ELRC363-22/23FS

Panellist: Khuduga Tlale
Case Reference No.: ELRC363-22/23FS
Date of award: 22 February 2023

In the matter between:

Department of Education – Free State Employer

And

Sello Shadrack Matela Educator

ARBITRATION AWARD

Details of hearing and representation
1. This matter was set down as an inquiry by arbitrator in terms of section 188A of the Labour
Relations Act 66 of 1995 as amended (“the LRA”) between Department of Education – Free
State (“Employer”) and Mr. SS Matela (“Educator”) in Bloemfontein on 14 October 2022 and concluded on 15 February 2023. Ms. L Cweba, Labour Relations Officer, represented the Employer and, an Educator appeared in person and Mr. MJ Mathe, SADTU full-time shop steward, represented him.

2. These proceedings were manually and digitally recorded. The Employer submitted a bundle of document, which was marked bundle “A”.

3. In all matters in which an Employer wants to take disciplinary action against an Educator for an alleged sexual misconduct towards any learner, an inquiry by an arbitrator, as intended by section 188A of the LRA, and clause 32 of the Dispute Resolution Procedures of the Education Labour Relations Council (“ELRC”), shall be mandatory. In this regard, I have noted section 3.3.1 of Collective Agreement 3 of 2018 of the ELRC.

Issue to be decided
4. I have to decide whether an Educator committed misconduct as per the allegation levelled against him. If I find that he did commit the misconduct, I have to decide on an appropriate sanction.

Background to the dispute
5. The Educator is currently employed as an educator (PL2) at RT Mokgopa Secondary School in Thaba Nchu, Motheo District. The Educator teaches mathematics at Grades 9 and 12. The Educator acknowledged receiving the allegation against him well in advance in July 2022. The notice of set down was served to the Educator’s trade union on 07 October 2022 and he confirmed that he had adequate time to prepare for the proceeding. The Educator’s representative stated that the inquiry might proceed even though they received the notice of set down in short space of time. I explained to the Educator his rights during the proceeding and he confirmed on record that he was comfortable to be represented by Mr. MJ Mathe. The ELRC appointed Messrs. L Mpitsi / Themba Tshabalala as an interpreters and Ms. TP Mokgwamme as an intermediary.

6. The allegation levelled against the Educator is as follows: Charge one- “You have contravened section 18(1)(q) of the Employment of Educators Act 76 of 1998 (“EEA”) in that on 25 February 2022, you conducted yourself in an improper, disgraceful or unacceptable manner when you asked a grade 12 learner, to hug you and to kiss you” For the purpose of this award, the name of the learner will be kept confidential and the learner will simply be referred to as “the learner”. The Educator registered a plea of not guilty to the charge levelled against him.

Survey of Evidence

Employer

First Witness: Learner

7. The witness testified under oath that she was at school on 25 February 2022. She was seventeen (17) years old and doing Grade 12 in the year 2022. On 25 February 2022 she was called by her classmate by the name of Kgomotso Mogale at around 10h00. Kgomotso said to her that the Educator was calling her together with another learner by the name of Thami to the laboratory (“lab”). The Educator stay at the lab during the break period. She went alone to the lab because Thami was busy with something.

8. She thought the Educator was calling her in relations with her school work. She found the Educator alone in the lab and she greeted him. The Educator was not at school that week and he came on the day in question. Thami arrived at the lab and the Educator asked him whether he was fine and, he left the lab. She asked herself a question, why the Educator had to call Thami only to ask him whether he was fine. The Educator said she missed her and she asked herself a question, why the Educator had to miss her? She was surprised and felt something wrong. The Educator said that she must hug him. Thami arrived before the Educator said he missed her.

9. The Educator was seated on the lab chair and busy on his laptop. She stand next to the Educator on her arrival at the lab. The Educator hugged her while seated. It was not a hug of a teacher to a learner. The reason she said it was not a hug of a teacher to a learner was because when he hugged her, his hands touches her buttons. The Educator said that her slack suit revealed her body especially her private parts. She was not used to talk with the Educator. They used to talk only about school work.

10. When the Educator said her slack suit revealed her private parts, she put her hands in front and the Educator removed her hands. The Educator continuing to comment about her slack suit that revealing her private parts. After a few minutes another learner arrived and she got a chance to leave the lab. She met her cousin sister outside and, she told her what had happened. She also informed her parents when she arrived home. She did not report the incident immediately at the school. The Educator asked her to kiss him and he kissed her while he was seated. The Educator was taller and it was possible to kiss someone while seated. The Educator had no right to kiss her on the mouth even though it was a baby kiss. She phoned her class-teacher on Saturday, 26 February 2022. They had an extra classes at the school on Saturday and she told her everything. It was her mother who reported the incident at the school.

