PSES671-18/19KZN

IN THE ELRC ARBITRATION
BETWEEN:

S DLAMINI “the Applicant”
and
THE HEAD OF THE
DEPARTMENT OF EDUCATION – KWAZULU-NATAL “the Respondent”

Award

Case Number: PSES671-18/19KZN

Date of arbitration: 25 & 26 October 2022

Date of award: 4 November 2022

J KIRBY
ELRC Arbitrator
Education Labour Relations Council
ELRC Building
261 West Avenue
Centurion
Tel: 012 663 0452
Fax: 012 643 1601
E-mail: gen.sec@elrc.co.za
Website: www.elrc.org.za

DETAILS OF HEARING AND REPRESENTATION

1. The arbitration was heard on 25 and 26 October 2022 and both parties requested to submit written closing arguments.
2. The attorneys of record for Siduduzo Dlamini (the Applicant) were Connie Marais Attorneys, who instructed another attorney, M T Moodley, to represent him at the arbitration. The Applicant and one other witness gave oral evidence and a bundle of documents marked exhibit B was submitted on his behalf.
3. The Respondent, the Head of the KwaZulu-Natal Department of Education, was represented by its employee, Mr T M Mchunu. Three witnesses gave oral evidence on behalf of the Respondent, who also submitted a bundle of documents marked exhibit A.
4. The alleged misconduct subject to this arbitration is of a sexual nature involving a learner who was a child at the time of the alleged misconduct. In order to protect her privacy, she will be referred to as “the Learner” throughout this award.
5. The services of an interpreter were utilized.
6. The proceedings were digitally recorded.

TERMS OF REFERENCE AND ISSUES TO BE DECIDED

7. The arbitration is in respect of an alleged unfair dismissal. I am required to determine whether the dismissal of the Applicant was substantively and procedurally fair and, if not, what relief ought to be granted to him.
8. At the commencement of the arbitration Ms Moodley submitted that while the arbitration could begin, she would seek a postponement prior to its conclusion to enable her to have the record of the criminal trial arising from the alleged misconduct of the Applicant, to be transcribed. In that the criminal trail had been finalized in 2020, I ruled that no postponement for that purpose would be granted.

BACKGROUND
9. The Applicant was dismissed after having been found guilty of the following alleged misconduct:
“In that on or about 15 August 2017 at or near Manqamu High School you committed a misconduct when you sexually assaulted the Learner while on duty, when you touched her private part and commented by saying “it’s big” or “because of the pubic hairs.” By so doing you contravened section 17(1)(b) of the Employment of Educators Act 76 of 1998 (the Act.)
10. The Applicant and the Learner were an educator and learner respectively at Manqamu High School (the School.)
11. At the date of the alleged misconduct the Learner was 17 years old. She has since matriculated and is presently a student at a tertiary institution.
12. The Applicant was notified on 28 November 2017 that his disciplinary hearing would be held on 13 December 2017. On 20 April 2018 he was notified that he had been found guilty and had been dismissed. In May 2018 he had lodged an appeal but he was informed on 17 October 2018 that his appeal had been unsuccessful and that he was dismissed with effect from 1 November 2018.

