PSES276-19/20FS
Text
PSES276-19/20FS
Award Date:
01 August 2022
Panellist: Khuduga Tlale
Case Reference No.: PSES276-19/20FS
Date of award: 01 August 2022
In the matter between:
Moilwa Stephen Motlatla Applicant
And
Department of Education – Free State Respondent
ARBITRATION AWARD
Details of hearing and Representation
1. The arbitration hearing between Moilwa Stephen Motlatla (“Applicant”) and Department of Education – Free State (“Respondent”) was held on 13 July 2022 and concluded on 14 July 2022 at the Respondent offices in Bloemfontein. The Applicant appeared in person and Mr. LC Cronje, attorney, represented him and, Mr. TS Tsunke, Assistant-Director: Labour Relations, represented the Respondent. The Council appointed Mr. Themba Tshabalala as an interpreter and Ms. T Mokgwamme as an intermediary.
2. These proceedings were digitally recorded.
Issues to be decided
3. The issue to be decided is whether the Applicant dismissal was substantively fair.
Background to the dispute
4. The Respondent called two learners as witnesses in these proceedings. The alleged victim and the other one who alleged to have witnessed the incident. For the purpose of this award, the names of these learners will be kept confidential and the learners will simply be referred to as “learner A and B”. Learner A was approximately twelve (12) years old doing Grade 4 and, learner B was sixteen (16) years old doing Grade 6 at the time of the alleged incident.
5. The Applicant was employed by the Respondent on 16 January 1987 as an Educator and, he was promoted to the position of a Principal at Mimosa Primary School on 05 October 2015. The Applicant was charged with one count of misconduct relating to sexual assault by touching the breast, buttocks and vaginal area of learner A, a Grade 4 learner at the school where he was employed.
6. The Applicant was informed about the allegation against him. He was served with the notice of the disciplinary inquiry (“the inquiry”). He attended the inquiry and he was represented by his trade union and he was given an opportunity to state his case. He had no previous disciplinary record. He was found guilty and dismissed. He lodged an appeal and the dismissal was confirmed on 12 June 2019. The Applicant dismissal was procedurally fair. At the time of his dismissal he earned R45 467, 87, per month, which was paid into his bank account and the account is still active.
7. The Applicant referred this alleged unfair dismissal dispute to the Council. The certificate of non-resolution was issued and the dispute was referred for an arbitration. The parties submitted bundle of documents which was marked as bundle “B”. Both parties conducted a pre-arbitration meeting and they both signed the minutes as per bundle “A”.
Survey of Evidence
Respondent
First Witness: Learner A
8. The witness testified under oath that she was attending school at Mimosa Primary School on 06 November 2017. She was twelve (12) years old and doing Grade 4. She is currently attending school at Fakkel Secondary School in Sasolburg doing Grade 8. She knew the Applicant as the principal and an educator at Mimosa School. In November 2017, there was a graduation ceremony at the school and the Applicant did not attend it. On Monday when they arrived at the school, they went to him to ask why he did not attend the ceremony and he replied by saying he was sick. They told him how the ceremony was.
9. They were sitting under at the tree while speaking with the Applicant and other learners were present. The Applicant came to closer to her and he touched her lower legs but other learners did not witness that incident. The Applicant left to the classroom of one of the educator by the name of Ms. Sebakamotse and they followed him. She stated that when entering the classroom of Ms. Sebakamotse, there was a table and the Applicant was sitting there. Ms. Sebakamotse showed the learners including herself the graduation photos (“photos”) of her children.
10. The Applicant left the area where he was seated and he came towards her. On his arrival, he stand behind her, he put his hand inside her and touched her breast. He pulled out his hand and he unzipped her tight skirt and she wore a tight inside the skirt. The Applicant then put his hand on top of her vagina while her tight was still on. She kept quiet and she did not say a word. She was shocked because the Applicant was the principal and her grandfather. She later said her biological father when he see the Applicant called him grandfather. The school bell rang and they step out of the classroom of Ms. Sebakamotse. On her way out of the classroom, the Applicant asked her what was going on. She replied by saying yes without having an idea what was going on. She later informed one of the male educator about the incident by the name of Mr. Ranthako.
11. Under cross-examination she stated that there were quiet a number of learners under the tree while speaking with the Applicant. No learner witnessed the Applicant touching her lower legs. It was possible that nobody saw the incident. She maintained that she felt the Applicant touching her lower legs. She was surprised about the Applicant conduct but she did not take it into consideration. She later realized what the Applicant did was not proper but she kept quiet. She kept quiet because she wanted to see where this conduct was going to end. She confirmed that she was twelve (12) years old in the year 2017.
12. She confirmed that they left to the classroom of Ms. Sebakamotse and there were many learners in that classroom. The learners could be around twenty (20) to twenty-one (21). There were two tables closed together inside the classroom. The learners were surrounding the tables while watching the photos. The Applicant left the area where he was seated and came close to her. Everyone inside the classroom saw the Applicant standing on his chair when he walked towards her. The Applicant stand behind her, he put his hand from the waist of her jersey and he touched her breast. She confirmed that there were quiet a number of learners inside the classroom but they did not see the incident.
13. She was shocked because she did not expect the Applicant to do that to her. She maintained that she was shocked and surprised. After the Applicant touched her breast, he unzipped her skirt and he put his hand in her vagina while her tight was still on. The zip of the skirt was on the right hand side. The skirt was still on when he put his hand to her vagina and it was possible for the Applicant to touch her without anyone noticing. Other learners were watching the photos. She did not scream nor shout because of the state of a shock. She was shocked because the Applicant was an honourable person. She stated that the Applicant did not touch her buttocks. She did report the Applicant conduct to Mr. Ranthako and, she went alone to him. She maintained that the Applicant was standing behind her when he touched her breast and vagina. She did not inform Ms. Sebakamotse because she thought she would not believe her.
