ELRC964-22/23FS

THE INQUIRY-BY-ARBITRATOR BETWEEN

THE SUPERINTENDENT-GENERAL
FREE STATE DEPARTMENT OF EDUCATION EMPLOYER

and

MR LAWRENCE LETOLO EMPLOYEE

Case No: ELRC964-22/23FS
Dates: 21 April 2023
Venue: Provincial Office of DOE, Bloemfontein


AWARD


DETAILS OF HEARING AND REPRESENTATION

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

2. The Inquiry-By-Arbitrator (hereinafter ‘the Inquiry’) took place on, 21 April 2023, at the provincial offices of the employer in Bloemfontein. Both parties attended the Inquiry. The employer was represented by Ms Lindiwe Cweba, its Labour Relations Officer. The employee was represented by Mr Desmond Serape, a Full-Time Shopsteward from the trade union South African Democratic Teachers Union (hereinafter ‘SADTU’).

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

4. The proceedings were digitally recorded, and Mr Seabelo Skhasa was the Interpreter. Ms Thiti Mokgwamme was the Intermediary. The parties requested at the end of the Inquiry to submit their closing arguments in writing by, 30 April 2023, whereafter the award shall then follow.

ISSUE TO BE DECIDED

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

BACKGROUND TO THE DISPUTE

6. It is common cause that the employee is employed by the employer as an Educator, in Mathematics, Natural and Physical Sciences since, January 2018, at Ikaelelo Secondary School, in Rocklands - Bloemfontein, to date. The employee was notified of the allegation on, 16 February 2023.

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

Charge 1
You have contravened Section 18 (1) (q) of the Employment of Educators Act No 76 of 1998, in that on 21/10/2022, while on duty, you conducted yourself in an improper, disgraceful or unacceptable manner when kissed a grade 8 learner, on the cheek. [sic]

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

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

SURVEY OF EVIDENCE AND ARGUMENT

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

Documentary Evidence

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

Employer’s Case

12. The Learner, testified as the first witness of the employer. She narrated what happened on, Friday 21 October 2022. The Learner testified that she was on her way from their toilets, when she bumped into the employee at the stairs, on her way to her classroom. She stated that the employee stopped and asked her to accompany him to his classroom. The Learner stated that the employee then asked her for a kiss. She stated that she said no and laughed, whereafter the employee held her hand.

13. The Learner testified that the employee then told her to kiss him. She stated that she then kissed the employee on the chick. The Learner stated that the employee said no and told her that he wants it on the mouth. She stated that at that point in time, the employee became distracted by a lady who called him from downstairs.

14. The learner stated that she then left the employee and went to her classroom. She stated that the employee told her that he wants her telephone number before the end of the day. The Learner testified that she asked the employee: “my number or my mother’s number?”, whereafter the employee replied, “your number”. She stated that she left after school without giving the number, and that she told her two friends and parents about the incident.

15. In cross-examination, the Learner stood by her testimony and agreed that the employee might have had access to her mother’s cellular phone number, through a class whatsapp group which they do have. She added that the employee also pinched her and another learner under their armpits, earlier, on the same day, for having laughed at another learner. The learner added that she was not angry about the pinching incident and that the employee did not apologise for it.

16. Ms T, one of the Learner’s 15-year-old friend, testified as the second witness for the employer. She testified that she was in Grade 9 at the time, and that the employee was her class teacher. Ms T confirmed the version of the Learner about the incident, and how the Learner told them about the kiss on the cheek, whereafter they laughed about it. She also confirmed the incident about the pinch under the armpits and that the Learner was only angry for a short time about it. Ms T stated that the Learner said that she (the Learner) would make the employee pay for the armpit incident.

17. In cross-examination, Ms T stood by her testimony and explained that she did was not part of the class whatsapp group. She denied having witnessed the kissing incident or that the Learner gave the employee a hug as well.

18. Mrs Nomalanga Menzagabom-Setlai, the Learner’s mother, testified as the third witness in the employer’s case. She testified that the reported to them that the employee wanted to kiss her, whereafter the Learner and the employee parted ways. The mother testified that she attempted to call the employee thrice, of which the employee did not pick up his phone. She stated that she wanted to ask the employee over the phone, on why the employee wanted to kiss her daughter, instead of her.

