ELRC619-22/23GP

IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD AT SANDTON

Case No: ELRC619-22/23GP

In the matter between

MOLONGOANA ME Applicant

and

GAUTENG DEPARTMENT OF EDUCATION Respondent

ARBITRATOR: Adv S Fourie

HEARD: 3 April 2023;

FINALISED: (7days to submit closing statements 14 April 2023)

DELIVERED: 24 April 2023

INQUIRY BY ARBITRATOR - ARBITRATION AWARD

DETAILS OF THE HEARING AND REPRESENTATION

1. The Inquiry by Arbitrator, was heard at Soshanguwe Teacher Centre, Soshanguwe, on 3 April 2023. The Employee, Mr. Morake Molongoana (“Molongoana”), was present and represented by Ms. Boikutso Mmule (“Mmule”), a representative of the trade union SADTU. The Employer was represented Mr. David Mashishi (“Mashishi”), its labour relations officer. It was not compulsory for an intermediary service due to the minor witness in concern, was not presented as a witness. The minor witness’s identity is known to the parties. Mr. Marvin Seale was present as the interpreter.

THE ISSUES TO BE DETERMINED

2. I am required to determine whether the employee is guilty of the charges levelled against him and if so, to determine the appropriate sanction in terms of Section 188A of the Labour Relations Act 66 of 1995, as amended (“LRA”). This is an arbitration award issued in terms of Section 138 of the Labour Relations Act 66 of 1995 (as amended) read with Section 188A (9) of the LRA, that states that an arbitrator conducting an inquiry in terms of this section must, in the light of the evidence presented and by reference to the criteria of fairness in the Act, rule as to what action, if any, may be taken against the employee. The employee Morake Molongoana pleaded not guilty to both allegations listed hereunder.

BACKGROUND TO THE DISPUTE

3. Molongoana, is employed by the Employer from 01 February 2015. At the time of this enquiry at Modiri Secondary School, as a PL1 educator earning a basic salary of R300 210.00 per annum. The employee was placed on precautionary suspension at Tswane West District Office on 31 October 2022. Two charges were levelled against the employee being:

Allegation 1

It is alleged that during term 1 on 2022 and on 20 September 2022, you conducted yourself in an improper, disgraceful and unacceptable manner in that while on duty, you told a grade 12 Learner, that her breast is nice and that you wish to squeeze it. In view of the above allegation, you are thus charged in terms of section 18(1) (q) of the Employment of Educators, Act 76 of 1998 as amended.

Allegation 2

It is alleged that during term 1 on 2022 you committed an act of sexual assault in that, while in the staff room, you squeezed the breast of a grade 12 Learner at the school. In view of the above allegation you are charged in terms of section 17(1)(b) of the Employment of Educators, Act 76 of 1998 as amended.

SUMMARY OF THE EVIDENCE

4. This is an arbitration award issued in terms of Section 138 of the Labour Relations Act 66 of 1995 (as amended) and referred to as the LRA read with the changes as required by the context read with Section 188A (9) of the LRA, that states that an arbitrator conducting an inquiry in terms of this section must, in the light of the evidence presented and by reference to the criteria of fairness in the Act, rule as to what action, if any, may be taken against the employee. This award is not intended to be a verbatim transcript of the evidence led at the inquiry by arbitrator hearing but rather a determination with brief reasons for such determination.

5. Evidence relevant to the determination or to support any of the elements of fairness as required may be referred to. This however does not mean that I failed to consider other evidence or ignored such evidence in coming to my decision. The Employer submitted a bundle of documents (Bundle ‘ER’ 1 – 15 pages). The Employee accepted the bundle submitted for what it purports to be.

The Employer’s case

6. Ronald Maake (Maake), testified under oath. He knows the employee and is an Educator at his school where he is the Principal. The Deputy Principal reported the incident to him after the Learner complained at her class teacher, Matlakala who then reported it to her grade head, Mr. Mabena. Both Matlakala and Mabena went to the Deputy Principal because he was not in the office at that time. On his return, he saw them and the Deputy reported it to him as they came to explain it in his office. Maake then called Molongoana to make him aware of the allegations.

