ELRC141-22/23GP

IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD IN VIRTUALLY
CASE NO.: ELRC141-22/23GP
In the matter between:-

BUTHELEZI LUCKY APPLICANT

and

DEPARTMENT OF EDUCATION- GAUTENG RESPONDENT

ARBITRATOR: MMAMAHLOLA GLORIA RABYANYANA
HEARD: 18 August,25 October and 01 November 2023
CLOSING ARGUMENTS: 08 November 2023
DATE OF AWARD: 17 November 2023
SUMMARY: Labour Relations Act 66 of 1995 –Section 186(1) – Unfair dismissal

ARBITRATION AWARD

DETAILS OF HEARING AND REPRESENTATION
1. A virtual arbitration was held on 18 August, 25 October and 01 November 2023.The Applicant was represented by Ms P. Jafta, SADTU official. The
Respondent was represented by Ms R.Tsubane, its Labour Relations Officer.
The proceedings were recorded digitally. The parties were given until 08 November 2023 to submit their closing arguments. The respondent ‘s bundle is marked “R” and the Applicant’s “A”.
BACKGROUND TO THE ISSUE
2. The Applicant had referred the dispute of unfair dismissal to the Council for Conciliation. The dispute could not be resolved and a certificate of outcome of conciliation to that effect was issued. The Applicant then requested that the dispute be arbitrated.
ISSUE TO BE DECIDED
3. I am required to decide whether the applicant’s dismissal was substantively fair i.e if he committed the offences and if the sanction is appropriate. Further the procedural fairness i.e If the respondent has lodged the appeal of the chairperson ‘s three months suspension without salary within the time -frame. He seeks the chairperson ‘s outcome to be upheld and the MEC’s dismissal outcome to be set aside.

AGREED FACTORS
4. The parties agreed to the following factors as being common course:-
4.1 The Applicant started working for the Respondent as PL1 Educator at Goudpark Primary school on 01 April 2016 ;

4.2 He was promoted to HOD post, PL2 on 01 November 2017 Elsie Ngidi primary School. Prior to the dismissal he was HOD at Elsie Ngidi Primary school earning basic salary of R41 317.50 per month;

4.3 He was Food Handler coordinator at the school;

4.4 He was dismissed on 24 May 2023 for five counts of sexual harassment against a fellow employee ( food handler) in the following:

4.4.1 During May 2021, whilst on duty, he conducted himself in an improper, disgraceful and unacceptable manner towards Ms. Precious Kumbuza by telling her that she was having sex with the Principal, Mr. Mathibe in his office, when she went to sign her employment contract.

4.4.2 During May 2021, whilst on duty, he conducted himself in an improper, disgraceful and unacceptable manner by sexually harassing Precious Kumbuza by touching her bums and breasts.

4.4.3 During the academic year 2021 whilst on duty, he conducted himself in an improper, disgraceful and unacceptable manner, by requesting Precious Kumbuza to drive with him to the bushes in Lawley so that he could have sex with her. He further told her that he would not hurt her because he would use his fingers to insert in her vagina.

4.4.4 During the academic year 2021 whilst on duty, he conducted himself in an improper, disgraceful and unacceptable manner, by requesting Precious Kumbuza to come to his office because he wanted to insert his finger in her vagina and smell it.

4.4.5 During the academic year 2021 whilst on duty, he conducted himself in an improper, disgraceful and unacceptable manner, by telling Precious Kumbuza that when he saw her, his penis erected especially when she was wearing a navy dress.

4.4.6 The misconduct is in contravention of section 18 (1) (q) of the Employment of Educators Act 76 of 1998 as amended.

4.5 He was aware of the rules, the rules were reasonable and consistent application of same is not in dispute.

4.6 The hearing was held and completed on 17 February 2023. He was afforded the opportunity to make representations during the appeal ,which he did.


4.7 Procedural fairness is not in dispute up to the completion of the hearing.

SURVEY OF ARGUMENTS AND EVIDENCE
5. Phillemon Setlhamo Mathibe testified for the respondent that he is the school’s principal. Precious Khumbula ‘s father reported the complaints to him. The father was angry and shouting when he came to the school.

