ELRC965-22/23FS

Arbitrator: SHIRAZ MAHOMED OSMAN Case Reference No: ELRC 965-22/23 FS
Date of award: 24 November 2023


In the arbitration between:

Department of Education-Free State Employer party

and

Mr. M Ngcobondwana Employee part

DETAILS OF HEARING AND REPRESENTATION
1. The present dispute between the Department of Education-Free State (hereinafter referred to as the employer) and Mr. M Ngcobondwana (hereinafter referred to as the employee) was referred to, Inquiry by Arbitrator, in terms of Section 188A, of the Labour Relations Act no.66 of 1995, as amended (the Act); read with Collective Agreement 3 of 2018. At the Inquiry by Arbitrator hearing, which was held at the Boardroom of the employer, in Bloemfontein, on the 5th of June 2023, the employee was self- represented, and the employer, was represented by Ms. L Cweba.

2. On the next occasion of the hearing, the employee was represented by Mr. Dikotsi of NAPTOSA.

3. Due to the lateness of the hour the matter remained part heard, and proceeded on the 1st of August 2023, and still remained part heard. Though the employee’s testimony might have concluded, but his cross-examination would not have, therefore it was prudent to adjourn the matter before the employee had commenced with his testimony.

4. The matter proceeded, and testimonies were concluded on the 30th of October 2023.

5. At the commencement of the Arbitration, the employee raised an application for a postponement.

6. Both parties filed written submissions, and these were considered.

7. At the hearing, I made an oral ruling that the application for a postponement, was denied, and I promised the parties, that my reasons, for same, shall be included in my award.

8. For the purposes of this award, the affected learner, in Charge 1 shall be referred to as Ms. X, to protect her identity. And, the affected learner, in Charge 2 shall be referred to as Ms. Y. Indeed, their friends which they allude to in the testimony shall only be referred to as “friend/s”, so as to protect their identities as well, though they were not present to testify.

9. Parties were given the opportunity to submit written closing arguments, by no later than the 7th of November 2023, hence, being the last day of the arbitration.

10. An extension of the submission of the award, by a further seven days was applied for, and granted by Council.

THE APPLICATION FOR POSTPONEMENT:
Employee’s submission
11. In brief, the employee submitted a contradictory, and implausible submission, for his request. Essentially, he argued that he was rejected as a member of SADTU, as he had not had his pay slip available, some time last year.

12. He then submitted that when he approached SADTU, for membership they did not remember him.

13. He then approached NAPTOSA, and that the NAPTOSA representative was not available, as he was medically incapacitated. No medical certificate was handed up. He then alleged that he himself was ill, which in the circumstances, I was not willing to accept.

14. He submitted that he had sent his representative a message but had received no response.

Employer’s submission

15. The employer vehemently objected to the application and submitted that, in the first place, that the employee attended half an hour later, than scheduled.

16. Ms Cweba submitted that on, 1 February 2023, when she had conducted the investigation, she had informed the educator that the allegations against him were serious, and advised him to obtain a union representative, to assist him.

17. She insisted that the NAPTOSA representative was a seasoned representative, and therefore he should have applied for a postponement, seven days prior to the date of the arbitration, alternatively, the representative would have furnished a medical certificate for his medical incapacity.

18. She argued that initially the educator had indicated that he was in fact ill. She ascertained that the employee was issued with the charge sheet on the 16th of February 2023, and that he was informed of the arbitration on the 3rd of April 2023.

ANALYSIS OF SUBMISSIONS:

19. I was not persuaded by the employee’s contradictory submission, as to why his application should succeed.

20. There was no proof before me, that indeed he was a member of NAPTOSA, neither was there any proof, that indeed his representative was medically incapacitated.

21. The employer is correct in suggesting that NAPTOSA was aware of the Council Rules and should have made the application for a postponement in time. Though I am of the opinion that the NAPTOSA representative’s illness could not be anticipated, I believe that NAPTOSA would have sent a message, or a medical certificate to indicate the representative’s medical incapacity.

22. In consideration of the application, I am mindful of the decision in National Police Service Union & Others v Minister of Safety and Security & Others [2000] 4 SA 1110 (CC) where the Court held that postponement is not a right, but an indulgence from the Court. Such postponement was to satisfy the Court, that it was indeed in the interests of justice.

