ELRC915-22/23 EC

Case Number: ELRC915-22/23 EC
Panelists: Malusi Mbuli
Date of Award: 28-04-2023

In the ARBITRATION between

JONGIKHAYA MBOZANI
(Respondent / Employee)

And

DEPARTMENT OF EDUCATION – EASTERN CAPE
(Applicant / Employer)

DETAILS OF HEARING AND REPRESENTATION

1. The enquiry by arbitrator was held under the auspices of the ELRC in terms of section 188 (A) of the Labour Relations Act 66 of 1995 as amended in 2015. The hearing took place on the 18th & 19th of April 2023 at 09:00 at the Lusikisiki Magistrates Court at Lusikisiki.

2. The employee Mr. Jongikhaya Mbozani attended the hearing and was represented by Mr. B. Njoza an attorney appointed by the employee. The employer also attended the hearing and was represented by Mr. K. Dalasile an official of the employer.

3. The enquiry by arbitrator proceeded on the on the 18th & 19th April 2023 as indicated above in the presence of both parties. The parties further requested to file closing arguments together with mitigating and aggravating circumstances on this matter not later than the 26th of April 2022 and both the employer representative and the employee representative filed their arguments with the ELRC by the 26th of April 2022.

4. The notice to attend the enquiry by arbitrator was properly drafted and served on the employee and the employee attended the hearing as indicated above.

ISSUE TO BE DECIDED

5. I am required to determine whether or not the employee Mr. Jongikhaya Mbozani is guilty of the charges levelled against him by the employer and if so whether a sanction of a dismissal is appropriate to be imposed on him in the circumstances.

BACKGROUND TO THE ISSUE

6. The employee is employed by the employer as an educator and is now charged by the employer in respect of the incidents appearing here under outlined in the charges. The parties agreed that the matter should instead of being set for a disciplinary hearing be enrolled straight at the ELRC as an enquiry by arbitrator in terms of section 188 (A) of the Act accordance with the ELRC Collective Agreement 3 of 2018.

7. This therefore means that the status of the outcome of this process will be an award that is final and binding on the employer and employee. The charges against the employee are as follows.

- It is alleged that the employee is guilty of misconduct in terms section 17 (1) (b) of the Employment of Educators Act 76 of 1998 (as amended), which inter alia reads as follows:

(1) “An Educator must be dismissed if he or she is found guilty of committing an act of sexual assault on a learner, student or other or other employee” In that during the period between October 2021 to October 2022 you committed an act of sexual assault on a learner, by making A. M. and other learners (on the list) at Mdingi J.S.S. to perform sexual acts including watching pornographic material, masturbating and touching their private parts.

(2) The employee contravened section 18 (1)(q) of the Employment of Educators Act 76 of 1998 in that while on duty, the educator conducted himself in an improper, disgraceful and unacceptable manner in that, while on duty, you conducted yourself in an improper, disgraceful or unacceptable manner, in that you inappropriately touched A. M. and other learners (on the list) at Mdingi J.S.S., and you also approached and invited them to your place of residence with the intention of sexually molesting and exploiting them.

8. The employee Mr. Jongikhaya Mbozani denies these allegations and pleaded not guilty to the said allegations hence the matter was set down for section 188 (A) inquiry as directed by ELRC Collective Agreement 3 of 2018.

SURVEY OF EVIDENCE


9. The employer representative called their 1st witness A.M. (a minor child) who testified with the assistance of the intermediary Mrs. Noluthando Nxala – appointed by the ELRC. He testified that he is a minor child who was born on the 06th of April 2007.

10. He is now in 2023 doing grade 8 and last year he was a learner at grade 7 at Mdingi J. S.S, was about 17 years old and he knows the employee Mr. Jongikhaya Mbozani because he is a teacher at Mdingi J. S.S. since 2021. He stated that he has had interaction with the employee because last year 2022 the educator / employee would touch and brush him in class on his private parts whilst he was teaching but the other learners wouldn’t see him when doing that.

11. He averred that he does not know if the others were touched and brushed and further stated that the teacher / employee would also call him, M. S., A. S., and O. M. to his place of residence. When they visit him in his residence he would ask them if they have girlfriends, have hair in their private parts and whether they excrete sperms.