14. Under re-examination she confirmed that the Applicant touched her lower legs and she kept quiet while observing his movement. She maintained that the Applicant touched her breast and vagina inside the classroom. She confirmed that the Applicant was a principal, educator, grandfather and a respectable person. The school is situated at the farm and she was shocked by the Applicant improper behaviour.
15. Under clarity questions she confirmed that there were learners inside the classroom watching the photos. The learners surrounded the table while Ms. Sebakamotse was seated. She was standing on the middle of the learners on the left hand side of Ms. Sebakamotse. There were nobody next to her. She later said she was at the back of the group of learners. There were learners at her front and on her sides. The learners at her sides focused on the photos. She was not that close to Ms. Sebakamotse. She was afraid and she wanted to tell Mr. Ranthako.
Second Witness: Learner B
16. The witness testified under oath that she was sixteen (16) years old in the year 2017 and she attended school at Mimosa Farm School doing Grade 6. She is currently nineteen (19) years old doing Grade 10 at Ithabiseng School. She knew the Applicant as an educator and principal at Mimosa School. She had a knowledge of the incident happened on 06 November 2017.
17. They arrived as normal at the school in the morning on the said date. She and Mathapelo went to the back of the school yard. The Applicant and some of the learners were under the tree. The weather became dusty and they went to the classroom of Ms. Sebakamotse. The school bell rang for break. They all went for dishing up and they went back to the classroom. She and Mathapelo sat at the front desk in the classroom while eating. Other learners including learner A were watching the photos. She was not part of the learners watching the photos.
18. The Applicant was sitting at the table behind Ms. Sebakamotse. The Applicant came towards learner A and he stand behind her. The Applicant started touching learner A’s breast by putting his hand into her jersey. After he pulled out his hand, he unzipped her skirt and he put his hand in the skirt. After the Applicant realized that they saw her, he stopped it. She was shocked seeing the Applicant conduct because he was a respectable person. She could not lie about a respectable person. Learner A cried when she talked to her about that incident.
19. Under cross-examination she stated that her testimony would assist the proceedings. She attended the proceedings to corroborate learner A testimony. She stated that she witnessed the Applicant improper conduct towards learner A. She stated that she did not watch the photos. She was sitting with Mathapelo at the desk while eating and, she was facing at the learners’ direction. Mathapelo and Pule also witnessed the Applicant’s improper conduct and, they did not report the Applicant conduct. She was the one who reported this incident to Mr. Ranthako. Mr. Ranthako approached learner A while crying. This incident happened long time ago while she was young and she could not remember everything.
20. Under re-examination she stated that Mr. Ranthako was the first person to know about this incident.
21. Under clarity questions she stated that learner A was her friend and, she was free to talk anything with Ms. Sebakamotse and Mr. Ranthako. She did not watch the photos. Ms. Sebakamotse was inside the classroom and she was seated at the table. She was seated at the front desk while the Applicant was seated at the back of the classroom. There was no learners behind learner A but there were learners on her sides. She could not remember well the learners’ spaces from each other. Learner A was standing at the right hand side of Ms. Sebakamotse and she was behind her.
22. She saw the Applicant touching learner A’s breast. After he pulled out his hand from her jersey, he unzipped her skirt. He put his hand inside the skirt and she was not sure where did he touch learner A. Learner A was crying while they were at the toilets. She was with Mathapelo when learner A was crying and, Mathapelo witnessed everything happened to learner A.
Respondent
23. She stated that the Applicant was always together with Ms. Sebakamotse and Ms. Moeketsi during break that was the reason he informed Mr. Ranthako about the incident.
Applicant
24. She confirmed that she was free to talk anything with Ms. Sebakamotse. The reason she decided to approach Mr. Ranthako was because Ms. Sebakamotse was not done at the classroom. She informed Ms. Sebakamotse after she came back from Mr. Ranthako. Ms. Sebakamotse was close to the Applicant that was the reason she first approached Mr. Ranthako.
Applicant
First witness: Mr. Moilwa Stephen Motlatla
25. The witness testified under oath that he was the Applicant in this matter and he knew learner A. On 04 November 2017, it was the graduations and farewell at the school but he did not attend due to family matter. On 06 November 2017 while at school he took a chair and sat under the tree. There were approximately seventeen (17) learners that went with him to the tree. All of them were in front of him. The weather became dusty and they rushed to the classroom of Ms. Sebakamotse. Ms. Sebakamotse’s classroom was for foundation phase. Ms. Sebakamotse showed the learners the photos of her children graduation as part of motivating them.
26. There were number of learners in the classroom but he did not notice learners A and B. He was standing in front of the classroom leaning his hand on the table. The dust stopped and he went back to the tree with some of the learners. After thirty (30) minutes, Ms. Sebakamotse called him back to the classroom. There were others learners standing next to him except learner A. He learned from Ms. Sebakamotse that there are learners who alleged that he touched their buttocks.
27. Ms. Sebakamotse said that she had already made an arrangement with learner A’s parents to come to the school in order to resolve this matter. He did not do anything to learner A. Criminal case was opened against him, he was arrested and, the criminal case still going on. He did not touch learner A’s legs while there were under the tree because there were other learners. He denied the allegation against him. He was leaning on the table while watching the photos. He could not for sure said learner A was not under the tree because there were quiet a number of learners.
28. Under cross-examination he stated that learner A currently attending a special school. He was not sure whether or not learner A was with him under the tree. He confirmed that he was with learners A and B in the classroom and, they found other learners in the classroom. He saw learners in the classroom not specifically learner A. It was possible that learner B could be one of the learners’ seated in the classroom. It was possible that learner B was not watching the photos. It was possible to see other learners who surrounded the table.
