ELRC334–22/23GP

IN THE ELRC ARBITRATION
BETWEEN:

NS NEMUKOMBANE “the Applicant”

and

DEPARTMENT OF EDUCATION – GAUTENG PROVINCE “the Respondent”

ARBITRATION AWARD

Case Number: ELRC334 – 22/23GP

Last date of arbitration: 3 April 2023

Final closing arguments submitted in writing on: 13 April 2023

Date of award: 9 May 2023 (Extension arranged)

COEN HAVENGA
Senior ELRC Arbitrator

Details of hearing and representation

1. This arbitration took place in terms of the referral of the matter by the Applicant to the Education Labour Relations Council. It was over several days held at the premises of the Respondent in Benoni. The last day of the hearing was on 3 April 2023. The parties submitted written closing arguments on 13 April 2023.

2. The Applicant is Mr Nemukombane, NS, represented by Mr Nomandindi, C, a SADTU official. The Respondent is the Gauteng Department of Education, represented by Mr Nkosi, P. Mr Matsenene, H acted as interpreter.

Issue to be decided

3. The dismissal of the Applicant is not in dispute. I must determine whether his dismissal was substantively fair. The Applicant does not dispute the procedural fairness of his dismissal.

Background to the dispute

4. The Respondent submitted the documents contained in bundles A, C, D, E, and F, which includes the transcript of the internal disciplinary hearing of the Applicant, which resulted in his dismissal. The Applicant submitted bundle B.

5. The Respondent indicated that it would apply to have the testimony given by the minor and other witnesses during the disciplinary hearing, admitted in terms of the exception to the hearsay rule as provided for in section 3(1) of the Law of Evidence Amendment Act 45 of 1988. The Respondent alleged that the minor witnesses and/or their parents were coerced, influenced, or intimidated not to testify at the arbitration hearing.

6. The Applicant was employed by the Respondent as a PL2 Educator since 1 May 2019. He earned R24 000,00 per month at the time of his dismissal.

7. The Applicant was charged with three counts of misconduct but found guilty of 1 count of misconduct of contravening section 18(1)(q) of the Employment of Educators Act, no. 76 of 1998, in that he, being an educator at Thuthuka Primary School (“the School”) conducted himself in an improper, disgraceful and unacceptable manner by remarking to Grade 7 female learners that they have big breasts.

8. He was dismissed on 8 July 2022, following a disciplinary hearing and unsuccessful appeal.

9. The Applicant disputed that he committed the misconduct that he had been found guilty of. His defense is that it is all fabricated lies.

10. The Applicant did not dispute the procedural fairness of his dismissal.

11. It is important to note that this dispute relates only to the one charge upon which the Applicant was found guilty of at the internal disciplinary hearing, and which resulted in him being issued with a sanction of dismissal. No findings can and will be made in respect of the merits or substance of allegations in terms of which the Applicant was found not guilty at the internal disciplinary hearing.

12. The relief the Applicant seeks from this arbitration hearing is to be reinstated retrospectively without loss of income or benefits.

13. The matter relates to allegations of improper, disgraceful or unacceptable conduct of a sexual nature towards learners who were minors at the time of the alleged incident. In accordance with the protection of the rights of minors afforded them in the Constitution of the Republic of South Africa, the identity of the learners will not be disclosed. The Complainants were going to testify by making use of an intermediary and a CCTV system. However, as alluded to above, the Respondent did not call the minors to testify, and indicated that it would apply for their testimony which was given in the internal disciplinary hearing of the Applicant, to be admitted as evidence under the exceptions to the hearsay rule.

14. At the start of the proceedings the Applicant attended with his union representative, as well as several other observers. The Respondent objected to the presence of the observers on the basis that the same contingent went to the School before the arbitration hearing started, and allegedly intimidated the Respondent’s witnesses. In consideration of and in accordance with the protection of the rights of minors afforded them in the Constitution of the Republic of South Africa, I ruled that the observers shall not be granted access to the proceedings.


Summary of evidence

The proceedings have been recorded digitally, and a summary of the Respondent’s and Applicant’s witnesses’ evidence follows below. What follows is only a summary of evidence deduced at the arbitration hearing and does not purport to be a verbatim transcription of all the testimony given. The record of the proceedings will reflect the complete testimony of the witnesses.