12. He reiterated that he was staying with O. M. in their desk but O. M. did not see or notice when he was brushed and touched by the employee because O. M. was concentrating on the board. He then took out his laptop and open pornographic material / video and when he became erect the employee asked if he know how to do masturbation, said no asked him to do it and the sperms came out and he gave him something to wipe and he said was going home to look after cattle.

13. He stated that they went to the teachers / employees place because he said they were going to discuss subjects and he was on the other room when they were masturbating and when the sperms came out he said those were not the sperms that he was looking for. He stated that at first he did not report the matter and later they reported it as a group to Mr. Nono Nobanga who sided with the employee. He averred that they became a group because when they spoke behind classrooms a number of boys stated that they have a problem with the employee Mr. Jongikhaya Mbozani.

14. They then reported it to the Principal who also did not do anything about the matter and they were to their class teacher Marhwarhwa and later their parents were called and the matter was reported and investigated, both know who told the parents and there was also a strike. He stated that he had a problem being touched, brushed, caused to masturbate and watching pornographic material but all this he had to submit to it because the employee was their teacher, parent and that it was also at his place.

15. The 2nd witness of the employer was another leaner by the name of S.K. (a minor child) who testified with the assistance of the intermediary Mrs. Noluthando Nxala – appointed by the ELRC. He testified that he is a minor child who was born on the 04th of June 2008. He is now in 2023 doing grade 8 and last year he was a learner at grade 7 at Mdingi J. S.S, was about 17 years old and he knows the employee Mr. Jongikhaya Mbozani because he use to teach him at Mdingi J. S.S. since 2021.

16. He stated that he know the employee has had interaction with the employee because when he arrived in their school he asked someone who stay closer to his residence to assist him to pack his clothes and belongings and stuff and he also said they must always come to visit him at his place.

17. He averred that him and his twin N. (also a minor child) first visited him and he asked how old were they and they told him that they were 13 years old at the time. He then asked them if they had girlfriends, also if they had slept with them and they had the hair growing in their private parts.

18. He then took out his laptop and open pornographic material / video and when he became erect the employee asked if they know how to do masturbation, said no asked him to do it and the sperms came out and he gave him something to wipe. He stated that if they do sex and sperms come out they will have / or bare children.

19. He stated that when they went to school they discussed the issue with the other boys first and first reported the matter as a group to Mr. Nono Nobanga who sided with the employee. He averred that they became a group because when they spoke behind classrooms a number of boys stated that they have a problem with the employee Mr. Jongikhaya Mbozani.

20. They then reported it to the Principal who also did not do anything about the matter and they were to their class teacher Marhwarhwa and later their parents were called and the matter was reported and investigated, both know who told the parents and there was also a strike.

21. He stated that the employee would touch and brush them in class and he had a problem being touched, brushed, caused to masturbate and watching ponographic material but all this he had to submit to it because the employee was their teacher, parent and that it was also at his place.
22. He stated that in class he could see the employee brushing other kids / learners, mentioned A.S. and he thin that those learners could also see him being brushed whilst the employee was teaching and they were afraid to report that to the principal.

23. The 3rd witness of the employer was another leaner by the name of A. S. (a minor child) who testified with the assistance of the intermediary Mrs. Noluthando Nxala – appointed by the ELRC. He testified that he is a minor child who was born on the 22nd of December 2008. He is now in 2023 doing grade 8 and last year he was a learner at grade 7 at Mdingi J. S.S, was about 17 years old in 2022 and he knows the employee Mr. Jongikhaya Mbozani because he is a teacher at Mdingi J. S.S. since 2021.

24. He stated that he know the employee also because has had interaction with the employee because he was told by S. K. that he is called by the employee and they went to his residence together. He stated that when they got there the employee asked them how old were they and they told him that they were 13 years old at the time. He then asked them if they had girlfriends, also if they had slept with them and they had the hair growing in their private parts.

25. He then took out his laptop and open pornographic material / video and when he became erect the employee asked if they know how to do masturbation, said no asked them to do it and the sperms came out and he gave them something to wipe. He then told them that if they do sex and sperms come out they will have / or bare children.

26. He stated that the employee told them not to tell anyone about what they were doing in his house and must organize other boys but when they went to school they discussed the issue with the other boys first, then first reported the matter as a group to Mr. Nono Nobanga who sided with the employee.

