ELRC301-23/24EC

Case Number: ELRC301-23/24 EC
Panelists: Malusi Mbuli
Date of Award: 06-02-2024

In the ARBITRATION between

SADTU OBO LUTHANDO TUTA
(Respondent / Employee)

And

DEPARTMENT OF EDUCATION – EASTERN CAPE
(Applicant / Employer)

DETAILS OF HEARING AND REPRESENTATION

1. The enquiry by arbitrator was held under the auspices of the ELRC in terms of section 188 (A) of the Labour Relations Act 66 of 1995 as amended in 2015. The hearing took place on the 25th & 26th of January 2023 at 09:00 at the Mbizana District Office in Mbizana.

2. The employee Mr. Luthando Tuta attended the hearing and was represented by Mr. Siswana a site steward of the employee trade union SADTU. The employer also attended the hearing and was represented by Mr. K. Dalasile an official of the employer.

3. The enquiry by arbitrator proceeded on the on the 18th of October 2023 and the 25th & 26th of January 2024 as indicated above in the presence of both parties. The parties further requested to file closing arguments together with mitigating and aggravating circumstances in writing on this matter not later than the 01st of February 2024. Both the employer representative and the employee representative filed their arguments with the ELRC by the 01st of February 2024.

4. The notice to attend the enquiry by arbitrator was properly drafted and served on the employee, signed on the 25th of July 2023 and the employee attended the hearing as indicated above. Employee confirmed that the notice was served on him.

ISSUE TO BE DECIDED

5. I am required to determine whether or not the employee Mr. Luthando Tuta is guilty of the charges levelled against him by the employer and if so whether a sanction of a dismissal is appropriate to be imposed on him in the circumstances.

BACKGROUND TO THE ISSUE

6. The employee is employed by the employer as an educator and is now charged by the employer in respect of the incidents appearing here under outlined in the charges. The parties agreed that the matter should instead of being set for a disciplinary hearing be enrolled straight at the ELRC as an enquiry by arbitrator in terms of section 188 (A) of the Act in accordance with the ELRC Collective Agreement 3 of 2018.

7. This therefore means that the status of the outcome of this process will be an award that is final and binding on the employer and employee. The charges against the employee are as follows.

- It is alleged that the employee Mr. Luthando Tuta is guilty of misconduct in terms section 18 (1) (a) of the Employment of Educators Act 76 of 1998 (as amended), which inter alia reads as follows:

(1) “Fails to comply with or contravenes this Act, or any statute, regulation or legal obligation relating to Education and the employment relationship, in that the employee acted unprofessionally towards S.M. as he wrote his phone number in her calculator requesting her to call him and that he peeped at her thighs which amounts to sexual harassment and unacceptable conduct.

(2) It is alleged that you Mr. Luthando Tuta is guilty in terms of section 18 (1) (q) of the Employment of Educators Act 76 of 1998 in that while on duty, the educator conducted himself in an improper, disgraceful and unacceptable manner in that you acted unprofessionally towards S.M. as he wrote his phone number in her calculator requesting her to call him and that he peeped at her thighs which amounts to sexual harassment and unacceptable conduct.

8. The employee Mr. Luthando Tuta denies these allegations and pleaded not guilty to the said allegations hence the matter was set down for section 188 (A) inquiry as directed by ELRC Collective Agreement 3 of 2018.

SURVEY OF EVIDENCE

Submissions by the employer

9. The employer representative called 1st witness the learner (a minor child) Miss. S. M. who testified with the assistance of the intermediary Mrs. Noluthando Nxala – appointed by the ELRC. She testified that she is a minor child aged 17 years old who was born on the 26th of January 2007.

10. She stated that she is now in 2023 doing grade 12 at Nonqkubela Senior Secondary School and last year 2022 she was a learner at grade 11 at Mzamba Senior Secondary School and she knows the employee Mr. Luthando Tuta because he was a teacher at Mzamba Comprehensive School, teaching her geography.

11. She testified that the employee Mr. Tuta would tell her during break time that he wanted her to be his girlfriend. She testified that in her class she was she was sharing a desk with S.G her friend and the employee Mr. Tuta once went straight to her desk in the presence of S.G. an put his number on her calculator.

