandatory that once an educator is found guilty of the misconduct in paragraphs (a) to (e).
72. The Court in Combined Transport Services (Pty) Ltd v Buhle Zamokwakhe Miya and Others (2016) ZALAC 57 reaffirmed the applicability of the "balance of probabilities" test in employment law disputes when it held that a proper assessment of evidence requires the attachment of more weight on the evidence that is consistent and/ or more credible. Further that the test herein is "balance probability", dictating that a more probable version should be accepted, as opposed to a "beyond reasonable doubt" test, which is the test applicable to criminal cases.
73. The Code of Good Practice further provides that one of the requirements of a fair dismissal for misconduct is that the dismissal must be an appropriate remedy, in light of the facts of the case.
74. Regarding procedural fairness Item 4(1) of the Code of Good Practice: Dismissal, provides that: normally, the employer should investigate to determine whether there are grounds for dismissal. This does not need to be a formal enquiry. The employer should notify the employee of the allegations using a form and language that the employee can reasonably understand. The employee should be allowed the opportunity to state a case in response to the allegations. The employee should be entitled to a reasonable time to prepare the response and to the assistance of a trade union representative or fellow employee. After the inquiry, the employer should communicate the decision taken, preferably furnish the employee with written notification of that decision.
75. The Applicant did not challenge the procedural fairness of his dismissal.
76. In light of the aforesaid, the Applicant's dismissal was procedurally fair.
77. I now turn to substantive fairness of the dismissal of the Applicant. Item 7 of the Code of Good Practice: Dismissal provides that, any person who is determining whether dismissal for misconduct is unfair should consider the following:
(a) Whether a rule or standard existed?
(b) Was the rule or standard breached?
(c) Was the rule valid or reasonable?
(d) Whether the employee was aware or could reasonably be expected to have been aware of the rule or standard?
(e) Whether the rule or standard was consistently applied by the employer.
(f) Whether dismissal was an appropriate sanction for the contravention of the rule or standard.
78. In respect of substantive fairness of the dismissal of the Applicant, the Applicant denied having committed the misconduct of sexual assault/ harassment against the complainants. The reason he could think of why these allegations are brought against him is that there was a plot to get rid of him.
79. The Respondent's version on the other hand is that the Applicant committed the sexual assault/harassment as per the complainants and the investigation. There was no plot against the Applicant.
80. The most probable version is that of the Respondent that the Applicant committed the sexual assault /harassment against the two complaint teachers in breach of section17(1)(b) and 18(1)(q) of the Employment of the Educators Act 76 of 1998 for the following reasons:
81. It is common cause that the incidents complained of by the Respondent took place in private. The existence or non-existence of these complaints is known by the Applicant and the complainants.
82. The complainants, Chauke and Kgoleng gave a detailed explanation of what transpired regarding the events of their sexual harassment. That the Applicant violated their dignities when he was alone with each of them. The evidence presented has also shown that the Applicant indeed was alone with each of them in the events complained about.
83. The Applicant could not rebut the Respondent's version but sought to portray the complainants as people who were crazy and party to the plot to get him out of the school. There was no prima facie case which corroborates or substantiates the Applicant's claim of a plot against him.
84. The Applicant is using the plot as a scapegoat to dispel the overwhelming testimony of the Respondent's credible and reliable witnesses who told what they have been told by the complainants. The Applicant could not establish any plot planned or executed by the witness in light of the undisputed evidence that they tried to mediate the dispute before it could escalate to a formal hearing but it was unsuccessful. It was the witness's testimony that they held the Applicant in high regard.
85. The evidence presented has shown that the Applicant abused his offices for personal interests and the confidence that his subordinates had in him. He was entrusted with sensitive information by Chauke who was undergoing one of the difficult times of her life and a similar affliction is now in the workplace.
86. The WhatsApp messages show that the Applicant wanted quick sex from his subordinate, even though he tried to spin it to be as if he wanted a quick discussion. The conversation showed that the Applicant was talking about sex when he messaged, “we can go fo a quickie mos”.
87. The court in De Beer v Trudon (Pty) Ltd (1994) 15 ILJ 1057 (LAC) held with approval that an evidential foundation had to be laid and that a party could not merely rely on arguments only. As arguments without evidential basis would be more on speculation. This suggests that once the employer has proved its allegations with evidence to a degree that its version requires an answer or rebuttal lest it is believed, the evidentiary burden shifts onto the accused employee to prove otherwise.
