PSES448 -11/12LP

Commissioner: R de Wet
Case No.: PSES448 -11/12LP Date of Award: 4 April 2012

In the ARBITRATION between:


SADTU obo MA MARAKA
(Union / Applicant)

and


DEPARTMENT OF EDUCATION LIMPOPO
(Respondent)


Union/Applicant’s representative: Mr MH Makhafola

Telephone: 082 809 3873
Telefax: 015 294 2450


Respondent’s representative: Ms KP Tshiovhe

Telephone: 015 290 9351
Telefax: 086 275 0396

DETAILS OF HEARING AND REPRESENTATION:

[1]. The dispute was referred to the Education Labour Relations Council (hereinafter referred to as the
“ELRC”) in terms of Section 191(5)(a) of the Labour Relations Act, No. 66 of 1995 (hereinafter referred to as “The Act”). The matter was scheduled for Arbitration on the 26th of March 2012. The hearing was held at 113 Biccard & corner Excelsior Street, Block 5, Voorwaarts Buildig, Polokwane.

[2]. Mr MA Maraka, the Applicant (hereinafter referred to as “Maraka”), was present and was represented by Mr Makhafola, Official from SADTU, whilst Ms Tshiovhe, from the Labour Relations Department, represented the Respondent, the Department of Education (hereinafter referred to as “The Respondent” or “DOE”).

[4]. In accordance with Section 28(2) of the Constitution, every child’s best interests are of paramount importance in every matter concerning the child. Section 28(3) refers to a child as a person under the age of 18 years. For the purpose of this award, it serves to mention that I was informed that all persons present or implicated in whatsoever manner in this referral was above the age of 18 years of age. However at the time of the disciplinary hearing the pupil in question was still a minor. She was however not called to testify during these proceedings. Although no longer a minor I will nevertheless observe the provisions of Section 28(2) of the Constitution and therefore protect the identity of this learner in this award.

ISSUE TO BE DECIDED:

[5]. Whether the dismissal of the Applicant was substantively fair. In the event that I find in the negative, I must decide upon an appropriate remedy.

BACKGROUND:

[6]. The Respondent is a public entity, engaged in the education of learners in South Africa. In South Africa there is a single national education system, which is organized and managed by the National Department of Education and the nine Provincial Departments.

[7]. The Applicant was an Employee of the Department of Education in Polokwane, and during the time of his dismissal, occupied the position of Educator Level 1 at George Tladi Secondary School in the Capricorn District.
[8]. It was common cause that the Applicant commenced his duties with the Respondent on the 23rd of February 2006, and at the time of dismissal was remunerated at an annual rate of R129 948-00.

[9]. The critical events that gave rise to this matter being referred to the ELRC for resolution, occurred during or about the period January to August 2009, when a complaint was formally received by one Mr Makgalefa. Simultaneously or about the same time, a news paper article appeared in the Sowetan whereas it was reported that a Teacher told a Pupil to abort “their” baby.

[10]. On the 5th of October 2009 a notice to attend a disciplinary hearing was issued to the Applicant, which was received on the 13th of November 2009. Three allegations of misconduct were proffered against the Applicant. For the sake of completeness I will record these allegations:-

Charge 1:

“You contravened the provisions of Section 17(1)(c) of the Act in that between the period January to August 2009 at or near George Tladi Secondary, you had a sexual relationship with “Learner MR”, a Grade 11 learner of the School where you are employed.

Charge 2:

You contravened the provisions of Section 18(1)(f) of the Act in that between the period Januayr to August 2009 at or near George Tladi Secondary, you had a sexual relationship with “Learner MR” a Grade Eleven (11) learner, and therefore, you unjustifiably prejudiced the administration, discipline and efficiency of the Department.

Charge 3:

You contravened the provisions of Section 18(1)(g) of the Act in that between the period January to August 2009 at or near George Tladi Secondary, you had a sexual relationship with “Learner MR” a Grade Eleven (11) learner, and therefore, you misused your position in a School to prejudice the interests of the learner.”

[11]. As a result of the pre-dismissal procedures invoked by the Respondent, the Applicant was dismissed on the 17th of October 2011.

[12]. The Applicant is of the view that his dismissal was unfair since he did not breach the rule as encapsulated in Section 18(1)(c), (f) or (g) of the Employment of Educators Act, No. 76 of 1998 (hereinafter referred to as “The EEA”). The procedural fairness of the dismissal is not in dispute.

[13]. In the event that I find in the Applicant’s favour, he expressed his preference to be re-instated to his position.

SURVEY OF EVIDENCE AND ARGUMENT:

[14]. It is not my intention for the purposes of this award, to record verbatim the evidence led, submissions made and arguments raised on record. Only the salient points of each parties’ evidence, that have a bearing on the issue in dispute to be decided, are recorder hereunder.