29. Learner A was not near him inside the classroom. He was taller than the rest of the learners and no learners were behind him. There were learners standing in his sides. No learner(s) who was behind his back would observe the movement of his hands. He had no knowledge what prompted the learners to lie about him. Both educators, Ms. Sebakamotse and Ranthako were told about this allegation against him but the allegation had no substance. It was possible for the learners to lie even after five (5) years. He did not talk to Mr. Ranthako about this allegation because it was under the hands of the South African Police Service. He was not a relative of learner A.
30. Under re-examination he stated that he could not remember whether Mathapelo was inside the classroom. He knew Mathapelo as the learner at the school. He maintained that he was not the grandfather to learner A or her parents.
Survey of Arguments
Respondent
31. The Respondent representative stated that who reported the incident first to Mr. Ranthako was irrelevant. It was clear from the learner’s testimony that they were not comfortable to report the matter to Ms. Sebakamotse because she was closed to the Applicant. The Applicant used his height against the small figured learners to perpetuate his nefarious intentions and little did he know that there were other learners who were watching at him.
32. On the day in question, the two witnesses, the Applicant and other learners were in the classroom of Ms. Sebakamotse. This was a clear indication that there was no fabrication or conspiracy against the Applicant. The Applicant failed to prove or to show were this conspiracy originates and what was its intentions or intended results.
33. The Applicant confirmed that he was under the tree then came the dust and they went into the classroom. This was corroborated by learners A and B. Despite having learners in the classroom, he failed to even call one of them to corroborate his version. The Applicant committed this misconduct on a below average learner because he undermined her and her capacity to can comprehend issues. The Applicant breached the public trust and respect which was bestowed in the office of the school principal. The Applicant dismissal was substantively fair.
Applicant
34. The Applicant representative stated that the Respondent bears the onus to prove their case on a balance of probabilities and there was a requirement from the Applicant to rebut the said evidence. The Applicant said he did not touch learner A and that the child was making up the said event. The Applicant representative said he could not look past the vast discrepancies in the Respondent’s witnesses. The incident took place in a classroom full of children but no learner saw the incident occurred. This was not probable, seeing that it was alleged that the Applicant unzipped learner A’s skirt. Surely some of the learners would have noticed and alerted the teacher to the incident, but that was not the case.
35. If a child was being sexually assaulted as alleged in a room full of people, one would think it would be probable that a reasonable person/child would do something to alert people of the sexual assault taking place and this was not the case in this scenario. The Respondent second witness gave different version of events. This in itself make it highly improbable that the incident took place. The discrepancies of the Respondent witnesses in their testimonies raises more questions than answers.
36. Who do we believe, furthermore we sit with two different versions of events, with no clear answer to what really occurred. The only person that could have shared light on this predicament was Mr. Ranthako but he was not called to testify. The Respondent did not dispense with their burden of proof and the Applicant’s version of events was more probable when considering all the facts. The Applicant dismissal was substantively unfair and he sought retrospective reinstatement.
Analysis of evidence and arguments
37. In every alleged unfair dismissal dispute, the Applicant party is required to establish the existence of the dismissal. Once that is done, then the evidentiary burden of proof shifts to the Respondent party who is required to prove the alleged dismissal was fair. In this matter, it is a common cause that the Applicant was dismissed and his dismissal was due to misconduct, therefore, the Applicant established the existence of his dismissal. In discharging the onus, the Respondent led the evidence of two (2) witnesses.
38. Section 28(1)(d) of the Constitution of the Republic of South Africa provides, among other things, that:
“Every child has a right –
“to be protected from maltreatment, neglect, abuse or degradation”. Furthermore, this Section also provides that “A child’s best interests are of paramount importance in every matter concerning the child”. The above provisions are therefore important consideration in deciding the issue before me.
39. The allegation against the Applicant was that he committed an act of sexual assault on a learner by touching her breast, buttocks and vaginal area. A false claim of sexual assault has very serious implications for the person against whom the allegations are made. Not only could such a person lose his job with very little hope of finding similar employment, but his family and community standing can be negatively affected.
40. The standard of proof was that of a balance of probabilities. Proof that the employee actually committed the offence charged presupposes a proper investigation of the allegation against the employee, and the presentation of evidence that links the employee with the offence. Proof on a balance of probabilities means that the evidence points more probably to the conclusion that the employee committed the alleged misconduct, than to his innocence. However, a mere suspicion of guilt does not satisfy the test of proof on a balance of probabilities.
The following are brief reasons for the award:
Whether the Applicant sexually assaulted learner A?
41. The Applicant is placed at the scene from the onset, and himself, learner A and learner B version of events leading up to the alleged incident of assault are not dissimilar. For an example, the version to the effect that both the Applicant and learner A were initially under the tree, was similar; they went to the classroom of Ms. Sebakamotse with other learners, was similar; the learners including learner A surrounded the table of Ms. Sebakamotse watching the photos, was similar and; the incident was reported to Mr. Ranthako and Ms. Sebakamotse, was similar. What then appears to be in dispute is whether the incident occurred as alleged?
42. It is learner A’s version that the Applicant came and stand behind her back while watching at the photos. The Applicant put his hand under her jersey and touched her breast. He pulled out his hand and he unzipped her skirt and he put his hand and touched her vagina. It is learner A version that no one witnessed the incident. It is the Applicant version that he did not stand next or behind the back of learner A while in the classroom. He denied any conduct of a sexual nature towards learner A.
43. The question therefore becomes one of whose version should be believed. It is a norm that a child who is sexually assaulted will forget some instances and that because of the shock and the status of the perpetrator. This alleged incident of sexual nature happened when learner A was twelve (12) years old and also her thinking ability as Grade 4 learner. In that regard, probabilities become a consideration in deciding whether sexual assault did occur. There was bound to be inconsistencies in learner A’s evidence. It is a norm that the thinking capacity of learners or children who are sexually abused somehow re tresses. Their thinking capacity becomes affected. As a coping strategy some block the incident out of their mind and forget crucial information.