11. Under cross-examination she stated that the learners knew where to find a particular teacher during break period. It was possible for her to know where to find the Educator on the day in question. At the lab, they did not discuss anything related with school work. It was the first time she had a private discussion with the educator. This incident happened on Friday, 25 February 2022. She thought the educator was calling her to congratulate her for performing well. On her arrival at the lab, it was something else. If the hug was about to congratulate her, why not hugging Thami? She was nervous and shocked about the educator’s conduct. The curiosity made her to come closer to him, thinking he was going to talk about her school results and his laptop was opened.

12. The Educator’s hands were around her waist and his hands were going up and down, touching her buttons. Thami did not observe the Educator’s conduct. It was not a proper conversation to a learner to say her trouser revealed her private parts. She was shocked and surprised about the words uttered by the Educator. She had a mixed emotions, not knowing how to behave. There was an event at the school on the day in question, that was the reason she did not report the incident immediately. The Educator was seated when he kissed her. She informed her class teacher the following day about what had happened and the Educator arrived. Ms. Zuko, her class-teacher, informed the Educator that there was a problem. The Educator wanted to be part of their conversation and she left them there.

13. If she was telling lies, the Educator could not have confessed to her mother and school principal. It was her mother who reported the incident to the school but she was not present. Why she had to lie about the Educator and what she would gain?

Second Witness: Ms. Dikeledi Mokopanele

14. The witness testified against oath that she was the mother of a learner. She was the one who reported the incident to the school after the learner informed her of what had happened. The learner said the incident happened at the lab. On her arrival at the school, the principal was dismayed about the incident and she said that the Educator brought changes to the school. She requested the principal to see the Educator. The principal arranged a meeting after school hours and the principal was part of the meeting. The Educator on his arrival at the meeting, he greeted them and confessed that he did it and apologised for his actions. She replied by saying she forgave him. The Educator confessed for hugging and kissing a learner.

15. The Educator displayed a sense of remorse and she said that she must not be afraid to send a learner to school. The Educator further promised that this incident would never happened again. The learner was not part of the meeting. It was quiet evident that the learner was crying because her eyes were reddish and swollen.

16. Under cross-examination she stated that she was informed about the incident by a learner. The learner never lied to her especially on serious issue like this one. She did not tell her what the Educator was doing at the lab. The learner told her that on her arrival at the lab, the Educator said she must remove the mask, he hugged and kissed her. It was the learner who removed the mask. She did not tell her whether the Educator was seated or not. The Educator’s hug was different from the normal one.

17. The Educator’s hands, touches her buttons. The Educator commented about her slack suit that revealed her private parts. The learner said that the Educator touches her private parts. The learner did not explain the type of kiss. She asked the learner whether she was crying and she replied in the positive. She started crying when she narrate the incident to her friends. She confirmed that the Educator confessed about his conduct. The Educator promised not to do it again and he apologized.

18. Under re-examination she stated that the Educator kissed the learner on the mouth.

Third Witness: Ms. Selekane Vinger

19. The witness testified under oath that she is employed as a principal at RT Mokgopa Secondary School. She stated that the learner’s mother came to the school on Saturday, 26 February 2022 to report the alleged incident. She wanted to hear from the learner herself exactly what had happened. On Monday, 28 February 2022, she called the learner to her office and the learner confirmed what the mother told her about the Educator. The learner said that the Educator says “O nkgopotse” meaning in English “He missed her”. The learner further said that the Educator asked her to hug her and she replied in the positive.

20. The learner and the mother did not inform her about the kiss, they only talked about the hug. The learner said that the Educator hugged her. She requested them to provide her with the written statement. Later the learner said that her parents says they would not be submitting any written statement. The mother wanted to see the Educator and she arranged the meeting. On the day of the meeting, she explained the purpose of the meeting. The learner’s mother told the Educator that she was not satisfied and disappointed. The mother told the educator to refrain from what he had done to the learner. The mother further said that the Educator must continue teaching the learner.

21. The Educator assured the mother of the safety of the learner and she reported the matter to the Employer. The Educator accepted what the mother said to him. The educator did not say a thing about the allegation during the meeting. The educator apologized for what the mother said because the learner came home upset.

22. Under cross-examination she stated that the meeting was initiated by the learner’s mother. The meeting did not ask the Educator of what happened on Friday, 25 February 2022 at the lab. The learner only complained about the hug and the look inside the slack suit. The mother said to the Educator that they would pray for him even the learner would pray for you.

23. Under clarity questions she stated that she was representing the Employer at the school level. The learner was a minor and her concern was about her. She stated that maybe the Educator knew what had happened at the lab but she felt that she could not interrogate the Educator about the alleged incident. During the meeting, she only heard the Educator accepting everything the mother said.