6. He reported that the applicant was sexually harassing his daughter by touching her breast and buttocks and using inappropriate language to her. Further that he accused her of having sex with the principal in his office. He asked to go have sex with her at Lawley bushes. That he become horny when he saw her wearing a particular dress. He told her that he wanted to have sex with her by inserting his finger in her vagina and that it would not hurt.

7. He wanted to report the matter to SAPS. He requested him to follow the departmental process instead. He, the principal escalated the matter to the cluster leader.

8. He denied having sex with Precious. Precious had come to sign her employment contract in his office. It was in the morning during office hours. Her original contract had gone missing.

9. The food handlers come to school with their civilian clothes and change to uniform in the change room. The food handlers were reporting to the applicant as their coordinator. He was overseeing their basic operations. The applicant was responsible for many activities at school.

10. During cross examination he said Precious told him that the applicant accused her of having sex with him. The food handlers leave school between 12pm and 1pm. His office is almost central in the admin block. The applicant was a hard worker. His workload had to be alleviated to another person to relieve him.

11. Precious Thandeka Kumbuza testified she had gone to sign a contract at the principal’s office. When she went out of the office, she met the applicant by the corridor, who followed her to the kitchen. He accused her of having sex with the principal because they closed themselves in the office. He said he did not trust the principal He accused her of refusing to go to his office when he invited but she rushes to the principal’s office.

12. As for count 2, she testified that she was in the kitchen and her colleagues had gone out to dish for the learners. The applicant came from behind her, he touched and caressed her bums and breasts from behind. He told her that he becomes horny when he sees her. He ignored her instructions to stop. He persisted.

13. Count 3, the applicant invited her to have sex with him at the Lawley bushes, because every time he sees her, he becomes horny. He was lustful on her. She felt disgusted by these utterances.

14. Count 4, he invited her to his office so he could insert his finger in her vagina and smell it. He told her that if it were the principal inviting her, she would not hesitate to run to his office.

15. Count 5, he told her that he becomes horny when he sees her in a navy dress. When she looked at his pants, his penis was indeed erect. This happened after school, after changing from uniform to civilian clothes.

16. She reported these incidents to the Deputy Principal, Tlhagadi. She felt comfortable with her because she was a woman. Tlhagadi told her to assess if the situation persists. When her son told her that the applicant did not give him a book in the classroom, she decided to report the incidents to her father. She realized that he was abusing her son because she was refusing to accede to his sexual advances. Her father approached the principal the following day.

17. The applicant’s erstwhile SADTU union representative during the disciplinary enquiry, Ndzondo called her. The call was made before the enquiry commenced. The audio clip of the call was played to the record.

18. In the audio, Ndzondo is heard telling the Kumbuza that he was calling on behalf of the applicant. He understood that Kumbuza did not fabricate the complaints. He asked Kumbuza what she needed in exchange of withdrawing the complaints because the applicant would be dismissed if the hearing proceeded. Kumbuza asked Ndzondo what her son has done to suffer at the hands of the applicant.

19. She told him that the more he mentioned the applicant’s name the worse she got upset and disgusted. Ndzondo asked Kumbuza why she did not make the applicant pay instead of pursuing the complaints. He requested Kumbuza to forgive the applicant.

20. Ndzondo asked to meet with Kumbuza’s father. She refused and told him that her father was fuming. She refused to take the money and told him that she was probably not the only victim and what he did to her was serious. She did not want the Applicant’s money because money is evil.

21. Ndzondo appreciated that she did not report the incident to SAPS. He mentioned that on that day, he was going to attend a pre-hearing meeting and that the applicant was remorseful.

22. She continued with her testimony that in the mist of the situation, her son was suffering. Her son was refusing to go to school because the applicant did not want to give him a book and the other learners laughed at him. He was in Grade 6. The applicant was not his son’s teacher but he issued the “DPE” books to the class.