27. He averred that they became a group because when they spoke behind classrooms a number of boys stated that they have a problem with the teacher / employee Mr. Jongikhaya Mbozani. They then reported it to the Principal who also did not do anything about the matter and they were to their class teacher Marhwarhwa and later their parents were called and the matter was reported and investigated, both know who told the parents and there was also a strike.

28. The witness stated that he also promised to buy chicken for them and said the employee would touch and brush them in class and he had a problem being touched, brushed, caused to masturbate but were disturbed by a lady who was there and watching pornographic material but all this he had to submit to it because the employee was their teacher, parent and that it was also at his place.

29. He stated that in class he could see the employee brushing other kids / learners, and he think that those learners could also see him being brushed whilst the employee was teaching and they were afraid to report that to the principal. He mentioned when they visited the employee there were other boys who were there and they came out when they arrived and they did not talk to them.

30. The employer representative then closed their case and the employee / respondent Mr. Jongikhaya Mbozani took the witness stand and testified that he works for the employer as an educator at Mdingi J. S. S. He stated that he is 36 years of age and confirmed that as a teacher he is a parent and a guardian to the kids when they are with him and for that reason they have to take his authority and instruction as the correct one. He disputed the allegations leveled against him.

31. He confirmed that he know the learners that testified at the hearing and stated that they are students in his school and some were in his class 2022 / 2023 and because they are brilliant students he would ask them to assist him, discuss school work with them and teach them life skills and warn them.

32. He confirmed that these are minor children who are now in 2023 doing grade 8 and last year were doing grade 7 at Mdingi J. S.S, were about 17 years old and he knows them because he was teaching them at Mdingi J. S.S. since 2021. He confirmed that he has had interaction with these kids when teaching them in class and when they visit him at his residence to assist him and teach them school subjects and life skills.

33. He stated that the boys came to her place voluntarily and were not forced but confirmed that they came at his request. He disputed the evidence that the learners led at the hearing that last year 2022 he, educator / employee would touch and brush them in class on their private parts whilst he was teaching and stated that this was impossible because he was teaching the learners.

34. He confirmed that he would call the learners e.g., A. M., M. S., A. S., and O. M. to his place of residence and when the visit him he would ask them if they have girlfriends, have hair in their private parts and whether they excrete sperms. He averred that the aim was to educate the kids about the dangers of having relationships and sex at their age.

35. He reiterated that he has never touched the boys on their private parts because there was no time for brushing and touching because he was concentrating on teaching them. He further confirmed having took out his laptop and open pornographic material / video and when they became erect he asked if they knew how to do masturbation, ordered them to masturbate and the sperms came out and he gave them something to wipe.

36. He stated that he did this as part of educating the kids about staying away from relationships, stay away from sex and abstinence and this is the topic that they were discussing at his place and the school related stuff. He further confirmed that he was on the other room when they were masturbating and when the sperms came out he warn them that they will have kids and have sexually transmitted diseases.

37. He stated that he does not know how the matter was reported and have no problem with the boys and did not think about involving their parents when he was educating them and this was not done as a school program. He disputed having touched and brushed the kids in class.

38. He averred that it was wrong for him to ask the boys to mustabate and that this was against the policies of the employer as the custodians of the minor kids at school. He agreed that there is no reason that he know of which would make the kids implicate him unreasonably and confirmed that his intention was just to educate the kids about dangers of having unprotected sex.

FINDINGS ON THE CHARGES, ANALYSIS OF EVIDENCE & ARGUMENT

39. In respect of these charges set out in paragraph 7 above, the employer representative led evidence of 3 witnesses which were all victims and learners who are the subject of the said sexual assault.

40. The evidence of these witnesses is detailed above in the topic that deals with survey of evidence at paragraph 9 – 44 of this award. These witnesses led clear, coherent and corroborative evidence to the effect that:

- They know the employee he is 36 years of age, a teacher, parent and a guardian to the kids when they are with him and for that reason they have to take his authority and instruction as the correct one and this is not disputed by the employee Mr. Jongikhaya Mbozana.

- It is also not disputed that the learners in question are known to the employee and that they are students in his school and some were in his class 2022 / 2023 and are minor children. It is however disputed that the interaction between the employee and these minor kids were for the purposes of discussing school work and teach the kids life skills and warn them about the dangers of unprotected sex.

