In the matter between:

Department of Education – Northern Cape   Employer

And

GE Webb Educator

ARBITRATION AWARD

Details of hearing and representation

1.       This matter was set down as an inquiry by arbitrator in terms of section 188A of the Labour 

Relations Act 66 of 1995 as amended (“the LRA”) between Department of Education – Northern Cape (“Employer”), and Ms. GE Webb (“Educator”) at Colesberg Magistrate Court on 24 October 2024. Mr. FD Bitterbosch, Assistant-Director: Labour Relations, represented the Employer, and the Educator was absent, and not represented.

Preliminary Issue

2. There was no appearance by or on behalf of the Educator party at the scheduled time of commencement at 09h00, and even after 30 minutes’ grace period at the inquiry proceeding. According to the ELRC (“Council”) case file, the Educator was notified about today’s proceeding by email (jessejclarke36@gmail.com) on 09 October 2024. The Educator party after receiving the notice of set down, made an application for postponement due to non-availability of her legal representative until the 27^th of November 2024. The Council declined to postpone the inquiry, and the decision was communicated in writing to the Educator party by email (jessejclarke36@gmail.com) on 10 October 2024.

3.       On 23 October 2024, at around 16h28, the Educator sent a medical certificate to the Council indicating that she was struggling to get hold of her legal representative, and she further said that find the sick note, and referral to a psychologist. It is clear that the Educator was informing the Council about her challenge to get hold of her legal representation, and she did not apply for postponement. I, therefore, conclude that there was nothing to consider because there was no application for postponement before me.

4. In this matter, the Employer offered the Educator a chance to defend herself against the allegations of misconduct levelled against her, but she did not use this opportunity. The crucial question was whether her absence from the inquiry was justified. The sick note did not allege that she was incapable of attending the inquiry at all. It was the Educator’s duty to apply for postponement of the inquiry, if she was unable to attend it due to illness, but she failed to do so. The Educator was the only person to be blamed for her absence. I am satisfied that the Educator was properly notified of the proceeding, and the inquiry proceeded in her absence.

Background to the dispute

5. The Educator is currently employed as an educator (PL1) at Gariep High School in Prieska, Pixley Ka Seme District. The Educator acknowledged receiving the allegation against her well in advance on 11 April 2024. The notice of set down was served to the Educator on 09 October 2024. The Council appointed Mr. Brian Banga, as interpreter, and Ms. Vuyo Tyebela, as intermediary.

6. The allegation levelled against the Educator is as follows: Charge one- “on or about January 2024 and February 2024 at or near Gariep High School (the school) in Prieska (Pixley Ka Seme District) you committed an act of misconduct in terms of section 17(1)(c) of the Employment of Educators Act 76 of 1998 in that you, inter alia, had a sexual relationship with a learner (15 years of age and in grade 9c) at the school where you are teaching, while you knew or ought to have known that you were not allowed to do so”. Charge two- “on or about January 2024 and February 2024 at or near Gariep High School (the school) in Prieska (Pixley Ka Seme District) you committed an act of misconduct in terms of section 18(1)(dd) of the Employment of Educators Act 76 of 1998 in that you, inter alia, statutory raped a learner (15 years of age and in grade 9c) at the school where you are teaching, while you knew or ought to have known that you were not allowed to do so”.

7. For the purpose of this award, the name of the learner will be kept confidential, and the learner will simply be referred to as “the learner”. The Educator was absent, and I, as the commissioner entered a plea of not guilty on her behalf to the charges levelled against her. These proceedings were conducted in English, and were manually, and digitally recorded. The Employer submitted a bundle of document, which was marked bundle “E”.

8. In all matters in which an Employer wants to take disciplinary action against an Educator for an alleged sexual misconduct towards any learner, an inquiry by an arbitrator, as intended by section 188A of the LRA, and clause 32 of the Dispute Resolution Procedures of the Council, shall be mandatory. In this regard, I have noted section 3.3.1 of Collective Agreement 3 of 2018 of the Council.

Issue to be decided

9. I have to decide whether an Educator committed misconduct as per the allegations levelled against her. If I find that she did commit the misconduct, I have to decide on an appropriate sanction.

Survey of Evidence

Employer

First witness: Learner

10. The witness testified under oath that he was a learner at Gariep High School, doing Grade 9. He knew the Educator, and he was 15 years, and 10 months in February 2024. He turned 16 years old in April 2024. He is currently attending school at Prieska High School. He had a relationship with the Educator. Document “E4-E7” was his affidavit, and he signed it.