23. During cross-examination she said that the applicant was coming from the staff room when she met him in the corridor. He told her that she was having sex with the Principal in the Office. She did not report him to Principal as she was afraid that he would dismiss her. He was their coordinator.

24. She was alone, cleaning in the kitchen when the applicant came from behind her, caressed her breasts and buttocks. she demonstrated that he used two hands to caress her. Her colleagues had gone out to dish for the learners. He was doing all these sexual advances when she was alone.

25. She conceded that the applicant is limping and uses a metal stick. However, she did not see him coming and did not hear the noise of the stick. She would not run even if she saw him. She denied that the applicant lacked time to make sexual advances on her.

26. She denied that she had a personal vendetta against the applicant. She saw the applicant’s erected penis. The applicant’s massive operation did not cause erectile dysfunction because she saw his erected penis. He was able to get erection. He was disrespectful to invite her to have sex with him in the bushes. She reported the incident to the Deputy Principal because she felt comfortable with her as a woman.

27. They were five food handlers at school. It was after school at about 1:30 pm, when he told her that he becomes horny when he sees her in a navy dress. She took long to report, as she thought he would stop his actions. She was further afraid of losing her job.

28. Ndzondo wanted to pay her money in exchange of her dropping the charges. The applicant attempted a whatsApp call on her phone, on 19 September 2023. She did not pick up the call. She did not have his numbers but was able to see it was him because of the “true caller”.

29. Kedibone Silent Tlhagadi, testified for the respondent that she is the Deputy Principal. As SMT member, she was close to Kumbuza. Kumbuza approached her about the applicant. She told her that the applicant was sexually harassing her. He touched her buttocks and breast, he told her that he becomes horny when he sees her in a navy dress, he invited her to have sex with him in the bushes and in his office where he would insert his fingers in her vagina and smell it.

30. During cross-examination she said she did not escalate what Kumbuza told her to the principal, because she respected her decision. She also thought he would stop.

31. Lucky Buthelezi testified that he would be turning 60 years at the end of November 2023. He had a good relationship with food handlers, inclusive of Kumbuza. Their relationship soured during the book issue that took place involving her son..

32. It became worse when her son went to buy fat cakes after being dropped by the transport. The school had taken a decision that learners were not allowed to go buy from the street vendors after being dropped by the transport to avoid mugging. When he approached her about her son’s demeanor the relationship broke down.

33. He denied that he told Kumbuza that she was having sex with the principal in the office. He never saw her going or coming from that office. The view of the principal’s office is obstructed from the staff room. It is not possible to see who is going and coming from the Principal’s office. It is not possible even from the corridor to see the movement to from the principal’s office.

34. He denied caressing Kumbuza’s buttocks and breast in the kitchen. There is a big window from the staff room, creating a beautiful view to the kitchen. The staff room is always busy. He could not have been intimate with her, knowing people from the staff room would be watching.

35. They were not allowed to go to the kitchen. The food handlers always worked in pairs. They were not allowed to be alone at any given point. He always uses one hand to lean on a crutch when he stands unless there is something else around to lean on. He uses the free hand that is not leaning on the crutch. Hence, it was impossible that he could caress Kumbuza’s buttocks and breast with two hands as per her demonstration.

36. He denied that he had invited Kumbuza to have sex with him in the bushes. He had a very tight and busy schedule at school to have time for such. He did not even know the place, Lawley.

37. He was not in good terms with Tlhagadi. Hence, she connived with Kumbuza to fabricate the stories against him. Proof that the allegations were fabricated is the report of the allegations that allegedly took place in 2021 only in 2022.

38. His office is not in the admin block. It is in between the classroom and a storeroom. Adjacent to his office is the tearoom for teachers. It was impossible to be intimate in his office. Hence, he could not have invited Kumbuza to his office so he could insert his fingers in her vagina and smell it. There is influx of people ( parents, learners and colleague) in his office. He was extremely busy with no time for intimacy with her. He denied meeting her to be at liberty to be intimate with her.