Respondent’s case

15. Amelia Ngwenya (“Ngwenya”) testified under oath that she is a labour relations officer based at the Ekurhuleni South district office. She has been presiding over disciplinary hearings since February 2015. She did about 15 cases per year. As presiding officer she makes her findings on the evidence presented by the parties. C6 reflects her outcome report in this matter. The Applicant was guilty of the 3rd allegation appearing in A12. Two learners, Leaner Z and Leaner M, and two educators, Ms Malapa (“Malapa”) and Ms Ntuli (“Ntuli”), testified before her. C7 reflects Ms Malapa’s testimony before Ngwenya. The witness read the evidence into the record. She taught Learner Z. Thando reported to Malapa that the Applicant asked Leaner Z why she had big breasts. Malapa reported the incident to the BST so that the Applicant could be sanctioned.

16. C8 reflects Ntuli’s evidence before Ngwenya. The witness read the evidence into the record. C10 reflects Leaner M’s evidence before her. The witness read the evidence into the record. Malapa testified before Ngwenya that she had a responsibility to report the incident. She reported it to Ntuli. Ntuli spoke to Learner Z, and Learner Z confirmed that the Applicant asked her why she had big breasts. Learner Z told Ntuli that she did not report it herself out of fear and embarrassment. She was crying but stood firm in her evidence. Learner Z was highly embarrassed by what the Applicant did to her. She stood firm in her evidence that the Applicant asked her why she had big breasts. She did not report the incident, but other learners who heard the Applicant’s remarks, reported the incident. Malapa was the first person it was reported to.

17. The details of the incident provided by the learners made their evidence more probable that the denial of the Applicant.
18. During cross-examination Ngwenya confirmed her evidence in chief, and nothing new emerged from the questions asked.

19. Namhla Ntuli (“Ntuli”) testified under oath that she is an HOD at the School since 2014. She is a member of the SMT and deputy coordinator of the SBST. In August 2021 Malapa came to her and made her aware of allegations by leaners against the Applicant. It was allegations that the Applicant asked leaner Z why she had such big breasts. The learners alleged that the Applicant would also look at their buttocks which made them uncomfortable. The matter was referred to the district office.

20. C4 reflects a copy of an envelope that was delivered at the School, and which contained a letter addressed to Ntuli. It was delivered by people who called themselves community members. It was delivered just before the arbitration hearing in November 2022. She delivered the notice of set down to the parents of the leaners, at which time the parents confirmed that they would make sure that the learners are present to testify. The letter reflected in C3 then stated that the children would no longer be available to testify. Ntuli felt threatened and intimidated by the incident. Three men demanded that she explain to a crowd of people why she wanted the children to testify. None of the signatures in C3 is that of the learners’ parents. Only one person has child in the school, the others not. C5 is an affidavit by Leaner Z’s grandmother withdrawing permission for Learner Z to testify at the arbitration hearing. She received it after she received C3, and after a phone call from someone he alleged he was Learner Z’s father. The family had clearly been intimidated to no longer allow the children to testify at the arbitration hearing.

21. The Applicant and his union representatives came to collect documentation at the School but spent a long time on the school grounds. Ntuli felt intimidated by them as they were pointing at her. Ms Malapa was with them on that date. She is a friend of the Applicant. She testified at the disciplinary hearing, but changed her attitude thereafter, and faked illness so not to testify at the arbitration hearing.

22. Ntuli did not teach the victims, and she had no reason not to believe them. .

23. During cross-examination Ntuli testified that she had a cordial and professional relationship with the Applicant. At the start of the case the parents gave their consent for the learners to testify. There was no need to obtain any further consent thereafter. She received C5 after she received C3. She made the arrangements with the parents of the witnesses on behalf of the Department, not in her personal capacity. The Applicant and his people made it about her. All the communication should have been addressed to the district office, not to her. Ntuli denied that she was part of a conspiracy instigated by the principal.

24. It was intimidating for her as a witness to be in the presence of the Applicant and several union members. It was not necessary for so many persons to come to the School to collect one document. It was an intimidation tactic.

25. The Respondent’s representative submitted Bundles D, E and F, being the transcript of the recordings of the internal disciplinary hearing.

26. Exhibit G, being a statement by Ms Malapa, was also submitted. In the statement she wrote that learners reported to her that the Applicant asked Learner Z why she had such big breast. She decided to report the matter to Ntuli. The Applicant’s representative indicated that they did not dispute that Ms Malapa wrote the statement, and also did not dispute the correctness of the contents of her statement.