44. I agree with the Applicant representative argument to say surely some of the learners would have noticed the incident. Learner B noticed the incident and she was very accurate and she has a good recollection of the incident. The evidence of learner A was corroborated by learner B. They both said the incident happened inside the classroom while learners watching the photos, the Applicant was inside the classroom, the Applicant came and stand behind the back of learner A. The Applicant put his hand under her jersey and he touched her breast and he unzipped her skirt and the zip was on the right hand side and the Applicant put his hand. To prove that learner A evidence was honest and reliable, she testified that the Applicant did not touch her buttocks even though the allegation against him was that he touched her buttocks. Learner B testified that the Applicant unzipped the skirt but she has no knowledge which part of learner A’s body he touched when he put his hand. I have taken into consideration the demeanour of both learners and believe that they were credible witnesses and provided honest testimony and their evidence should not be doubted. The Applicant’s evidence was not consistent and not reliable. He fabricated his version to suit him and was not forthcoming.
45. It is both learners A and B evidence that the Applicant was a respectable person, the principal and an educator. That being the case, the question that then begs an answer is: Why would the two witnesses called, who appeared to have no serious issues or history of animosity towards the Applicant, suddenly gang up against him without sufficient cause? Is it probable that their version is a mere fabrication? The answer, based on the evidence before me, is an emphatic “No”. It is highly unlikely that a learner, in the person of leaner A, who previously had no issues whatsoever with the Applicant, would suddenly claim that the Applicant sexually assaulted her. The Applicant testified that he was not aware of any reason why the learners would make-up such a story.
46. The Applicant confirmed that he was informed about the incident on the same day by his colleagues. Ms. Sebakamotse further informed him that she already arranged with the parents of the learner to come to the school in order to resolve this matter. What was to be resolved if he did not do anything wrong? It is my finding that the incident of sexual assault that was reported to him by his colleagues is not far-fetched and that it is probably true.
47. I find the Respondent to have proved the charge against the Applicant. While the onus rest on the Respondent to prove the allegation against the Applicant, courts have set out the principle on evidentiary burden on the part of the employee. In other words, while the employer bears the onus and where the employer has presented as such weighty evidence that it requires rebuttal, lest it be believed, the evidentiary burden shifts onto the accused employee to prove otherwise. In outlining this principle, the court in Emfuleni Local Municipality v SALGBC and others (JR 2525/11) [2015] ZALCJHB 356 (handed down on 14 October 2015) held as follows:
“While the overall onus never shifts from the Employer, the need to present or counter evidence may rest on different parties. Once the Employer has proved its allegations with evidence to a degree that its version requires an answer or rebuttal lest it be believed, the evidentiary burden shifts onto the accused Employee to prove otherwise.”
The Applicant in the present proceedings has dismally failed in this regard. I conclude that the Respondent version was more probable to prove the Applicant’s charge of guilt.
Whether the sanction is fair?
48. On the issue of appropriateness of sanction, the Labour Appeal Court held in Department of Home Affairs and another v Ndlovu and others (DA 11/2012) (2014) ZALAC 11; (2014) 9 BLLR 851 (LAC); (2014) 35 ILJ 3340 (LAC) (handed down on 27 March 2014) that, in order to prove that the sanction of dismissal was appropriate, the Employer must present evidence to prove breakdown in the employment relationship. Such evidence is not necessary where the breakdown is apparent from the nature of the offence and or circumstances. The other question that need to be ask is whether the Applicant conduct destroy the faith and goodwill of the Respondent?
49. Certain conduct warrants action, even if it is not prohibited by formal rules or has not been formally communicated to employees. Employees are expected to know that certain behavior is simply unacceptable. An employee will not therefore generally be able to rely on the knowledge of the rule if the misconduct for which he was dismissed amounts to sexual assault. In Department of Labour v GPSSBC (2010) 31 ILJ 1313 (LAC) the Labour Appeal Court confirmed the principle that a sanction aimed at correction and rehabilitation is no purpose when an employee refuses to acknowledge the wrongness of his/her conduct. In this matter, the Applicant failed to accept the seriousness of his action or admission of any fault on his part. I have considered the totally of circumstances in order to decide a fair and appropriate sanction. It is important to note that sexual assault on a learner is a standard that should not be breached and that conduct was unwelcome and unwarranted. This kind of conduct is not acceptable within an educator and learner context particularly that an educator holds the balance of power in such a relationship.
50. Educators have a positive duty to ensure that learners are educated in a safe environment. The environment must be free from harassment of any nature but particularly harassment or assault of a sexual nature. Parents entrust their children for safe keeping at school. Educators take the role and responsibilities of parents while at school. Viewed against this background, the Educator’s conduct is viewed in an extremely serious light and is in contradiction of relevant legislation and legislation prohibits such conduct.
51. I have particularly considered the Employment of Educators Act 76 of 1998 as well as the South African Council of Educators (“SACE”) Code of Professional Ethics for educators. The SACE Code of Professional Ethics provides that educators; “respect the dignity, beliefs and constitutional rights of learners and in particular children” and that educator must: “refrain from any form of sexual harassment (physical or otherwise) of learners, and to refrain from any form of sexual relationship with learners from any school.” The protection of learners and consideration of their interests is paramount, particularly as educators are leaders within the school environment as well as leaders within the community environment. Such conduct serves to destroy the relationship of trust between employee and employer. The fact that no previous incidents on record was provided during the proceedings, does not necessarily mean that his conduct will not be repeated. In tribunals of this nature, consideration of the best interests of children, is paramount. My finding is aimed at the protection of children and in particular, vulnerable young girls.