39. Food handlers leave school between 12:30 and 1pm. Educators knock off at 3pm. Hence, he could never meet her. He had a massive operation for hip replacement, following an accident. The operation resulted in erectile dysfunction. This seriously affected his sex life as he does not get erection.

40. He denied ill-treating Kumbuza’s son. It was not him who distributed the books. He never met her son. He did not have authority to hire and fire. He denied that he could have fired her. He was a coordinator.

41. He never saw the food handlers in their civilian clothes. He only met them with their uniform on. He had never seen the navy dress. He only became aware of the recording and conversation between his former representative and Kumbuza when it was represented at arbitration. He denied ever instructing Ndzondo to contact Kumbuza on his behalf. The 19 September call to Kumbuzo was a sincere mistake. He meant to call Thandeka and dropped the phone once he realized the mistake. He was aware that he was not supposed to interfere with the respondent’s witnesses.

42. During cross-examination he denied that his hectic schedule was an excuse. He was a manager with no free time to idle. Food handlers would approach him as the coordinator when they have issue or challenges. He would also go check the stock when the food was delivered. They were not allowed to enter the small kitchen. They are now allowed after they moved to the bigger kitchen. He did not put this version to Kumbuza because it was not necessary.

43. He was also a coordinator for safety. He was responsible to man the gate with the assistance of CY kids every morning and afternoon. They patrolled the cars in the street for safe crossing of the road. They conducted this at 7am and 15hrs daily. He insisted that he had put a version on Kumbuza that it was not possible for him to see her movement to and from the principal’s office.

44. He uses one crutch when he stands, to support the replaced hip. This prevents him from using both hands. In the classroom, he used one hand and the other one to lean on the crutch which support his hip. Kumbuza ‘s lying because it was impossible for him to have used both hands to caress her breast and buttocks as she demonstrated. Sometimes he would lean against the wall when he wants to use both hands in the classroom.

45. He always supports his hip with a crutch. He was not using his disability as a defence. The hip replacement operation partially affected his erection functionality. He struggled to get erection. Sometimes, he would get erected. He denied that Kumbuza saw his penis erected.

46. He denied that he had invited Kumbuza to have sex with her in the bushes. His office is always busy. It is situated in between classes that he could have invited Kumbuzo to insert his fingers into her vagina. There was no way he could get intimate with her in his office. She fabricated the allegations.

47. He admitted that sometimes he would see Kumbuza by the gate in the morning during the patrol. Tlhagadi and Kumbuza connived to concoct the allegations because of the hostile relationship he had with Tlhagadi. He is not on good terms with Tlhagadi at all and Kumbuza is her friend. Therefore, they were vindictive and aimed to destroy him.

48. At times he would see the food handlers wearing their civilian clothes when they leave in the afternoon. He would see them from a distance and was not possible to see details of their attire. He denied instructing Nzondo to speak to Kumbuza.


CLOSING ARGUMENTS

49. The respondent argued that its witnesses were reliable. Kumbuza’s entire testimony was consistent. It was corroborated by Tlhagadi and Mathibe and was never rebutted in any way. She was able to demonstrate how the applicant was sexually abusing her by touching her breasts and bums. He did not challenge this, instead his defence was his partial disability of erection.

50. His defence that he did not invite her to have sex in the bushes because he did not know Lawley does not hold water. He failed to rebut Kumbuza’s testimony that he invited her to his office to insert his finger in her vagina.

51. It is strange that he was not allowed in the kitchen, as the coordinator. How was he able to oversee if he cannot enter the kitchen. His testimony was full of contradictions. He failed to produce evidence or witness that support his claims.

52. In the recording SADTU representative, Mr. Lungile Ndzondo persuaded Kumbuza to drop the case in exchange for money. If he was not guilty, why would Ndzondo take such extreme measures? The respondent has proven on a balance of probabilities that he had committed all the five offences. The respondent prays that the dismissal be upheld.

53. The applicant argued that he did not send Nzondo to speak to Kumbuza. He dialed Kumbuza’s number on the 19 September 2023 by mistake as he has her numbers on his cellphone list.