7. He stated that Molongoana explained that he knows the Grade 12 Learner and has a good relationship with her making jokes about things. The Learner also calls him “papa” from time to time. Molongoana told him that when joking, he told her that he wishes he could squeeze her breast. It was reported that Molongoana then did squeeze the Learner’s breast.

8. He then informed the parents and reported the allegations to the District in writing (see A page 10). The Learner’s father called later to inform him that the Learner was not coping well with Molongoana to teach her after which another teacher was allocated and Molongoana reported to the District.

9. The Learner had a discussion with him where he apologized and informed her to focus in preparing for the upcoming exams. When they called her farther, she did explain that Molongoana squeezed her breast but most information she told to her class teacher, Matlakala. Maake also stated that the Learner is family to him being his niece and he wanted to support her being in grade 12. She also had two friends who supported her.

10. During cross examination he stated that Molongoana is a professional, knowledgeable teacher and very good going an extra mile with grade 12 learners. He agreed that the learner – teacher relationship with Molongoana is very good and viewed him to be a humble man being the reason he was shocked when he was informed of the incident. In briefing sessions, they discussed teacher’s conduct especially the relationship with learners. He told the Educators by saying: “Ga re je stoko” meaning we don’t engage in sexual relationship with learners.

11. David Malau (Malau), testified under oath. He is the Deputy Principal and knows Molongoana. He also knows the Learner who is in Grade 12 and taught her as well. On the 21st of September 2022, the teacher Matlakala reported the incident to her Grade Head, Mr. Mabena. Both reported the incident to him that Molongoana wanted to squeeze the Leaners breast and that he touched her. There were two previous incidents that was not reported. When they talked to Molongoana, he said that he touched the Learner’s breast but not that he squeezed it. He also said that he played with her and did not mean to do it. Hereafter they reported it to the Principal.

12. He stated that the Learner also explained to him that in the 1st term Molongoana wanted to squeeze her breast but did not think that he was serious. She also said that it happened for a second time when he wanted to touch her breast and she reported it. When she explained the occurrence she was shivering in unbelieve.

13. During cross examination, he stated that the incident was reported to him. He agreed that the Molongoana’s behavior with learners was good like a father, and did a lot of effort with them in the afternoons. He trusted Molongoana and was unbelievable when he heard about the allegations. The incident was first reported to the teacher when Molongoana touched the Learner. He stated that Molongoana told them that he played with the Learner and said that he touched her but not that he squeezed.

14. Sello Jacob Mabena (Mabena), testified under oath. He is the Grade 12 Head and the Head of Department. The Learner was in grade 12 during 2022. On the 21st of September 2022, during break time, Matlakala reported to him that the Learner told her. He then informed the Deputy Principal. He assisted them and all went to his office for Matlakala to explain properly. Matlakala explained that the Learner told her that Molongoana on a previous occasion when they completed Telkom forms said that he wishes he could squeeze and touch her breast. Also on a second occasion when they checked marks, Molongoana touched her breast. The third time when Molongoana told her again that he wished to squeeze her breast, she reported the incident to Matlakala.

15. They called Molongoana to inform him about the allegations. He responded that he could not recall the second incident about touching the Learner, but that he did say he wanted to touch her breast. He also said that the Learner takes him like a father and making jokes with each other. He did not mean to harm her.

16. During cross examination, he stated that Molongoana is a good person and assist learner by providing extra classes for them. He was surprised when he heard about the allegations. Most of the time Molongoana is with learners especially the class of the Learner. The incident was reported to him by Matlakala who mentioned the first incident when the Learner and Molongoana filled out the Telkom forms when the first utterance was made that he would squeeze her breast. The second incident was when Molongoana touched her breast when they checked the marks. Thereafter there was a third incident. Molongoana was called to the office to hear his side of the allegations to which he responded he did not touch the Learner but conceded to the words uttered because they joked with each other. Molongoana always joke around with everyone. He also concurred that the Principal always remind them of the Code of Conduct.

17. Pearl Matlakala (Matlakala) testified under oath. She stated that she is a colleague to Molongoana and knew the Learner in Grade 12. On 21 September 2022, during break time the Learner came to her who wanted to tell her something that bothered her. The Learner was very emotional and that she did not go to Molongoana being uncomfortable. She told her that during the first term during the holidays, she was at school to submit Telkom forms. It was when Molongoana told her he wishes he could squeeze her breast. She asked the Learner the reason she did not report it but the Learner did not respond. The Learner also stated that that during the first term, Molongoana managed to touch her breast over a weekend when she was dressed in casual clothes. On 20 September 2022, when she went to the staff room to check her marks, Molongoana again wanted to squeeze her breast.