SUMMARY OF EVIDENCE
THE RESPONDENT

13. The Learner testified that during the lunch break on 15 August 2017 she had received a message that the Applicant wanted to see her. She had asked some male learners to accompany her to the laboratory at which she knew the Applicant spent his breaks. When they had reached the laboratory the Applicant had sent one of other learners to go and sign the class register. The others had also left so that the Applicant and the Learner were alone in the laboratory.
14. The Applicant was the Learner’s mathematics educator. He had her exercise book and said that she had written rubbish and laughed. He had then touched her private parts (vagina) and said that her “womanhood was big” and that he did not know if was because of her pubic hair. The Learner had immediately said that she was leaving. The Applicant had responded by holding her and saying that she should not act in an inhumane way.
15. The Learner had been shocked and scared. The windows of the laboratory were largely opaque as there was yellowish/brown plastic in place.
16. Her first lesson after the lunch break was with the Applicant. She had initially reported the incident to a Ms Shange who had told her to report it to her class teacher Ms Magagula who, once she had heard out the Learner, had told her that she was going to report the incident to the principal, Ms Xulu.
17. The principal had subsequently called the Learner to her officer. Once the Learner had relayed the incident to her, Ms Xulu had called the Applicant to her office. When he had arrived at the office the Learner had once again repeated her accusation. The Applicant had apologized saying that he had been “playing” and that he liked her like his daughter.
18. Ms Xulu had said that if she wanted to take the matter further, the School would support her. Later she had told her mother and they had decided to open a criminal case. On 16 August 2017 they had proceeded to Richards Bay police station to open a criminal case.
19. There were approximately eight male educators at the School. There was no reason for her to falsely accuse the Applicant.
20. Under cross-examination the Learner stated that she would estimate that she had not spent longer than 5 minutes with the Applicant in the laboratory.
21. At the time of the assault there had been nobody else in the laboratory. There might have been others outside the laboratory at the time but when she had left it she was too shocked to notice. She agreed that it was not unusual for there to be learners near to laboratory during breaks as it was alongside a netball court. She indicated that someone could see through the yellowish/brownish plastic windows if they placed their face up against the plastic. There were no curtains in place.
22. The Applicant had touched her private parts with the back of his hand.
23. The Learner had not asked other learners to escort her to the Applicant as she feared him in anyway. It was simply because the laboratory was quite a distance from where she had been when she was summoned to the laboratory and she had not wanted to go alone. It was put to the Learner that the Applicant would testify that there were other learners in the laboratory at the time. The Learner disputed this.
24. The Learner and Applicant had initially been facing one another on opposite sides of the laboratory desk but she had moved to his side of the desk when he had taken out her exercise book. She had not cried out when the Applicant had assaulted her. She had just stepped back.
25. She had attended the mathematics lesson presented by the Applicant after the lunch break and had gone to the office of the principal the following lesson.
26. Bongiwe Sarah Xulu (Xulu) is the principal of the School. She has known the Applicant for approximately 10 years and at the date of the incident she was the acting principal.
27. After the break she had been approached by Ms Magagula, the Learner’s class teacher. After listening to her report, she had called the Learner to her office. The Learner was crying when she came to her office. She had told her what had happened between the Applicant and herself. Xulu had then called the Applicant to her office and asked the Learner to relate once again what had happened at the laboratory. The Learner had then repeated what she had said earlier; namely, that the Applicant had touched her private parts. Once the Learner had done so she had asked the Applicant whether he was aware of what the Learner had said. The Applicant had responded that he was aware and that he was sorry and had been joking.
28. As the Applicant did not dispute the allegations of the Learner, Xulu understood her role to be to advise the Learner on what steps she should take. She had advised her to report the matter to the police. The Learner had indicated that she would first speak to her mother. Later that day she had advised the circuit manager of the incident.
29. Under cross-examination it was put to her that the legal guardian of the Learner was her domestic worker. This was denied.
30. Xulu agreed that the Applicant had been on sick leave for a considerable period of time prior to the alleged incident. The day of the incident was his first day back at work. It was put to her that this complaint had no merit and it was a ploy to have the Applicant dismissed so that a permanent replacement could be put in his place and his absences due to illness were placing a strain of the other educators at the School. This was denied.
31. It was put to Xulu that the Applicant had never admitted to wrongdoing. Xulu’s response was that he had.
32. Xolile Patience Shange (Shange)testified that during the first period after the lunch break she had been approached by the Learner and told that the Applicant had touched the Learner’s private parts. She had told her to report the incident to her class educator as at the time she was on her way to give a lesson.
33. Under cross-examination Shange confirmed that the Learner had approached her during the first period after the break.
34. Ketiwe Magagula (Magagula) has been employed at the School since 1995. On 15 August 2017 the Learner had approached her in her classroom and informed her that the Applicant had touched her private parts. She had told the Learner to go and attend her lesson and that she would speak to the Applicant. Instead of speaking to the Applicant she had reported the alleged incident to Xulu. Xulu had asked her to call the Learner to the office so that she could hear her side of the story. After the Learner had informed Xulu of what the Applicant had done, Xulu had told her to call the Applicant to the office. She had gone to the Applicant and told him that Xulu wanted to see him. After she had entered the office he had heard him say that he was sorry. As the Applicant had reached the office before her she had not been there when he had started speaking and thus she did not know in respect of what he had said he was sorry.
35. She has known the Applicant for a considerable period of time and there was no reason for her to have falsely implicated him.
36. Under cross-examination she said that she and the Applicant enjoyed a normal working relationship and that they had not had any disagreements in the past.
37. The Learner had reported the alleged incident to her after the break but she could not state during what period after the break this had been.
38. Magagula had not accompanied the Applicant to Xulu’s office and so when she had reached the office and heard him say that he was sorry, it was possible that he was referring to something other than the incident of the Learner.