23. The employee has failed to show or provide a worthy reason for the matter to be postponed.

24. His submission was riddled with inconsistencies.

25. I am not persuaded that the postponement would have been in the interest of justice. The charges against the employee are not complicated, though they are indeed serious. It is required that disputes be handled expeditiously, as it a criterion, in the dispensing of “social justice”.

26. It is in my humble opinion that, there are no issues in law, that have to be decided, neither are the charges complex. The employee was merely required to respond to the allegations, brought against him.

27. Moreover, the delay would prejudice the “interest of the learners” whose rights are protected by the Constitution of the country.
28. There was nothing before me, to show that the postponement would be in the interests of justice, but to the contrary.

RULING:

29. The application for postponement is denied.

THE CHARGES TO BE DECIDED:

30. I am to decide, whether the employee, is indeed guilty of the following charges:

Charge 1

You have contravened section 18 (1) (q) of the Employment of Educators Act 76 of 1998 in that on 21 October 2022 while on duty, you conducted yourself in an improper, disgraceful or unacceptable manner when you asked a grade 12 learner Ms. X to go to the school fence and bend over so that “ke khone ho e kenya ka matla, be k fufulelwa” (I can be able to penetrate you with power and then I can sweat).

and

Charge 2

You have contravened section 18 (1) (q) of the Employment of Educators Act 76 of 1998, in that on 21 October 2022 while on duty, you conducted yourself in an improper, disgraceful, or unacceptable manner when you locked a grade 11 learner Ms. Y in the Science Lab, hugged her and asked her to kiss you.

PLEA

31. The employee pleaded not guilty, to the above, two charges.


SURVEY OF EVIDENCE AND ARGUMENT

32. Both parties were given the opportunity to call witnesses and submit written closing arguments, due to the fact that the matter was previously adjourned. In the absence of the educator being represented, on the first occasion of the arbitration, I dispensed of the opening statements.

33. The employer called two witnesses, Ms. X (learner in Charge 1) and Ms. Y (learner in Charge 2). The employee, Mr. Mzukhola Ngcobondwana, testified, on his own behalf.

34. The employer submitted the charge sheet into record, alleging the above two counts of sexual misconduct.

35. The employee was explained the arbitration process, and the consequences should any testimony remain unchallenged.

36. Herewith, brief reasons for my decision, in terms of Section 138 (7) of the Labour Relations Act, no 66 of 1995 as amended (LRA). Should any of the arguments, or evidence not be reflected hereunder, then it does not mean, that it was not considered.

37. In any event, I am required to deal with the substantive merits of the dispute.

ANALYSIS OF EVIDENCE AND ARGUMENT
Charge 1
38. Ms. X testified that on, 21 October 2022, she went into the class, which the employee was teaching her at. Indeed, they were late. The learners were staying in school for a “camp”. The learner had been to her office, where she slept. In the courtyard on her way back, she met the educator who sought to know from the learner what she was doing after class. She informed him that she would probably be going home to collect some stuff. She alleged that the educator had told her that on her way back, she should go to his home. He wanted to discuss something with her. The learner did not know where the educator lived.

39. She testified that he had told her to go to the fence so that she could bend over, and he could penetrate her heavily, till he sweats. She was flabbergasted and expelled the word “what”? The educator laughed and proceeded to his office.

40. On Saturday, the educator did not attend to class, and the learners had to study on their own. The educator had called one of her friend’s and sought to speak to the learner. The learner put the phone on speaker phone and all her friends had heard that the educator asked the learner if she was going to report him. She indicated in the affirmative. He told the learner that he had been joking with her. She had not had a clue as to who had told the educator that she was going to report him. The educator pleaded with her not to report him, as it would mean the end of his vocation. She asked if that was the case, then why, had he uttered what he had. The learner proceeded to the Deputy Principal’s office. Whilst there, the educator had appeared at school, as he had promised the learner telephonically that he would. The learner was informed by her friend that the educator was around and was heading to the staff room. He had asked one of the learner’s friends’, about her whereabouts.

