ELRC876-22/23FS

IN THE EDUCATION LABOUR RELATIONS BARGAINING COUNCIL

THE INQUIRY-BY-ARBITRATOR BETWEEN

THE SUPERINTENDENT-GENERAL
FREE STATE DEPARTMENT OF EDUCATION EMPLOYER

and

MR DAN MOEKETSI BAAS EMPLOYEE

Case No: ELRC876-22/23FS
Dates: 24 March 2023
Venue: Provincial Office of DOE, Bloemfontein

AWARD

DETAILS OF HEARING AND REPRESENTATION

1. This is the award in the disciplinary matter (Inquiry-By-Arbitrator) between the Free State Department of Education (the employer) and Mr Dan Moeketsi Baas, the employee.

2. The Inquiry-By-Arbitrator (hereinafter ‘the Inquiry’) took place on, 24 March 2023, at the provincial offices of the employer in Bloemfontein. Both parties attended the Inquiry. The employer was represented by Ms Lindiwe Cweba, its Labour Relations Officer. The employee, was represented by Mr Makompane Mathe, a Full-Time Shopsteward from the trade union South African Democratic Teachers Union (hereinafter ‘SADTU’).

3. The Inquiry was held under the auspices of the Education Labour Relations Council (hereinafter the Council) in accordance with section 188A of the Labour Relations Act (the LRA), read together with Clause 32 of the Council’s Dispute Resolution Procedure as well as the Council’s Collective Agreement (Resolution 3 of 2018). The award is issued in terms of section 138(7) of the LRA.

4. The proceedings were digitally recorded, and Mr Seabelo Skhasa was the Interpreter. Mrs Mathapelo Twala was the Intermediary. The parties requested at the end of the Inquiry to submit their closing arguments in writing by 31 March 2023, where after the award shall then follow.

ISSUE TO BE DECIDED

5. I am called upon to decide whether the employee committed misconduct as per the allegation levelled against him. If I find that he did commit the misconduct, I must decide on an appropriate sanction.

BACKGROUND TO THE DISPUTE

6. It is common cause that the employee is employed by the employer as an Educator in English and Sesotho since November 2017, at Ntemoseng Secondary School in Botshabelo, to date. The employee was notified of the allegation on, 25 January 2023.

7. The allegation levelled against the employee is as follows:

Charge 1
You have contravened Section 18 (1) (q) of the Employment of Educators Act No 76 of 1998, in that on 17/10/2022, you conducted yourself in an improper, disgraceful or unacceptable manner when you dragged a grade 8 learner (the Learner) to your office and asked her to kiss you.

8. The employee pleaded not guilty to the charge. The employee was properly served with a notice to appear at the Inquiry and was provided with sufficient time to prepare for the case. His rights and obligations were also properly explained to him at the commencement of the Inquiry.

9. For purposes of this award, the name of the learner shall be kept confidential. The learner was 14 years old at the time when the alleged incident took place. The alleged incident took place at the office of the employee. The employee denies having asked the Learner to kiss him.

SURVEY OF EVIDENCE AND ARGUMENT

10. This section constitutes a brief summary of the evidence and arguments put forward by the parties. It is not intended to be exhaustive, but I have taken all the submissions into consideration in arriving at my conclusions.

Documentary Evidence

11. Only the notice of the disciplinary hearing was tendered as evidence by the employer.

Employer’s Case

12. The Learner, testified as the first witness of the employer. She narrated what happened on Monday 17 October 2022, during the second period. The Learner testified that she asked for a bathroom break, which was granted to her by her Mathematics Teacher. She stated that on her way back from the bathroom, and in the corridor, she met the employee who asked her to accompany him to his office. The Learner stated that she told the employee that she could not, because she was on her way to her mathematics class.

13. The Learner testified that the employee then placed his arm around her shoulders, which caused her to scream-out her sister’s name. She stated that the employee then covered her mouth with his other hand, and that the two of them passed around five classrooms in that state, before they entered the employee’s office. The Learner stated that at the employee’s office, the employee let go off her, and that they entered the office together. She stated that the employee then took a seat, and asked her to kiss him. She stated that she refused to kiss him.

14. The Learner testified that she then went out of the office, in which the employee tried to stop her, by grabbing her on her shoulders. She stated that in an attempt to avoid the employee from grabbing her, she took an object, and hit the employee on his head. The Learner testified that she went back to her mathematics class and sat there until it was break.

15. The Learner testified that a few periods later, she informed her arts teacher about the incident. She stated that the Arts Teacher advised her to bring her parents to the school. The Learner stated that she narrated the story to her elder sister, who in turn informed their mother. She stated that she also explained everything to her mother.