88. Turning to the present case, the Applicant failed to rebut the allegations against him by the Respondent and instead, he resorted to attacking the testimony of the Respondent's witness as inadmissible hearsay evidence because they did not witness the sexual assault/ harassment. The sexual assault/ harassment incidents complained about did not have witnesses as they happened in secrecy where no witness was present. The sexual assault against Kgoleng took place in the car when the Applicant was with her alone and the other incident took place in the strong room where the Applicant was with Chauke alone.
89. The Applicant's version is not consistent with the proven facts and his explanation is without merits.
90. The Applicant's misconduct does not make him a fit and proper educator or a principal who is suitable for our primary and secondary schools.
91. In light of the above reasons, the gravity of the offence, the position of trust the Applicant was employed in and the years of service, I find that the Respondent has proved on a balance of probabilities that the Applicant contravened section 17(1)(b) of the Employment of Educators Act 76 of 1998.
AWARD
92. The Applicant's (George Maremo) dismissal by the Respondent (Department of Education -Gauteng) was both procedurally and substantively fair.
93. The Applicant's claim of unfair dismissal is hereby dismissed.
Commissioner: Luyanda Nkwenkwe Dumisa
Sector/ Industry:Education and Training
Commissioner: Luyanda Dumisa
Date of Award: 08 June 2022
In the ARBITRATION between
PSA obo Maremo
(Union/Applicant)
And
Gauteng Department of Education
(Respondent)
DETAILS OF HEARING AND REPRESENTATION
1. The arbitration proceedings were initially set down for hearing on 19, 26 and 27 August 2021 and were finalised on 23 and 24 May 2022. These arbitration proceedings were heard virtually on the Zoom platform.
2. The Applicant George Maremo (Maremo) was represented by Ololo Shiburi (Shiburi) a trade union official from PSA.
3. The Gauteng Department of Education was represented by Minnah Ralioma (Ralioma) its Labour Relations Officer.
4. The Arbitration proceedings were conducted in English and no interpretation services were required. The bundle of documents were submitted by the Respondent and both parties relied on them to substantiate their respective cases.
5. The arbitration was held under the auspices of the ELRC in terms of its Constitution and the proceedings were both digitally and manually recorded.
6. The Parties agreed to submit their closing arguments seven days after the conclusion of the arbitration proceedings. The seventh day was on 30 May 2022 and upon receipt, they were duly considered.
ISSUE TO BE DECIDED
7. I am required to determine whether the Applicant contravened sections 17(1)(b) and 18(1)(q) of the Employment of Educators Act, 76 of 1998 as amended, if not, I must decide on the appropriate remedy.
8. The Applicant sought reinstatement.
BACKGROUND TO THE DISPUTE
9. The Respondent is the Gauteng Department of Education and it has the mandate to provide basic education to all learners in Gauteng.
10. The Applicant was employed as a Principal at Tane Primmer School from 01 July 2006 and he was R561 96,44 gross per annum.
11. The Applicant was dismissed for misconduct on 09 March 2021.
Allegation 1: It is alleged that during the period 25 October 2018, you sexually assaulted Ms ME Kgoleng by fondling her thigh and vagina.
Allegation 2: It is alleged that during the period 1 February 2018 to 30 March 2018, you sexually assaulted Ms Chauke by touching her buttocks.
12. The Applicant denied the misconduct and sought reinstatement.
SURVEY OF EVIDENCE AND ARGUMENT
Respondent's case:
13. The Respondent contended that the Applicant's dismissal was substantively fair.
14. The Respondent relied on the evidence of Salamina Letoaba (Letoaba), Susan Chauke (Chauke), Piet Chauke (Chauke), Lesego Khoza (Khoza), Mapula Kgoleng (Kgoleng), Debora Rathlogo (Rathlogo), Dorcas Malepe (Malepe), Solomon Monoa (Monoa), Francina Lethole (Lithole) and Jeconiah Nthoana (Ntloana) to substantiate its case.
15. Letoaba testified under oath that she is the Deputy Director of Human Resources and Sexual Harassment Coordinator. She received a complaint of sexual assault from Chauke and she was the investigator of the allegations against the Applicant. She tried to mediate between the Applicant and the complainants but it was unsuccessful hence the matter was formally forwarded for a disciplinary hearing.