41. The learner avoided the educator by sitting at the Deputy Principal’s office for a further fifteen minutes in an attempt to avoid him. The educator did not dispute this, as indeed just about all of her testimony remained unchallenged. The learner subsequently hid in the toilet, to avoid the educator. She hid from the educator, as she did not want to encounter him, before meeting with the Deputy Principal. When she did approach him to make a recording, the educator denied that he had uttered those hideous words to her. He told the learner that she had worn a short skirt and that should he drop something for her to pick up, he would see “food”. She reported the educator’s conduct the following week.

42. During cross-examination, the learner confirmed that on Friday, the educator told to bend over the fence and on Saturday, when she recorded the educator, he told her that her skirt was short, and that if she bent over, he would see “food”. Nothing else was disputed.

43. The learner was consistent and therefore reliable in her testimony. There is no need for me to disbelieve her. Moreover, the bulk of her testimony remained unchallenged.

44. Mr. Ngcobondwana, testified on his own behalf and seemed to know the dates of the incidents that did not take place. An oddity in my opinion. He testified that he waited in class on the date of the allegation, but no learners arrived, however when he was about to leave 30 minutes later, the affected learner, and three other female learners arrived, apart for some boys who had arrived before them. Had there been no incident, it would have been hardly likely that the educator would have known the events of that day. He remembered, strangely enough that the affected learner had to go back and collect stuff which she had left in the room she was sleeping at. An hour later when the educator went to look for the other learners, the affected learner was returning with her books. The educator also regurgitated the exact conversation he had had with the learner, which was insignificant by all means. The educator told the learner that it was against rules to leave the school premises and asked where she lived. Again, why on earth would the educator remember a conversation that had nothing pertinent to add to the dispute.

45. The educator testified that the only time he confronted the learner was outside class. This version was not put to the learner at cross-examination. The following day, a grade 11 learner informed the educator that he was going to be reported. He enquired as to what about but did not receive any response. He phoned the learner. Now, if there was no incident then why would the educator phone the learner to find out what she was going to report him about. The educator’s version is improbable to say the least. The educator then confirmed the learner’s testimony that he phoned another friend of hers to speak to her. He sought to know from the learner face to face about what he had purported to say. Had there been nothing it would hardly have bothered the educator. Therefore, there must have been an incident between the educator and the learner, which the educator was afraid would be disclosed.

46. The educator continued to regurgitate exactly the learner’s version that she had come out of the toilet. He suggested that the learner had then come with a telephone to record the conversation. It was the learner’s testimony that she had had the phone under her bra. There was no way that the educator could have known that. Besides, it is very unlikely that the learner would have confronted the educator with a phone to record him. The educator could not help but to resort to putting his foot in his mouth, whilst he testified. He then suggested that the learner had concealed the phone under her jersey. This is even more improbable. The learner had testified that she put the phone under her bra before she approached the educator. He could not have known the learner had had a phone concealed under her jersey.

47. Indeed, he conceded that the learner had informed him that he told her that he was going to bend her over the fence and penetrate her. The educator had reminded the learner that the previous week, she had worn a short skirt. Now, why would the educator do that. He further conceded that he told the learner that someone would drop soap and she would have to pick it up. Why would an educator have to delve in such detail to suggest how short the learner’s skirt was. The educator made for a lousy witness. He stated that this conversation had happened as a joke the week before on the 21st of October 2022. This was not put to learner in her cross-examination. This comment could hardly be classified as a joke though.

48. At cross-examination, the educator was not consistent in his evidence in chief. He suggested that the learner was making her way to class with four boys. This is a material contradiction, if he could remember that initially the boys came along, followed by the learner and three girls. He denied that he had met the learner at the parking. But he had indeed met the learner between the classroom, and the staffroom. Indeed, they had a conversation about the learner going home, but it was not consistent with his evidence in chief. He confirmed that he had phoned the learner’s friend to speak to the learner. Indeed, the educator had reason to be concerned what the learner was going to report him about. He did indeed beg the learner not to report him.

49. I am persuaded in favour of the version of the learner, rather than the version of the educator. The educator had indeed been with the learner alone, and it did not matter whether it was between the classroom and the staffroom or in the parking lot. The educator had commented about the learner’s short skirt. His memory in respect of the date was not consistent with what he could remember and what he could not.

