ELRC527-23/24MP

IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD IN EMALAHLENI (MPUMALANGA PROVINCE)

Case No ELRC 527-23/24MP


In the matter between

MPUMALANGA DEPT OF EDUCATION EMPLOYER

and

SADTU obo MSIZA NKOSINATHI EMPLOYEE

ARBITRATOR: Monde Boyce

HEARD: 08 December 2023 and 29 January 2024

CLOSING ARGUMENTS: N/A

DATE OF AWARD: 13 February 2024

AWARD

PARTICULARS OF PROCEEDINGS AND REPRESENTATION:

[1] The ELRC scheduled the inquiry in terms of Section 188A of the Labour Relations Act 66 of 1995 as amended (LRA) and the inquiry was held over two dates, the 08th of December 2023 and concluded on the 29th of January 2024. Both parties attended the inquiry with Miss Zodwa Madingwane representing the employer, the Mpumalanga Department of Education while the employee was represented by Mr Gcobani Khalipha, a trade union official from the trade union SADTU.

[2] An interpreter and an intermediary were present and a total of 08 witnesses, including the concerned learners, were to be called to give evidence. The proceedings were digitally recorded.

THE ISSUE TO BE DECIDED:

[3] I am required to decide whether the employee is guilty of the charges preferred against him by the Mpumalanga Department of Education, and I am called upon to make the appropriate award.

THE BACKGROUND TO THE DISPUTE:

[4] The employee, Mr Nkosinathi Msiza, is an educator employed by the employer at Mabande Comprehensive High School in Circuit 2 in Emalahleni. The charges against the employee emanated from various incidents reported by leaners, and the result was that the employee was charged in terms of Employment of Educators Act 76 of 1998 as amended (the Act). The following charges were thus preferred against the employee:
Charge 1

“You committed an act of misconduct in terms of Section 18(1)(a) of the Act in that on or about 21 August 2023 you contravened Item 3(3.6) of the SACE Code of Professional Ethics by failing to refrain from improper physical contact with a Grade 11 leaner, leaner A whom you hugged tightly and kissed or attempted to while touching her on her private part.”

Charge 2.

“You committed an act of Section 18(1)(a) of the Act in that during 2022 and 2023 you contravened Item (3)(3.8) of the SACE Code of Professional Ethics by failing to refrain from forms of sexual harassment to the leaners at the same school as follows:

2.1 In June or July 2023 during the school holiday while you were at school you invited a grade 11 leaner, leaner B to come to school where you followed her to your office and locked her inside the side room of your office and touched her on her breasts and buttocks while attempting to kiss her and telling her to sleep with you.

2.2 On or about 27 August 2022 you demanded to sleep with a Grade 10 leaner, leaner C whom when she refused you sent her a whatsapp message telling her its her loss.

2.3 During term 1 or term 2 of 2023 while in your office you grabbed a hand of a Grade 10 leaner, learner C and put it on your private part.

2.4 During term 1, 2 and 3 of 2023 while in your office you touched a Grade 12 leaner, learner D on her buttocks and requested her to engage in a sexual intercourse with you while busy trying to kiss her.”

Charge 3

“You committed an act of misconduct in terms of Section 18(1)(a) of the Act in that during the current year of 2023 you contravened Item 3(3.10) of the SACE Code of Professional Ethics by using inappropriate language and behaviour in your interaction with leaners, and acted in such a way that does not elicit respect from the leaners as follows:

3.1 While in your office during the second or third term of 2023, you told a Grade 11 leaner, leaner E that you dreamnt of her engaging in a rough sex with you.

3.2 While in your office during the second or third term of 2023, you remarked about the short nails of a Grade 11 leaner, leaner E saying that the people with such nails are sex addicts.

3.3 While in your office during the second or third term of 2023, you asked a Grade 11 leaner, leaner E if the tea you requested her to make for you was as nice as she was. (you said in IsiZulu, ‘lelitiye limnandi njengawe?’)”

Charge 4

You committed an act of misconduct in terms of Section 18(1)(a) of the Act in that during the first term in January or February of 2023 while at the school you contravened Item 6(6.4) of the SACE Code of Professional Ethics by failing to refrain from sexual harassment of your colleague Ms. T.V. Mngomezulu whom you kissed against her will.”

[5] The employee pleaded GUILTY to all the charges. With the employee having pleaded guilty to all the charges, and after the employee had confirmed that he understood the charges and that he understood the implications of his pleading guilty to the charges preferred against him, it became unnecessary to hear evidence, and I proceeded to call upon parties to make submissions in aggravation and mitigation of the sanction.