54. The evidence of Mathibe and Tlhagadi is hearsay and must be disregarded. In Taku v Sekhanisa and Others (JR1242/2016[2019] ZALCJHB 13 in paragraph 46 the Labour Court remarked that “ the arbitrator accepted that the evidence of the aforesaid SAA witnesses amounted to hearsay evidence because the witnesses only testified about what Ms Hughes told them.”

55. In Exxaro Coal (Pty) Ltd v Chipana and Others ( JA161/17)[2019] ZALAC in paragraph 19 the Court stated that “ It is accepted that this section essentially means that if there is no agreement to receive hearsay evidence it is to be excluded unless the interest of justice requires its admission. Hearsay evidence that is not admitted in accordance with the provisions of this section is not evidence at all.”

56. The employer failed to prove that the applicant committed the offences and that the dismissal was fair. Furthermore, the relationship between the Applicant and the employer is not irreconcilable.

57. She failed to explain why she did not scream or run, when she heard him approaching with the stick sound. She testified that she kept quiet when he touched her breasts and buttocks, contradicting her statement that she did not like what he was doing. It is strange why she did not bring the Food Handlers to corroborate her testimony, as they always work together.

58. She contradicted herself that she was afraid the applicant would fire her. She admitted during cross examination that the principal was in charge. It is not normal or believable that she did not report such alleged continuous sexual harassment, when in her own version indicated that she was not happy and was angry with him. This shows that such sexual harassment never took place. However, she was driven by revenge as she thought the applicant was discriminating against her son.

59. It is impossible that the allegations harassment occurred when she was always alone, in a school that has Learners, Educators, PS Staff and Food handlers whose movement during feeding times is all over. The Deputy principal testified to defend her friend and had personal vendetta against him.

60. The applicant did not send Ndzondo to contact Kumbuza. Ndzondo indicated that he was contacting her on an informal basis. He never said he was sent the applicant.

61. She contradicted herself and said they met at the passage, and later said he was sitting in the staffroom. There is no view for someone sitting from the staffroom to see the principal’s office.

62. The deputy principal’s reason for not reporting the allegations is not possible given that she is the manager and she knew that such allegations should be reported immediately. She further indicated that she was protecting a friend. Clearly, she is not a credible and reliable witness.

63. The applicant refuted all the allegations. He indicated that he did not see Kumbuza leaving the principal’s office. It was impossible to touch Kumbuza’s buttocks and breast as he is always using the aid to walk and having difficulty standing and use both hands due to his hip operation that rendered him disable. He did not know the Lawley bushes. His office is positioned between a block of classrooms where there are lot of learners, teachers and other staff members passing by.

64. Due to his hip operation, he does not get erection easily, it is highly impossible that she saw his penis erected. He does not see Food – Handlers in their private clothes as they are required to be in their uniform when they prepare food.

ANALYSIS OF EVIDENCE AND ARGUMENT

65. Section 192(2) of the Labour Relation Act 66 of 1995 as amended provides
that the Respondent bears the onus to prove on a balance of probability
that the dismissal was fair.

66. In determining if the Respondent had successfully discharged its onus, I
will take Item 7 of Schedule 8 of Code of Good Practice into account. The Item provides us with guidelines in cases of dismissal for misconduct as follows :-
Any person determining whether a dismissal for misconduct is unfair should
consider :-
(a) whether or not the employee contravened a rule or standard regulating
conduct in, or relevance to, the workplace; and
(b) if a rule or standard was contravened, whether or not-
(i) the rule was a valid or reasonable rule or standard;
(ii) the employee was aware, or could reasonably be expected to have been aware of the rule or standard;
(iii) the rule or standard has been consistently applied by the employer; and
(iv) dismissal was an appropriate sanction for the contravention of the rule or standard.

67. The issue that I must determine is item (a), whether the applicant has committed the offences. It is common cause that the Principal and the Deputy Principal did not witness the incidents. The purpose of their testimony is to corroborate Kumbuza`s testimony in as far she had narrated the incidents to them. Therefore, I will not attach much wait on their testimony other than the consistency. I find their versions to be consistent with that of Kumbuza.