12. She testified that this did not sit well with her because this was also in front of other learners and was worried what the other learners would think that she was her girlfriend. He confirmed that the employee did not touch her inappropriately but after the incident she decided together with her parents to leave Mzamba Comprehensive School and to study at Nonkqubela Senior Secondary School. She stated that she reported the matter to her parents but her father did not do anything about the matter but seemingly the matter reported to the Principal but he does not know who reported the matter to the Principal.

13. At cross examination she stated that S.G. was not her best friend but that they were just desks mates and that she did not report the matter to the Principal or to anyone at school. She averred that she knew that the principal was a parent to them at school in the absence of parents but she was scared to go and report the matter to the Principal. She further stated that she did not report the matter because the employee was a teacher and that she thought that the Principal will take the side of his teacher.

14. The 2nd witness of the employer was Miss. S. G. who testified that she attending school at Mzamba Comprehensive School doing grade 11 in 2022 and left the school to study at Nonkqubela S.S.S from April 2023. She averred that she is about 17 years of age because she was born on the 06th of September 2006.

15. She stated that that she left Mzamba S.S.S. and went to Nonkqubela S.S.S. because this move was suggested by her parents because they were harassed at school by the teacher. She stated that she was harassed by the teachers together with S.M., A.G, and they were harassed by Mr. Dlamini and Mr. Tom.

16. She confirmed that S.M. was her desk mate and that Mr. Tuta sexually harassed S.M. whilst she was sitting with her and he did so when he put his number at S.M.s calculator and asked S. M. to call him. She stated that Mr. Tuta did not state why she must call him but she regarded that as being inappropriate.

17. She testified that S.M. did not tell her about Mr. Tuta peeping at her and she confirmed that Mr. Tuta is a good Geography teacher. She further stated that she was not influenced to give this type of evidence at the hearing and has no reason to lie about Mr. Tuta.

Submissions by the employee

18. The employer representative then closed their case and the employee representative Mr. Siswana called the employee / respondent Mr. Luthando Tuta who took the witness stand and testified that he works for the employer as an educator at Mzamba Comprehensive School since 2019 and teaches Geography.

19. He averred that he know the learner by the name of S. M. because she thought her Geography and that also S.G. was also in his Geography class at Mzamba S.S.S. until the beginning of 2023. He stated that he is aware that teachers are not supposed to have love affairs or relationships with learners and denied that he has ever made such advances to the learner by the name of S.M.

20. He denied that he gave S.M. his no through a calculator and also denied that he peeped at the learner S.M. in class and stated that he only got to know about this when he was called by the Principal asking about the same issue that there were teachers who were dating the learners.

21. He stated that the Principal told him that S.M. told him that all the teachers want her and he confirmed that he had a meeting with S.M.s father and the matter was referred to the police for investigation. She stated that there was bad influence or plot from the community against the teachers in their school and those community members was them to leave and have the teachers from their village nearby appointed in their posts.

22. He stated that both S.M and S. G. are lying and that he does not know the reason why they are lying and can only think of a plot against him and the other teachers. He stated that it is strange that this matter was never reported to the school authorities and even L.S.P. practitioner who is responsible for the welfare and attending to such matters at school.

23. The employee representative then called their 2nd witness Miss. L.D. who testified on behalf of the employee that she was attending school at Mzamba Comprehensive School and he know the employee Mr. Luthando Tuta because he was their Geography teacher at grade 10 to grade 12.

24. She averred that she was in the same class with S.M. and S.G. when they were doing grade 11 and 12 and that there is no stage where Mr. Tuta whispered to, put phone number on the calculator and or peeping at Miss. S.M. She disputed S.Gs evidence that she saw Mr. Tuta putting his no on the calculator of Miss. S.M. and stated that there is no way or impossible that S.G. could see what’s happening in the desk of S.M. because S.M. sits at the front and S.G. sits at the back desks in class.

25. She stated that it was a lie that they were sharing the desks and added that the desks that they use at use at school are single desks occupied by one or a single learner. She stated that Miss. S.M. had no friends in class and that is why she was sitting alone at the front.