The Employee

First Witness: Mr. Sello Shadrack Matela

24. The witness testified under oath that he was aware of the incident happened on 25 February 2022. He knew the learner because he was teaching her mathematics in Grades 11 and 12. He was not at work from 22 to 24 February 2022 because he attended the workshop. On Friday, 25 February 2022, he reported for duty but there was a well done function at the school. He was sitting at the lab and at around 10h00 he called the learner and Thami. The learner arrived first and upon her arrival, he said to her, he missed them, meaning as a class. They talked about the learner’s school work performance.

25. The learner and Thami showed an improvement in their school work in the year 2021 and the first two months of the year 2022. While they were busy talking, Thami arrived. Thami informed him that he was going to fetch his food and he would come later. After Thami left, they continue talking. He gave a learner a hug and kissed her while putting the mask. He kissed the learner on the cheek. The learner did not remove her mask. He stated that he used the wrong word in his written statement when he said complimented her on her school slack suit that was tight and exposed her private parts as per “A3”. He wanted to use the word condemn not compliment.

26. He advised the learner to wear the top that would cover her private parts. She said that she would wear long top and she left. He stated that he was seated while talking to the learner at the lab. He stated that he hugged her on her waist and kissed her on the cheek while seated. He denied the allegation to say he touched her buttons. The learner seems to be surprised after the kiss but she did not indicate that she was not satisfied. Thami came back but the learner was already left the lab. Another learner arrived while the learner was still there. He talked to her about her school work and both of them left the lab. He stated that the learner’s mother confronted him about hugging and kissing the learner. He confirmed to the mother about the hugging and kissing and he apologised for his conduct.

27. Under cross-examination he stated that he was not a friend to the learner. He had no knowledge why his version was not put to the Employer’s witnesses. He denied the allegation to say he said that he missed the learner. He used the word them not her. He gave Thami the handshake for improving on his school work. He hugged the learner on her waist and she came closer to him that was when his mouth touches her cheek. After this kiss, the learner’s eyes became bigger and she bent backwards. He apologized for the hug and for his mouth touches her cheek. The learner’s slack suit exposed her private parts.

28. Under re-examination he stated that he apologized to the learner for his conduct after seeing her eyes became reddish.

29. Under clarity questions he stated that the learner was standing next to him while seated. As he pulled her close to him, that was when his lips touches her cheek. By pulling her closer to him, was when he hugged her and kissed her. He later said that he was not disputing the allegation levelled against him by the Employer.

Survey of Argument

Employer

30. The Employer representative stated that the learner’s testimony voids any suspicion that this could be a fabrication or blackmail to destroy the Educator’s reputation. The learner was reliable, factual and trustworthy. She gave her testimony in a clear and satisfactory manner. There was no contradiction in the learner’s evidence. The allegation levelled against the Educator had been proven on balance of probabilities. The learner and her mother gave chronological and consistent testimony.

31. The principal’s evidence was protecting the interest of the Educator and not of the learner. The Educator’s defence changed from mere denial to an admission that he hugged the learner on the waist and kissed her on the cheek. The Educator when leading evidence did not deny the allegation against him. By a mere hugging and kissing a learner, was a direct contravention of the values and obligations prescribed by the Code of Professional Ethics for Educators. The Educator’s action was calculative and intentional.

32. The Educator was in the position of trust but he abused his position of power and he took advantage of a young vulnerable learner. He breached his fundamental duty as an Educator by bringing the name of the teaching profession into disrepute. The Educator’s conduct was not acceptable.

Educator

33. The Educator representative stated that it had been proven from the word go that the Employer never had a case against the Educator. The Employer’s witnesses contradicted each other to scheme against the Educator. The evidence of Ms. Mokopanele and Ms. Vinger amounted to hearsay evidence. The hearsay was confirmed by the fact that they were both told by the learner about the incident.

Analysis of evidence and argument

34. It is important to note that the Educator was not charged for the following conduct; for saying the learner’s slack suit exposed her private parts, for touching her buttons and for saying he missed her. He was charged for asking the learner to hug and kiss him. The Employer is bound by the election it has made. The Employer cannot escape the consequences of the way it decided to word the charge sheet and the charge on which it proceeded to discipline the Educator.

35. 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.

36. The allegation against the Educator is that he conducted himself in an improper, disgraceful or unacceptable manner when he asked a grade 12 learner, to hug and to kiss him. 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.

37. 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 Educator conducted himself disgracefully?

38. The Educator is placed at the scene from the onset. The Educator called the learner and Thami to the lab, was similar, the learner arrived first at the lab, was similar, The Educator and the learner were together at the lab, similar, Thami arrived and he later left the lab, was similar. What then appears to be in dispute is whether the incident occurred as alleged? It is important to mention that the Educator denied the allegation against him from the onset.