19. The mother testified that she and the father reported the matter to the School Governing Body (hereinafter the SGB), who in turn reported the incident to the school principal. She stated that the principal then called them in and insisted that the matter be escalated to the employer. The mother testified that subsequent to that, the employee decided to bring to their house, a school report of the Learner, which was long outstanding. She stated that the employee also apologised to all of them for the incident, on that same day. The mother stated that the employee told them that it was only a kiss and not a hug, whereafter they (the parents) decided to forgive the employee. She stated that the Learner also showed her the marks of the pinching incident.

20. In cross-examination, the mother stood by her testimony and added that the Learner’s school report showed a positive performance on the part of the Learner, something which the Learner struggled with during the previous terms. She stated that her husband accepted the employee’s apology, though not happy about it.

21. In closing arguments, the employer’s representative submitted that Ms T corroborated the version of the Learner, that the Learner, involuntarily kissed the employee on the cheek. She submitted that the act was unwelcomed and unwanted, a conduct which is unbecoming of an Educator. The representative submitted that the conduct is prohibited by legislation.

Employee’s Case

22. Mr Lawrence Letolo, the employee, testified as the only witness in his case. He testified that he is married with five children. The employee testified that the Learner did not take the pinching incident well on, Friday 21 October 2022, and accused him of having pinched her harder than the other learners. He testified that he told the Learner that the Learner should not expect a special treatment, simply because he is acquainted with her parents.

23. The employee testified that he apologised to the Learner and took her hand and gave her a shoulder-to-shoulder touch, as a token of making peace. He denied having ever asked the Learner for a kiss on that day or having kissed her. He gave some explanation about the school report and whatsapp group and stated that he was shocked to learn from the SGB about the allegations. The employee also denied having asked the Learner for her contact number.

24. In cross-examination, the employee stood by his testimony and stated that he does not know why the Learner would make such serious allegations against him. He stated that he told his representative to put his version to the witnesses of the employer.

25. The employee’s representative did not submit written closing statements as promised.

ANALYSIS OF EVIDENCE AND ARGUMENT

26. As stated previously, the employee pleaded not guilty to the charge levelled against him. The employer called three witnesses and the employee was the only witness in his case. The Learner (who at the time was 14 years of age) gave reliable evidence, which was well corroborated by Ms T, who was informed about the incident on the same day.

27. The employee’s version of the event was not corroborated by anyone, and neither was his version put to the witnesses of the employer. I find this problematic and not plausible. The employee is in a position of loco parentis at the school and is not permitted to make any romantic gestures towards learners. Worse so, when the learner is a child, like the Learner in this case.

28. The employee’s conduct is not just contra bonos mores (against the good morals of society), but he has equally so, violated his professional codes and the law. The evidence shows that the employee managed persuade the Learner to kiss him, albeit on the cheek. Had it not been for the lady who distracted his mission, I have no doubt that he might have received the actual kiss on his mouth, as anticipated.

29. The evidence also shows that the kissing incident was not the employee’s first misconduct for the day. The employer’s witnesses testified that the employee also assaulted the Learner, earlier on that day, in the form of pinches under the armpits. Even though the employee was not formally charged for it, this by itself aggravates the severity of the employee's disregard for the law. Those pinches also amount to corporal punishment, something that has been declared unlawful a long time ago.

30. Not only did the employee commit acts of corporal punishment on that day, but so too did he commit an act, which has sexual connotations attached to it. It is clear from the evidence that the employee cannot be trusted around children, children whom he is expected to protect. As a parent of five children, I find it hard to believe that the employee would engage in such misconducts.

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

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

32. Even though the employee is charged under section 18 of the EEA, the evidence shows that the employee has violated section 17 of the EEA, due to the involvement of a learner and child in the misconduct.

33. Section 17(1)(b) of the EEA provides the following:

Serious misconduct
17. (1) An educator must be dismissed if he or she is found guilty of –
(a) ….
(b) committing an act of sexual assault on a learner, student or other employee;

34. Having considered the evidence led by the respondent in its totality, I am of the view that the employee has seriously misconducted himself on, Friday 21 October 2023, and that he has contravened section 17 of the EEA.