26. She averred that the sitting arranged of learners was never changed and the two learners S.M and S.G. have always set far apart, another at the back and the other at the front as testified. She further confirmed that when writing scheduled tests they sign the attendance register and such attendance register is circulated from the front to the back.

27. The 3rd witness of the employee was Miss. M. N. who testified that she was attending school at Mzamba Comprehensive School since 2021 and he know the employee Mr. Luthando Tuta because he was their Geography teacher at grade 10 to grade 12. She averred that she was in the same class with S.M. and S.G. when they were doing grade 11 and 12 and that she never saw Mr. Tuta whispered to, put phone number on the calculator and or peeping at Miss. S.M.

28. Stated disputed S.Gs evidence that she saw Mr. Tuta putting his no on the calculator of Miss. S.M. and stated that S.M. was sitting alone in the desk at the front and there is no way or impossible that S.G. could see what was happening in the desk of S.M.

29. She stated that S.M. is a loner and she sits alone at a single desk at the front and S.G. sits at the back desks in class and also stated that they do not use calculators in the Geography class. She stated that S.G and sitting with (another) S.M. at the back and not the one who is the complainant in this matter.

30. She stated that it was a lie that they were sharing the desks and added that the desks that they use at use at school are single desks occupied by one or a single learner. She stated that Miss. S.M. had no friends in class and that is why she was sitting alone at the front.

31. She confirmed that the sitting arrangement of learners was never changed and the two learners S.M and S.G. have always set far apart, another at the back and the other at the front as testified. She further confirmed that when writing scheduled tests they sign the attendance register and such attendance register is circulated from the front to the back.

32. The 4th witness of the employee was Mr. Asanda Guqaza who stated that he works for the Eastern Cape Department of Education as a Deputy Principal at Mzamba Comprehensive School and the school has never had allegations as those that are levelled on the employee. The Deputy Principal stated that the school has obtained 87% pass rate in the 2023 matric results and he knows Mr. Tuta he is the Geography teacher at the school and has contributed a lot to the said pass rate at the school.

33. He confirmed that at their school there is a learner support program run by Learner Support Agency with someone based in their school dealing with learner problems and the learners have to report issues of this nature to Learner Support Agency and nothing was reported by S.M and S. G. with Learner Support Stuff.

34. He corroborated the employee evidence that it is not possible that the learner can be with the teacher during break time because their school is too congested during school hours. He stated that he thought the two learners S.M and S.G. Mathematics and that the sitting arrangement in their classes does not change.

35. He averred that there is no way or impossible that S.G. could see what’s happening in the desk of S.M. because S.M. sits at the front and S.G. sits at the back desks in class. He stated that it was a lie that these two learners were sharing the desks and added that the desks that they use at use at school are single desks occupied by one or a single learner. He stated that Miss. S.M. was sitting alone at the front.

36. He averred that the calculator does not save no and that it is not possible for a teacher to peep at the learner in class as the class is full and their desks are closed at the front. He reiterated that the sitting arrangement of learners was never changed and the two learners S.M and S.G. have always set far apart from each, another at the back and the other at the front as testified.

37. He produced an attendance register and stated that the learners are writing scheduled tests they sign the attendance register and the attendance register is circulated from the front to the back. The register that he produced had no date or heading but the same register confirmed that S.M. signed the register first and S.G. signed towards the end of the register.

FINDINGS ON THE CHARGES, ANALYSIS OF EVIDENCE & ARGUMENT

38. In respect of these charges set out in paragraph 7 above, the employer representative led evidence of 2 witnesses who are both learners and 1 of them was the subject of the said alleged sexual misconduct. The evidence of these two witnesses is detailed above in the topic that deals with survey of evidence and these two witnesses corroborated each other but their evidence still has to be tested and balanced with the evidence of the employee witnesses. In essence these witnesses testified that.

- They are minor children who were attending school at Mzamba Comprehensive School from until the beginning of 2023 when they went to finish their grade 12 at Nonqkubela S.S.S. They know the employee Mr. Luthando Tuta because he was their Geography teacher whilst they were still at Mzamba S.S.S.

- They testified that in their class they were sharing a desk and the employee Mr. Tuta once went straight to their desk and put his number on the calculator of S.M. This did not sit well with them because this was also in class in front of other learners and was the complainant was worried what the other learners would think that she was her girlfriend.