RESPONDENT’S VERSION:

[15]. The first witness called by the Respondent was Mr Tshoshi John Mojapelo.

[16]. Mojapelo testified that he was the investigating officer, who investigated the allegations against the Applicant and ultimately represented the Respondent during the disciplinary hearing of the Applicant.

[17]. According to him during an interview with the respective learner on the 24th of August 2009, she confirmed that she was in love with the Applicant. She further informed him that after informing the Applicant of her pregnancy she asked him to assist her in aborting the pregnancy. Initially the Applicant refused but ultimately he acceded to her request and gave her R500-00 to have the pregnancy terminated.

[18]. After being given three tables to insert into her genitals, she started to feel bad. She went to her mother and confessed to her before being rushed to hospital by ambulance. The fetus was then removed whilst in hospital. The hospital informed them that the fetus must be buried by the family. The Maraka family was involved in the burial of the fetus whereas they offered to buy the coffin.

[19]. Subsequently, the Maraka family paid R3 000-00 in damages to the learner’s family.

[20]. After relaying what had transpired, he asked “Learner MR” to reduce what she had told him to writing, which she duly did. He confirmed that Page 2 of the Bundle of Documents, was the statement made by her on the day in question.

[21]. During the hearing, “Learner MR” however changed her statement to such extend that she was declared a hostile witness. It was evident from what the mother of “Learner MR” had said that the Applicant was well known to the family as he stayed in the same street as they did and they even referred to him as a “brother”.

[22]. The mother of “Learner MR” however expressed her discontentment with the manner in which the Applicant treated her daughter.
[23]. The second and last witness called by the Respondent was Mr Mpule Phineas Makgalefa

[24]. The witness indicated that he was not comfortable speaking English. It was thereafter agreed by all the parties, including the Applicant, that Ms Kgatle Christina would assist with linguistically duties. She duly took the affirmation before interpreting the questions and answers.

[25]. Makgalefa testified that he is the uncle of “Learner MR” and as such he was called to assist when she was rushed to hospital. He testified that the mother of “Learner MR” approached him and asked whether something can be done about the matter. She was however caught between two fires. On the one hand she wanted the Applicant to face the full consequences of the law, but on the other, he is assisting financially with the second born child from her child, who he is also suspected of being the father.

[26]. He further explained that he was told that the family of “Learner MR” has agreed with the Maraka family to the amount of R3000-00 that was to be paid for “damages”.

[27]. Subsequently, he was also told by “Learner MR” that the wife of the Applicant threatened her. This nevertheless appeared not to have put an end to the relationship and the Applicant continued to see “learner MR” and as a result, or so it is assumed, the two of them have a second child together. He is assisting financially in the rearing of the child, by buying milk for the baby.

[28]. This whole ordeal caused his sister and her daughter to move away from where they were staying.

APPLICANT’S VERSION:

[29]. The one and only witness called by the Applicant Trade Union was Mr Mongwko Alfred
Marake (The Applicant).

[30]. He testified that he knew “Learner MR” from the school where he was teaching. He further admitted that he knows her parents, being from the same village. He however denied having had a sexual relationship with “Learner MR”.
ANALYSIS OF EVIDENCE AND ARGUMENT:

[31]. In dismissal disputes the onus of proof that a dismissal was fair, rests on the employer. (See: Section 192 of the Act). In the present matter before me the Respondent had to prove, on the balance of probabilities, that the dismissal of the Applicant was procedurally and substantively fair.

[32]. Furthermore, in my analysis of the evidence and in terms of the provisions of Section 188(2) of the Act, I am obliged to take into account any relevant Code of Good Practice that is issued in terms of the Labour Relations Act in determining the procedural and substantive fairness of the Applicant’s dismissal.

[33]. For the purpose of deciding the substantive fairness of the Applicant’s dismissal, I took into account the Code of Good Practice: Dismissal, item 7, Guidelines in cases of dismissal for misconduct, as set out in Schedule 8 of The Act.

The substantive fairness of the Applicant’s dismissal:

[34]. I took in consideration the following questions of fact:

“(a) whether or not the Applicant contravened a rule or standard regulating conduct in, or of relevance to, the workplace; and

(b) if a rule or standard was contravened, whether or not-

(i) the rule was a valid, or reasonable rule or standard;

(ii) the Applicant was aware, or could reasonably be expected to have been aware, of the rule or standard;

(iii) the rule or standard has been consistently applied by the Respondent; and

(iv) dismissal was an appropriate sanction for the contravention of the rule or standard.”