16. The allegation by Chauke was that the Applicant had asked her out for a date, he had asked for sex and he had touched her buttocks. That she was disturbed and disappointed by the advances made by the Applicant as a person whom she regarded as a father figure. She also divulged that the Applicant had done the same thing to Kgoleng.
17. She had interviewed Kgoleng on the allegations that the Applicant had sexually assaulted her. Kgoleng told her that it happened in the car travelling back to school from viewing the graduation venue. That the Applicant fondled her thigh and vagina.
18. During cross-examination, she stated that it was normal for complaints to be brought months later after the incident complained of. That complainants react differently to sexual assault.
19. Ms Chauke testified under oath that she is the Teacher at Tane Primary School and she was the complainant against the Applicant. The Applicant in the strongroom had touched her buttocks and he was breathing heavily on her neck. In the printing room, he had touched her hair. He made inappropriate comments and said she had flu because her husband was not doing a better job in bed. The Applicant also made comments about her body shape. The Applicant on WhatsApp messages had asked to have a "quickie" with her meaning quick sex. The Applicant had sent her a picture of chickens having sexual Intercourse and this got her upset. She went to the bathroom to cry whilst she was still there, she heard the Applicant laughing outside and she came out wanting to hit him with a break but she was stopped by Rathlogo.
20. She is not part of any plot to get rid of the Applicant. That she does not occupy a high position and she was fairly new at the school.
21. She reported the Applicant to SADTU and she was told that he was a comrade. She sought the intervention of Khoza as the Applicant's nephew in a bid to have the Applicant stop his conduct but he did not.
22. She also reported the sexual assault to Rathlogo the Head of Department (the HOD) to resolve this matter but it was not resolved. The Applicant refused to apologize and told her to bring it on as he has friends in higher places.
23. During cross-examination, she stated that she mentioned Kgoleng's incident because it was similar to hers and not that she was complaining on her behalf. It was up to Kgoleng to lodge a formal complaint which she did.
24. She was not part of any plot to have the Applicant dismissed and that she will not allow herself to be used for such. All she ever wanted was the Applicant to apologise and stop his conduct.
25. Chauke testified under oath that he is the ex-husband of Ms Chauke. Ms Chauke told him that the Applicant was sending her inappropriate messages and that he had touched her buttocks and breathed heavily on her neck. He had seen the inappropriate WhatsApp messages on his ex-wife's phone.
26. During cross-examination, he stated that he did not confront the Applicant regarding these messages as he was aware it was not going to end well. He was disappointed by the conduct of the Applicant.
27. Khoza testified under oath that he is a Teacher at Tane Primary School and he is related to the Applicant. That Ms Chauke told him about the sexual assault and she showed him the messages from the Applicant. She had asked him to speak to the Applicant as his relative. That he did speak to the Applicant and the latter said he saw nothing wrong as he was joking and he was sorry.
28. That he relayed the apology of the Applicant to Ms Chauke and he was later surprised when Ms Chauke said he was still sending her inappropriate messages.
29. He was not part of any plot to get rid of the Applicant and he did not have the ambition of being a principal by getting rid of the Applicant.
30. During cross-examination, he stated that he is a member of SADTU but he held no position and the complainant is also a member. He said he feels sorry that his uncle lost his job and the worst could have been imprisonment. If he was running a money lending scheme the Applicant ought to have reported him to the District office.
31. That he was introduced to SADTU by the Applicant when he arrived at Tane Primary School. His wish was that the matter is resolved at the school level.
32. Ntloana testified under oath and stated that he is a Teacher at Tane Primary School. He was with Rathlogo when Kgoleng came to report the sexual assault by the Applicant. She told them that the Applicant fondled her thigh and vagina on their way back from viewing the graduation venue. Then Rathlogo said she will speak to the Applicant and she warned him not to share what she heard with other staff members.
33. He was not part of any plot against the Applicant. He regarded the Applicant as a committed principal and to be having the interests of the learners, staff, and the community at heart. He encouraged staff members to further their education.
34. During cross-examination, he stated that he did not confront the Applicant because Rathlogo said she will speak to the Applicant. That this matter was not reported to him but Rathlogo.