16. The Learner testified that her mother told her not to go to school the following day, and that she (the mother) would go to school on the Wednesday. The Learner testified that she also met a gentlemen during the subsequent exams, who asked her to withdraw the case. She stated that she did not reply to the request. The Learner demonstrated during the hearing how the employee placed his arm around her and covered her mouth. She stated that she did not report the alleged incident to the mathematics teacher, and she also cannot remember the object she used to hit the employee with.

17. In cross-examination, the Learner stated that the whole scenario lasted for about 10 minutes. She described the covering of the mouth as painful and difficult for her to get out of it. The Learner stated that the employee request for a kiss was done behind closed doors. She stated that she was still in shock upon her arrival in the mathematics class, which was the reason why she did not tell the teacher.

18. Ms Sibongile Adoons ‘Ms Adoons’, the Learner’s mother, testified as the second witness of the employer. She confirmed that her elder daughter broke the news to her, and that the Learner was in tears when she approached her. Ms Adoons testified that the Learner did not want to go to school the following day. She stated that the Learner also narrated the alleged incident to her and that she and her husband decided to report the matter to the principal.

19. Ms Adoons testified how the matter was reported to the principal, and how the principal summoned the employee to her office, and how the employee denied the allegations against him. She stated that she decided to report the matter to the Police, because she did not trust that the principal would escalate the matter to the employer. Ms Adoons stated that the Learner only opened-up to her the following day (the Tuesday) and narrated the incident to her. She stated that the police case is still ongoing.

20. In cross-examination, Ms Adoons stated that she did not regard the reporting of the incident as urgent, because the Learner has reported the employee to her on previous occasions. She stated that the Learner and the employee used to communicate on facebook, and that she (Ms Adoons) did not report any previous incidents to anyone.

21. Mrs Ann Mothalosa “Mrs Mothalosa”, the Principal, testified as the third witness in the employer’s case. She testified that on Wednesday, 19 October 2022, the employee brought the allegations to her attention. Mrs Mothalosa testified on how the employee denied the allegations and how the parents of the Learner confronted the employee on the Tuesday with all unhappiness.

22. Mrs Mothalosa testified on how she called the parents in on that Wednesday, in order to hear the side of the Learner. She stated that the arts teacher told her the previous day on how she (arts teacher) would like to record an incident, in the school’s incident book. Mrs Mothalosa testified that the parents also met with her deputy principal on the Tuesday, and how she decided to report the matter to the employer.

23. In closing arguments, the employer’s representative submitted that the employer’s witnesses, including the Learner, were all excellent and reliable. She submitted that the employee only denied the allegations, which does not mean that the version of the Learner was not probable. The representative claimed that the employee has put the employer into disrepute, and that the conduct of the employee went against the profession’s Code of Code. She submitted that the employer views the conduct as serious.

Employee’s Case

24. Mr Dan Moeketsi Baas, the employee, testified as the first witness in his case. He denied the allegations against him and testified about his whereabouts, on the Monday morning second period, and how he was never nearby the child. The employee stated that he supervising children who were eating during the second period, whereafter he joined an entertainment meeting after that with the arts teacher and some of the matriculants.

25. The employee testified that there was a situation on the Friday preceding the Monday, in which the deputy principal and the arts teacher told him that the parents of the Learner raised an issue about him having conversations with the Learner on Facebook. He stated that the parents of the child would have visited the school on Monday 17 October 2022, a visit which never took place. The employee stated that it was the end of the Friday allegation and that nothing ever came of it. He stated that he was shocked to learn about this new allegation on the Wednesday thereafter.

26. In cross-examination, the employee stood by his testimony and did not contradict himself.

27. Ms Refuwe Rakatsinyane “Ms Rakatsinyane”, the Mathematics Teacher, testified as the second witness in the employee’s case. She testified that she remembered how the Learner asked for a toilet break on that day, during her period. Ms Rakatsinyane testified that there was nothing untoward or peculiar about the appearance of the Learner upon her return some three to five minutes later. She stated that the Learner did not report anything to her or looked traumatised for that matter. Ms Rakatsinyane stated that she only learned about the allegation later that day when the police called her about the allegation.

28. In closing arguments, the employee’s representative submitted that the employer does not have a case against the employee. He submitted that it is highly unlikely that the employee would dragged the Learner with his arm around her, and his other hand on her mouth, and dragged her through two blocks, passing five classrooms, to his office and ask her for a kiss.

