ELRC850 -23/24EC

ARBITRATION
AWARD

Case Number: ELRC850 - 23/24EC
Commissioner: MBULELO SAFA
Date of Award 13 June 2024

In the ARBITRATION between: -


EASTERN CAPE DEPARTMENT OF EDUCATION
Applicant/EMPLOYER

And

SABELO DLADLA
Respondent/EMPLOYEE

DETAILS OF THE HEARING AND REPRESENTATION

1. The matter set down for Arbitration on the 30 and 31 May 2024 at the offices of the Employer in Lusikisiki. The mater was previously set down for 18 April 2024 but could not proceed because the employee submitted a medical certificate and a postponement was granted.

2. The Employer was represented by Mr Khwezi Dalasile who is their Labour Relations Officer and the employee was not in attendance.

3. Mr Bheki Hadebe was the interpreter and Ms Maquza Nxala was the intermediary and both of them were appointed by the ELRC.

4. The proceedings were recorded in an audio recorder.


ISSUES TO BE DECIDED


5. Whether or not is the employee guilty of the charges proffered against him, and if he is guilty impose an appropriate sanction in terms of the Employment of Educators Act.

BACKGROUND TO THE ISSUE

6. The employee is employed by the Respondent in terms of the Employment of Educators Act as an educator at Mxhume High School (the school) in Ntabankulu, Eastern Cape.

7. He was charged in terms of section 17(1)(b) and section 17(1)(c) of the Employment of Educators Act in that he is alleged to have invited the learner Complainant to his room, intoxicated her with alcohol and then had sex with her.

8. The proceedings here are in terms of ELRC Collective Agreement 3 of 2018 which provides that it is mandatory that in misconduct cases where the allegations against the educator relate to alleged sexual misconduct against a learner the matter must be dealt with as an inquiry by arbitrator in terms of section 188A of the Labour Relations Act.

POSTPONEMENT ON THE 30 MAY 2024

9. On the 30 May 2024 the Applicant was not in attendance despite being notified about the set down.

10. When he was called he indicated that he sent an email to the council and to the employer. When he was again called to say he must come even if late as the matter will not be postponed he said he cannot come.

11. When the email was forwarded to the arbitrator it transpired that the employee sent an email to the council on the 28 May 2024 at 17h03.

12. In the body of the email the employee wrote, “
“Kindly be advised that I am unable to attend the arbitration meeting set down for 30 -31/05/2024 at Lusikisiki Magistrate Court, due to health reasons.
The medical certificate is attached here for your urgent attention. I apologize for the inconvenience caused.”

13. In the email he attached a medical certificate according to which he went to a doctor on the 27 May 2024 and was subsequently given a medical certificate which said he was sick from 27 May 2024 to 31 May 2024.

14. In response to the email the case manager wrote an email and sent it at 08h41 on the 30 May 2024 where he wrote,

“Given the late submission of your request for postponement, you are required to address the issue with the commissioner at the arbitration.”

15. At the arbitration the employer submitted that the employee only sent the email after hours on the 28 May 2024. The argued that this was the second time the employee sent a request for similar circumstances. In April 2024 the request for postponement was received on the eve of the hearing.

16. They further argued that it was strange that the employee was always sick on the eve of the set down date. He said the doctor noted that the employee was sick with anxiety disorder. They said it was to be expected that a person attending a disciplinary hearing was to be anxious.

Ruling

17. I noted that there was no application for postponement as the Applicant only advised that he was unable to attend. Even if there was an application for postponement such was not there for taking but the party seeking it needed to make out a proper case for such an indulgence. The application also needed to be made in terms of the rules of the bargaining council.

18. The ‘advice’ was emailed to the bargaining council at 17h03 on the 28 May 2024, which was after office hours. Since the following day it was going to be the elections’ day and therefore a holiday it means the email was only accessed on the 30 May 2024(the date of the arbitration) hence the response was only sent to him on the same day at 08h41.

19. When the matter was set down for 18 April 2024 the employee sent an email with exactly the same wording on the 17 April 2024 at 14h49. Again for this sitting he sent the email citing the same reasons on the eve of the date of arbitration.

20. I do not think that it is a coincidence that the Applicant gets sick on the eve of the date of arbitration on two consecutive instances. I regard this as a way of abusing the processes, avoiding the enquiry or unnecessary delaying it.

21. I had regard of the findings of Labour Court in Super Group Trading v NUMSA where it held,
“Bearing in mind that it was the employee who sought the indulgence of a postponement, it was incumbent on him to place cogent reasons for his absence before the arbitrator. In the absence of any such reasons, it was not open to arbitrator to divine what his explanation might be – less still to conclude that his conduct was not deliberate or wilful.”

22. As stated earlier there was no application for postponement before me but only an advice that the employee was not going to attend. I previously postponed the matter on the 18 April 2024 when the employee advised that he was not going to attend but I cannot do that again lest it becomes a trend for him to simply advise when he will not attend the proceedings without following the rules of the council.

23. I then ruled that the matter was going to proceed as scheduled.

SURVEY OF EVIDENCE AND ARGUMENT

24. The employer led oral evidence through two witnesses and submitted one bundle of documents.

25. The employee was not in attendance and therefore did not testify.

EMPLOYER’S EVIDENCE

26. The first witness of the employer, who testified under oath, was the Complainant (21) who was a learner at the school in 2021 when the incident occurred. Then she was eighteen (18) years old. She testified in the open arbitration since the employee was not in attendance.

27. She said she knew the employee as he was her Mathematics educator at the school in 2021. She testified that in March 2021 the employee proposed love to her and asked for her cell number. She initially resisted because she was surprised that her teacher would propose to her. He persisted and even communicated with her on facebook and she then decided to give him her cell number.