- They confirmed that the employee did not touch her inappropriately but after the incident she decided together with her parents to leave Mzamba S.S.S. and to study at Nonkqubela Senior Secondary School.

- They confirm they did not report the matter to the Principal but they do not know who reported the matter to the Principal. At cross examination S.M. stated that S.G. was not her best friend but that they were just desks mates and that she did not report the matter to the Principal or to anyone at school.

- They said they did not report the matter because they knew that the principal was going to protect his teacher but confirmed that the Principal is a parent to them at school in the absence of parents but they were scared to go and report the matter to the Principal.

- When they were called to office they were confronted by the Principal because the Principal thought that they were dating the teachers in the names of Mr. Dlamini, Mr. Tuta and Mr. Tom and they told the Principal that it was the teachers who were into them.

39. After the employer representative had closed their case the employee representative Mr. Siswana called the employee / respondent Mr. Luthando Tuta together with the other 3 witnesses whose evidence is also summarized above. Their evidence was in summary as follows:

- That the employee works for the employer as an educator at Mzamba Comprehensive School since 2019 and teaches Geography and know the learners by the names of S. M. and S.G. because he thought them Geography.

- The employee is aware that teachers are not supposed to have love affairs or relationships with learners and the employee denied that he has ever made such advances to the learner by the name of S.M and also denied that he gave S.M. his no through a calculator and also denied that he peeped at the learner S.M. in class and stated that he only got to know about this when he was called by the Principal asking about the same issue that there were teachers who were dating the learners.

- All the witness of the employee stated that both S.M and S. G. are lying when they say S.M. and S.G. were sharing a desk because one was sitting at the front and another at the back of the class and that they do not know the reason why they are lying and can only think of a plot against him and the other teachers.

- These witnesses stated that it is strange that this matter was never reported to the school authorities and even L.S.P. practitioner who is responsible for the welfare and attending to such matters at school. The witness confirmed that S.M. and S.G. were in the same class but staying far from each other when they were doing grade 11 and 12 and that there is no stage where Mr. Tuta whispered to, put phone number on the calculator and or peeping at Miss. S.M.

- They disputed S.Gs evidence that she saw Mr. Tuta putting his no on the calculator of Miss. S.M. and stated that there is no way or impossible that S.G. could see what’s happening in the desk of S.M. because S.M. sits at the front and S.G. sits at the back desks in class.

- All these witnesses averred that the sitting arrangement of learners was never changed and the two learners S.M and S.G. have always set far apart, another at the back and the other at the front as testified. These witnesses further confirmed that when writing scheduled tests they sign the attendance register and such attendance register is circulated from the front to the back.

- The Deputy Principal at Mzamba Comprehensive School stated that the school has never had allegations as those that are levelled on the employee and that the school has obtained 87% pass rate in the 2023 matric results and he knows Mr. Tuta he is the Geography teacher at the school and has contributed a lot to the said pass rate at the school.

- He confirmed that at their school there is a learner support program run by Learner Support Agency with someone based in their school dealing with learner problems and the learners have to report issues of this nature to Learner Support Agency and nothing was reported by S.M and S. G. with Learner Support Stuff.

- He corroborated the employee evidence that it is not possible that the learner can be with the teacher during break time because their school is too congested during school hours. He stated that he thought the two learners S.M and S.G. Mathematics and that the sitting arrangement in their classes does not change.

- The Deputy Principal produced an attendance register, filled and signed by the learners and stated that when the learners are writing scheduled tests they sign the attendance register and the attendance register is circulated from the front to the back.

40. The attendance register that was produced by the Deputy Principal had no date or heading but the same register confirmed that S.M. signed the register first and S.G. signed towards the end of the register. This was disputed by the employer representative and it is not easy for me to accept this register because it was not produced when the employer witnesses testified but only at the last stage of the hearing. As a result the employer witnesses did not have opportunity to dispute this register let alone the fact that it is not dated and has no heading.

41. The employee representative has argued that the employer witnesses are friends of convenience and are bound together by both immorality and uncivil acts together with a very common element greed. It is difficult to agree with this proposition as it is not substantiated and the fact that they are friends does not mean that they cannot adduce credible evidence.