35. Rathlogo testified under oath that she is the Head of Department (Foundation Phase) at Tane Primary School. That Chauke and Kgoleng are her subordinates.
36. The allegations against the Applicant were brought to her by Chauke and Kgoleng as their HOD. She confronted the Applicant regarding these allegations and he denied them and refused to apologise.
37. She was not part of any plot against the Applicant.
38. During cross-examination, she stated that she did not report the matter to the School Governing Body because the educators' issues do not go to them but to the Human Resources department. She said the delay was in the mediation of the dispute. The delay in formal reporting did not mean that the claims were invalid.
39. Malepe testified under oath and stated that she is a teacher at Tane Primary School and confirmed that the educator misconduct issues are not dealt with by the School Governing Body.
40. Monoa testified under oath that he is an Administrative Assistant at Tane Primary School. He had heard Kgoleng asking the Applicant to apologise and the Applicant said she must bring it on.
41. During cross-examination, he conceded that he only heard the part where Kgoleng asked the Applicant to apologise as she was loud enough to be heard and the Applicant refuse to apologise.
42. Lithole testified under oath and said that she is a Grade R Practitioner at Tane Primary School. That on the day of the incident Kgoleng told her that the Applicant fondled her thigh and vagina. She advised her to report it to her parents and Rathlogo. The following day she heard that Kgoleng reported the matter to Rathlogo. She was disappointed to hear about the Applicant's conduct as he was like a father figure to them.
43. She was not part of any plot against the Applicant and she had a professional relationship with the Applicant. She has no reason to lie about what she heard.
44. During cross-examination, she said she believed Kgoleng as she told the story herself and she was even crying.
45. Kgoleng testified under oath and said that on 25 October 2020 they were preparing for the graduation of grade R, The Applicant drove her and Lithole to view the venue for grade R graduations.
46. She came back with Applicant alone since Lithole went with Malepa. On their way back to school, the Applicant started touching her thigh until he reached her vagina.
47. She told Lithole the same day and again the following day at school. Lithole advised her to report the matter to her supervisor, Ratlhogo.
48. At the time she reported the Applicant to Ratlhogo she was with Ntloana and she told them that the Applicant touched her thigh and vagina when they were coming back from viewing the graduation venue.
49. That Ratlhogo told her they must keep this matter at home, and she will confront the Applicant about this allegation.
50. She was scared of the Applicant because he said has friends in high places.
51. During cross-examination, she stated that it was not easy to deal with the trauma of being violated and she finally got the courage to formally complain. She denied being part of any conspiracy against the Applicant. That Applicant has destroyed her confidence.
52. The Respondent argued that the Applicant engaged in a sexual assault on employees in direct contravention of the values and obligations prescribed by the Code of Professional Ethics of Educators. The Applicant failed to act properly and brought the teaching profession into disrepute. The Code emphasizes educators refrain from any form of sexual harassment, and not abuse their positions for personal gain.
Applicant's case:
53. The Applicant challenged the substantive fairness of his dismissal. He denied having committed the misconduct he was dismissed for. He relied on his testimony and that of Charles Tlou (Tlou) to substantiate his case.
54. He testified under oath that he drove with kgoleng back to the school from viewing the graduation venue. The car he was driving was a double cab and it is spacious inside. That Kgoleng reported her matter late and she was not telling the truth but her wishful thinking. It was not the first time that he travelled with Kgoleng.
55. Kgoleng came to his office and he was warned not to discuss this matter further with anyone. Her coming to his office was solely to provoke him. He told her that he is not going to apologise.
56. He ran the school with professionalism and he had a professional relationship with the staff members. So, teachers like Rathlogo and Ntloana did not like him because he was against the corporal punishment of learners. They felt as if he was not protecting them. Rathlogo, Khoza and Ntloana were on a go-slow at work. He had also challenged the school's procurement policy.
57. Kgoleng was irregularly appointed as a teacher and he was made to complete documents for her to be absorbed at the school. Kgoleng did not like the questioning of her employment and his comment that people should be appointed on the merits of their qualification.
58. He denied having touched Chauke's buttocks and he was very helpful to her as he helped her to deal with her rape case. On the day Chauke said he touched her buttocks he was with Boya a member of the School Governing Body and Chauke did not report to him that she was sexually assaulted.