Conclusion
52. In these circumstances, I find the dismissal of the Applicant to be substantively fair.
Award
53. The dismissal of the Applicant, Mr. Moilwa Stephen Motlatla, is found to be substantively fair and is confirmed.
Signature:
Commissioner: Khuduga Tlale
Sector: Education
Case Reference No.: PSES276-19/20FS
Date of award: 01 August 2022
In the matter between:
Moilwa Stephen Motlatla Applicant
And
Department of Education – Free State Respondent
ARBITRATION AWARD
Details of hearing and Representation
1. The arbitration hearing between Moilwa Stephen Motlatla (“Applicant”) and Department of Education – Free State (“Respondent”) was held on 13 July 2022 and concluded on 14 July 2022 at the Respondent offices in Bloemfontein. The Applicant appeared in person and Mr. LC Cronje, attorney, represented him and, Mr. TS Tsunke, Assistant-Director: Labour Relations, represented the Respondent. The Council appointed Mr. Themba Tshabalala as an interpreter and Ms. T Mokgwamme as an intermediary.
2. These proceedings were digitally recorded.
Issues to be decided
3. The issue to be decided is whether the Applicant dismissal was substantively fair.
Background to the dispute
4. The Respondent called two learners as witnesses in these proceedings. The alleged victim and the other one who alleged to have witnessed the incident. For the purpose of this award, the names of these learners will be kept confidential and the learners will simply be referred to as “learner A and B”. Learner A was approximately twelve (12) years old doing Grade 4 and, learner B was sixteen (16) years old doing Grade 6 at the time of the alleged incident.
5. The Applicant was employed by the Respondent on 16 January 1987 as an Educator and, he was promoted to the position of a Principal at Mimosa Primary School on 05 October 2015. The Applicant was charged with one count of misconduct relating to sexual assault by touching the breast, buttocks and vaginal area of learner A, a Grade 4 learner at the school where he was employed.
6. The Applicant was informed about the allegation against him. He was served with the notice of the disciplinary inquiry (“the inquiry”). He attended the inquiry and he was represented by his trade union and he was given an opportunity to state his case. He had no previous disciplinary record. He was found guilty and dismissed. He lodged an appeal and the dismissal was confirmed on 12 June 2019. The Applicant dismissal was procedurally fair. At the time of his dismissal he earned R45 467, 87, per month, which was paid into his bank account and the account is still active.
7. The Applicant referred this alleged unfair dismissal dispute to the Council. The certificate of non-resolution was issued and the dispute was referred for an arbitration. The parties submitted bundle of documents which was marked as bundle “B”. Both parties conducted a pre-arbitration meeting and they both signed the minutes as per bundle “A”.
Survey of Evidence
Respondent
First Witness: Learner A
8. The witness testified under oath that she was attending school at Mimosa Primary School on 06 November 2017. She was twelve (12) years old and doing Grade 4. She is currently attending school at Fakkel Secondary School in Sasolburg doing Grade 8. She knew the Applicant as the principal and an educator at Mimosa School. In November 2017, there was a graduation ceremony at the school and the Applicant did not attend it. On Monday when they arrived at the school, they went to him to ask why he did not attend the ceremony and he replied by saying he was sick. They told him how the ceremony was.
9. They were sitting under at the tree while speaking with the Applicant and other learners were present. The Applicant came to closer to her and he touched her lower legs but other learners did not witness that incident. The Applicant left to the classroom of one of the educator by the name of Ms. Sebakamotse and they followed him. She stated that when entering the classroom of Ms. Sebakamotse, there was a table and the Applicant was sitting there. Ms. Sebakamotse showed the learners including herself the graduation photos (“photos”) of her children.
10. The Applicant left the area where he was seated and he came towards her. On his arrival, he stand behind her, he put his hand inside her and touched her breast. He pulled out his hand and he unzipped her tight skirt and she wore a tight inside the skirt. The Applicant then put his hand on top of her vagina while her tight was still on. She kept quiet and she did not say a word. She was shocked because the Applicant was the principal and her grandfather. She later said her biological father when he see the Applicant called him grandfather. The school bell rang and they step out of the classroom of Ms. Sebakamotse. On her way out of the classroom, the Applicant asked her what was going on. She replied by saying yes without having an idea what was going on. She later informed one of the male educator about the incident by the name of Mr. Ranthako.
11. Under cross-examination she stated that there were quiet a number of learners under the tree while speaking with the Applicant. No learner witnessed the Applicant touching her lower legs. It was possible that nobody saw the incident. She maintained that she felt the Applicant touching her lower legs. She was surprised about the Applicant conduct but she did not take it into consideration. She later realized what the Applicant did was not proper but she kept quiet. She kept quiet because she wanted to see where this conduct was going to end. She confirmed that she was twelve (12) years old in the year 2017.
12. She confirmed that they left to the classroom of Ms. Sebakamotse and there were many learners in that classroom. The learners could be around twenty (20) to twenty-one (21). There were two tables closed together inside the classroom. The learners were surrounding the tables while watching the photos. The Applicant left the area where he was seated and came close to her. Everyone inside the classroom saw the Applicant standing on his chair when he walked towards her. The Applicant stand behind her, he put his hand from the waist of her jersey and he touched her breast. She confirmed that there were quiet a number of learners inside the classroom but they did not see the incident.
13. She was shocked because she did not expect the Applicant to do that to her. She maintained that she was shocked and surprised. After the Applicant touched her breast, he unzipped her skirt and he put his hand in her vagina while her tight was still on. The zip of the skirt was on the right hand side. The skirt was still on when he put his hand to her vagina and it was possible for the Applicant to touch her without anyone noticing. Other learners were watching the photos. She did not scream nor shout because of the state of a shock. She was shocked because the Applicant was an honourable person. She stated that the Applicant did not touch her buttocks. She did report the Applicant conduct to Mr. Ranthako and, she went alone to him. She maintained that the Applicant was standing behind her when he touched her breast and vagina. She did not inform Ms. Sebakamotse because she thought she would not believe her.