42. The employer version presented through its witnesses, alleges that Mr Tuta wrote his phone number on the S.M's calculator and requested her to call him and supported by Ms. S.G. on examination by the employer. The employee states that S.G. never saw Mr Tuta writing his phone number on S.M's calculator and the only possibility is that S.G. was informed or discussed this with S.M. to implicate Mr. Tuta for the reasons known to them.

43. The employer witnesses averred that they were sharing the desk and both witnesses saw the employee writing his number on the calculator. This evidence was not disputed when these two witnesses testified and even when the employee took the witness stand he did not dispute this part but this was only introduced on the next dates of the hearing when the other 3 employee witnesses testified.

44. The question that arises is why was this evidence not disputed or at least the employee present this defense when he testified and the only possible explanation to this is that this was an afterthought on the part of the employee. This part is very central to the defense of the employee and there is just no way that the employee and his representative can miss or overlook this part and this evidence provided by employee witnesses to the effect that the two employer witnesses were not sharing a desk at the time of the commission of the alleged transgression is false.

45. There is further no explanation why these two employer witnesses can falsely implicate the employee and give evidence that corroborate each other on all materiel facts.

46. It is an elementary principle in our law of evidence that party disputing the evidence of another party must do that at cross examination in order for the other party to respond to the averments made by its opponent and evidence is not challenged at cross-examination that evidence stands. The employer’s witnesses testified that the two learners were sitting together and this was never disputed.

47. It is possible that the teacher can type his cell no on the calculator for the learner to save it even though it cannot be saved. I note that this matter was not reported to the principal by the learner but these does not mean it did not happen. The complainant did not report this matter to the Principal and her explanation is that she knew that the Principal would take the side of his educator.

48. At least up to the stage when the employee presented and finalized his case his defense amounted to a bare denial because he just says it did not happen and this must be approached with great suspicion. It is further possible that this incident can happen in class without other learners seeing or hearing.

49. The complainant testified that the educator did not peep at her and this shows that the complainant had no business in falsely implicating the employee because if she had this intention she was going to implicate him falsely even in this part in order to get him dismissed at all costs because she could have made up something more serious.

50. The complainant and another witness of the employer S.G. left the school and there is no other reason advanced why they left the school except what they have presented. I find that the probabilities in this matter favor the version of the employer. It is highly improbable that other learners in the class called by the educator could have seen exactly what happens at the desk of the complainant.

51. Most of the evidence summarized hear above was not disputed by the employee on materiel facts except for a bare denial from the employee to say that he did not type his phone number on the calculator. The employee could not explain why the learners would conspire to implicate him wrongly.

52. For these reasons and argument, this is highly improbably and the testimony of the employee cannot be believed, his version for the reasons listed above is rejected. The only conclusion to be drawn from what happened is that the employee is guilty of the 2 charges levelled against him. It must be emphasized here that the test for a guilty finding in labour matters is one of balance of probabilities not beyond reasonable doubt.

53. Section 185 (a) of the Labour Relations Act 66 of 1995 as amended provides that:
- Every employee has a right not to be unfairly dismissed.

54. The Act recognizes 3 reasons for the termination of the employee’s services by the employer and these are the conduct of the employee, incapacity of the employee and the employer’s operational requirements. In this matter the employee is charged because of his conduct and the employer has to prove that the employee has committed misconduct on a balance of probabilities.

55. In terms of section 192 (2) of the Labour Relations Act the employer has the onus to prove the existence of any one of these grounds as a reason to dismiss the employee and that the dismissal of the employee is fair.

56. The employer’s evidence was not challenged by the employee on materiel aspects as can be seen in the summary and analysis above. I do not have any reason to doubt and reject the employer’s evidence. In the circumstances, I will accept the employer’s witness’s testimony that there is a valid reason for the employee to be dismissed. The question that I have to answer in this award is whether the conduct of the employee constitutes a serious act of misconduct and whether the sanction of a dismissal is appropriate in the circumstances.

57. In response to that I find that the employee has committed serious acts of misconduct and these transgressions are expressly prohibited by the respondent and punishable by a dismissal for the first offence in terms of the employer’s disciplinary code and policies.