59. When Chauke entered the strongroom, he stood by the door because there was an unpleasant odour coming from the strongroom and he has sinuses hence he was breathing heavily.
60. The word "quickie" on the WhatsApp messages referred to a quick discussion to be had over coffee.
61. That Chauke made up the stories and Khoza is mad. There was a plot to have him removed as a principal
62. During cross-examination, he said the reason he refused to speak to the complainants was that the matter was still pending. He denied that at the time the complaint came to his office the matter was not reported to the District offices.
63. He said he is a spiritual person who does not engage in dirty things like touching private parts of women.
64. Tlou testified under oath that he was the chairperson of the School Governing Body in 2018, and he did not know the allegations against the Applicant. His testimony is about the character of the Applicant as a good man and he is surprised by the allegations against him.
65. During cross-examination, he conceded that he would not have known the allegation since they were between the employee and its employee. That he cannot say with certainty that the Applicant did commit the offence but it was unlike him to have done it.
66. The Applicant's representative argued that the WhatsApp conversation between the Applicant and Ms Chauke, took place on a Saturday and he was going to visit the school, he thought he could pass by her home to check her well-being, as it was a while since she was not at school. He merely suggested that they should have a quick chat over coffee, and never mentioned the word sex.
67. Ms Chauke seduced or led the Applicant, hence the evidence of the conversation that was started by Ms Chauke, this is a clear case of entrapment, and it proves that there was conspiracy or conniving against the Applicant.
68. That Ratlhogo, Kgoleng, Khoza and Chauke confronted the Applicant in his office to entrap him in admitting that he sexually abused the two complainants, and on both occasions, they left empty-handed as he denied that such actions took place.
ANALYSIS OF EVIDENCE AND ARGUMENT
69. Section 138(7) of the LRA requires me to issue an arbitration award with brief reasons. What follows is a summary of evidence and arguments presented at the arbitration relevant to my findings. Section 188(1)(a) of the LRA and Code of Good Practice: Dismissal, Item 2(4) provides that a dismissal that is not automatically unfair, is unfair if the employer fails to prove, that the reason for dismissal is a fair reason related to the employee’s conduct or capacity or based on employer’s operational requirements.
70. Section 17(1) of the Employment of Educators Act 76 of 1998 provides that an educator must be dismissed if he or she is found guilty of the following :
(a) Theft, bribery, fraud, or an act of corruption in regard to examinations or promotional reports;
(b) committing an act of sexual assault on a leaner, student or other employee;
(c) having a sexual relationship with a learner of the school where he or she is employed;
(d) seriously assaulting, with intention to cause grievous bodily harm to, a leaner, student or other employee;
(e) illegal possession of an intoxicating, illegal or stupefying substance; or
(f) causing a leaner or a student to perform any acts contemplated in paragraphs (a) to (e).
71. Section 17 (1) of the Employment of Educators Act makes it mandatory that once an educator is found guilty of the misconduct in paragraphs (a) to (e).
72. The Court in Combined Transport Services (Pty) Ltd v Buhle Zamokwakhe Miya and Others (2016) ZALAC 57 reaffirmed the applicability of the "balance of probabilities" test in employment law disputes when it held that a proper assessment of evidence requires the attachment of more weight on the evidence that is consistent and/ or more credible. Further that the test herein is "balance probability", dictating that a more probable version should be accepted, as opposed to a "beyond reasonable doubt" test, which is the test applicable to criminal cases.
73. The Code of Good Practice further provides that one of the requirements of a fair dismissal for misconduct is that the dismissal must be an appropriate remedy, in light of the facts of the case.
74. Regarding procedural fairness Item 4(1) of the Code of Good Practice: Dismissal, provides that: normally, the employer should investigate to determine whether there are grounds for dismissal. This does not need to be a formal enquiry. The employer should notify the employee of the allegations using a form and language that the employee can reasonably understand. The employee should be allowed the opportunity to state a case in response to the allegations. The employee should be entitled to a reasonable time to prepare the response and to the assistance of a trade union representative or fellow employee. After the inquiry, the employer should communicate the decision taken, preferably furnish the employee with written notification of that decision.