14. Under re-examination she confirmed that the Applicant touched her lower legs and she kept quiet while observing his movement. She maintained that the Applicant touched her breast and vagina inside the classroom. She confirmed that the Applicant was a principal, educator, grandfather and a respectable person. The school is situated at the farm and she was shocked by the Applicant improper behaviour.
15. Under clarity questions she confirmed that there were learners inside the classroom watching the photos. The learners surrounded the table while Ms. Sebakamotse was seated. She was standing on the middle of the learners on the left hand side of Ms. Sebakamotse. There were nobody next to her. She later said she was at the back of the group of learners. There were learners at her front and on her sides. The learners at her sides focused on the photos. She was not that close to Ms. Sebakamotse. She was afraid and she wanted to tell Mr. Ranthako.
Second Witness: Learner B
16. The witness testified under oath that she was sixteen (16) years old in the year 2017 and she attended school at Mimosa Farm School doing Grade 6. She is currently nineteen (19) years old doing Grade 10 at Ithabiseng School. She knew the Applicant as an educator and principal at Mimosa School. She had a knowledge of the incident happened on 06 November 2017.
17. They arrived as normal at the school in the morning on the said date. She and Mathapelo went to the back of the school yard. The Applicant and some of the learners were under the tree. The weather became dusty and they went to the classroom of Ms. Sebakamotse. The school bell rang for break. They all went for dishing up and they went back to the classroom. She and Mathapelo sat at the front desk in the classroom while eating. Other learners including learner A were watching the photos. She was not part of the learners watching the photos.
18. The Applicant was sitting at the table behind Ms. Sebakamotse. The Applicant came towards learner A and he stand behind her. The Applicant started touching learner A’s breast by putting his hand into her jersey. After he pulled out his hand, he unzipped her skirt and he put his hand in the skirt. After the Applicant realized that they saw her, he stopped it. She was shocked seeing the Applicant conduct because he was a respectable person. She could not lie about a respectable person. Learner A cried when she talked to her about that incident.
19. Under cross-examination she stated that her testimony would assist the proceedings. She attended the proceedings to corroborate learner A testimony. She stated that she witnessed the Applicant improper conduct towards learner A. She stated that she did not watch the photos. She was sitting with Mathapelo at the desk while eating and, she was facing at the learners’ direction. Mathapelo and Pule also witnessed the Applicant’s improper conduct and, they did not report the Applicant conduct. She was the one who reported this incident to Mr. Ranthako. Mr. Ranthako approached learner A while crying. This incident happened long time ago while she was young and she could not remember everything.
20. Under re-examination she stated that Mr. Ranthako was the first person to know about this incident.
21. Under clarity questions she stated that learner A was her friend and, she was free to talk anything with Ms. Sebakamotse and Mr. Ranthako. She did not watch the photos. Ms. Sebakamotse was inside the classroom and she was seated at the table. She was seated at the front desk while the Applicant was seated at the back of the classroom. There was no learners behind learner A but there were learners on her sides. She could not remember well the learners’ spaces from each other. Learner A was standing at the right hand side of Ms. Sebakamotse and she was behind her.
22. She saw the Applicant touching learner A’s breast. After he pulled out his hand from her jersey, he unzipped her skirt. He put his hand inside the skirt and she was not sure where did he touch learner A. Learner A was crying while they were at the toilets. She was with Mathapelo when learner A was crying and, Mathapelo witnessed everything happened to learner A.
Respondent
23. She stated that the Applicant was always together with Ms. Sebakamotse and Ms. Moeketsi during break that was the reason he informed Mr. Ranthako about the incident.
Applicant
24. She confirmed that she was free to talk anything with Ms. Sebakamotse. The reason she decided to approach Mr. Ranthako was because Ms. Sebakamotse was not done at the classroom. She informed Ms. Sebakamotse after she came back from Mr. Ranthako. Ms. Sebakamotse was close to the Applicant that was the reason she first approached Mr. Ranthako.
Applicant
First witness: Mr. Moilwa Stephen Motlatla
25. The witness testified under oath that he was the Applicant in this matter and he knew learner A. On 04 November 2017, it was the graduations and farewell at the school but he did not attend due to family matter. On 06 November 2017 while at school he took a chair and sat under the tree. There were approximately seventeen (17) learners that went with him to the tree. All of them were in front of him. The weather became dusty and they rushed to the classroom of Ms. Sebakamotse. Ms. Sebakamotse’s classroom was for foundation phase. Ms. Sebakamotse showed the learners the photos of her children graduation as part of motivating them.
26. There were number of learners in the classroom but he did not notice learners A and B. He was standing in front of the classroom leaning his hand on the table. The dust stopped and he went back to the tree with some of the learners. After thirty (30) minutes, Ms. Sebakamotse called him back to the classroom. There were others learners standing next to him except learner A. He learned from Ms. Sebakamotse that there are learners who alleged that he touched their buttocks.
27. Ms. Sebakamotse said that she had already made an arrangement with learner A’s parents to come to the school in order to resolve this matter. He did not do anything to learner A. Criminal case was opened against him, he was arrested and, the criminal case still going on. He did not touch learner A’s legs while there were under the tree because there were other learners. He denied the allegation against him. He was leaning on the table while watching the photos. He could not for sure said learner A was not under the tree because there were quiet a number of learners.
28. Under cross-examination he stated that learner A currently attending a special school. He was not sure whether or not learner A was with him under the tree. He confirmed that he was with learners A and B in the classroom and, they found other learners in the classroom. He saw learners in the classroom not specifically learner A. It was possible that learner B could be one of the learners’ seated in the classroom. It was possible that learner B was not watching the photos. It was possible to see other learners who surrounded the table.