68. The principal corroborates Kumbuza’s version that she had gone to his office to sign a contract. The applicant does not challenge the purpose for Kumbuza going to the office and if she did go. It becomes to determine the purpose since the applicant denies seeing Kumbuza returning from the office. Accordingly, he could not have told her that she was having sex with the principal in the office. His denial is bare.

69. Kumbuza `s testimony that the applicant made these utterances when she met him in the corridor has been consistent. It was during cross examination when she was asked to give details of the meeting that she testified that the applicant was coming from the staff room and they met at the corridor, where the utterance was made.

70. It is not true that she contradicted herself by stating that he made the utterance whilst in the staff room. The version on how the staffroom and the Principal `s office are situated and that there is an obstruction to from the staffroom to see he movement from the principal office was not put to the witnesses for test. Therefore, I disregard the applicant’s untested version.

71. The connection between the applicant coming out of the principal’s office and the applicant`s utterances is overwhelming to escape my mind. There is evidence or plausible explanation why she would lie about this incident. This persuades me on the balance of probabilities that the applicant saw Kumbuza coming out of the principal`s offices and made the utterances at the corridor. The applicant`s defense is bare denial.

72. The applicant is not a credible and reliable witness as his testimony is full of contradictions, he was argumentative and evasive with the purpose of deflecting the truth. He vehemently denied ever seeing the Food Handlers on their private clothes. When challenged about this, he conceded that at times when they go home in afternoon, he would see them in their private clothes.

73. When he realized that he had been cornered, he attempted to justify by stating that he would see them from a distance and could see the details of their clothing. He did not dispute Kumbuza `s testimony and that of the Principal and Deputy Principal that the Food Handlers come to work with their private clothes and change into their uniform in the change room.

74. His version is that he patrols and mans the gate in the mornings with the learners. During this time the Food Handlers also enter the school through the gate that he would be manning and patrolling. This further negates his contention that he had never seen them in their private clothes. His version is not probable because they pass him by the gate wearing their private clothes.

75. It is probable that he used to see Kumbuza in her navy dress during the patrol. Furthermore, he gets an opportunity to see her in the afternoon when they leave. This is further corroborated by his admissions that sometimes they would approach him as the coordinator when they have challenges and issues. Therefore, I am inclined to agree with the respondent that he had ample time to see Kumbuza in her navy dress. In addition, the applicant’s contradictions persuade me on the balance of probabilities that he told Kumbuza that he becomes horny when he sees her in the navy dress.

76. I reject his defence that it was impossible to have invited Kumbuza to his office so he could insert his figure into her vagina and smell it because his office has open view to the staff room and it is adjacent to the tearoom. Further that there was no room for privacy to accommodate intimacy and that it was between classes and very busy. This version was not put the respondent’s witnesses for test.

77. As much as he had accused that Kumbuza of having sex with the principal in his (principal’s) office, it is probable that he could do same in his office. The applicant was not dismissed for having sex or inserting his finger into Kumbuza`s vagina. However, he was dismissed for the utterances. Therefore, it is moot to determine the possibility of him executing the utterances.

78. This principle also applies to the utterances of inviting Kumbuza to have sex in the bushes as she made him horny. It becomes irrelevant whether he knew Lawley or not as the mission was never executed and he was not dismissed for execution.

79. The only incident that he allegedly acted on was in the kitchen when he allegedly caressed Kumbuza `s buttocks and breast from her behind. Kumbuza demonstrated how he cuddled and caressed her breasts and buttocks with his private parts against her buttocks. She said she told her that he makes her horny and he saw his penis erected.

80. The applicant `s defence is that they were not allowed to enter the small kitchen and that the food handlers always worked in pairs. This version was not put to the witnesses for test. Furthermore, Kumbuza`s unchallenged testimony is that they were five food handlers at school. Therefore, it was not probable for all to work in pairs.