11. He had a “chat” with the Educator, and he asked her to come to her house, and she agreed. He went to her house, and on his arrival, he asked to talk to her outside because she was with her family. He told her that he had a crush on her, and she replied by saying he was a child, and she does not want to lose her job. They agreed that they would behave like friends. The Educator was not comfortable with what was happening.

12. On Tuesday, 23 January 2024, he went to the Educator’s house, and they “chatted” about sports, and he later went home. On Thursday, 25 January 2024, he went to her house, and Ms. Bronnie arrived, and he left. On Friday, 26 January 2024, it was an athletics day, and he later went to her house. At around 20h00-21h00, he asked her to visit, and she agreed. He went to her house, and at 24h00, it was load shedding. He slept at her place, and they had a sexual intercourse without a condom. He went home on Saturday morning.

13. He told her cousin, Mecolle that he slept at the Educator’s house, and that they had sexual intercourse. On 30 January 2024, he informed the Educator that Mecolle informed his mother about their relationship, and they must keep a distance from each other. On 03 February 2024, at around 19h00 he went to her house, and he found her with her family. They had a sexual intercourse that night in her room, but they used a condom.

14. On 05 February 2024, Mr. Dick, an educator at the school, asked him why he was so closed to the Educator. Mr. Dick said that he must tell the truth. He informed Mr. Dick that he slept at the Educator’s house, and they had a sexual intercourse. He stated that he made a mistake for kissing the Educator. The rumours started to spread about their relationship, and he almost committed suicide. He confirmed that he had a sexual intercourse with the Educator, and he kissed her. He stated that because of his age, the Educator had statutorily raped him but he had nothing against the Educator.

Second Witness: Ms. Bernadette Botha

15. The witness testified under oath that she was the mother of the learner. She confirmed that the learner made an affidavit about his sexual relationship with the Educator as per “E4-E7”. Document “E3” was her written statement giving the Employer permission to use the learner’s affidavit. She confirmed that the learner was 15 years old when he had a sexual relationship with the Educator. Mecolle told her that the learner slept at the Educator’s house, and they had sexual intercourse, and she was later informed by Mr. Dick. The Educator knew what they were doing, and she statutorily raped him.

Third Witness: Mr. Paul Dick

16. The witness testified under oath that the Employer employed him as an educator at Gariep High School. He knew the learner, and he was his class teacher. He counter signed an affidavit as per “E4-E7” and confirmed its contents. Another learner came to him and said that the learner had a sexual relationship with the Educator. He approached the learner, but firstly he denied the allegation, but later confirmed the relationship. The learner was under age when these incidents happened. He once saw the learner, and the Educator coming from her residence on the day of the workshop, and he had nothing against the Educator.

Fourth Witness: Ms. Lucy Boks

17. The witness testified under oath that the Employer employed her as a social worker. Document “E33-E34” was her report after having had counselling sessions with the learner. The learner acknowledged having a sexual relationship with the Educator.

Educator

18. The Educator did not attend the inquiry; therefore, no evidence was led on behalf of the Educator.

Survey of Argument

Employer

19. The Employer representative submitted that the Educator misused her position, and she did not live up to her standard as “in loco parentis”. The Employer was obliged to provide a reasonable safe environment for teaching, and learning. The Educator failed to provide a favourable learning environment to the learner. The Educator was aware of this rule, and she breached the rule. The Employer prays that the Educator be found guilty on the charges levelled against her, and that she be dismissed.

Analysis of evidence and argument

20. Section 28(1)(d)of the Constitution of the Republic of South Africa provides, among other things, that: “Every child has a right –

“to be protected from maltreatment, neglect, abuse or degradation”. Furthermore, this Section also provides that “A child’s best interests are of paramount importance in every matter concerning the child”. The above provisions are therefore important considerations in deciding the issue before me.

21. The allegations against the Educator are that she had a sexual relationship with a learner at the school where she is teaching, while knowing or ought to have known that she was not allowed to do so. She was also charged for statutory rape for having a sexual intercourse with the minor. A false claim of sexual relationship has very serious implications for the person against whom the allegations are made. Not only could such a person lose her job with very little hope of finding similar employment, but her family, and community standing can be negatively affected. The arbitrator has a duty to determine if the Educator is fit to work with children. Once declared unsuitable the Council has a duty to submit a report to the Director-General of Social Development to be added to the National Register For sex Offenders.

