ELRC941-22/23GP

AWARD

Case Number: ELRC941-22/23GP
Commissioner: E Maree
Date of Award: 18 August 2023

In the inquiry between

Gauteng Department of Education

(Employer)

And

Senzo Sihle Zulu

(Employee)

Employer representative: Ms. N. Manda


Employee representative:

Mr. K.A. Tumeli

Details of hearing and representation

1. The inquiry by arbitrator regarding an alleged act of misconduct, set down in terms of Section 188A of the Labour Relations Act, 66 of 1995 ‘’the LRA’’ and Collective Agreement 3 of 2018, the ‘’CA’’ was heard on the 10th of May and the 21st of July 2023 at the Gauteng West District Office, Krugersdorp.

2. The employee was represented by Mr. K.A. Tumeli an official from SADTU while the employer was represented by Ms. N. Manda a Labour Relations Officer.

3. The arbitration was electronically recorded, and handwritten notes were taken. The process was also assisted by an intermediary, Ms. E. Shibisi and council interpreter Mr. M. Myeza.

4. The parties have agreed to submit written closing arguments on or before the 28th of July 2023. Both parties provide their closing statements.

Issues to be decided

5. I must determine if the employee is guilty of the charges of misconduct levelled against him. In the event of a finding of guilt, the appropriate sanction must be determined.

Background to the dispute

6. The employee, an educator, had been employed as such at the Thuto-Lehakwe Secondary School.

7. The charges levelled against the employee are quoted verbatim hereunder. Due to the fact that the charges relate to allegations of sexual misconduct, and the learner is a minor, she will not be identified but referred to as ‘’the minor’’, ‘’G’’ or ‘’the learner’’. The identity of the learner was confirmed off the record by all the parties. The name is the charge sheet was also substituted in this manner.

Allegation 1

‘’it is alleged that on or around 21 October 2022, at or near Thuto-Lehakwe Secondary School, you conducted yourself in an improper, disgraceful and unacceptable manner in that you sexually harassed a minor Grade 10 learner by kissing her.
In view of the above you are thus charged with misconduct in terms of Section 18(1) (q) of the Employment of Educators Act, 76 of 1998, as amended.

Allegation 2

‘’it is alleged that on or around 21 October 2022, at or near Thuto-Lehakwe Secondary School, you conducted yourself in an improper, disgraceful and unacceptable manner in that you sexually harassed a minor Grade 10 learner by attempting to touch her private parts.
In view of the above you are thus charged with misconduct in terms of Section 18(1) (q) of the Employment of Educators Act, 76 of 1998, as amended.

8. The employee admitted that the notice was received timeously on the 21st of February 2023 that he was informed of the right to be represented and was indeed represented by an official from SADTU. The employee also acknowledged that he understood the charges and pleaded ‘’not guilty’’.

9. It was accepted that there was sufficient time to prepare and that all rights including but not limited to the right to have an interpreter was explained.


Survey of evidence and argument

The LRA requires that brief reasons be given in an award, therefore the following is a summary of the relevant evidence given under oath and submissions made in argument all of which is not reflected in this award but had nevertheless been taken into account.

Employer’s evidence

10. The employer called four (4) witnesses in order to prove, on a balance of probabilities, that the employee was guilty of misconduct.

11. The first witness Ms. Sheila Martha Hlope (Hlope) testified that she is the mother of the learner and that they received a phone call from the school to collect the learner who was not feeling well. Her daughter in law then fetched the learner who upon arriving home went to her bedroom. She approached the learner, who was weeping ‘’bitterly’’ and asked her what was wrong. The learner then said ‘’Mr. Zulu (Zulu) touched me where he should not touch me’’. The learner explained to her that Zulu kissed her and touched her breasts.

12. According to Hlope she and her husband then went to school on the Monday where they reported the incident to the Principal. Zulu was then called to the office where her husband confronted him about improperly touching their daughter, upon which Zulu said ‘’my parents, I know your child, we usually communicate on the telephone’’.

13. Hlope further submitted that Zulu then went on his knees and said ‘’my parents please forgive me, I was tempted, I was led to temptation, please forgive me’’.

14. Hlope stated that upon hearing of the incident from the learner she ‘’did not feel right’’ and ‘’felt her pain’’. She stated that ‘’even today I am still not well, this is re-opening the wounds’’.

15. The second witness, Mr. Duncan Ngobeni (Ngobeni) testified that he is the Principal at Thuto-Lehakwe Secondary School and as such wrote the report (Bundle A page 1) after the parents of the learner, on the 24th of October 2022, reported the incident that occurred on the 21st of October 2022. During this meeting he had with the parents, the learner and Zulu were also present. He was informed by the parents that Zulu called the learner to his office and kissed her and that this was confirmed by the learner. Zulu explained that they were Facebook friends and stated he had called the learner to his office but gave no reason for this.