81. I am convinced by Kumbuza`s testimony that she was left alone in the kitchen to clean as the other four went out to dish out for the learners. The applicant contradicted himself as he had admitted going to the kitchen to check the stock when there was delivery for food. I find it improbable that as the coordinator he would be barred from going into the kitchen at any stage. This would hinder him from executing his duties.

82. He went further to contend that his disability could not have allowed him to execute the sexual harassment. He admitted that if he needed to use both hands he would lean against the wall or anything around. I agree with him that he uses the crutch to lean against, in support of his replaced hip. However, he admitted that he was able to use both hands when in need. Therefore, it is probable that to achieve his lust and pleasure, he leaned against the wall or anything in the kitchen that enabled him to use both hands.

83. He testified that the massive operation resulted in him failing to have erection. Therefore, it was not possible that Kumbuza saw his erected penis. During cross examination, he admitted that his erections were sporadic. This admission negates his defence. It is probable that he was able to get sporadic erection in the presence of Kumbuza because he was craving for her.

84. It is not in dispute that Ndzondo, his erstwhile SADTU union representative during the disciplinary hearing contacted Kumbuza requesting her to drop the case in exchange for money. Ndzondo in the clip stated that he was negotiating on behalf of the applicant. She refused the offer.

85. The arbitration ran over a period of 3 months. If it is true that the applicant became aware of the clip when the arbitration started, he had ample time to call Ndzondo as a witness to refute the issue that he was acting on his instructions when he contacted Kumbuza. Instead, his defence that he did not give Ndzondo instructions to negotiate a bribe on his behalf is a bare denial.

86. The court held in the Bargaining Council for Furniture Manufacturing Industry, Kwazulu- Natal v UKD Markeparty closinghers (2013) 34 ILJ 96 (LAC) that an adverse inference should be drawn from a party’s failure to call a witness that the evidence that party faces must have been of such a nature that, at the time the other party closing its case, there was sufficient evidence to enable the court to say, having regard to the absence of any explanation, the other party’s version was more probable than not.

87. No explanation was offered why he did not call Ndzondo. The is no evidence that he reported Ndzondo to the union for allegedly acting outside his mandate. This should be a serious offence against Ndzondo. The only inference I can draw from his failure to testify, is that it is to conceal the truth. The reason why he offered the applicant money in exchange of dropping the charges corroborates that he had committed the offences.

88. The sour relationship between the applicant, the deputy principal and Kumbuzo was not put to them for test. I will therefore disregard the version. The alleged personal vendetta and that they concocted the allegations to destroy him is not proven.

89. It is common cause that the applicant did not have authority to dismiss Kumbuza . According to the applicant this proves that the incidents did not happen Kumbuza admitted that she was aware that the authority lied with the principal, despite this she was still scared of losing her job. She also thought the applicant would change.

90. Sexual harassment affects the victim`s dignity and confidence that it is not always easy to report immediately or at all. These acts often take place privately in the absence of eyewitnesses. The victims sometimes go through the ordeal of ascertaining if they would be believed. Her version is probable. Her explanation that it was triggered by the incident involving her son and the applicant is plausible. He partially admitted that the incident of the issuing of books. The alleged incident of him reprimanding her son for buying fat cakes was not tested.

91. Therefore, the respondent has proved on the balance of probabilities that the applicant had committed sexual harassment offences against Kumbuza, thereby violating Section 18(1) (q) of the Employment of Educators, Act 76 of 1998 as amended.

92. The relief sought by the applicant is that I must substitute the dismissal sanction issued by the MEC at appeal with the suspension sanction issued by the chairperson of the disciplinary. It is my competency to determine if the sanction of dismissal is fair or not. Arbitration is a hearing de novo, Therefore, I do not have jurisdiction to substitute as prayed by the applicant. The parties did not pursue the sanction and procedural aspects. I find that the dismissal is substantively fair.

AWARD

93. The dismissal of Lucky Buthelezi is substantively fair.
94. The dispute is dismissed.

Signed and dated at Pretoria on this 20th day of November 2023.

MG Rabyanyana
M.G Rabyanyana
ELRC Panellist