29. The representative stated that it is impossible for the employee to do that without anyone noticing or the Learner running away. He submitted that the Learner’s version is unreliable because she cannot even remember the object she used to hit the employee with, and that the employee never had even a bruise on that day of the ‘so-called’ struck on the head with the object. The representative submitted that the employer relied heavily on hearsay evidence (deputy principal and arts teacher) and that the employee must be acquitted on this basis and the improbability of the allegation.

ANALYSIS OF EVIDENCE AND ARGUMENT

30. As stated previously, the employee pleaded not guilty to the charge levelled against him. The employer called three witnesses and the employee two. The Learner (who at the time was 14 years of age) gave unreliable evidence in that her testimony is inconsistent with the timing of the ‘event’.

31. Having taken into account the distance between the bathrooms and the office of the employee, I find it improbable that the everything which the Learner claimed to have happened (her going to relief herself in toilet, the conversation she had with the employee in the corridors, the walk between the two blocks and passing at least five classrooms, the conversation in the office, the attempted fight in the classroom, her walking back to her mathematics classroom), all took place in a period of 10 minutes.

32. Ms Rakatsinyane was not challenged by the employer under cross-examination that the Learner was back at the classroom after around five minutes from the bathroom, and that the Learner was as normal as she left the classroom. Based on the fact that Ms Rakatsinyane’s version was not challenged and rebutted by the employer, I have no reason in doubting her observation.

33. The Learner’s mother, Ms Adoons, gave evidence on how the matter was reported to her, and how she decided to only report the matter two days later. She stated that she had an impression that the principal was not keen to report the matter to the employer, thus her decision to report the matter to the police. The police did not testify at the hearing to confirm the accuracy hereof, however, I will accept that the matter was reported to the police, based on the testimony of Ms Rakatsinyane.

34. The principal, Mrs Mothalosa, did not give direct evidence but only testified on how the reporting procedures unfolded. Her version contradicted that of Ms Adoons, in that Ms Adoons denied having visited the school on the Tuesday whereas Mrs Mothalosa and the employee agreed that Ms Adoons and her husband was at the school on the Tuesday. This evidence caused me to regard Ms Adoon’s testimony as unreliable and nothing but an effort to prejudice the employee.

35. The employee was also emotional during his testimony and gave a proper account of his whereabouts during the second period and what he was doing. The employer did not rebut these submissions under cross-examination, but capitalised on why the Learner would make such allegations. The employee responded that there was an effort the previous Friday to have him taken on for communicating with the Learner on Facebook, an allegation which he denies, and which was never proven. I have no reason or evidence before me to reject the employee’s impression that this second allegation (the current charge about the second period of Monday 17 October 2022), was nothing but a second bite by his peers (especially the arts teacher), to make him account for something which he never did.

36. I find it odd that the arts teacher, who was the first one to whom the Learner reported the alleged incident of Monday morning to, did not testify at the hearing. Surely, she could have either confirmed or contradicted Ms Rakatsinyane’s observation. The Learner’s version of the events was not corroborated by anyone (or at least the arts teacher or a fellow learner).

37. It is my impression of the case that due to the fact that the Friday allegation (the allegation about the Facebook conversations) was not sustained, that the Monday morning allegation came as an afterthought to get at the employee. The behind-the-scene accusers of the employee (the arts teacher and the deputy principal) did not testify about both the Friday and Monday allegations, which leaves the employer’s case devoid of the truth.

38. Section 18(1)(q) of the Employment of Educators Act (the EEA) provides the following:

Misconduct
18. (1) Misconduct refers to a breakdown in the employment relationship and an educator commits
Misconduct if he or she -
(q) while on duty, conducts himself or herself in an improper, disgraceful, or unacceptable manner.

39. The evidence before me shows that the employee was busy supervising children at the schools feeding scheme during the second period of Monday 17 October 2022. No evidence was presented by the employer to prove that the employee was not at the feeding scheme during that period and that he was in his period. The employer did not prove on a balance of probabilities that the employee had contact with the Learner during the second period, and that the employee conducted himself in an improper, disgraceful or unacceptable manner.

40. I find it highly unlikely, that the employee, who was awaiting the parents of the Learner to visit the school for the Friday allegations, and who never arrived at the school on the Monday, would proceed on the Monday to ask the Learner for a kiss, whilst knowing very well that there were impending allegations against him regarding the same Learner.

VERDICT

41. The employer, Free State Department of Education, has failed to prove on a balance of probabilities, that the employee has conducted himself in an improper, disgraceful or unacceptable manner on 17 October 2022.

42. The employee, Mr Dan Moeketsi Baas, is found not guilty on the charge.

This is done and dated on 18 April 2023 at Kimberley.


Adv. David Pietersen
ELRC COMMISSIONER
Inquiry-By-Arbitrator