18. Matlakala then reported it to Mabena who informed Malau, the deputy Principal. The Learner was uncomfortable with the Molongoana and Malau said he would organize another teacher to prepare the Learner for her final year. All of them were together at the staff room and Molongoana was also called to inform him about the allegations. Molongoana could not recall the incident the Learner compliant about during the first term but the incident the day prior, the 20th of September 2022, Molongoana responded that it was a joke and did not think the Learner would take it that far because he was just joking. The Principal was also informed and joined the meeting. Molongoana showed remorse and apologized. Matlakala then requested for the parents to be informed and they were requested to be at the School the following day the 22nd of September 2022. The parents understood but Molongoana’s apology was not enough for them. The social worker, Boitumelo was also requested to assist.

20. During cross examination, she stated that she did ask the Learner the reason she did not reported it earlier but she was uncomfortable and also did not inform her parents. To the statement that Molongoana used to joke with the Learner, Matlakala responded that Molongoana is a bubbly person being surprised of what happened. Molongoana would not harm learners and they call him papa like a father - daughter relationship.

The Employee’s Case

21. Morake Molongoana (Molongoana), testified under oath. He acknowledged that the Principal explained the seriousness of any relationship with learners during their briefing sessions. He explained that learners are from disadvantaged backgrounds and in class he motivates and inspire them. When their marks are not good he would correct them in a joking way to perform better.

22. To the statement that he touched or squeezed the Learner’s breast, he responded that he knows the Code of Conduct and only joke with them to upper their marks. Most of the time the learners are happy with the jokes he makes and he would say if a joke was offensive that it was not his intention to harm but rather to excel.

23. He stated that two learners came to check their marks on 20 September 2022. He was in his office when the Learner send him a WhatsApp to enquire about her marks. The one had good marks but the Learner’s marks were not good. He then joked to say that he will squeeze her breast if she does not better her mark. He had no intention to harm her but to motivate her and the Learner just laughed at the remark. Hereafter the Learner kept a distance from him and he realised that it must have been sensitive to her. He stated that the Learner’s like him calling him papa and they would always be in a group and not individually with him. He does not view it to be sexual harassment and also realised the words uttered caused hurt the Learner and would not utter such words again.

24. During cross examination, he stated that the words he uttered was in a joking way and not to hurt the Learner. In relation to the first allegation, he stated that he pleaded not guilty because it was not the words he uttered. He did not say that her breast is nice but conceded that he said he would squeeze her breast to motivate her when they came to check their marks. The Learner performed well until she became ill where after she requested the Principal for him to be teacher. He never said words with the intention to hurt the Learner. Molongoana denied the allegation to have touched or squeezed the Learner’s breast.

SUBMISSIONS IN ARGUMENT

25. Both parties agreed to submit arguments (inclusive of mitigating and aggravating circumstances) in writing which was useful. The submissions were carefully considered, but will not be repeated here, as the contents basically mirror what was put during the leading of evidence and cross-examination in the arbitration hearing itself. None of the submissions convinced me to a different outcome that has been reached.

ANALYSIS OF EVIDENCE AND ARGUMENT

26. Written arguments inclusive of mitigating and aggravating evidence were submitted by both parties.

27. In order for a dismissal to be fair, Section 188A of the Labour Relations Act requires and Inquiry by arbitrator. An employer may, with the consent of the employee or in accordance with a collective agreement, request a council, an accredited agency or the Commission to appoint an arbitrator to conduct an inquiry into allegations about the conduct or capacity of that employee. The onus is on the employer to prove the allegations levelled against the employee. The parties in this matter agreed that I am required to determine whether the Molongoana committed the offences he is charged for under paragraph 3 above.

28. It is common cause that Molongoana was a teacher to the Learner, in grade12. It is common cause that the Learner did not testify at the arbitration for reason listed in correspondence submitted by Mashishi dated 7 March 2023. It is common cause that the Learner complained to Matlakala who informed the Mabena the Grade-Head who informed the Deputy Principal Malau for all to end up at the Principal’s office. It is also common cause that Molongoana was called in to the Principal’s office whilst all of them were together.