[35]. In the case before me, and in accordance with the issues placed in dispute at the commencement of the proceedings by the Applicant Trade Union, the Applicant’s basis for his challenge against his dismissal was that he did not breach the workplace rule as alleged by the Respondent. All other issues were considered to be common cause between the parties.

[36]. If seen in the light of the evidence of the Respondent, then Mr Maraka had a sexual relationship with “Learner MR”, he then assisted her in aborting the pregnancy, whilst continuing with the relationship. The Maraka’s family then negotiated a settlement for damages and even assisted in the burial of the fetus. Subsequently the Applicant had another child with “Leaner MR” whereas he continues to assist financially in the needs of baby.

[37]. The problem however with the evidence from the Respondent, is that the Respondent seeks to rely solely on hearsay evidence. Majola who was the investigating officer testified that he interviewed the respective learner who freely related the version of having had a sexual relationship with the Applicant. He further testified that he, subsequently asked her to reduced her statement to writing, which she duly did. He confirmed that the statement (Page 2 Bundle “A”) was made by the learner and reflects exactly what she has told him on the day.

[38]. Makgalefa, the uncle of “Learner MR” testified that he was told by the mother of the learner that she had aborted the child of the Applicant. He further testified that he was not personally present, but was informed that a settlement in terms of damages was then negotiated between the two families. Further he submitted that “Learner MR” informed him that the wife to the Applicant threatened her. In conclusion he testified that he was told that the Applicant is still frequenting the home of “Learner MR” as he has fathered a second child with her, and that he provides for this baby by purchasing milk.

[39]. The Applicant on the other hand offered nothing more than a bare denial. I must further state that his demeanor whilst testifying was not very convincing. He was constantly fidgeting with the documents he had before him and was evasive in the extreme when questions in cross-examination were put to him.

[40]. Be that as it may, the onus of proof rests with the Respondent, and the question to answer is whether, in considering the evidence before me, it can be concluded that the Respondent discharged that onus. The general rule regarding hearsay evidence is that it is generally inadmissible, however Section 3 of the Law of Evidence Amendment Act 45 of 1988 provides primarily an exclusionary rule. The provision reads as follows:-

(1) Subject to the provisions of any other law, hearsay evidence shall not be admitted as evidence at criminal or civil proceedings, unless –
a. Each party against whom the evidence is to be adduced agrees to the admission thereof as evidence at such proceedings.
b. The person upon whose credibility the probative value of such evidence depends, himself testifies at such proceedings; or
c. The court having regard to-
i. The nature of the proceedings;
ii. The nature of the evidence;
iii. The purpose for which the evidence is tendered;
iv. The probative value of the evidence;
v. The reason why the evidence is not given by the person upon whose credibility the probative value of such evidence depends;
vi. Any prejudice to a party which the admission of such evidence might entail; and
vii. Any other factor which should in the opinion of the court be taken into account…”

[41]. Section 138(1) of The Act, further provides for the proceedings in the arbitration to be disposed of with the minimum of legal formalities. The standard of proof is further on a balance of probabilities, and therefore more readily acceptable for hearsay evidence to be admitted.

[42]. If consideration is to be given to the nature of the evidence, and the consequent probative value thereof, it must nevertheless not be forgotten the myriad of factors that affect reliability (Schwikkard, van der Merwe, Principles of Evidence [2009]). Indicators of reliability may be that the statement was made against the interest of the person making the statement. In the matter before me it is common cause that the witnesses who testified during these proceedings, where not known to the Applicant prior to the investigation and or disciplinary hearing. It should further be noted that there was no contradictory evidence presented during the hearing.

[43]. Turning to the purpose for which the evidence was tendered, Mojapelo testified that he investigated the matter and later represented the Respondent during the disciplinary hearing. He submitted that the witness, initially during the investigation freely conveyed the relationship that existed between herself and the Applicant, which ultimately resulted in a statement made by the witness. However subsequently she contradicted herself to such extend that she was declared a hostile witness during the hearing. He was of the view that the Applicant was guilty of the offence charged, and demanded a determination in this regard. Makgalefa testified that he is the uncle of the learner and was approached by the mother who demanded protection for her child but who in the same vane found herself between the devil and the deep blue sea with the Applicant assisting financially in the rearing of her grandchild. He testified that he could not just stand by idle without seeking justice.

[44]. The reason why the evidence was not given by the person upon whose credibility the probative value depends, seems to be that she does not want to bite the hand that feeds them, figuratively speaking, with the Applicant providing aid to her second child. As for the mother of the learner, it was submitted that she was devastated by having to chose between having justice for what was done to her daughter by the Applicant on the one hand and being appreciative of the fact that he is currently assisting financially with the rearing of his second child with her daughter. In this instance it however appears that the decision made by this witness was that the financial benefit of not testifying outweighs any benefit that may come from pursuing the matter against him.