16. Ngobeni stated that Zulu apologised to the parents, bent down on his knees and said ‘’pardon me for being friends with her’’. About 20 minutes after the meeting, he was told by the Deputy Principal that Zulu came to her office and told her that he wanted to commit suicide and showed her the pills he wanted to take.

17. The third witness, Ms. Kate Kenilwe Kwatsha (Kwatsha) testified that she an educator at Thuto-Lehakwe and on the day in question saw the learner and Zulu in the office. She asked Zulu about the whereabouts of Ms. Mabuso, and he told her, she was probably in her class. She left the office and Zulu stayed behind with the learner.

18. The fourth witness the learner ’’G’’ testified that she turned 18 years during March 2023 is a learner at Thuto-Lehakwe Secondary School and currently in Grade 11. During the incident on the 21st of October 2022, she was in Grade 10.

19. G stated that she received a Facebook friend request from Zulu which she accepted to ‘’see what it was about’’. Zulu knew her by name and wanted to know why she was not at school. This surprised her as he did not teach her any subjects.

20 According to G she was in her class on the Monday when Zulu came to her class and was looking for an I phone charger. On the Wednesday, Zulu sent two learners who live with her in Zinzele to call her to his office. She followed them to Zulu’s office as she did not know where it was, and upon reaching his office, they left. Zulu asked after her health (as she was ill and at home when he send her the friend request) she told him she was ‘’okay’’ and returned to class.

21. G submitted that before their break, Zulu came to her class looking for her and telling her to follow him to his office where she sat down. Kwatsha was there, left, returned and had a conversation with Zulu about an incident where a learner had a knife. Kwatsha then left.

22. G testified that Zulu then turned to her and said ‘’I love you’’, got up and kissed her. She pushed him away and he tried to touch her private parts. She said ‘’what are you doing, I don’t like it’’. Kwatsha arrived and she then left. She could not breathe, went to the toilet and phoned her sister as she wanted her cousin to bring her asthma pump. She was taken to the staffroom and Zulu offered to bring her water. The deputy principal then phoned her parents to collect her from school. She then reported the incident to her mother.

23. G submitted that her parents reported the incident to the Principal and during the meeting she told him what happened. Zulu was then called to the meeting where the Principal relayed her story to him namely that the kissed and touched her. Zulu then went on his knees in front of her parents and said ‘’I ask forgiveness, I apologize for what I have done. I have children at home, I cannot lose my job. I will do what it takes to remedy what I have done’’. Her mother said to Zulu that she was sent to school to be educated and ‘’not be made a woman off’’. Zulu again apologized.

Employee’s evidence

24. The employee Mr. Senzo Sihle Zulu (Zulu) testified that he saw a friend request on Facebook on the 17th of October and as he did not accept requests from strangers he sent a message to ask the person’s name who then identified herself as G. During their conversations she told him she was a learner at Thuto and he realised that he knew her and did not see their chats ‘’as wrong’’ as it ‘’was normal conversations’’. He however, became concerned when she messaged him at night.

25. Zulu submitted that on the 21st of October he went to the learner’s classroom, Grade 10D during the second period, said he was looking for her and she then followed him out. He wanted to discipline her and ‘’talk sternly to her’’ but did not want to embarrass her in front of other learners. He does not have his own office but share one with 6 others. They sat down and she asked him about the boy who tried to stab him. He was friendly and professional and asked her why she was concerned with his private life. He told her that they must end the conversation as ‘’others would not understand why we talk at night’’. The conversation ‘’did not end nicely’’ but the learner left the office. During their conversation Kwatsha also came in and asked about the child who wanted to stab him. It is his view that the learner is making the allegations against him as most learners do not like him and does not want him, as he is strict. The boy with the knife is in the learner’s class. He does not teach the learner any subjects.

26. According to Zulu he left the office and then saw the learner with a group of other learners and saw her fainting. As she told him she has asthma, he took her to the sick room as he ‘’’always attend to learners’’. He alerted the deputy Principal that the learner was in the sick room and she told him to go to the learner and to get her parents telephone number which he then did. The learner informed him that her phone was off, he reported this to the deputy who send him back to the learner to bring her to the office. He did this and he returned with G to the deputy’s office who then told the learner that she would take her home. The learner however, said she was ‘’okay’’ and he took her back to the sick room where he gave her water at her request and returned to his class.

27. In conclusion Zulu submitted that he was called to the Principal’s office on the 24th of October and was informed that the learners parents ( who were in the office as was the learner) had reported an issue. The principal asked him what happened (after listening to the learner) and when he wanted to explain the father wanted to beat him. He then apologized to save his life.

Analysis of evidence and Arguments

28. The onus in this matter was on the employer to prove, on a preponderance of probabilities that the workplace rules were contravened, and that the employee was guilty of the charges levelled against him namely kissing and attempting to touch her private parts.