58. The Constitutional Court in Sidumo & another v/s Rustenburg Platinum Mines Ltd and other (2007) 12 BLLR 1097 held that in deciding whether dismissal is an appropriate sanction for an act of serious misconduct, the test is whether the misconduct renders the continued employment relationship intolerable.

59. The acts of misconduct committed by the employee in the context of his employment renders the employment relationship between the parties intolerable. This type of misconduct is also expressly prohibited by the employer in their disciplinary code / policies and the employer is expected to apply discipline in a consistent manner.

60. On the appropriateness of the sanction the LAC court in its decision in Nampak Corrugated Wadesville v/s Khoza (1999) 20 ILJ 585 (LAC) Ngcobo J.A. held that the determination of the appropriate sanction is a matter which is largely within the discretion of the employer, however that discretion must be exercised fairly. It would be fair and reasonable to impose a sanction of a dismissal for these transgressions.

61. In De Beers Consolidated Mines Ltd v/s CCMA & others (2000) 21 ILJ 1051 (LAC) the court accepted that the ultimate justification for the employer’s powers to impose discipline flows from the right to manage their business effectively. The court held further that “dismissal is not an expression of moral outrage, much less it is an act of vengeance. It is or should be sensible operational response to risk management in the particular enterprise”.

62. In Standard Bank of South Africa Ltd v/s CCMA and others (1998) LC 7 the court stated that it is trite principle that breach by the employee of the duty of good faith to the employer is destructive to the employment relationship. The employee has breached this duty of good faith to the employer.

63. I am satisfied that the rationale that I have used in coming to this conclusion is one that qualifies when we talk about reasonableness and weighing the interests of both parties as directed in the Constitutional Court in its decision in NEHAWU v/s University of Cape Town (2003) (CC) where the Constitutional Court held that the arbitrator is expected to have regard to the interest of both parties in coming to a conclusion whether the conduct of the employer to dismiss the employee was fair or not.

64. In this matter the interests of the employer far outweigh those of the employee. The employee did not come forward and admit his wrongdoing instead throughout the processes he denied having committed any transgression and this can only be regarded as an aggravating factor.

65. Both the charges summarized above constitute a serious act of misconduct and even though discipline has to be applied in a corrective and progressive manner, this is so serious that when proved as has happened calls for a sanction of a dismissal.

66. From his transgression that has been proved he cannot be trusted. The employer and learners will suffer severe consequences if this wrong doing can be condoned and that discipline has to be applied consistently. The employer’s version in so far as it relates to the reason for dismissal of the employee is accepted. This means that the employer has managed to discharge its onus in terms of section 192 (2) of the Act.

67. I have found the employee guilty of Section 17(1) (b) of the Employment of Educators Act 76 of 1998 transgression and in terms of subsection an educator must be dismissed if he or she is found guilty of such a transgression.

68. Section 120 (2) of the Children’s Act no 38 of 2005 provides that a finding that a person is unsuitable to work with children may be made by such forum on its own volition or on application by an organ of state or any other person having sufficient interest in the protection of children.

69. The representative who acts for the Department of Education (employer) would accordingly have the right to make such an application. The arbitrator may however also make the finding on his own accord.

70. In the circumstances I hereby make the following award.

AWARD

71. The employee Mr. Luthando Tuta is found guilty of the allegations against him as charged.

72. The employee Mr. Luthando Tutas employment is terminated with immediate effect, without notice. The Provincial Department of the Eastern Cape must inform Mr. Luthando Tuta of his dismissal.

73. I further find that the employee Mr. Luthando Tuta is unsuitable to work with children in terms of section 120 (2) of the Children’s Act no 38 of 2005.

74. The General Secretary of the Education Labour Relations Council must:

- As the administrator of this Section 188A enquiry, 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 that the employee Mr. Luthando Tuta ID 9503235982083 is unsuitable to work with children, for the Director General to enter his name as contemplated in section 120 Part B of the National Child Protection Register.
- Send a copy of this arbitration award to the South African Council of Educators (SACE) for the revoking of Mr. Luthando Tutas SACE certificate.

75. The employee has the right to take this award on review to the Labour Court.


Signature:

ELRC Arbitrator / Commissioner: Malusi Mbuli