- These minor kids / children are now in 2023 doing grade 8 and last year were doing grade 7 at Mdingi J. S.S, were about 16 – 17 years old in 2022 and the employee was teaching them at Mdingi J. S.S. since 2021. The interaction between the employee and these kids when teaching them in class and when they visit him at his residence to assist him is not disputed.

- The kids / boys were called by the employee to his residence, came there voluntarily and were not forced but came at the request of the employee. The 3 learners led evidence that in 2022 the educator / employee would touch and brush them in class on their private parts whilst he was teaching. The employee deny this but the way it was presented by these learners was coherent, clear and corroborative, I just have no reason to disbelieve their evidence and the employee evidence is rejected.

- Almost all the evidence led by the four witnesses is common and the employee confirmed that he would call the learners e.g., A. M., M. S., A. S., and O. M. to his place of residence and when they visit him he would ask them if they have girlfriends, have hair in their private parts and whether they excrete sperms. His defense however is that his motive or aim was to educate the kids about the dangers of having relationships and unprotected sex at their age.

- I cannot accept this defense because the employee was not authorized to do that let alone being qualified to do that, that he did this without the knowledge of parents or guardians at his private residence and that the employee is an adult and know or should have known that his acts were of a sexual nature and prohibited by the law.

- I have already rejected the employee evidence that he has never touched the boys on their private parts because there was no time for brushing and touching because he was concentrating on teaching them. He confirmed having taken out his laptop and opened pornographic material / video and when they became erect he asked if they knew how to do masturbation, ordered them to masturbate and the sperms came out and he gave them something to wipe. This is an act of a sexual nature and is prohibited by the law.

- The employee at cross examination admitted that it was wrong for him to ask the boys to mustabate and that this was against the policies of the employer as the custodians of the minor kids at school. He agreed that there is no reason that he know of, which would make the kids implicate him unreasonably and confirmed that his intention was just to educate the kids about dangers of having unprotected sex.

- This was done for the reasons that are not known to the learners but the employee because he knew that what he was doing was wrong. The matter was then escalated to parents and the school and investigated and this is when it was found out that the person who was a teacher and parent to the kids was committing these acts of a sexual misconduct. The employee was also subjected to internal disciplinary hearing which led to the hearing that the ELRC is attending now in terms of ELRC Collective Agreement 3 of 2018.

- Most of the evidence summarized hear above was not disputed by the employee on materiel facts except for a bare denial from the employee to say that he did not touch the learners in their private parts in class. There is nothing that is offered by the employee in his defense to this charge except this bare denial and the evidence of the employee is not corroborated by any witness. It is important to note that the boys / learners wanted to conceal this act because according to them, they were afraid to report it until they discussed it as a group. The employee could not explain why the learners would conspire to implicate him wrongly.

41. For these reasons and argument, this is highly improbably and the testimony of the employee cannot be believed, his version for the reasons listed above is rejected. The only conclusion to be drawn from what happened is that the employee is guilty of the 2 charges levelled against him. It must be emphasized here that the test for a guilty finding in labour matters is one of balance of probabilities not beyond reasonable doubt.

42. Section 185 (a) of the Labour Relations Act 66 of 1995 as amended provides that:
- Every employee has a right not to be unfairly dismissed.

43. The Act recognizes 3 reasons for the termination of the employee’s services by the employer and these are the conduct of the employee, incapacity of the employee and the employer’s operational requirements. In this matter the employee is charged because of his conduct and the employer has to prove that the employee has committed misconduct on a balance of probabilities.

44. In terms of section 192 (2) of the Labour Relations Act the employer has the onus to prove the existence of any one of these grounds as a reason to dismiss the employee and that the dismissal of the employee is fair.

45. The employer’s evidence was not challenged by the employee on materiel aspects as can be seen in the summary and analysis above. I do not have any reason to doubt and reject the employer’s evidence. In the circumstances, I will accept the employer’s witness’s testimony that there is a valid reason for the dismissal of the employee. The question that I have to answer in this award is whether the conduct of the employee constitutes a serious act of misconduct and whether the sanction of a dismissal is appropriate in the circumstances.

46. In response to that I find that the applicant has committed serious acts of misconduct and these transgressions are expressly prohibited by the respondent and punishable by a dismissal for the first offence in terms of the employer’s disciplinary code and policies.