29. I am guided by item 7 of the Code of Good Conduct on Dismissals contained in Schedule 8 to the LRA (hereinafter referred to as "the Code") which requires me to consider whether or not the Molongoana contravened a rule regulating conduct in or of relevance to the workplace referring to misconduct in terms in terms of section 17(1)(b) and section 18(1)(q) of the Employment of Educators, Act 76 of 1998 as amended.

30. Attention is drawn to Section 18(1)(q) which reads: ‘while on duty, conducts himself or herself in an improper, disgraceful or unacceptable manner’ read with section 3.6 of South African Schools Act: thus ‘refrains from improper physical contact with learners’. Also Section 17(1)(b) which reads: ‘committing an act of sexual assault on a learner, student or other employee’ read with section 3.9 of South African Schools Act: thus ‘refrains from any form of sexual harassment (Physical or otherwise) of learners’.
;
31. Whether Molongoana during term 1 on 2022 and on 20 September 2022, you conducted himself in an improper, disgraceful and unacceptable manner in that while on duty, he told the Learner, a grade 12 Learner, that her breast is nice and that you wish to squeeze it. Whether Molongoana during term 1 on 2022 committed an act of sexual assault in that, while in the staff room, he squeezed the breast of Learner, a grade 12 Learner at the school.

33. Molongoana claims that he did say he would squeeze the Learner’s breast in a joking fashion but denied that he squeezed or touched her breast. He also denied that he said that the Learner breast is nice. In Moahlodi v East Rand Gold & Uranium Co Ltd (1998) 19 ILJ (IC) the court formulated the test as follows: an employer need not to be satisfied beyond reasonable doubt that an employee has committed the offence. We must remind ourselves that this is not a criminal trial and that the employer is therefore not required to prove the guilt of the applicant beyond a reasonable doubt. The standard of proof in civil proceedings and arbitrations, is a balance of probabilities see Early Bird Farms (Pty) Ltd v Mlambo [1997] 5 BLLR 541 (LAC). The test for deciding whether something has been proved on a balance of probabilities, is whether the version of the party bearing the onus, is more probable than not see Ocean Accident & Guarantee Corporation Ltd v Kock 1963 (4) SA 147 (A) at 157D.

34. In other words, the evidence must show that the existence of the fact in dispute is more probable than its non-existence. The difference between a possibility and a probability is that when something is possible, it can or could have happened. When something is probable, it most likely will or did happen. In determining probabilities, evidence is assessed against human experience, logic and common sense see Hoffmann en Zeffertt the South African Law of Evidence 4th ed 102. In order to resolve factual disputes, a tribunal must make findings with reference to (a) the credibility of the various factual witnesses; (b) their reliability; and (c) the probabilities. In Stellenbosch Farmers’ Winery Group Ltd v Martell & Cie 2003 (1) SA 11 (SCA) at 14I par 5. The Court further remarked as follows: “As to (a), the court’s finding on the credibility of a particular witness will depend on its impression about the veracity of the witness. That in turn will depend on a variety of subsidiary factors, not necessarily in order of importance, such as (i) the witness’s candour and demeanor in the witness-box, (ii) his bias, latent and blatant, (iii) internal contradictions in his evidence, (iv) external contradictions with what was pleaded or put on his behalf, or with established fact or with his own extra curial statements or actions, (v) the probability or improbability of particular aspects of his version, (vi) the caliber and cogency of his performance compared to that of other witnesses testifying about the same incident or events. As to (b), a witness’s reliability will depend, apart from the factors mentioned under (a)(ii), (iv) and (v) above, on (i) the opportunities he had to experience or observe the event in question and (ii) the quality, integrity and independence of his recall thereof. As to (c), this necessitates an analysis and evaluation of the probability or improbability of each party’s version on each of the disputed issues. In the light of its assessment of (a), (b) and (c) the court will then, as a final step, determine whether the party burdened with the onus of proof has succeeded in discharging it…But when all factors are equipoised probabilities prevail " (at 14I - 15E par 5 per Nienaber JA)

35. The Learner did not testify. Correspondence was however submitted (which was not opposed by Molongoana) with reasons not attending the arbitration. The reasons are:
- I am no longer a student at Modiri High School so I am not going to see his face now and then as it will remind me of what he did to me.
- I am busy with my tertiary preparations, hearing will disturb my focus.
- It is almost 5 months since that incident happened, and the wound is almost cured, now attending the hearing will almost scratch healed wound.

