ELRC430-23/24GP

Case Number: ELRC 430-23/24 GP
Part Time Senior Panelist: M.A. HAWYES
Date of Award: 11th December 2023

In the ARBITRATION between

Gauteng Department of Education

(Employer)

And

R.Manthada

(Employee)

DETAILS OF HEARING AND REPRESENTATION

1. The case was scheduled for an inquiry by arbitrator at the Soshanguve Teachers Centre, Soshanguve on the 23rd of October 2023. The matter was adjourned to the 27th of November 2023 for further evidence and was eventually finalized on this day.

2. After completion of the inquiry the parties requested the opportunity to submit written closing arguments by the 4th of December 2023. Written submissions were provided.

3. Mr. P.P Matsiela, a union official from SADTU, represented the employee.

4. Mr. L. L Mathobela, a labour relations official, represented the employer.

5. The proceedings were digitally recorded, and long hand notes were also kept of the proceedings.

6. The employer made use of a bundle of documents consisting of 28 pages (marked Bundle ‘A’) and the employee made use of a bundle consisting of 18 pages (marked Bundle ‘B’.

7. An intermediary assisted the minor witnesses and the said witnesses testified remotely from the hearing room where the arbitration hearing itself took place.

8. A Setswana interpreter was present and assisted the parties and witnesses where necessary. The employee made use of a Venda interpreter during the course of his testimony.

ISSUE IN DISPUTE
9. The employee pleaded not guilty to two counts of alleged misconduct in terms of section 18 (1) (q) of the Employment of Educators Act, 76 of 1998 (as amended) (EEA).

10. It is common cause that the employer employs the employee as a PL1 educator at the Central Secondary School.

11. It was alleged firstly that on or around the 17th May 2023 while on duty at Central Secondary School, the employee conducted himself in an improper, disgraceful, and unacceptable manner in that he sexually harassed LM, a grade 11 learner by touching her on the buttocks.

12. Secondly, it was alleged that, on the 17th May 2023 and while on duty at Central Secondary School, the employee conducted himself in an unacceptable, disgraceful, and improper manner in that he sexually harassed CM, a girl learner from the same school, by touching her buttocks.

SURVEY OF THE EMPLOYER’S EVIDENCE AND ARGUMENT

13. The employer led the evidence of two minor witnesses both of whom were complainants in the matter namely LM and CM.

14. Both the complainant and TS were clearly able to distinguish between right and wrong and took the oath.

15. Please note that I will not be surveying the evidence of the employer’s witnesses in the order that they gave their testimony.

16. LM testified, inter alia, that on the 17th May 2023 the employee called a group of learners (including CM and herself) who were standing in the corridor to come and assist him, and she was the only one that volunteered. The employee had taught her and CM Geography since grade 10.

17. The employee asked her to assist in washing the dishes in his classroom and whilst she was busy the employee came up to her and touched her on her shoulder down to her buttocks.CM testified that she had not seen the employee approach and was caught off guard by his actions.

18. CM entered the classroom a short while thereafter and the employee immediately stopped his advances.

19. LM testified further that the employee asked CM to go and fill up the kettle with water. Upon her return with the kettle CM asked the employee if he had found her assignment which the employee had apparently misplaced.

20. LM testified that she noticed the employee approach CM in the same way he had approached her and touched her inappropriately on the buttocks. She noticed CM object and tell the employee to leave her alone.

21. LM testified that she was very upset and did not go to school on the following day.

22. On her return to school, she sought out Mr. S.J Vilakazi, one of the HODs’ at the school and explained to him what had happened. She also spoke to her sister. Vilakazi testified under oath and verified LM’s version.

23. Later CM’s mother phoned her and explained that she had spoken to the principal and that she (CM) should go to the principal’s office immediately. There she met CM, and the principal asked them to narrate the events to him and also make written statements.

24. CM confirmed the version of LM. After the employee had asked her to fill the kettle with water and upon her return to the classroom, she observed the employee holding LM’s buttocks.

25. The employee then gave her the task of checking scripts and as she was busy the employee approached her and also touched her buttocks. LM immediately told the employee to leave her alone.

26. CM testified that she told her aunt about the incidents and on Friday the aunt came to report the incident to the principal.

27. The evidence of a school based social worker Thandi Skhosana was also led.

28. Skhosana also produced documentary evidence of CM being admitted to Dr George Mukhari hospital for drinking a cocktail of medication to end her life. She was treated and later discharged.

29. Skhosana gave further testimony of the support she provided to CM post the suicide attempt.

30. The employer also led the evidence of a fourth witness, Tumelo Mashilo, whose testimony did not prove useful because she did not observe the incidents involving the two complainants.


SURVEY OF THE EMPLOYEE’S EVIDENCE AND ARGUMENT

31. The employee’s version in effect was a bare denial of what was alleged against him on both counts.

32. The employee confirmed that he had asked LM to assist him to wash the dishes in his classroom. He denied touching her inappropriately in any way though.

33. The employee denied having any interaction with CM on the day and testified that he was the one that went out to fill the kettle with water with the intention of boiling water so that LM could wash the dishes in hot water.

34. When questioned why the two learners would give false testimony against him the employee stated that he had recently been promoted as an HOD and that the learners might be used by adults who were jealous of his new position.

ANALYSIS OF EVIDENCE AND ARGUMENT

35. The onus rests on the employer to prove all allegations of misconduct against the employee on a balance of probabilities.

36. Crucial in this case is the credibility findings in respect of the various witnesses. I was impressed with the two complainants and the supporting testimony of Vilakazi and social worker Skhosana.

37. Their testimony constituted one cohesive whole.

38. The employee’s version was unpersuasive simply because it lacked detail.

39. It is highly improbable that both complainants would have reported similar incidents to their loved ones and Vilakazi if nothing had happened.

40. Both complainants gave testimony of being upset and deeply affected by the incidents and this was confirmed by the testimony of Vilakazi and Skhosana. CM’s attempt to commit suicide, is clearly documented.

41. All that the employee could muster was a version replete in speculation that the children were being used by other unknown educators who were jealous of his promotion to HOD at the school.

42. I find that the employee’s version to be so improbable that it cannot reasonably be accepted.

DECISION ON THE MERITS
43. I find the employee guilty of both counts of misconduct in terms of section 18 (1) (q) of the EEA.


SANCTION

44. The parties were requested to make their submissions in aggravation and mitigation as part of their written closing submissions.

45. Written submissions in aggravation of sanction were duly received from the employer. No submissions in mitigation were received as part of the employee’s written closing arguments.

46. The employer confirmed that the employee had a clear disciplinary record but the seriousness of the misconduct he had committed was not sufficient to mitigate for a sanction other than dismissal. I agree.

47. Both learners clearly suffered psychological trauma from each of their respective incidents and will continue to do so in the future. The employer representative is correct when she asserts that sexual victims react differently to the trauma they have had to face. Dismissal is the only appropriate sanction given the proven facts of this case.

48. The employee is dismissed from the employment of the employer with immediate effect.

49. The employee is found to be unsuitable to work with children in terms of section 120 (4) of the Children’s Act no 38 of 2005.


MARK HAWYES
PART TIME SENIOR PANELIST
11th December 2023