22. The plea of not guilty was entered on behalf of the Educator. The standard of proof was that of a balance of probabilities. Proof that the employee actually committed the offence charged presupposes a proper investigation of the allegation against the employee, and the presentation of evidence that links the employee with the offence. Proof on a balance of probabilities means that the evidence points more probably and reliably to the conclusion that the employee committed the alleged misconduct. However, a mere suspicion of guilt does not satisfy the test of proof on a balance of probabilities. The question that needs to be asked is whether the Employer produced sufficient evidence to support the charges of misconduct for which the Educator has been charged.

23. In reading of these allegations against the Educator, the Employer is alleging that the Educator had a sexual relationship with a learner, and that the learner was a minor. The Employer was required to prove that the Educator had a sexual relationship with the learner, and that they had had sexual intercourse.

24. During the proceeding, I specifically ensured that the learner understood the concept of telling the truth. The Employer party agreed that I had adequately dealt with this aspect. I found the learner’s evidence to be reliable, and convincing. He was not hesitant, or evasive. It is the Employer’s undisputed evidence that the Educator and the learner had a sexual relationship that eventually led to a sexual intercourse. It is the Employer’s undisputed evidence that the learner was a minor when he had a sexual intercourse with the Educator. That being the case, the question that then begs an answer is; why would the four (4) witnesses who were called, who appeared to have no serious issues, or history of animosity towards the Educator, suddenly gang up against her without sufficient cause? Is it probable that their version is a mere fabrication? The answer, based on the evidence before me, is an emphatic “No”.

25. Based on the probabilities, I find that the Educator did in fact had a sexual relationship with the learner, and sexual intercourse with the minor. Even though this relationship was initiated by the learner, the Educator ought to have known better than the learner.

Conclusion

26. Based on the above conclusion, I find that the Educator committed misconduct as per the main two charges in terms of sections 17(1)(c), and 18(1)(dd) of the Employment of Educators Act 76 of 1998 (“EEA”).

Sanction

27. Having found that the Educator committed misconduct in terms of sections 17(1)(c), and 18(1)(dd) of the EEA, the sanction of dismissal is mandatory. For the sake of completeness, I have also considered the total circumstances in order to decide whether dismissal would be fair, and appropriate sanction if it were not mandatory. It is the Employer’s undisputed evidence that the Educator had a sexual relationship with the learner, and that the learner was a minor when he had a sexual intercourse with the Educator. This kind of conduct is unacceptable within an educator and learner context, particularly since the educator holds the balance of power in such a relationship. Educators have a positive duty to ensure that learners are educated in a safe environment. Parents entrust their children for safe keeping at school.

28. Educators take the role, and responsibilities of parents while at school. Viewed against this background, the Educator’s conduct is viewed in an extremely serious light and is in breach of relevant legislation. Legislation prohibits such conduct. I have particularly considered the EEA as well as the SACE Code of Professional Ethics for educators (South African Council for Educators, as contemplated in the South African Council for Educators Act, 31 of 2000). The protection of learners, and consideration of their interests is paramount, particularly as educators are leaders within the school environment as well as leaders within the community environment. Such conduct serves to destroy the relationship of trust between the Employer, and Educator.

29. Section 120(1)(c) of the Children’s Act 38 of 2005 (“the Act”) provides that a finding that a person is unsuitable to work with children may be made by “any forum established or recognized by law in any disciplinary proceedings concerning the conduct of that person relating to a child”. Section 121 of the Act provides that where such a finding is made, the person against whom such a finding was made, may have the finding reviewed by a court of law. Section 120(2) of the Act provides that a finding that a person is unsuitable to work with children may be made by such a 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. Accordingly, an arbitrator may also make a finding on his/her own accord.

30. The Employer representative asked me to find that the Educator is automatically unfit to work with learners. In view of my finding of the serious nature of the Educator’s conduct, and the priority to protect the rights of children, I find that the Educator is unsuitable to work with children. The fact that there are no previous incidents on record, does not necessarily mean that her conduct will not be repeated. In tribunals of this nature, consideration of the best interests of children, is paramount. My finding is aimed at the protection of children.

Award    

31. I find the Educator, Ms. GE Webb, guilty of the charges preferred against her, and I, as a consequence, impose a sanction of a dismissal effective from 11 November 2024.

32. Ms. GE Webb is found unsuitable to work with children in terms of section 120(4) of the Act.

33. The General Secretary of the Council must, within 14 days of receipt of this award, report, or refer the award to the educators’ professional body, SACE.

34. The General Secretary of the Council must, in terms of section 122(1) of the Act, 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 Act namely that Ms. GE Webb is unsuitable to work with children and for the Director General to enter her name as contemplated in section 120 in part B of the sex offenders register.

Signature: _____________________

Commissioner: Khuduga Tlale

Sector: Education