50. For the brief, but compelling reasons above, I find the employee guilty of Charge 1.

Charge 2

51. Ms. Y testified that on, 21 October 2022, after the physics class had adjourned, the educator had called her to collect her class work. The educator was reluctant to hand over the documents to the learner. Instead, the educator had given the learner’s friend her class work to leave with the learner. According to her, the educator had asked her to come closer to her, whilst the two were at the science lab. She testified that the educator had asked her what type of cellular phone she liked. The learner replied that any type of phone was fine. She elaborated that the educator had laughed and told her that indeed she would like a smart phone. At this stage, the learner’s other friend had waited outside the science lab, for the learner. The learner then proceeded to her Maths class.

52. After school hours, the educator had asked her to enter the science lab alone. The learner testified that when she entered the science lab, the educator was seated at his table, but when she entered the lab, the educator stood up to close the door. The educator’s office was situated in the science lab. He closed the door and approached her with a tall lab chair. She testified that he had barricaded her at the end of table and told her that if she wanted to leave then she should “kiss” him. The learner told the educator that she could not kiss him. The educator made some jokes and suggested that “this child did not want to leave”, as she had refused to kiss him. The incident ended when her friend had knocked on the door. The educator had given her his address and asked the learner to visit him on Sunday.

53. She continued to testify that the educator had asked what she would like to eat. The learner suggested pizza. The educator lived near the primary school which the learner had previously attended, and she was aware of the area in which the educator lived. Whilst they were in the science lab, the educator had hugged her when he tried to extract a kiss from the learner.

54. Ms. Y continued to insist that the educator had previously told her that she was “hot” and beautiful and that he loved her. Though this allegation was not part of the charge against the educator, it is nonetheless important to consider, in view of the allegation against the educator. Seemingly, the conduct of the 21st of October 2022 had had a prelude to it. Apparently, the educator had done all this in a physics lesson, when other learners were in class, but because he did not want them to hear he asked the learner to come closer to him, whilst she was at his table. Disturbingly, she agreed to be the educator’s romantic partner.

55. At cross-examination, it was confirmed that the learner’s friend had waited outside the class, on the date of the allegation. The educator’s representative tried to determine the distance of the science lab in comparison to the other classes, but it proved to be futile. The learner confirmed her version in respect to the incident, as she had stated in her testimony in chief. No material contradictions emerged. Indeed, it was her testimony that the educator had tried to kiss her. I find it improbable that the learner agreed to be in a romantic relationship with the educator but had resisted kissing him. However, there was nothing placed before me disprove the learner’s version. At least, her version was more probable than that of the educator’s version.

56. The learner had agreed to go inside the office in the science lab, because she was adhering to an educator’s instruction. The learner, moreover, suggested that she was told to come alone, when the educator had called her. She was not comfortable with the request to go alone to the science lab therefore, her friend had waited for her outside the lab. The learner repeated her evidence that she had informed her friend of the incident. The learner continued to testify that she agreed to the hug so that she could get to leave. This version is probable. She continued to testify that she had not gone to the educator’s home. She further confirmed that her telling him that she would eat pizza was an attempt to leave his company. She claimed that she had made the educator believe that she was going to meet him at his home on Sunday.

57. Although the educator had in April of the same year told the learner that he loved her, the learner had only told her mum about the incident at the time. She was advised to inform her Maths teacher but did not do so. Indeed, the learner was aware that an educator may not have a relationship with a learner. She continued to testify that when the educator sought to see her, he would normally send her to the tuckshop to buy something for him. The educator had proposed to her while she was with him at his table. She confided in her friend, who refused to get involved, hence her friend was not available to testify.

58. Mr. Ngcobondwana denied that he had had engaged in the allegation as outlined by the learner. The educator insisted that the learner had approached him with her friend at the science lab and asked him to buy her a phone. This version was not put to the learner, when she alleged that the educator wanted to know what kind of phone she had wanted. He suggested that he had told the learner that he was not her parent, and again this version was not put to the learner. It is strange that the learner would ask the same educator for a phone, that she accused of making sexual advances to.

59. Mr. Ngcobondwana insisted that when the learner and her friend approached him, he was locking the science lab door. He suggested that he would not hug the learner whilst outside the science lab. He denied that the pizza incident had taken place on the same date. It is interesting that indeed there was food involved in the discussion, but it was not on the same day. I do not accept his version. He suggested that he was in the staffroom eating pizza. The learner had made a begging sign to him. To get rid of her, he told her that he would buy her, pizza. He did not ever remember proposing to her.