Applicant’s case

27. Silas Nemukombane, the Applicant, testified under oath that he was an educator at the School. He was the class teacher for grade 5A. He taught mathematics and social sciences. He is 49 years of age.

28. According to the Applicant he was charged with swearing at the girls. He was accused of swearing at the learners by saying they had big breasts. He agreed that the charge did not read that he swore at the learners, but that he made a remark. The learners were in grade 5 in 2019.

29. He never made such remark about them having big breasts. Boys and girls shared tables. Learner Z sat far away from his table. The learners would que at his table, six or seven at a time, for him to give them activities.

30. The witnesses wouldn’t come to testify. The Applicant is a pastor and never used such bad words. The principal did not discuss the matter with him. It is all lies. It is unfortunate that the principal is deceased.
31. The Applicant did go to the School with other comrades to collect documents. They arrived after school was closed. He was there for five minutes.

32. The late principal started to have a problem with the Applicant after the principal employed his own daughter. He thereafter had a vendetta against the Applicant. His daughter has now taken the Applicant’s post. The Applicant is now suffering while the daughter has a good life.

33. During cross-examination the Applicant testified that the principal made up all the lies in order to employ his own daughter. The evidence of the witnesses in the disciplinary hearing that he asked Learner Z why she had such big breasts, are all lies. The presiding officer was sent by the Department to dismiss him. Everyone except him is lying. The fact that the learners did not come to testify, showed that they were lying.

Summary of Arguments

34. The record will reflect that I had to address the conduct of Applicant on several occasions during the arbitration hearing due to his disruptive and violent behaviour. He banged with his fists on the table at times, and waved his arms and pointed his finger at the witness, to the extent that the seating had to be changed to move the witness further away from the Applicant, because she felt intimidated by his close proximity. His conduct was such that the Respondent had to arrange for security staff to be present outside the venue on one of the sittings, to ensure protection of the parties and witnesses if necessary.

35. Section 138(7)(a) of the LRA requires me to issue an award with brief reasons.

36. Both parties submitted extensive written closing arguments which form part of the record and will not be repeated here in full. I have considered all the arguments, legal principles and case law referred to by the parties, together with the other evidence, oral and documentary, presented by the parties during the arbitration hearing, as reflected in the recording of the arbitration.

Analysis of evidence and arguments

37. In considering the substantive fairness of the dismissal of the Applicant for misconduct, the principles contained in Schedule 2: Disciplinary Code and Procedures for Educators, promulgated in terms of the Employment of Educators Act, no. 76 of 1998, as well as the Code of Good Practice for Dismissals in Schedule 8 of the Labour Relations Act, no. 66 of 1995, provide the following guidelines:
a) Whether or not the accused employee contravened a rule or standard regulating conduct in, or of relevance to, the workplace; and
b) If the rule or standard was contravened, whether or not –
i. The rule was a valid or reasonable rule or standard;
ii. The accused employee was aware, or could reasonably be expected to have been aware, of the rule or standard;
iii. The employer has consistently applied the rule or standard.
iv. Dismissal was an appropriate sanction for the contravention of the rule or standard.

38. The dismissal of the Applicant is not in dispute, and the Respondent is therefore required to prove that the dismissal was substantively fair. The Applicant did not dispute the procedural fairness of his dismissal. The standard of proof that is applicable in hearings of this nature is identical to the civil standard – “the employer must prove the case against the employee on the balance of probabilities and not beyond reasonable doubt” – Meadow Feeds (Pietermaritzburg) vs. Sweet Food and Allied Workers Union (1998) Arb1.2.1.

39. Arbitration hearings are not merely reviews of the employer’s decision to dismiss employees, or the propriety of the procedures followed by the employer (John Grogan Dismissal 320 (2002)). An arbitration hearing constitutes a full rehearing on the merits plus an investigation of the fairness of the procedure followed by the employer. (See Gibb v Nedcor Ltd 1998 19 ILJ 364 (LC)). Arbitration amounts to a hearing de novo. The decision of the arbitrator is not reached with reference to the evidential material that was before the employer at the time of its enquiry, but on the evidential material placed before the arbitrator during the arbitration hearing. This means that all relevant evidence must be placed before the arbitrator in proper form, even if it has been fully canvassed at the employee’s disciplinary hearing. (See Sidumo & another v Rustenburg Platinum Mines Ltd & others [2007] JOL 20811 (CC), where the Court approved the LAC dictum in Count Fair Foods (Pty) Ltd v CCMA & Others [1999] 11 BLLR 1117 (LAC)). The arbitrator must hear all the evidence relating to the issue and decide afresh on the facts found proved whether the employee committed the misconduct for which he was dismissed or not. If not, the arbitrator is bound to find that the dismissal was substantively unfair, even though the employer acted reasonably based on information available to it at the time of the dismissal (John Grogan Dismissal 93 (2002)).
Substantive fairness