36. In relation to the hearsay evidence presented by the Employer’s witnesses, in Sisonke Partnership t/a International Healthcare Distributors v National Bargaining Council for Chemical Industry & Others (JA51/10) [2013] ZALAC 16 (handed down on 19 July 2013), the Court with approval referred to the matter of Southern Sun Hotels and that of Swiss South Africa and confirmed the principle that hearsay evidence is allowed if it is in the interest of justice and that it was not irregular for the arbitrator to have relied on the hearsay evidence as the evidence was confirmed by other evidence. In addition, arbitrators have even more leeway than civil courts in determining what evidence should be admitted (Le Monde Luggage CC t/a Pakwells Petje v Commissioner Dunn & others [2007] 10 BLLR 909 (LAC) at paragraph 17); Naraindath v CCMA & others [2006] 6 BLLR 716 (LC) at paragraph 26.) What is more important than admissibility is the weight a Commissioner ultimately attaches to evidence such as hearsay when making inferences to deduce the facts of a case. In casu, the evidence of all the Employee’s witnesses needs to be evaluated in the absence of the Learner’s evidence. It is so that the witnesses did not corroborate each other precisely the same but in all material ways they did. This is also against the backdrop that all of the witnesses had a positive approach towards Molongoana, their colleague and also filled with unbelieve in what the Learner complained about.

37. The Employer’s witnesses, impressed me as credible and reliable witnesses who just stated what they knew and were willing to make concessions detrimental to the case of the Employer The witnesses of the Employer were all extremely compelling. Matlakala testified in detail and her demeanor reflected earnestness, sincerity and great disappointment. The Applicant didn’t impress me and his defense rested solely on a denial to the extent that the concession he made, he tailored to be normal. His representative continuously omitted to test his version with the Respondent’s witnesses. I have no reason to doubt the evidence of any of the Employer’s witnesses and their versions were credible and factual. Most importantly, their versions corroborated each other to such extent that it favours the Employers case to be the most probable version.

38. There is no doubt that the Learner reported the alleged incidents to Matlakala who stated that the Learner was very emotional and that she did not want go to Molongoana being uncomfortable with him. This, the Principal and Malau corroborated that the Learner needed to be placed with another teacher. The Learner told Matlakala that during the first term (the holiday period), she was at school to submit Telkom forms when Molongoana told her he wishes he could squeeze her breast. The Learner also told her that that during the first term, Molongoana managed to touch her breast over a weekend when she was dressed in casual clothes. On 20 September 2022, when she went to the staff room to check her marks, Molongoana again wanted to squeeze her breast. These versions of Matlakala remained uncontested by Molongoana during evidence in main.

39. Molongoana conceded that he said to the Learner on 20 September 2021, that he would squeeze her breast. This he said to the Learner when her marks were down and did it jokingly to motivate her to better her marks. He denied to have said her breasts are nice and that he touched or squeezed it. To the concession on its own, Molongoana seems to have thought that it was in order to joke in that way to motivate the Learner, which it was not. He stated that the Learner laughed but also that she then avoided him. Should this have been a mere first occurrence in a joking fashion, it is probable that the Learner would not have shivered being emotional and to shy away from Molongoana.

40. The above directs to the uncontested versions of what the Learner told Matlakala that the time Molongoana touched her breast, she was dressed in casual wear and it was during the holiday period. Indeed, the Leaner was not called to testify to respond to what she told Matlakala but there is a concern in the following versions:
- Molongoana’s own statement that the Learner liked him and called him “papa”. They would always be in a group and not individually with him. This father-daughter relationship was also corroborated by the Employer’s witnesses.
- Mabena stated that most of the time, Molongoana is with learners especially the class of the Learner, which version remained uncontested.
- The Employer’s witness’s versions that Molongoana had good relations with all and always joke around.