29. Learner A was not near him inside the classroom. He was taller than the rest of the learners and no learners were behind him. There were learners standing in his sides. No learner(s) who was behind his back would observe the movement of his hands. He had no knowledge what prompted the learners to lie about him. Both educators, Ms. Sebakamotse and Ranthako were told about this allegation against him but the allegation had no substance. It was possible for the learners to lie even after five (5) years. He did not talk to Mr. Ranthako about this allegation because it was under the hands of the South African Police Service. He was not a relative of learner A.
30. Under re-examination he stated that he could not remember whether Mathapelo was inside the classroom. He knew Mathapelo as the learner at the school. He maintained that he was not the grandfather to learner A or her parents.
Survey of Arguments
Respondent
31. The Respondent representative stated that who reported the incident first to Mr. Ranthako was irrelevant. It was clear from the learner’s testimony that they were not comfortable to report the matter to Ms. Sebakamotse because she was closed to the Applicant. The Applicant used his height against the small figured learners to perpetuate his nefarious intentions and little did he know that there were other learners who were watching at him.
32. On the day in question, the two witnesses, the Applicant and other learners were in the classroom of Ms. Sebakamotse. This was a clear indication that there was no fabrication or conspiracy against the Applicant. The Applicant failed to prove or to show were this conspiracy originates and what was its intentions or intended results.
33. The Applicant confirmed that he was under the tree then came the dust and they went into the classroom. This was corroborated by learners A and B. Despite having learners in the classroom, he failed to even call one of them to corroborate his version. The Applicant committed this misconduct on a below average learner because he undermined her and her capacity to can comprehend issues. The Applicant breached the public trust and respect which was bestowed in the office of the school principal. The Applicant dismissal was substantively fair.
Applicant
34. The Applicant representative stated that the Respondent bears the onus to prove their case on a balance of probabilities and there was a requirement from the Applicant to rebut the said evidence. The Applicant said he did not touch learner A and that the child was making up the said event. The Applicant representative said he could not look past the vast discrepancies in the Respondent’s witnesses. The incident took place in a classroom full of children but no learner saw the incident occurred. This was not probable, seeing that it was alleged that the Applicant unzipped learner A’s skirt. Surely some of the learners would have noticed and alerted the teacher to the incident, but that was not the case.
35. If a child was being sexually assaulted as alleged in a room full of people, one would think it would be probable that a reasonable person/child would do something to alert people of the sexual assault taking place and this was not the case in this scenario. The Respondent second witness gave different version of events. This in itself make it highly improbable that the incident took place. The discrepancies of the Respondent witnesses in their testimonies raises more questions than answers.
36. Who do we believe, furthermore we sit with two different versions of events, with no clear answer to what really occurred. The only person that could have shared light on this predicament was Mr. Ranthako but he was not called to testify. The Respondent did not dispense with their burden of proof and the Applicant’s version of events was more probable when considering all the facts. The Applicant dismissal was substantively unfair and he sought retrospective reinstatement.
Analysis of evidence and arguments
37. In every alleged unfair dismissal dispute, the Applicant party is required to establish the existence of the dismissal. Once that is done, then the evidentiary burden of proof shifts to the Respondent party who is required to prove the alleged dismissal was fair. In this matter, it is a common cause that the Applicant was dismissed and his dismissal was due to misconduct, therefore, the Applicant established the existence of his dismissal. In discharging the onus, the Respondent led the evidence of two (2) witnesses.
38. Section 28(1)(d) of the Constitution of the Republic of South Africa provides, among other things, that:
“Every child has a right –
“to be protected from maltreatment, neglect, abuse or degradation”. Furthermore, this Section also provides that “A child’s best interests are of paramount importance in every matter concerning the child”. The above provisions are therefore important consideration in deciding the issue before me.
39. The allegation against the Applicant was that he committed an act of sexual assault on a learner by touching her breast, buttocks and vaginal area. A false claim of sexual assault has very serious implications for the person against whom the allegations are made. Not only could such a person lose his job with very little hope of finding similar employment, but his family and community standing can be negatively affected.
40. The standard of proof was that of a balance of probabilities. Proof that the employee actually committed the offence charged presupposes a proper investigation of the allegation against the employee, and the presentation of evidence that links the employee with the offence. Proof on a balance of probabilities means that the evidence points more probably to the conclusion that the employee committed the alleged misconduct, than to his innocence. However, a mere suspicion of guilt does not satisfy the test of proof on a balance of probabilities.
The following are brief reasons for the award:
Whether the Applicant sexually assaulted learner A?
41. The Applicant is placed at the scene from the onset, and himself, learner A and learner B version of events leading up to the alleged incident of assault are not dissimilar. For an example, the version to the effect that both the Applicant and learner A were initially under the tree, was similar; they went to the classroom of Ms. Sebakamotse with other learners, was similar; the learners including learner A surrounded the table of Ms. Sebakamotse watching the photos, was similar and; the incident was reported to Mr. Ranthako and Ms. Sebakamotse, was similar. What then appears to be in dispute is whether the incident occurred as alleged?
42. It is learner A’s version that the Applicant came and stand behind her back while watching at the photos. The Applicant put his hand under her jersey and touched her breast. He pulled out his hand and he unzipped her skirt and he put his hand and touched her vagina. It is learner A version that no one witnessed the incident. It is the Applicant version that he did not stand next or behind the back of learner A while in the classroom. He denied any conduct of a sexual nature towards learner A.
43. The question therefore becomes one of whose version should be believed. It is a norm that a child who is sexually assaulted will forget some instances and that because of the shock and the status of the perpetrator. This alleged incident of sexual nature happened when learner A was twelve (12) years old and also her thinking ability as Grade 4 learner. In that regard, probabilities become a consideration in deciding whether sexual assault did occur. There was bound to be inconsistencies in learner A’s evidence. It is a norm that the thinking capacity of learners or children who are sexually abused somehow re tresses. Their thinking capacity becomes affected. As a coping strategy some block the incident out of their mind and forget crucial information.