39. It is the Educator’s version that as he pulled her close to him, that was when his lips touches her cheek. By pulling her closer to him, was when he hugged her and kissed her. This Educator’s version was implying that he kissed the learner unintentionally.

40. This version was not put to the Employer’s witnesses, especially, the learner, during her cross-examination to give her an opportunity to respond. In NUM and another v CCMA and others (2018) 3 BLLR 267 (LAC), the Court set aside an award where the Commissioner found for the employee on facts that were not put to employer’s witnesses. It was held: “[14] from the record, it is apparent that the Labour Court correctly determined that the allegation of racial abuse had not been put to the employer’s witnesses in cross-examination. The purpose of a proper cross-examination is to place a one-sided version, which often results from examination-in-chief, into proper perspective by eliciting facts which place a different complexion on the matter, or by demonstrating that the witness is untruthful. In eliciting from an opposing witness facts which are beneficial to the case of the cross-examiner’s client and to put such client’s opposing and contradictory version to the witness, the decision-maker is placed in a position which permits evidence to be properly and appropriately assessed. Since key aspects of the employee’s case were not put to the employer’s witnesses in cross-examination and had not been canvassed in the evidence of those witnesses in chief, their version on such aspects was not placed before the Commissioner. The result was that the Commissioner was unable to determine the issue before him in the manner required”. Therefore, this version was untested and cannot carry weight.

41. It is the Employer’s undisputed evidence that the Employee hugged and kissed the learner at the lab. Mr. Mathe is a full-time shop steward and cannot be said to be illiterate, or an uneducated person. One of his main duties is to represent his members’ in arbitration proceedings. He therefore knows he should put his members’ versions to the Employer. This leaves me in a position where I have not heard the Employee’s version regarding the said allegation.

42. I need to mention that during the Applicant’s evidence in chief as the witness, he confirmed the allegation against him and further said that he apologized. The Educator’s evidence contradicted each other. The Educator was not a reliable and honest witness. He further testified that the conduct did not occur intentionally. The written statement submitted by the Employer’s representative did not prejudice the Educator. The Educator when leading evidence stated that there was an error in his statement as per “A3”. He did not dispute the written statement. It is clear that he was aware of the contents of the written statement and he was not prejudiced for been submitted late during the proceedings. It is clear that the Educator was simply try to defend his unacceptable conduct.

43. The Educator confirmed what happened on the day in question 25 February 2022 orally and in writing, therefore, the written statement is admitted as an evidence. I have taken into consideration the demeanour of the learner and her mother and believe that they were credible witnesses and provided honest testimony and their evidence should not be doubted. The testimony of Ms. Vinger was questionable. It is important to note that she is the school principal and one of her responsibilities was to safeguard the safety of the children at the school level. She tried her utmost best during the proceeding to distance herself from what happened at the school on the day in question. It is clear from her testimony that she was protecting the Educator because since his arrival at the school, mathematics results improved. She called the meeting that involved herself, Educator and the mother of the learner but she distance herself from the discussion of that meeting. She was not reliable and honest witness.

44. It is my finding that the incident of an improper conduct against the Educator is not far-fetched and that it is probably true. I find the Employer to have proved the charge against the Educator. While the onus rest on the Employer to prove the allegation against the Educator, courts have set out the principle on evidentiary burden on the part of the Educator. 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 Educator 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.”

45. The Educator when leading evidence corroborated the evidence of the learner and confirmed that the conduct did occur. I conclude that the Employer proven the allegation against the Educator.

Sanction

46. 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 Educator’s conduct destroy the faith and goodwill of the Employer?

47. 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 charged amounts to sexual assault. Even though the Educator was not charged for saying the learner’s slack suit revealed her private parts, it is clear that the Educator’s intention was not only about hugging and kissing.

48. It was the learner’s undisputed evidence that she was shocked and nervous about the Educator’s conduct. It is the learner’s undisputed evidence that the kiss was beyond a teacher and a learner’s kiss. The Educator’s conduct was unwanted even if it was the single conduct or act. It is clear that the Educator’s conduct was unwanted of a sexual nature. I have considered the totally of circumstances in order to decide whether dismissal will be a fair and appropriate sanction if it was not mandatory. 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.

49. 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.

50. I have particularly considered the EEA 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.

Award
51. I find the Educator, Mr Sello Shadrack Matela, guilty of the charge that preferred against him and I, as a consequence, impose a sanction of summary dismissal effective from 01 March 2023.

52. The General Secretary of the ELRC must, within 14 days of receipt of this award, report or refer the award to the educators’ professional body, SACE.

53. The Educator, Mr Sello Shadrack Matela, has the right to take this award on review to the Labour Court as envisaged in Section 145 of the LRA and to do so within the prescribed timeframe.

Signature: 
Commissioner: Khuduga Tlale
Sector: Education