40. It is not disputed by the Applicant that the actions he had been charged with constitute misconduct. The Applicant merely denied committing such misconduct, i.e., that he conducted himself in an improper, disgraceful and unacceptable manner in that he, being an educator at Thuthuka Primary School (“the School”) remarked to Grade 7 female learners that they have big breasts.

41. I am mindful of the fact that although the Applicant was charged with improper, disgraceful and unacceptable conduct, that the action of commenting on the breasts of the minor female learners could have a clear and obvious sexual misconduct connotation. It is a natural response in matters relating to the sexual harassment, assault or abuse of children that the reasonable person might view such conduct with disgust and revulsion. This is even more applicable where a trust relationship is abused. As arbitrator one should however be conscious of the need to not to prejudge but to objectively consider the facts of the matter on a balance of probabilities and credibility of the evidence adduced.

42. The Applicant’s disputed the version of the witnesses, and denied any wrongdoing. His defense is that it is a fabrication of lies and a conspiracy against him. I must decide on a balance of probabilities which version to accept.

43. I will first deal with the admissibility of the hearsay evidence contained in the transcript of recording of the evidence rendered in the internal hearing.

44. Section 3(1) of the Law of Evidence Amendment Act 45 of 1988, provides as follows:
“Hearsay evidence
(1) Subject to the provisions of any other law, hearsay evidence shall not be admitted as evidence at criminal or civil proceedings, unless-
(a) each party against whom the evidence is to be adduced agrees to the admission thereof as evidence at such proceedings;
(b) the person upon whose credibility the probative value of such evidence depends, himself testifies at such proceedings; or
(c) the court, having regard to-
(i) the nature of the proceedings;
(ii) the nature of the evidence;
(iii) the purpose for which the evidence is tendered;
(iv) the probative value of the evidence;
(v) the reason why the evidence is not given by the person upon whose credibility the probative value of such evidence depends;
(vi) any prejudice to a party which the admission of such evidence might entail; and
(vii) any other factor which should in the opinion of the court be taken into account, is of the opinion that such evidence should be admitted in the interests of justice.
(2) The provisions of subsection (1) shall not render admissible any evidence which is inadmissible on any ground other than that such evidence is hearsay evidence.
(3) Hearsay evidence may be provisionally admitted in terms of subsection (1) (b) if the court is informed that the person upon whose credibility the probative value of such evidence depends, will himself testify in such proceedings: Provided that if such person does not later testify in such proceedings, the hearsay evidence shall be left out of account unless the hearsay evidence is admitted in terms of paragraph (a) of subsection (1) or is admitted by the court in terms of paragraph (c) of that subsection.
(4) For the purposes of this section-
'hearsay evidence' means evidence, whether oral or in writing, the probative value of which depends upon the credibility of any person other than the person giving such evidence;
'party' means the accused or party against whom hearsay evidence is to be adduced, including the prosecution.”.
45. I considered the nature of the proceedings, the nature of the evidence, the purpose for which the evidence is tendered, the probative value of the evidence, the reason why the evidence is not given by the person upon whose credibility the probative value of such evidence depends, any prejudice to a party which the admission of such evidence might entail, and other factor which should be taken into account, in order to decide whether the evidence of the witnesses who testified in the internal disciplinary hearing, should be admitted in the interests of justice. I also take into account that arbitration proceedings are not the same as civil or criminal proceedings.

46. I refer to the Minister of Police v M and Others (JR56/14) [2016] ZALCJHB 314), where the Court found that the transcript of the initial hearing was prima facie evidence. According to the Court, the transcript was prima facie evidence in support of the allegations against the applicant, and the Court gave the following six guidelines to follow when deciding whether hearsay evidence is prima facie proof of an allegation.
The hearsay should:

• be contained in a record which is reliably accurate and complete;
• be tendered on the same factual dispute;
• be bi-lateral in nature, (i.e. it should) constitute a record of all evidence directly tendered by all contending parties;
• in respect of allegations, demonstrate internal consistency and some corroboration at the time the hearsay record was created;
• show that the various allegations were adequately tested in cross-examination; and
• have been generated in procedurally proper and fair circumstances.