THE APPLICANT
39. The Applicant is 54 years old. He has two daughters aged 27 and 23 years old. He did not return to work after 15 August 2017 as he is a diabetic and had tuberculosis and had been hospitalized. He took various medications for his illnesses and certain of them had serious side effects.
40. Although his disciplinary hearing was due to be held on 13 December 2017 it had not proceeded on that day and had only been held the following year.
41. On the day in question he had called the Learner to the laboratory as he had wanted to discuss the mistakes she had made with her trigonometry. After he had seen her he had helped the male learners who had accompanied the Learner to the laboratory. He had not touched the Learner in anyway.
42. After the lunch break the Learner had attended his lesson and whilst he was teaching his next lesson he was informed by Magagula that he was wanted by the principal.
43. As he had not been coping at work, he and Xulu had been holding discussions about him possibly going on long leave. This would enable the School to hire a replacement for him. He had thought that he was being called for further discussions in this regard. when he had entered the office and Xulu had said there was this matter that she needed to discuss, he had assumed it related to his absences caused by his illness and he had apologized.
44. He had not formally disciplined the Learner. He suspected that the Learner was used by Xulu as his absences had put pressure on her in terms of getting the grade 11 learners ready for final year of school.
45. There were learners outside and at the door of the laboratory. Those outside the laboratory can see in through the windows. They may be dirty but they are transparent and not yellow.
46. At his criminal trail he had pleaded and been found not guilty.
47. Under cross-examination it was put to him that the disciplinary hearing did not proceed on 13 December 2017 as his trade union had asked for a postponement. He was unaware of this but agreed that he had been represented by his union.
48. He agreed that he had been given notice of his disciplinary hearing and that the said notice informed him that he had the right to present evidence at the hearing. He submitted, however, that he was unaware of this. It was also not explained to him that he can ask additional questions to those asked by his trade union representative.
49. The Applicant agreed that the Learner had come to the laboratory accompanied by male learners but he denied having sent one away to sign the register. These had left after a while and there were then no learners inside the laboratory besides the Learner. There were also other learners waiting for their turn outside at the doorway to the laboratory.
50. It was only a while after having entered the office of Xulu that he had realised that the Learner was present. Magagula had entered later. He had entered under the impression that they were going to discuss his leave but it was later alleged that he had touched the Learner. He had apologized when Xulu had said “there is this matter…” He had not allowed her to complete the sentence before apologizing.
51. He believed that Xulu was under pressure at the time and the Learner had been used in an effort to get rid of him. She wanted to have someone replace him permanently as he had been off sick often. She was only acting principal at the time and he was also a contender for the position of principal. It was put to him that this version had not been put to Xulu. The response of the Applicant was that the relationship between Xulu and the Learner had been raised.
52. He had been represented at his disciplinary hearing by his trade union representative and the notice to attend his disciplinary hearing at pages 2-3 of exhibit B had advised him of his rights to representation, to present evidence and call witnesses.
53. As Xulu was paying for the Learner’s tertiary education this might explain why she was still willing to testify against him after she had left the School a number of years ago. This version had not been put to Xulu or the Learner.
54. Under re-examination the Applicant testified that he and Xulu had last discussed the issue of his leave possibly on the Friday preceding him being called to the office on Monday, 15 August 2017.
55. Thobani Armstrong Sigwaza (Sigwaza) is a former classmate of the Learner. The Applicant had also been his grade 11 mathematics educator. He is 25 years old and left school before writing his final examinations.
56. On 15 August 2017 he had been at the door to the laboratory whilst the Applicant assisted the Learner. The Applicant and the Learner were on opposite sides of the desk, with the Learner standing with her back towards him and the Applicant was seated. He initially stated that this had been at approximately 10:35 am but later stated that it had been at approximately 11:25 am.
57. When the Learner had left the laboratory he had not noticed anything unusual with her and she had attended the mathematics class with the Applicant immediately after the break.
58. Although some of the windows at the laboratory are made of plastic, they are all transparent.
59. Under cross-examination Sigwaza could not remember in which year he had started school. He had failed twice.
60. In 2017 the Applicant had contacted him and others and told them about the allegations made by the Learner. They had decided that they could not allow the Learner to get away with lies. He had testified at the criminal trial.
61. He gave various versions as to how he learnt about the arbitration hearing. He initially said that the Applicant had contacted him; he then said that the Applicant had contacted his mother and finally he said that Hlophe, an educator at the School, had given him the Applicant’s contact number for him to contact the Applicant.
62. When asked to name other classmates, he was unable to do so. in re-examination he mentioned the nicknames of five former classmates.