44. I agree with the Applicant representative argument to say surely some of the learners would have noticed the incident. Learner B noticed the incident and she was very accurate and she has a good recollection of the incident. The evidence of learner A was corroborated by learner B. They both said the incident happened inside the classroom while learners watching the photos, the Applicant was inside the classroom, the Applicant came and stand behind the back of learner A. The Applicant put his hand under her jersey and he touched her breast and he unzipped her skirt and the zip was on the right hand side and the Applicant put his hand. To prove that learner A evidence was honest and reliable, she testified that the Applicant did not touch her buttocks even though the allegation against him was that he touched her buttocks. Learner B testified that the Applicant unzipped the skirt but she has no knowledge which part of learner A’s body he touched when he put his hand. I have taken into consideration the demeanour of both learners and believe that they were credible witnesses and provided honest testimony and their evidence should not be doubted. The Applicant’s evidence was not consistent and not reliable. He fabricated his version to suit him and was not forthcoming.
45. It is both learners A and B evidence that the Applicant was a respectable person, the principal and an educator. That being the case, the question that then begs an answer is: Why would the two witnesses called, who appeared to have no serious issues or history of animosity towards the Applicant, suddenly gang up against him without sufficient cause? Is it probable that their version is a mere fabrication? The answer, based on the evidence before me, is an emphatic “No”. It is highly unlikely that a learner, in the person of leaner A, who previously had no issues whatsoever with the Applicant, would suddenly claim that the Applicant sexually assaulted her. The Applicant testified that he was not aware of any reason why the learners would make-up such a story.
46. The Applicant confirmed that he was informed about the incident on the same day by his colleagues. Ms. Sebakamotse further informed him that she already arranged with the parents of the learner to come to the school in order to resolve this matter. What was to be resolved if he did not do anything wrong? It is my finding that the incident of sexual assault that was reported to him by his colleagues is not far-fetched and that it is probably true.
47. I find the Respondent to have proved the charge against the Applicant. While the onus rest on the Respondent to prove the allegation against the Applicant, courts have set out the principle on evidentiary burden on the part of the employee. In other words, while the employer bears the onus and where the employer has presented as such weighty evidence that it requires rebuttal, lest it be believed, the evidentiary burden shifts onto the accused employee to prove otherwise. In outlining this principle, the court in Emfuleni Local Municipality v SALGBC and others (JR 2525/11) [2015] ZALCJHB 356 (handed down on 14 October 2015) held as follows:
“While the overall onus never shifts from the Employer, the need to present or counter evidence may rest on different parties. Once the Employer has proved its allegations with evidence to a degree that its version requires an answer or rebuttal lest it be believed, the evidentiary burden shifts onto the accused Employee to prove otherwise.”
The Applicant in the present proceedings has dismally failed in this regard. I conclude that the Respondent version was more probable to prove the Applicant’s charge of guilt.
Whether the sanction is fair?
48. On the issue of appropriateness of sanction, the Labour Appeal Court held in Department of Home Affairs and another v Ndlovu and others (DA 11/2012) (2014) ZALAC 11; (2014) 9 BLLR 851 (LAC); (2014) 35 ILJ 3340 (LAC) (handed down on 27 March 2014) that, in order to prove that the sanction of dismissal was appropriate, the Employer must present evidence to prove breakdown in the employment relationship. Such evidence is not necessary where the breakdown is apparent from the nature of the offence and or circumstances. The other question that need to be ask is whether the Applicant conduct destroy the faith and goodwill of the Respondent?
49. Certain conduct warrants action, even if it is not prohibited by formal rules or has not been formally communicated to employees. Employees are expected to know that certain behavior is simply unacceptable. An employee will not therefore generally be able to rely on the knowledge of the rule if the misconduct for which he was dismissed amounts to sexual assault. In Department of Labour v GPSSBC (2010) 31 ILJ 1313 (LAC) the Labour Appeal Court confirmed the principle that a sanction aimed at correction and rehabilitation is no purpose when an employee refuses to acknowledge the wrongness of his/her conduct. In this matter, the Applicant failed to accept the seriousness of his action or admission of any fault on his part. I have considered the totally of circumstances in order to decide a fair and appropriate sanction. It is important to note that sexual assault on a learner is a standard that should not be breached and that conduct was unwelcome and unwarranted. This kind of conduct is not acceptable within an educator and learner context particularly that an educator holds the balance of power in such a relationship.
50. Educators have a positive duty to ensure that learners are educated in a safe environment. The environment must be free from harassment of any nature but particularly harassment or assault of a sexual nature. Parents entrust their children for safe keeping at school. Educators take the role and responsibilities of parents while at school. Viewed against this background, the Educator’s conduct is viewed in an extremely serious light and is in contradiction of relevant legislation and legislation prohibits such conduct.
51. I have particularly considered the Employment of Educators Act 76 of 1998 as well as the South African Council of Educators (“SACE”) Code of Professional Ethics for educators. The SACE Code of Professional Ethics provides that educators; “respect the dignity, beliefs and constitutional rights of learners and in particular children” and that educator must: “refrain from any form of sexual harassment (physical or otherwise) of learners, and to refrain from any form of sexual relationship with learners from any school.” The protection of learners and consideration of their interests is paramount, particularly as educators are leaders within the school environment as well as leaders within the community environment. Such conduct serves to destroy the relationship of trust between employee and employer. The fact that no previous incidents on record was provided during the proceedings, does not necessarily mean that his conduct will not be repeated. In tribunals of this nature, consideration of the best interests of children, is paramount. My finding is aimed at the protection of children and in particular, vulnerable young girls.
Conclusion
52. In these circumstances, I find the dismissal of the Applicant to be substantively fair.
Award
53. The dismissal of the Applicant, Mr. Moilwa Stephen Motlatla, is found to be substantively fair and is confirmed.
Signature:
Commissioner: Khuduga Tlale
Sector: Education