47. The Court held that this was “no ordinary hearsay”, but “hearsay of a special type”. In this case the Court found that “considered in full, (the transcript) comprised a bi-lateral and comprehensive record of earlier proceedings in which K’s evidence against RM was indeed corroborated by S and D; in which this substantiation survived competent testing by way of cross-examination, and in which RM’s own defence was ventilated and exposed as being implausible”.

48. Further, the Court stated that a reading of the transcripts revealed K’s testimony to be reliable, credible, consistent, and persuasive, and that any reasonable commissioner would be able to gather this from reading the transcript. These transcripts should therefore in the Court’s opinion, “be afforded greater intrinsic weight than simple hearsay…because they constitute a comprehensive and reliable record of a quasi-judicial encounter between the parties”. The only prejudice suffered by RM in admitting the transcripts would be that he could not advance a different type of cross-examination of K than that already conducted during the disciplinary hearing.
49. The above precedent is aptly relevant to this matter in all aspects. The record of the internal disciplinary hearing of the Applicant complies in all aspects with the requirements set out by the Labour Court above. The evidence of the witnesses were tested in extensive and vigorous cross-examination by the Applicant’s competent union representative at the time. The witnesses stood firm in their versions that the Applicant did make the remarks about their big breasts to the minor female learners.

50. In Makhi Kapa v The State CCT292/21[2023] ZACC 01 the Constitutional Court acknowledged the general aversion to the admission of hearsay evidence in criminal cases since hearsay’s reliability cannot be tested by cross-examination or other processes. Notwithstanding, the CC held that hearsay evidence will be reliable and, subject to the assessment and conclusions on the other considerations, admissible if it is not contradicted by “other objectively proven facts” and ultimately, “fit[s] into the picture” sketched by the rest of the evidence. The CC judgment also relied on the Supreme Court of Appeal’s judgment in S v Ndhlovu 2002 (6) SA 305 (SCA), where hearsay evidence was admitted due to “the numerous pointers to its truthfulness”.

51. The CC in evaluating whether it was in the interests of justice to admit Ms Dasi’s statement, considered all of the factors listed in section 3(1)(c) of the Law of Evidence Amendment Act. The consideration of probative value that was central to the case.

52. In assessing the probative value of the statement, the CC recognised, that in key respects, Ms Dasi’s statement mirrored all the objective evidence placed before the Trial Court. For these reasons, the CC held that Ms Dasi’s statement had sufficient probative value to warrant its admission.

53. The Respondent provided reasons why the witnesses could not be called to testify in this arbitration hearing. The allegations of intimidation of the parents and/or minor witnesses are probable. The fact that the Applicant also arrived at the first arbitration date with a large contingent of supporters, whose presence had to be ruled out, support the probability that intimidation tactics were indeed present in this matter. The prejudice to the Respondent in ruling out that hearsay evidence, outweighs any possible prejudice to the Applicant. In the circumstances I rule that the evidence by the Respondent’s witnesses in the disciplinary hearing is admissible hearsay evidence.

54. All the witnesses testified that the Applicant did ask Learner Z at least why she had such big breasts.

55. The Applicant’s defense in respect of the allegation 3 is a blanket denial of any wrongdoing. He submits that it is all a fabrication of lies as a result of the principal wanting to get rid of him.

56. I find the Applicant’s version improbable. The Applicant failed to present any substantial evidence that would prove a conspiracy led by the principal. He merely made unsupported allegations in that respect. I find it highly improbable that a child of 14 years would be able to act as a pawn for the principal, and fabricate such an elaborate, detailed version of events. It also begs the question why the fake allegations would not have been made of a more serious nature if it was indeed all a fabrication. Learner Z did not report the incident herself, out of embarrassment. If she was indeed part of a conspiracy run by the principal, surely he would have made sure that she reported the fake allegations herself, to lean maximum weight to his conspiracy. The Applicant alleged that the principal wanted him gone in order to appoint his own daughter in the Applicant’s post, but the on his own version the daughter was appointed while the Applicant was still employed.