75. The Applicant did not challenge the procedural fairness of his dismissal.
76. In light of the aforesaid, the Applicant's dismissal was procedurally fair.
77. I now turn to substantive fairness of the dismissal of the Applicant. Item 7 of the Code of Good Practice: Dismissal provides that, any person who is determining whether dismissal for misconduct is unfair should consider the following:
(a) Whether a rule or standard existed?
(b) Was the rule or standard breached?
(c) Was the rule valid or reasonable?
(d) Whether the employee was aware or could reasonably be expected to have been aware of the rule or standard?
(e) Whether the rule or standard was consistently applied by the employer.
(f) Whether dismissal was an appropriate sanction for the contravention of the rule or standard.
78. In respect of substantive fairness of the dismissal of the Applicant, the Applicant denied having committed the misconduct of sexual assault/ harassment against the complainants. The reason he could think of why these allegations are brought against him is that there was a plot to get rid of him.
79. The Respondent's version on the other hand is that the Applicant committed the sexual assault/harassment as per the complainants and the investigation. There was no plot against the Applicant.
80. The most probable version is that of the Respondent that the Applicant committed the sexual assault /harassment against the two complaint teachers in breach of section17(1)(b) and 18(1)(q) of the Employment of the Educators Act 76 of 1998 for the following reasons:
81. It is common cause that the incidents complained of by the Respondent took place in private. The existence or non-existence of these complaints is known by the Applicant and the complainants.
82. The complainants, Chauke and Kgoleng gave a detailed explanation of what transpired regarding the events of their sexual harassment. That the Applicant violated their dignities when he was alone with each of them. The evidence presented has also shown that the Applicant indeed was alone with each of them in the events complained about.
83. The Applicant could not rebut the Respondent's version but sought to portray the complainants as people who were crazy and party to the plot to get him out of the school. There was no prima facie case which corroborates or substantiates the Applicant's claim of a plot against him.
84. The Applicant is using the plot as a scapegoat to dispel the overwhelming testimony of the Respondent's credible and reliable witnesses who told what they have been told by the complainants. The Applicant could not establish any plot planned or executed by the witness in light of the undisputed evidence that they tried to mediate the dispute before it could escalate to a formal hearing but it was unsuccessful. It was the witness's testimony that they held the Applicant in high regard.
85. The evidence presented has shown that the Applicant abused his offices for personal interests and the confidence that his subordinates had in him. He was entrusted with sensitive information by Chauke who was undergoing one of the difficult times of her life and a similar affliction is now in the workplace.
86. The WhatsApp messages show that the Applicant wanted quick sex from his subordinate, even though he tried to spin it to be as if he wanted a quick discussion. The conversation showed that the Applicant was talking about sex when he messaged, “we can go fo a quickie mos”.
87. The court in De Beer v Trudon (Pty) Ltd (1994) 15 ILJ 1057 (LAC) held with approval that an evidential foundation had to be laid and that a party could not merely rely on arguments only. As arguments without evidential basis would be more on speculation. This suggests that once the employer has proved its allegations with evidence to a degree that its version requires an answer or rebuttal lest it is believed, the evidentiary burden shifts onto the accused employee to prove otherwise.
88. Turning to the present case, the Applicant failed to rebut the allegations against him by the Respondent and instead, he resorted to attacking the testimony of the Respondent's witness as inadmissible hearsay evidence because they did not witness the sexual assault/ harassment. The sexual assault/ harassment incidents complained about did not have witnesses as they happened in secrecy where no witness was present. The sexual assault against Kgoleng took place in the car when the Applicant was with her alone and the other incident took place in the strong room where the Applicant was with Chauke alone.
89. The Applicant's version is not consistent with the proven facts and his explanation is without merits.
90. The Applicant's misconduct does not make him a fit and proper educator or a principal who is suitable for our primary and secondary schools.
91. In light of the above reasons, the gravity of the offence, the position of trust the Applicant was employed in and the years of service, I find that the Respondent has proved on a balance of probabilities that the Applicant contravened section 17(1)(b) of the Employment of Educators Act 76 of 1998.
AWARD
92. The Applicant's (George Maremo) dismissal by the Respondent (Department of Education -Gauteng) was both procedurally and substantively fair.
93. The Applicant's claim of unfair dismissal is hereby dismissed.
Commissioner: Luyanda Nkwenkwe Dumisa
Sector/ Industry:Education and Training