CLOSING ARGUMENTS
RESPONDENT
1. The Respondent did not submit closing arguments.
APPLICANT
2. Extensive closing arguments were submitted on behalf of the Applicant. I have considered these arguments, which I summarize below:
2.1. The Applicant’s appeal was decided on paper and as such he was denied the opportunity to present new evidence that had not been available at the date of his hearing;
2.2. The Learner appeared to have been coached in her evidence as it was so similar to her initial statement despite the lapse in time;
2.3. Her evidence of an assault is improbable as if it were to be true, she would not have attended the lesson given by the Applicant immediately after the alleged assault;
2.4. The evidence of the other witnesses for the Respondent amounted to hearsay evidence;
2.5. There was a contradiction between the evidence of the Learner and other witnesses for the Respondent in that she testified that attended the class of the Applicant whereas it was the evidence of other witnesses that she had lodged her complaint during this lesson;
2.6. The Applicant had answered all questions put to him satisfactorily;
2.7. The evidence of Sigwaza was flawed in that he had difficulty recalling events;
2.8. Whereas the disciplinary hearing had initially been postponed on the request of the Applicant’s representative, the Respondent had then taken approximately 4 months to reinstate it. This was procedurally unfair;
2.9. The delay in holding the hearing and then the further delay in deciding on his appeal were procedurally unfair as he was not paid during these periods;
2.10. The Respondent had not established that the Applicant was guilty of sexual harassment;
2.11. The Learner seems to have been motivated to get back at the Applicant for having criticized her homework.