28. She said the employee would call her at night because, he said he did not want their relationship to be known.

29. Though she could not recall the exact date but recalled that she, the employee and another gentleman with a dark complexion went to the tavern called Bro Move Tavern. She said when they were there the employee bought her savanna which the witness initially refused to consume but when they were later at the place of the employee she drank it. She said she could not recall how many did she drink and she blacked out.

30. She said when she woke up at about 03h00 the following day she found herself naked in the bed. When she asked the employee what had happened he responded by saying he did not force himself on the witness. She said she never consented to having sex with him on the day as she was too drunk after drinking the savanna he bought for her.

31. The employee accompanied her to her home and left her at the gate and gave her R200 and asked her not to tell anyone. She said after that there was no communication between them.

32. She said that around June 2021 her mother discovered that the witness was pregnant and when she was asked who was responsible she said it was the employee.

33. She said the issue was discussed by her mother and uncle and they called the employee to her home. When at her home and in the presence of the witness the employee was asked and he admitted that he caused her to be pregnant.

34. The employee later denied the paternity of the child and said he wanted a DNA test be done to prove paternity. After that he never wanted anything to do with the DNA test and was running away.

35. She said that after about five days the employee made contact with her asked if at their home damages have to be paid. When he was told that the damages amounted to R30 000 he said if he paid them he was going to take the child with him to KwaZulu-Natal otherwise he was not going to pay.

36. She said in 2022 her mother opened a case against the employee at the maintenance court for him to maintain the child. She said the case at the maintenance court kept on disappearing and her mother had to re-open the case on several occasions. Her mother then became tired of going to the maintenance court and in 2023 decided to report the matter to the employer in Lusikisiki.

37. She said if the employee had taken care of and maintained the child the matter would not have been reported to the employer.

38. The other witness of the Respondent was Ms Nombulelo Mqondwa who is the mother of the Complainant.

39. She said when the Complainant failed grade 11 at the school she said she was afraid to go back as she had a relationship with the employee. Witness became aware of the relationship when the Complainant became pregnant and said the employee was responsible.

40. In a meeting between the witness, her brother and the employee he admitted that he knew that the Complainant was pregnant with his child. He said he was going to see after the child has been delivered. She said the employee was also told that he was supposed to pay damages amounting to R30 000. He said he would bring someone to be his second hear and asked to be released on the day. He said the employee never paid the damages.

41. She said when the child was delivered she went to open the case at the maintenance court. She said the case kept on being postponed until the end of 2022.

42. When she could not get assistance at the maintenance court she decided to report to the employer, which by then was in 2023.

43. She said she did not immediately report to the employer as she thought she needed to report only after the child has been born. She said they never thought about reporting the matter to the employer, but to the maintenance court.

44. She said if the employee had paid damages and maintenance for the child they would not have reported the matter to the employer.


ANALYSIS OF EVIDENCE AND ARGUMENT


45. Since this was the enquiry the onus was on the employer to prove the allegations on a balance of probabilities.

46. Since the employee was not in attendance the evidence of the employer was not disputed.

47. It was the evidence of the employer that the employee had a sexual relationship with the learner in his school to the extent that he caused her to be pregnant.

48. Much as there was evidence about the fact that the employee did not pay damages for causing the learner to be pregnant and that he did not pay maintenance for the child, such issues are outside of my jurisdiction as an arbitrator in a matter like this.

49. My focus is whether the employee contravened the code of the employer as contained in the Employment of Educators and cited in the charges proffered against him.

50. The undisputed evidence of the Complainant for the employer is that the employee bought her alcohol and when she was drunk he had sex with her. The Complainant testified that she did not consent to having sex with the employee and may not have consented because she was intoxicated. Having sex with her without consent amounted to sexual assault. This action was in contravention of section 17(1)(b) and section 17(1)(c) of the Employment of Educators Act.

51. I noted that the incident is said to have occurred in about March 2021 but was only reported to the employer in 2023. The employer instituted these proceedings in 2023. There can therefore be no claim that the employer delayed to take action against the employee.

52. In terms of section 17(1) of the Employment of Educators Act an educator must be dismissed if found guilty of committing an act of sexual assault on and having a sexual relationship with a learner. As I have found the Respondent guilty of sexual assault it is prescriptive that I impose a sanction of dismissal.

53. Section 120(1) of the Children’s Act provides that a children’s court, any court in civil or criminal proceedings or any platform recognized by law in disciplinary proceedings may make a finding that the person is not suitable to work with children. The finding may be made the court or platform on its own volition or on application by the relevant official of the state involved in the protection of children .

54. In this arbitration the employer argued that the name of the employee should behanded to all relevant authorities to prevent the interests of children. The Children’s Act also allows that the arbitrator can make the finding on his or her own volition. I have therefore decided that I am making the finding that the employee is, in terms of the Children’s Act, not suitable to work with children.

In the circumstances I make the following award;

AWARD


55. The employer has succeeded to prove on a balance of probabilities that the employee, Sabelo Dladla, is guilty of the charges proffered against him.

56. The appropriate sanction being imposed is DISMISSAL which must be effected within seven (07) days from the date of receipt of this award.

57. The employee, Sabelo Dladla, is hereby found unsuitable to work with children in terms of section 120(4) of the Children’s Act . The General Secretary of the ELRC is, in terms of section 122(1) of the Children’s Act is hereby directed to notify the Director-General: Department of Social Development of the findings of this forum so that the Director-General can, in terms of section 122(2) of the Children’s Act enter his (Sabelo Dladla’s) name as contemplated in section 120 in part B of the register.

Mbulelo Safa: ELRC Panelist