29. The employer called four witnesses to testified on its behalf. The crux of the evidence of two of these witnesses ( the learner and her mother) was that the employee, Zulu, kissed the learner and attempted to touch her private parts. Regarding the latter the mother of the learner testified that this was the learners breasts, whereas the learner just stated it was her ‘’private parts’’. She was taken to task during cross-examination as to the difference between ‘’touching’’ and ‘’trying to touch’’ and it was explained that the employee brushed with his hand/s over her pants and over her private parts. The learner stated that such to her was ‘’trying’’. The learner also submitted that Zulu told her that he loves her.

30. Three things flow from this, one that the learner was kissed, two that she was touched inappropriately on or over her private parts. It matters not that this was ‘’over her pants’’. It also matters not if such touch was over her breasts ( that qualifies as private parts) or over the bottom half of her body that was covered by her pants and that she described as ‘’private parts’’. The third is that Zulu told her that he loved her.

31. The employee’s case amounted to a bare denial and his explanation for the evidence against him was that he was not popular with the learners as he was strict. He stated that the evidence of the learner was due to this and as the boy who tried to stab him was in her class.

32. It was common cause that the learner had never been taught by the employee, nor had she been reprimanded/disciplined by him. I find it improbable that she would make up allegations against someone she had no issue with, in order to ‘’protect’’ another learner.

33. The version of the employee set out in paragraph 26 (supra) was never put to the learner.

34. The version of the employee that he called the learner to his office as he wanted ‘’to reprimand her’’ and ‘’talk sternly to her’’, apparently over the Facebook (FB) chats, was also not put to the learner. If indeed he was so concerned over their chats on FB he could have ended such by ‘’unfriending’’ her. It is as easy as that.

35. The learner submitted that the employee told her he loved her, kissed her and touched her private parts. This crucial evidence was NOT disputed instead the focus during cross-examination was placed on irrelevant details such as the number of doors in the office, FB chats, the seating arrangement and the difference between ‘’touching’’ and ‘’trying to touch’’. These are but a few examples.

36. The learners evidence was supported by that of her mother who relayed what she was told by her daughter. Again, the crux of her evidence was not disputed but issues taken up revolved amongst others around why they did not rush to school if the learner was ill and that they were not serious as they waited to report the incident only on the Monday,

37. The learner and her mother submitted that the employee asked for forgives during the conversation in the Principals office. It was put to the mother during cross-examination that such was done when the employee was told that the FB chats were inappropriate. The version of the learner regarding this was not disputed. During his evidence the employee claimed that he apologised as he feared for his life due to the fact that the learners father wanted to beat him. This version was not put to the mother or the learner.

38. The evidence of the employer’s witnesses were not materially challenged or destroyed. Their credibility also remained intact and I thus have no reason not to accept their evidence.

39. The employee on the other hand failed to present a proper version and it amounted to a bare denial. Large parts of his case were not put to the respondent’s witnesses and as already stated, crucial parts of their evidence were not disputed.

40. In IMB South Africa (Pty) Ltd v CCMA and other (JR 64/2014) (2016) ZALCJHB 267l; (2016) (LC) 151 (handed down on 19 April 2016) the Court held that is the duty of a Commissioner to adopt a holistic approach to the body of evidence presented and to place all in its proper context.

41. Therefore given the evidence presented, the employer succeeded in proving the charges against the employee.

Award

42. I therefore make the following award:

“The employee, Senzo Sihle Zulu is found guilty of the charges levelled against him that reads as follows

Allegation 1

‘’it is alleged that on or around 21 October 2022, at or near Thuto-Lehakwe Secondary School, you conducted yourself in an improper, disgraceful and unacceptable manner in that you sexually harassed a minor Grade 10 learner by kissing her.
In view of the above you are thus charged with misconduct in terms of Section 18(1) (q) of the Employment of Educators Act, 76 of 1998, as amended.

Allegation 2

‘’it is alleged that on or around 21 October 2022, at or near Thuto-Lehakwe Secondary School, you conducted yourself in an improper, disgraceful and unacceptable manner in that you sexually harassed a minor Grade 10 learner by attempting to touch her private parts.
In view of the above you are thus charged with misconduct in terms of Section 18(1) (q) of the Employment of Educators Act, 76 of 1998, as amended.

43. Section 17(1)(b) stipulates as follows

‘’An educator must be dismissed if found guilty of

‘’committing an act of sexual assault on a learner, student or other employee’’

44. The employee, Senzo Sihle Zulu is thus dismissed with immediate effect.

45. It is also found that Senzo Sihle Zulu is found unsuitable to work with children in terms of Section 120(4) of the Children’s Act 38 0f 2005.

46. 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 Sboniso Gumede is unsuitable to work with children for the Director-General to enter his name as contemplated in section 120 part 8 of the register..

DATED AT PRETORIA ON THIS 18th DAY OF AUGUST 2023

Council Commissioner