ANALYSIS OF EVIDENCE AND ARGUMENT
64. The Respondent is required to establish on a balance of probabilities that the dismissal of the Applicant was procedurally and substantively fair.
65. The Applicant was dismissed following a formal disciplinary hearing at which he was found guilty of having contravened the provisions of section 17(1)(b)of the Act in that on or about 15 August 2017 he had committed an act of sexual assault on a learner. It is not in dispute that the Learner was at the School and that the Applicant was an educator at the School.
66. The Learner was the only witness to the alleged assault called by the Respondent. She was 17 years old at the date of the alleged assault. She testified that after having been summoned to the Applicant and whilst he reviewed certain of her homework, he had touched her private parts with his hand.
67. On the other hand, the Applicant denied that any such assault took place. He does not dispute that on 15 August 2017 he had called the Learner to the laboratory at which he was sitting during the break but he states that no such assault took place. In support hereof he states that the assault could not have taken place as stated by the Learner as they were on opposite sides of a laboratory desk and that the Learner had not moved closer to him, as she had stated, when he was showing her workings in her exercise book. He called a witness, Sigwaza, who had been a classmate of the Learner In support hereof. Sigwaza states that whilst he stood at the doorway to the laboratory the Applicant and the Learner had remained at opposite sides of the desk, that he had not witnessed an assault and that the Learner had not exhibited any signs of distress when she had left the laboratory. The Applicant, however, concedes in his closing arguments that Sigwaza was a less than satisfactory witness.
68. In addition to the Learner, the Respondent called three others witnesses; namely the School principal, Xulu, her class educator, Magagula, and the educator whom she had initially approached on the day of the alleged incident, Shange. All three witnesses testified and it is evident from their evidence that the Learner had told them a version of events that coincided with her testimony at this arbitration. It was argued on behalf of the Applicant that the evidence of these witnesses was hearsay evidence. While this might be true in respect of the alleged assault, it is not true in the respect detailed below.
69. After the Learner had informed Xulu of the assault, the Applicant had been summoned to her office. It was the evidence of both the Learner and Xulu that on his arrival she had asked the Learner to repeat her allegations. The Learner had done so and the Applicant had acknowledged their correctness and apologized. Magagula had arrived at the office in time to hear the Applicant apologise but as she had not been present from the start of their interaction, she did not know the reason for the apology.
70. The Applicant does not dispute having apologized whilst at the office of Xulu. His version differs, however, from that of Xulu and the Learner. He avers that in the days preceding the alleged assault he and Xulu had been engaged in discussions concerning his ill health and his need to be absent from the School as a result. On being summoned to her office, he had assumed that it was to continue these discussions. He had not noticed that the Learner was present in the office and as soon as Xulu had started speaking and without allowing her to proceed he had interrupted her and apologized. No explanation was given by him as to why he felt the need to apologise seeing that he and Xulu, on his version, had been involved in ongoing discussions concerning his health. It also makes no sense why he would only notice the presence of the Learner in the office after he had interrupted Xulu and apologized. I find that the version of the Learner and Xulu that had acknowledged the version as given by the Learner and thereafter apologized to be substantially more probable that that of the Applicant that he was unaware of the Learner’s presence and had blurted out an apology to Xulu without even allowing her to complete her sentence.
71. It follows from my finding above that I find the version of the Learner that she was sexually assaulted by the Applicant in the laboratory to be more probable than the version of the Applicant and his witness. The Learner gave her evidence in a consistent and calm manner. It was submitted on behalf of the Applicant that her evidence was so consistent with her initial statement that it was indicative of her been coached in the presentation of her evidence. I did not get that impression. Hers was a simple story. She did not embellish it anyway. I find her to have been a credible and reliable witness. Having regard to the acknowledgement and apology of the Applicant, I find that the evidence for the Respondent wholly more probable than the denial of the Applicant. As already indicated it was conceded on behalf of the Applicant that the evidence of Sigwaza was less than satisfactory and, in any event, he conceded that it was possible that he would not have seen an assault from where he was allegedly standing at the time.
72. Having regard to all of the above I am satisfied that the Respondent has established that the Applicant had sexually assaulted the Learner and thus that he is guilty of having contravened the provisions of section 17(1)(b) of the Act.
73. The Applicant challenge to the procedural fairness of his dismissal was primarily based on two elements; namely, that he was prevented from leading new evidence at his appeal and that the delays in finalizing his disciplinary hearing and then in hearing his appeal were unfair, in particular, as he was on suspension without pay.
74. In terms of item 9 of the Disciplinary Code and Procedures for Educators the Applicant had no right to present fresh evidence at his appeal. It was within the discretion of the Member of the Executive Council to decide whether to allow for further representation (not evidence) by the Applicant or Respondent.
75. With regards to the delays in holding the disciplinary hearing and then the appeal, the only procedural dispute as agreed at the pre-arbitration meeting was that the delay in finalizing the appeal constituted procedural unfairness. No evidence in any event was led by or on behalf of the Applicant as to why he regarded the delay in rescheduling his hearing after it had initially been postponed on the request of his representative as being unfair. It was argued on his behalf that he had not been paid his remuneration from the date of his suspension and hence any delay in finalizing his appeal was self-evidently unfair. No evidence was led in this regard and it was not an issue raised at the pre-arbitration meeting. The Applicant’s salary advice, which is at page 28 of exhibit B, but was not referred to during evidence is dated 31 October 2018 and records that he was paid his monthly remuneration. Without any other evidence establishing that the appeal result being announced approximately 5 months after the disciplinary hearing amounted to procedural unfairness, I am satisfied that the dismissal of the Applicant was procedurally fair.

AWARD
11. The dismissal of the Applicant, Siduduzo Dlamini, is found to have been procedurally and substantively fair.

J Kirby
Arbitrator 4 November 2022
PSES671-18/19KZN