[45]. The Applicant Trade Union argued strongly against the admission of hearsay evidence submitting that it cannot be subject to reliability checks.

[46]. Another factor that I took into account was the absence of any explanation from the Applicant as to why the learner and both the other two witness would lie to me.

[47]. Mojapelo testified that “Learner MR” wrote the statement (page 2 of Bundle “A”) in front of him. The statement was interpreted as follows:-

“I was in love with Mr Manaka. During that period I felt pregnant. I forced him to give me money to abort that pregnancy. He didn’t force me it is me who forced him to give me that money. He didn’t allow me to make abortion it is me who forced him. I went to the clinic and they gave me the pill to abort that pregnancy I went to Frans hospital that is where I got assistance. After my parents sent me to that hospital these are the ones that I remember that I wrote.

[48]. The statement is all but clear insofar the existence of a relationship, however it is stated by the learner that she forced the Applicant to give her money to have an abortion done, and that she was in love with him. The probative value to be attached to it would accordingly not be substantial. The statement does not make it clear that the Applicant was the father of her child, it only states that “during this period” she fell pregnant. Mr Makgalefa’s evidence however corroborates the version that there was a relationship, stating that he was called when the learner was taken to hospital and informed about the identity of the father. He also testified to the Maraka family paying damages to the family of the learner.

[49]. Even though Mr Makgalefa impressed me as a witness, it must nevertheless not be forgotten that his
evidence was purely hearsay. All that he testified to he was told by either “Learner MR” and or her mother, who both at this present moment failed to testify in support of the Respondent’s version.

[50]. Having regard to the facts before me I can accept that “Learner MR” fell pregnant and that she
subsequently had an abortion. What is not that clear from the evidence before me is whether there is a causal link between this pregnancy and the Applicant, who obviously denied any involvement. The evidence placed before me is clearly relevant and therefore admissible. The weight to be attached to it will accordingly be evaluated.

[51]. The Applicant disputed the evidence lead by Mojapelo where he stated that the Applicant’s family
negotiated a settlement with the learner’s family on the amount of damages to be payment as well as the involvement in the burial of the fetus. He did not dispute having paid the R500-00 to the learner in order to get an abortion.

[52]. With regards to the evidence of Makgalefa, the Applicant challenged the version whereas it relates to him proving for the second child by buying milk, by the learner being threatened by his wife.

[53]. The Applicant in his evidence denied that he had a relationship with the learner, that he or his family entered into negotiations regarding the payment of damages, that his wife threatened the learner and that he is currently assisting in the maintenance of the second child of the learner.

[54]. After a careful conspectus of the evidence before me, I am all but convinced that the evidence from the Respondent is sufficient to prove the allegations against the Applicant. The Respondent’s evidence not only suggest that the Applicant had a sexual relationship with the learner, but it further seeks to support the fact that the Applicant paid a sum of money to the Applicant to have an abortion done, as well as a sum agreed upon between the two families for damages. All these allegations are denied by the Applicant. In the absence of any further evidence I have to conclude that the Respondent failed to discharge the onus vested upon them and thereby conclude that the dismissal of the Applicant was substantively unfair. It must clearly be stated that the Applicant’s dismissal is found to have been substantively unfair, not because of an absence of wrongdoing on the part of the Applicant, but because of an absence of facts to prove any wrong doing.

[55]. Surprizingly, no evidence or otherwise was put before me to suggest that re-instatement would not be
a practical or feasible remedy. Since that was the wish of the Applicant I could find no reason why it
would not be fit and proper for me to make such order.

AWARD:

[56]. In the light of the above, I find that the dismissal of the Applicant, to be substantively unfair.

[57]. The Respondent, is ordered to reinstate the Applicant, with effect from the date of dismissal, ie the 17th
of October 2011, retrospectively, and to a position similar to the one occupied prior to the dismissal
with benefits no less favorable than those that prevailed at the time of dismissal.

[58]. The Applicant must report for duty on the 24th of April 2011.

[59]. The Respondent, is ordered to pay to the Applicant the outstanding salary from date of dismissal, 17th of October 2011 to the 24th of April 2012 as mentioned in Par.54 supra, on or before the 15th of May 2012, failing which the Applicant may elect to invoke the provisions of Section 143 to enforce this award. The amount referred to is R59 976-00 being the aggregate of 6 months remuneration.

[60]. Interest will accrue on the compensatory amount from the date payment becomes due, as mentioned
in paragraph 59 supra, and in accordance with Section 143(2) of The Act;

[57]. No order as to costs is made.

ELRC Commissioner : R de Wet Date : 4 April 2012