47. The Constitutional Court in Sidumo & another v/s Rustenburg Platinum Mines Ltd and other (2007) 12 BLLR 1097 held that in deciding whether dismissal is an appropriate sanction for an act of serious misconduct, the test is whether the misconduct renders the continued employment relationship intolerable.

48. The acts of misconduct committed by the employee in the context of his employment renders the employment relationship between the parties intolerable. This type of misconduct is also expressly prohibited by the employer in their disciplinary code / policies and the employer is expected to apply discipline in a consistent manner.

49. On the appropriateness of the sanction the LAC court in its decision in Nampak Corrugated Wadesville v/s Khoza (1999) 20 ILJ 585 (LAC) Ngcobo J.A. held that the determination of the appropriate sanction is a matter which is largely within the discretion of the employer, however that discretion must be exercised fairly. It would be fair and reasonable to impose a sanction of a dismissal for these transgressions.

50. In De Beers Consolidated Mines Ltd v/s CCMA & others (2000) 21 ILJ 1051 (LAC) the court accepted that the ultimate justification for the employer’s powers to impose discipline flows from the right to manage their business effectively. The court held further that “dismissal is not an expression of moral outrage, much less it is an act of vengeance. It is or should be sensible operational response to risk management in the particular enterprise”.

51. In Standard Bank of South Africa Ltd v/s CCMA and others (1998) LC 7 the court stated that it is trite principle that breach by the employee of the duty of good faith to the employer is destructive to the employment relationship. The employee has breached this duty of good faith to the employer.

52. I am satisfied that the rationale that I have used in coming to this conclusion is one that qualifies when we talk about reasonableness and weighing the interests of both parties as directed in the Constitutional Court in its decision in NEHAWU v/s University of Cape Town (2003) (CC) where the Constitutional Court held that the arbitrator is expected to have regard to the interest of both parties in coming to a conclusion whether the conduct of the employer to dismiss the employee was fair or not.

53. In this matter the interests of the employer far outweigh those of the employee. The employee did not come forward and admit his wrongdoing instead throughout the processes he denied having committed any transgression and this can only be regarded as an aggravating factor.

54. Both the charges summarized above constitute a serious act of misconduct and even though discipline has to be applied in a corrective and progressive manner, this is so serious that when proved as has happened calls for a sanction of a dismissal.

55. From his transgression that has been proved he cannot be trusted. The employer and learners will suffer severe consequences if this wrong doing can be condoned and that discipline has to be applied consistently. The employer’s version in so far as it relates to the reason for dismissal of the employee is accepted. This means that the employer has managed to discharge its onus in terms of section 192 (2) of the Act.

56. I have found the employee guilty of Section 17(1) (b) of the Employment of Educators Act 76 of 1998 transgression and in terms of subsection an educator must be dismissed if he or she is found guilty of such a transgression.

57. Section 120 (2) of the Children’s Act no 38 of 2005 provides that a finding that a person is unsuitable to work with children may be made by such forum on its own volition or on application by an organ of state or any other person having sufficient interest in the protection of children.

58. The representative who acts for the Department of Education (employer) would accordingly have the right to make such an application. The arbitrator may however also make the finding on his own accord.

59. In the circumstances I hereby make the following award.

AWARD

60. The employee Mr. Jongikhaya Mbozani is guilty as charged.

61. The employee Mr. Jongikhaya Mbozanis employment is terminated with immediate effect, without notice. The Provincial Department of the Eastern Cape must inform Mr. Jongikhaya Mbozani of his dismissal.

62. I find that the employee Mr. Jongikhaya Mbozani is unsuitable to work with children in terms of section 120 (2) of the Children’s Act no 38 of 2005.

63. The General Secretary of the Education Labour Relations Council must:

- As the administrator of this Section 188A enquiry, 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 that the employee Mr. Jongikhaya Mbozani ID 8704166055086 – persal no 58037136 is unsuitable to work with children, for the Director General to enter his name as contemplated in section 120 Part B of the National Child Protection Register.

- Send a copy of this arbitration award to the South African Council of Educators (SACE) for the revoking of Mr. Jongikhaya Mbozanis SACE certificate.

64. The employee has the right to take this award on review to the Labour Court.


Signature: 

ELRC Arbitrator / Commissioner: Malusi Mbuli