57. The Applicant never submitted any grievance against the principal for the alleged victimization. One could reasonably have expected of him to follow that route if the principal really made his life so difficult.

58. I find the evidence of Learner Z, as contained in the transcript to be credible. The minor memory lapses were to be expected considering the fact that the incident took place at least three years ago. She never contradicted herself in any material aspect of her testimony.

59. I find no probable reason why the witnesses Ntuli and Malapa, as well as the presiding officer, Ngwenya, would fabricate evidence against the Applicant. I find it highly improbable that they would have been convinced to become involved in such an elaborate scheme to falsely implicate the Applicant. The Applicant could not provide any substantial evidence that the alleged conspirators had anything to gain by falsely implicating the Applicant.

60. I also find it improbable that Learner Z would fabricate the version she testified to. One would expect a fabricated version to be much more dramatic in respect of what the Applicant did to her, for maximum effect. If it was all planned, why was the witness reluctant to complain at first. If it were part of a scheme, one would have expected her to shout her feigned indignation from the rooftops as soon as possible.

61. Where there are two conflicting versions of the facts the arbitrator should weigh up each version considering all relevant factors. I must consider the evidence of the witnesses to determine which version is more probable in the circumstances and should be accepted as a true reflection of the events that preceded the dismissal of the Applicant.

62. The risk of false incrimination in sexual cases is addressed in Hoffman and Zeffert, The South African Law of Evidence, 4th Edition, Butterworths, 1992, as follows:
“Corroboration is the most satisfactory indication that the Complainant is truthful, but false evidence by the accused or his failure to testify may also be taken into account, as may any other feature of the case which shows that the Complainant’s evidence is reliable and that of the accused false.”. The Respondent’s witnesses’ version has been materially the same throughout the disciplinary and arbitration process. I find it improbable that they would make up such a detailed version of events without any reason. The Applicant’s version that is a fabrication is not plausible.

63. I can find no substance in the allegation that the Respondent’s version is a fabrication and a lie. I can find no probable motive for the witnesses to fabricate evidence and lie at the arbitration hearing. The Applicant could not provide any probable evidence that would support such notion. I find no substance in the Applicant’s version that a dislike by the principal is behind the attack on him. I therefore find the evidence of the Respondent’s witnesses given at the arbitration hearing in respect of the conduct of the Applicant in respect of Complainant no. 3 to be credible and probable. I find that it was proven on balance of probabilities that the Applicant conducted himself in an improper, disgraceful and unacceptable manner by remarking to Grade 7 female learners that they have big breasts.

64. Therefore, with consideration of all the relevant cautionary rules I find that the Respondent provided evidence that proves on a balance of probabilities that the Applicant committed the alleged misconduct he was found guilty of, i.e., remarking to Grade 7 female learners that they have big breasts, thereby contravening section 18(1)(q) of the Employment of Educators Act, no. 76 of 1998. There is therefore evidence before me that proves that the Applicant contravened a rule or standard regulating conduct in, or of relevance to, the workplace.

65. Considering the nature of the employer’s business, the circumstances in which it operates, the type of work performed by the employee and the environment in which the work is performed, it is accepted that the rules are valid, i.e., lawful and reasonable. It is reasonable to expect educators to refrain from disgraceful and improper conduct towards learners. It has also been specifically prohibited by legislation. There is no evidence that the rules had been abrogated by disuse because the employer had not relied on it for some time. The Applicant did in any event not place this issue in dispute.

66. What is required by the provisions of paragraph 7 of Schedule 8 for a dismissal for misconduct to be fair is that “the employee was aware or could be reasonably expected to have been aware of the rule or standard”. The offence the employee has been charged with appears in the Employment of Educators Act, no. 76 of 1998. The Applicant did not place knowledge of the rule in dispute.

67. There is no evidence of inconsistent and arbitrary action on the part of the employer in this matter. There is no evidence that the employer has habitually or frequently condoned similar offences in the past. There is also no evidence that the employer’s standards differ materially from those applied by other employers.

68. In considering an appropriate sanction, I am required to exercise my discretion reasonably, honestly and with due regard to the general principles of fairness.