35. The Education Laws Amendment Act (the ELAA), which purpose is also to amend the EEA’s provisions dealing with incapacity, misconduct and appeals, provides the following:

Substitution of section 17 of Act 76 of 1998
10. The Employment of Educators Act, 1998, is hereby amended by the substitution for section 17 of the
following section:
“Serious misconduct
17. (1) An educator must be dismissed if he or she is found guilty of—
(a) theft, bribery, fraud or an act of corruption in regard to examinations or promotional reports;
(b) committing an act of sexual assault on a learner. student or other employee;
(c) having a sexual relationship with a learner of the school where he or she is employed;
(d) seriously assaulting, with the intention to cause grievous bodily harm to. a learner, student or
other employee;
(e) illegal possession of an intoxicating, illegal or stupefying substance; or
(f) causing a learner or a student to perform any of the acts contemplated in paragraphs (a) to (e). (2) If it is alleged that an educator committed a serious misconduct I contemplated in subsection
(1), the employer must institute disciplinary proceedings in accordance with the disciplinary code
and procedures 35 provided for in Schedule 2.”

36. It is clear from the ELAA that a peremptory duty exists on me to dismiss the employee if he is found guilty of having sexually assaulted a Learner in accordance with section 10 of the ELAA. A dismissal therefore automatically follows a guilty finding. If put differently, one may also say that the employee is dismissed by operation of law, after being found guilty of having sexually assaulted a learner of the school where he was employed at.

37. It follows that based on the provisions of the law (the ELAA) a dismissal is mandatory and the appropriate sanction which must be handed down on the employee. No further mitigating or aggravating circumstances can overrule this provision of the law. The employee in my view abused his authority as a teacher and betrayed the trust placed in him whilst standing in loco parentis towards the learner.

38. Having considered the facts of the case and the provisions of the law, I am duty bound to dismiss the employee.

39. The parties did not address me on whether the employee’s names must be recorded in the Child Protection Register if found guilty. Of cardinal importance is whether the Children’s Act (hereinafter ‘the CA’) is of relevance to the instance of the learner. Section 1 of the CA provides the following:

1 Interpretation
(1) In this Act, unless the context indicates otherwise-
‘child’ means a person under the age of 18 years;

40. It is clear from the definitional clause of the CA that a child is a person under the age of 18 years. The common cause evidence of this case is that the learner was underage, under the age of 18 years (14 years to be exact) at the time of the incident(s). The provisions of the CA can therefore be applied to the current case of the employee.

41. Section 122(1) of the CA provides the following:

122 Finding to be reported to the Director-General
(1) The registrar of the relevant court, or the relevant administrative forum, or if the finding was made
on application in terms of section 120(2), the person who brought the application, must notify the Director-General in writing-
(a) of any findings in terms of section 120 that a person is unsuitable to work with children; and
(b) of any appeal or review lodged by the affected person.

(2) The Director-General must enter the name of the person found unsuitable to work with children as contemplated in section 120 in Part B of the Register regardless of whether appeal proceedings have been instituted or not.

42. It follows that the finding which I have made in paragraph 40 supra necessitates that it be forwarded in writing to the Director-General of the Department of Social Development. This is for purposes of entering the employee’s name in Part B of the Register.

43. Based on this evidence, I shall make an order that the employee’s name be reported to the Director-General of the Department of Social Development, for listing in the Child Protection Register.

44. In the premise, I make the following award:

AWARD

45. Mr Lawrence Letolo is found guilty of the charge levelled against him, by the Superintendent-General: Free State Department of Education.

46. The mandatory sanction of dismissal is imposed with immediate effect on Mr Lawrence Letolo.

47. Mr Lawrence Letolo is found unsuitable to work with children, in accordance with section 120(4) of the Children’s Act 38b of 2005.

48. The General Secretary of the Education Labour Relations Council must, in terms of section 122(1) of the CA, notify the Director General of the 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 Lawrence Letolo 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.

49. The General Secretary of the Education Labour Relations Council is further directed to serve this award on the South African Council of Educators.

This is done and dated on 25 May 2023 at Kimberley.


Adv. David Pietersen
ELRC COMMISSIONER

Inquiry-By-Arbitrator