41. The father-daughter relationship is unacceptable conduct of Molongoana and he must have told the Learner not to call him ‘papa’. Being a professional profession Molongoana overstepped the boundary to engage in such kind of relationship. Mabena’s uncontested version also directs to a focus of Molongoana on the Learner having a focus on the class of the Learner. Offenders often use grooming over a period of time (days, weeks, months) in order to soften the victim. They would sometimes go to great lengths to get close to children which includes befriending parents, jobs involving children, Strategies include misrepresentation of society’s morals, standards and abusive acts. The Principal sensitized the Educators in staff sessions by saying: “Ga re je stoko” meaning we don’t engage in sexual relationships with learners. Molongoana used his awareness of the Code of Conduct as well as the motivation of the Learner, as a reason that he did not do what he was charged for except for the concession that he did say he would squeeze her breast. Offenders who sexually abuse children tend to engage in a critical pattern of behaviour such as pro-offending thinking when the offender convince himself that the behaviour is not harmful. Molongoana at the time did not feel that the words he uttered was offensive but to encourage the Learner which was totally unacceptable and improper. Molongoana misrepresented society’s morals and standards. He later apologised to the Learner and her parents although at the arbitration, Molongoana reiterated that it was not his intention to hurt the Learner but to motivate her and added that his conscience is clear. For any male educator to tell any female learner that he would squeeze her breast under any circumstances is improper, disgraceful and improper.

42. The Principal, Maake stated that when they engaged with the Learner, who said that Molongoana squeezed her breast, but most information she told to her class teacher, Matlakala. Being together with each other, Malau corroborated Maake (the Principal) that the Learner told them that it happened for a second time and she reported it. This second time was when Molongoana told the Learner that he would squeeze her breast (which Molongoana conceded to). Matlakala asked the Learner why she did not report the incidents during the first term but the Learner did not respond. Malau stated that when the Learner explained the occurrence, she was shivering in unbelieve. The Learner then avoided Molongoana on 20 September 2022 (on his own version) and she decided to report it on the 21st of September 2022. I am of the view that the Learner decided to report it in an attempt to avoid another touch or squeeze to her breast. Mabena did not testify about what the Learner said when they were together, but what Matlakala told them which corroborated the evidence of what the Learner told Matlakala. The consession of Molongoana that he told the Applicant he would squeeze her breast to upper her marks strongly indicate that within the familiarity of the joking relationship Molongoana most likely did touch or squeezed the Learner’s breast during the first term. Considering the evidence holistically, the probabilities directs that Molongoana touched the Learner’s breast during the 1st term.

43. In relation to the first allegation, I find that Molongoana’s conduct to be improper and unacceptable when he told the Learner that he would squeeze her breast. This is an offence in terms of Section 18(1)(q) of the Employment of Educators Act 76 of 1998 read with section 3.6 of South African Council of Educators Act 31 of 2000.

44. In relation to the second allegation, I find it probable that Molongoana touched Learner’s breast during the first term. Such conduct is an act of sexually assault and an offence in terms of Section 17(1)(b) of the Employment of Educators Act 76 of 1998 read with section 3.9 of South African Council of Educators Act 31 of 2000.

45. Having held that Molongoana misused his position as teacher, on a balance of probabilities has made himself guilty of the allegations levelled against him. The South African government ratified the UN Convention on the Rights of the Child (CRC) in 1995. The CRC therefore forms part of South Africa’s international law obligations which means that the South African government is under an obligation to ensure that the CRC is implemented and complied with. In line with South Africa’s obligations under international law, the South African Constitution states that:
“Everyone has inherent dignity and the right to have their dignity respected and protected”
“Everyone has the right to be free from all forms of violence and not to be treated or punished in a cruel, inhuman or degrading way”
“A child’s best interest is of paramount importance in every matter concerning the child”
‘Every child has the right to be protected from maltreatment, neglect, abuse or degradation.’.