SURVEY OF EVIDENCE AND ARGUMENT:

Employer’s Evidence

[6] No evidence was led.

Employee’s Evidence

[7] No evidence was led.

ANALYSIS OF THE EVIDENCE AND ARGUMENT

[8] The Constitution of the Republic of South Africa, Sections 17 and 18 of the Act and the SACE Code of Professional Ethics are instruments that are aimed at ensuring that rights of leaners not to have their bodily integrity violated are protected, and to ensure that any untoward behaviour or conduct on the part of educators is kept in check and harshly dealt with where an educator is found to have transgressed. While attempts have been made and while measures have been put in place to sensitize and caution educators of the implications in instances of transgression or breach, the untoward conduct, including sexually inappropriate acts by educators against leaners continues still. That being the case, an example should be set everytime an educator is found to have engaged in acts that are in violation of not only the provisions of the Constitution in respect of children, but the Act and the SACE Code. I do not necessarily deem it necessary to set out what each provision states, suffice to state that provision on protection of children’s constitutional rights and against any inappropriate conduct by educators towards them is clearly set out and is common knowledge by educators. There can therefore be no excuse for breach.

[9] In the present inquiry, the employee, Mr Msiza, faced very serious allegations. The charges preferred against him point to these transgressions having happened over time. The incidents of violation are not isolated if one has regard to the number of leaners that complained against him. While the employee presented mitigating factors arguing for a lesser sanction, the nature of the transgressions are such that any consideration of a lesser sanction than the mandatory sanction of dismissal, even if I had discretion, would not be warranted. The factors set out in mitigation of sanction, weighed against the gravity of the transgression, simply would not warrant a sanction less than dismissal. The offences were repeated and involved not only five leaners of the school the employee is based at, but one of his colleagues as well. Careful reading of the allegations that the employee has since pleaded guilty to suggests that if he were to be allowed to remain at the school, there is high likelihood that he would engage in the very conduct.

. [10] Everytime an educator is found to have engaged in appropriate conduct against leaners, be it sexual or not, an example must be set by meting out the harshest of sanction. Educators, by virtue of the profession they are engaged in, have a bigger responsibility of ensuring that they build children for the roles they should and will ultimately assume as future leaders. Children, in particular leaners, look up to the educators for guidance and any unexemplary conduct as displayed by the employee has the effect of damaging trust that leaners have in educators. And this has long term negative implications. Restating the damaging effect that abuse against children has, the late former president of the Republic of South Africa, Mr Nelson Rholihlahla Mandela once said: “Our children are our greatest treasure. They are our future. Those who abuse them tear at the fabric of our society and weaken our nation.” It must have been with, among other things, these words in mind that the Act now provides that an educator found guilty of acts of sexual misconduct against leaners be dismissed. Not only should educators found guilty of sexual abuse of leaners be expelled, but they should be removed from the education system not only to send a clear warning to other educators, but to ensure also make sure that they do not find their back into the education system. As such, it becomes necessary that their conduct not only be referred to and reported to the SACE, but provisions of the Childrens Act 38 of 2005 should be invoked to ensure that such educators do not get to work with children.

[11] In respect of the charge of the employee’s having sexually harassed his colleague, Miss Mngomezulu, it is trite that sexual harassment in the workplace be harshly dealt with. Employers are required by law to make workplaces safe. The employee’s kissing Miss Mngomezulu without her consent amounted to sexual harassment. Before me is not a case where the employee denied the allegation. He pleaded guilty to the charge, and this charge alone is serious enough to warrant dismissal on first offence.

[12] Accordingly, I deem it reasonable to make the following award:

AWARD

[13] The sanction of dismissal is imposed effective from 16 February 2024.

[14] The General Secretary of the ELRC must, within 14 days of receipt of this award, report or refer the award to the educators’ professional body, SACE for its consideration of appropriate action to be taken.

[15] The employee, Mr Nkosinathi Msiza is found unsuitable to work with children in terms of Section 120(4) of the Children’s Act 38 of 2005.

[16] The General Secretary of the ELRC must, in terms of Section 122(1) of the Children’s Act 38 of 2005, notify the Director General: Department of Social Development in writing of the findings of this forum made in terms of Section 120(4) of the Children’s Act 38 of 2005, that Mr Nkosinathi Msiza, is unsuitable to work with children, for the Director general to enter his name as contemplated in Section 120 in Part B of the register.

[17] The employee has the right to take this award on review to the Labour Court as envisaged in Section 145 of the LRA and must do so within the prescribed timeframe.


Monde Boyce
Panelist: ELRC