69. The Respondent has argued that dismissal is appropriate considering the nature of the transgression. I must consider whether dismissal would be an appropriate sanction, and whether a lesser sanction would serve the desired purpose. In considering an appropriate sanction, I am required to exercise my discretion reasonably, honestly and with due regard to the general principles of fairness. The case of Sidumo v Rustenburg Platinum Mines Ltd [2007] 28 ILJ 2405 (CC) dealt with the scope of commissioners’ powers when deciding whether the sanction of dismissal for proven misconduct is fair. The final decision whether the sanction of dismissal for proven misconduct is appropriate rests with the commissioner. I must therefore as impartial adjudicator consider all relevant circumstances in deciding whether the dismissal of the Applicant was the appropriate sanction initially.

70. The Code of Good Conduct: Dismissal, states that one of the requirements of a fair dismissal for misconduct is that the dismissal must be an “appropriate” remedy, in the light of the facts of the case.

71. In an earlier dictum of Conradie JA a similar approach was also followed when the court pronounced that -:
“A dismissal is not an expression of moral outrage; much less is it an act of vengeance. It is, or should be, a sensible operational response to risk management in the particular enterprise. That is why supermarket shelf packers who steal small items are routinely dismissed. Their dismissal has little to do with society’s moral opprobrium of a minor theft; it has everything to do with the operational requirements of the employer’s enterprise.”. The courts have accepted that the ultimate justification for employers’ power to impose discipline flows from their right to manage their business effectively. (See De Beers Consolidated Mines Ltd v CCMA & Others (2000) 21 ILJ 1051 (LAC)).

72. It is well established that the relationship between employer and employee is in essence one of trust and confidence and that, at common law, conduct clearly inconsistent therewith entitles the “innocent” party to cancel the agreement (See Angehrn and Piel v Federal Cold Storage Co Ltd 1908 TS 761 at 777–778.)

73. I am mindful of the fact that although the Applicant was charged with and found guilty at the disciplinary hearing of improper, disgraceful and unacceptable conduct, that the action of commenting on the breasts of female learners have a clear and obvious sexual misconduct connotation. The Applicant as educator engaged in conduct which is in direct contravention of the values and obligations prescribed by The Code of Professional Ethics of Educators. He failed to act in a proper and becoming way so that his behavior does not bring the teaching profession into disrepute. The Code places emphasis on educators refraining from any form of improper, disgraceful, unacceptable or sexual assault on or harassment of learners at a school, and not abusing the position he holds for personal gain. Section 28(2) of the Constitution of the Republic of South Africa, no. 108 of 1996 provides that a child’s best interests are of paramount importance in every matter concerning the child. This is a factor that I keep in mind as surely it was not in the best interest of the female learners to be treated in that manner by an educator.
74. I took cognizance of the Labour Court’s findings in the matter of David Oupa Diholo v Department of Education and Others JR1775/19 handed down on 2 May 2023. The Court found that the evidence against the applicant demonstrated an individual who had committed misconduct against a learner, and who totally failed to live to the principles of being a protector and guardian expected of a paterfamilias in his position vis-à-vis the Complainant. The evidence points the applicant as someone who sought to take advantage of the Complaint by prying into her private life and invading her personal space and bodily integrity, in the guise of being caring and fatherly. He betrayed the trust of the Complainant through his conduct and created an unhealthy, insecure and hostile environment for her.

75. The Court found that the fact that the applicant throughout had persisted with his denials of the allegations, only to try and justify his actions, is indicative of his refusal to show any contrition. He instead chose to point fingers for the position he found himself in on unknown ‘third forces’ with no evidence to back up his conspiracy theories. Clearly the ultimate sanction of a dismissal was appropriate in the circumstances.

76. The above judgement is aptly relevant in this case. Having considered all the facts before me, including but not limited to, the gravity of the offence, the senior position of trust the Applicant was employed in, and the years of service of the Applicant I find that the sanction of dismissal is fair and appropriate in the circumstances.

77. The Applicant’s years of service cannot outweigh the gravity and seriousness of his offence. The Labour Appeal Court has held that long service cannot in itself provide a basis for rendering a dismissal unfair. See De Beers Consolidated Mines Ltd v CCMA & Others (2000) 21 ILJ 1051 (LAC).

78. I accordingly find the Applicant’s dismissal substantively fair.
Procedural fairness

79. The Applicant did not dispute the procedural fairness of his dismissal and I accordingly find the Applicant’s dismissal procedurally fair.

Relief
80. The Applicant is not entitled to any relief.

Award

81. The application is dismissed.

COEN HAVENGA
SENIOR ELRC ARBITRATOR
9 May 2023