32. In determining the appropriateness of dismissal in relation to the charges, I adopt the approach of the Constitutional Court in Sidumo v Rustenburg Platinum Mines Ltd (2007) 28 ILJ 2405 (CC). I also take into account the CCMA Guidelines on Misconduct Arbitrations. While discipline falls within the discretion of the employer, the employer must impose an appropriate and fair sanction.
Having held that Molongoana is guilty of sexual harassment as defined in section 17(1)(b) of the Employment of Educators Act, in relation to charge 2, dismissal is mandatory. Neither the employer, nor I, or the Labour Court has any discretion to impose any other sanction than dismissal for this misconduct for as long as the conviction on section 17 in relation to charge 2 stands. Mitigating factors are completely irrelevant once an educator is convicted of this form of misconduct. For an educator to tell a Grade 12 Learner that he would squeeze her breast and to touch or squeeze her breast is improper and disgraceful which constitutes serious misconduct. Adults are expected to help protecting all children from sexual abuse in any form. In this regard Borchers J remarked in S v G 2004 (2) SACR 296 (W): There is general outrage in South Africa at the moment over child abuse, and the prevalence thereof and the damage done by such crimes to society justifies that outcry. People are being exhorted to adopt the motto, ‘your child is my child’. All that this amounts to is that the public knows that its children are vulnerable and often cannot be protected for every moment of their lives. Decent people recognise these facts and help and protect children. They do not harm them, as the accused had done” (300h-301b);

33. Despite Molongoana’s accepting guilt when he conceded to the wrongfulness when he told Learner he would squeeze her breast, evidence directed on a balance of probabilities that Molongoana to have touched the Learner’s breast. After having committed the acts of misconduct, the refusal by an employee to admit guilt and thereby show remorse for his misconduct is generally considered to be a serious aggravating factor (see Grogan Dismissal (2014 ed) 211). In this regard the Labour Appeal Court has stated in De Beers Consolidated Mines Ltd v CCMA & others (2000) 21 ILJ 1051 (LAC) at 1058 par 25: "Acknowledgment of wrongdoing is the first step towards rehabilitation. In the absence of a recommitment to the employer's workplace values, an employee cannot hope to re-establish the trust which he himself has broken. Where…an employee… falsely denies having [committed misconduct] an employer would, particularly where a high degree of trust is reposed in an employee, be legitimately entitled to say to itself that the risk of continuing to employ the offender is unacceptably great."

34. The SACE Code of Professional Conduct provides that an educator must respect the dignity, beliefs and constitutional rights of learners, shall refrain from any form of physical or psychological abuse of children and shall refrain from improper physical contact with learners (Item 3 of the SACE Code) and must behave in a way that enhances the dignity and status of the teaching profession and that does not bring the profession into disrepute (Item 7.2 of the SACE Code). Our Courts have recognized that where the misconduct is of such a serious nature that from itself the inference could be drawn that the trust relationship and therefore the employment relationship has been destroyed, an Arbitrator may on this basis find that the trust relationship has been destroyed, and that dismissal is justified, see Grogan Dismissal (2nd ed 2014) 201, M Brassey et al The new Labour Law (Juta) at 96-7; Electrical & Allied Workers Union v The Production Casting Co (Pty) Ltd (1988) 9 ILJ 702. Conduct like this makes a continued employment relationship intolerable as teachers who act in this manner, cannot be trusted, especially when they in denial.

52. I am satisfied that Employer has succeeded in proving on a balance of probabilities that Molongoana has irreparably destroyed the relationship of trust and had made the continuation of the employment relationship intolerable. I confirm dismissal as an appropriate sanction and find dismissal as sanction to be substantively fair.

AWARD

53. In the premises, I find summarily dismissal of Molongoana from the employment of the Gauteng Department of Education to be effected from 30 April 2023.

54. Mr ME Molongoana (Persal No 18968848) is found UNSUITABLE TO WORK WITH CHILDREN in terms of Section 120(4) of the Children's Act 38 of 2005.

The General Secretary of the ELRC must, in terms of Section 122(1) of the Children's Act 38 of 2005, notify the Director General: Department of Social Development in writing of the findings of this forum made in terms of Section 120(4) of the Children's Act 38 of 2005, that Mr ME Molongoana (Persal No 18968848) is unsuitable to work with children, for the Director General to enter his name as contemplated in section 120 in part B of the register.

55. The ELRC is directed to forward a copy of this award to SACE. The attention of SACE is drawn to the fact that an educator Mr. ME Molongoana (Persal No 90284348) has sexually harassed the Learner by telling her he wants to squeeze her breast and then touching her breast.


S Fourie
ELRC Arbitrator