60. The educator sought to convince me that since the learner’s friend had laughed at the learner when he refused her a phone, she had made the allegations against him. This version is improbable. The educator had had a version for the testimony of the learner on each occasion which is hardly probable. He did not dispute anything forthright but always had an alternative version. Firstly, that she had approached whilst he was locking the science lab; secondly, that she had asked him for a phone, and finally that he was eating pizza in the staffroom. It is not plausible that the learner would have condensed all these allegations in one incident.

61. Therefore, I find the learner’s version to be more probable than that of the educator. It is plausible that the educator had offered the learner a phone; given her his residential address; asked her what she would like to eat, and in all probability had cornered her in the science lab.

62. At cross-examination, the educator cold not tell what time the learner had approached him whilst outside the science lab. He thought it was after break. It is not probable that the learner would indeed meet the educator and that he would remember the details of the day. Indeed, the learner remembered who was at the science lab with the learner. It had to have been a significant incident for the educator to remember the learner approaching him whilst he was locking up the science lab, and who was with the learner on that day.

63. The educator insisted that the learner, though she knew the educator for approximately 6 months would ask him to buy her a phone. He had had a problem refuting that tall chairs were available in the science lab, which the learner suggested that the educator sat on when he hugged her. The educator was therefore at her height when the educator hugged her. The version is likely, as I believe that it would be a “tall order” so to speak for the learner to have made up the version that there were highchairs in the science lab.

64. It is absurd, to suggest that the learner would have raised that the educator had sought to buy her food, when the employee suggested that she had approached the educator, beggingly, for pizza whilst he was in the staffroom. It is not denied that food was involved. The educator could not explain as to why, the learner would fabricate a story to implicate him.

SANCTION

65. In terms of Section 17 (1) of the Employment of Educators Act, no 76 of 1998 (as amended) (EEA), an educator must be dismissed if he or she is found guilty of -
(c) having a sexual relationship with a learner of a school where he or she is employed
66. There is no discretion for the Arbitrator to consider any other alternative sanction, short of dismissal.

67. Therefore, dismissal is the statutory sanction.

68. Section 18 of the EEA provides for serious misconduct and reads that If, after having followed the procedures contemplated in subsection (2), a finding is made that the educator committed misconduct as contemplated in subsection (1), the employer may, in accordance with the disciplinary code and procedures contained in Schedule 2, impose a sanction of –
(a) counselling.
(b) a verbal warning.
(c) a written warning.
(d) a final written warning.
(e) a fine not exceeding one month’s salary.
(f) suspension without pay for a period not exceeding three months.
(g) demotion.
(h) a combination of the sanctions referred to in paragraphs (a) to (f); or
(i) dismissal, if the nature or extent of the misconduct warrants dismissal.

69. However, since the employee is found guilty of the more serious charges as contemplated in Section 17 of the EEA, it is my opinion that the sanction prescribed in that section, must apply to the employee.

70. It is accepted and, established law that the allegation of sexual advances; inuendoes or relationships by educators, with learners, is not tolerable in the schooling environment. The fundamental right of a child, to be educated, in a safe environment is, impeded. And these types of misconduct are not only intolerable, but also present a safety hazard to young vulnerable learners. And the impact of such conduct, by educators can leave a lasting psychological impact, on a child.

71. In view of the educators’ conduct, as outlined hereinabove, the educator cannot be trusted in a schooling environment, or being in the presence of children alone.

72. I am persuaded, that the educator had abused his relationship as parentis in loco.

AWARD
73. The employee is found guilty of both Charges, 1 & 2.
74. Dismissal is not only an appropriate sanction, but a statutory sanction.
75. The present award is to be sent to SACE, for the consideration of the educator’s accreditation.
76. In terms of section 120 (4) of the Children’s Act 38 of 2005 (as amended), the educator is deemed unfit to work with children.
Signed at Kimberley on this 24 day of November 2023


SHIRAZ MAHOMED OSMAN
EDUCATIONS RELATIONS COUNCIL PANELIST