In the matter between

SAOU obo H van den Berg Applicant

and

HOD, GAUTENG DEPARTMENT OF EDUCATION Respondent
___________________________________________________________

ARBITRATOR: Adv D P Van Tonder

HEARD: 15 September 2014; 16 September 2014

FINALISED: 8 October 2014

DELIVERED: 10 October 2014

SUMMARY: Labour Relations Act 66 of 1995 – Section 186(1)(a) – Alleged Unfair Dismissal – Alleged misconduct involving a learner – Allegedly taking the form of inappropriate touching – Whether misconduct proved – Suspicions of guilt not sufficient to justify a conviction – Where probabilities evenly balanced, misconduct not proved – This does not imply that the accused employee is definitely innocent – It merely means that the employer has not discharged the onus; Relief – Reinstatement the primary relief in terms of the LRA where dismissal substantively unfair

ARBITRATION AWARD

Table of Contents

I THE PARTIES 3

II PROCEDURAL HISTORY 3

III THE ISSUES TO BE DETERMINED 4

IV BACKGROUND TO THE DISPUTE 4

V THE EVIDENCE 6

Bundles of documents 6
Evidence on behalf of respondent 6
Evidence on behalf of respondent 8
The Inspection in loco at the school 8

VI ARGUMENTS 8

VII DISCUSSION 8

PROCEDURAL FAIRNESS OF THE DISMISSAL 8

SUBSTANTIVE FAIRNESS OF THE DISMISSAL 8

The issues to be determined 8
Is applicant guilty? 8
The findings of the MEC vs the findings of the chairperson 8
Applicant’s version 8
The complainant being a single witness 8
No motive on the part of the complainant to fabricate false evidence 8
Failure to call a corroborating witness 8
Failure to call the first report witness 8
The discrepancy between the charge sheet and evidence 8
The complainant’s evidence 8
The probabilities and the onus 8

VIII RELIEF 8
Reinstatement 8
The extent of reinstatement 8
Backpay 8

AWARD 8

I THE PARTIES

Applicant
[1] The applicant is Suid Afrikaanse Onderwysersunie(“SAOU”), a registered trade union in terms of the Labour Relations Act, who has referred a dispute on behalf of their member Mr Hermanus Phillippus Van den Berg. Applicant was represented by Ms K Labuschagne from SAOU.

Respondent
[2] Respondent is the Provincial Head of Department of the Gauteng Province Department of Education, who in terms of the applicable legislation was Mr Van den Berg’s employer. Respondent was represented by an employee Mr Tshitshiba from the labour relations department.

II PROCEDURAL HISTORY
[3] After this dispute was referred to the ELRC, there was an unsuccessful conciliation, followed by a pre-arbitration conference. The arbitration hearing was held in Krugersdorp on 15 and 16 September 2014. An inspection in loco was held at Monument High School in Krugersdorp on 16 September 2014. The arbitration was finalised on 8 October 2014 when the final written closing arguments were received. The proceedings were recorded digitally.
III THE ISSUES TO BE DETERMINED

[4] I am required to determine whether applicant’s dismissal was for a fair reason, and in accordance with a fair procedure, and if not, the appropriate relief.

IV BACKGROUND TO THE DISPUTE
[5] Applicant, a fifty five year old male, was employed by respondent as an educator since 1981 at the Monument High School in Krugersdorp. During 2010 and 2011 three different girls who were learners at the school, independently complained that applicant had molested them on different occasions. As a result applicant was subjected to two disciplinary hearings.

[6] The first disciplinary hearing where one learner (hereainafter referred to as learner S) was the complainant was conducted during February 2011. Applicant was convicted by the disciplinary tribunal on that charge during 2011, but in 2013 the MEC on appeal acquitted applicant. That matter was not the matter that was arbitrated before me and this information was provided to me by applicant as background.

[7] During the second disciplinary hearing from November 2011 until February 2012, there were two learners (learner T and learner M) who testified as complainants. Applicant was acquitted by the chairperson of the disciplinary tribunal on both charges. On 11 April 2012 the employer appealed to the MEC against the finding of the chairperson. In May 2014 the MEC upheld the appeal in respect of one of the charges relating to one complainant (learner T) only and imposed a sanction of dismissal. It is this finding that formed the basis of the arbitration before me. The charge on which the MEC convicted applicant and imposed dismissal as a sanction reads as follows:
It is alleged that on the 4th of March 2011, while you were on duty at Hoërskool Monument, you conducted yourself in an improper, disgraceful and unacceptable manner, in that you sexually assaulted T, a learner at the same school by touching her thigh whilst she was walking up the stairs.

[8] Dissatisfied with his dismissal, applicant approached his union, who referred a dispute to the ELRC on his behalf. It is common cause that applicant is a first offender and that at the time of his dismissal he was employed as a post level 1 educator at a monthly salary of R31 995.

V THE EVIDENCE

Bundles of documents
[9] Bundles of documents were submitted and referred to during the evidence. I will refer to documents if and where necessary during my discussion of the evidence and arguments.

Evidence on behalf of respondent
[10] The witness T, who was the complainant, testified that during 2011 she was in grade 10 in Monument High School in Krugersdorp and was 16 years old at the time. She is now 19 years old. She left Monument High School during 2011 and thereafter attended another school for a short while before leaving school permanently.

[11] During February 2011 she was raped at Monument High School. She was not raped by applicant and she preferred not to talk about the rape incident. Later that year she became pregnant and the new school where she went to namely Nico Diedericks did not allow her to continue attending school because of the pregnancy. Later that same year her father was involved in an accident and lied terminally ill at home, where he died early the next year.

[12] Applicant was never her teacher, although she knew him as a teacher at Monument High School. He once invigilated when she was writing exams. That is the only contact they had before March 2011. There had never been any incidents between her and applicant before March 2011.

[13] On 4 March 2011 between the second and third period, she was walking with two friends to class, when outside on the stairs leading up to the block where the office and administration block is, she felt somebody touching her lower right bum. It was a light squeeze. She turned around and saw applicant removing his hand. There was nobody else behind them. She could tell that it was not an accident because applicant had a grin on his face. One of her friends saw the incident but the other one did not. Since she was raped a month earlier, she was extremely upset about the incident. She told a friend in class who encouraged her to report it. She then told a teacher who arranged for her to see the social worker. She told the social worker that she does not want to be involved in another case again.

[14] In the meantime children in her class started teasing her. They said that the fact that she has now been involved in two similar incidents at school proves that she is “looking for it”. Accordingly her parents decided to take her out of the school and transfer her to another school.
[15] During November 2011 applicant came to see her parents at home and he asked them to withdraw the charges against him. They said that they cannot make such a decision and that it is for their daughter to decide whether or not she would want to withdraw the charge.

[16] During cross-examination she was asked whether she knows learner S who was the complainant in the first disciplinary hearing against applicant in February 2011. She replied that she does not know learner S and was not even aware that learner S also laid a complaint against applicant. The only other complaint against applicant that she was aware of was the complaint of learner M who testified in the same disciplinary hearing where she testified. She only became aware of the complaint of learner M on the day that she gave evidence in the disciplinary hearing.

[17] During cross-examination she was referred to the summary of her evidence in the disciplinary hearing, as recorded by the presiding officer. It was pointed out to her that in the disciplinary hearing she testified that after applicant has allegedly touched her, she slapped applicant and that she also testified that applicant then forced her to apologise to him.

[18] After reading the summary of her evidence, as recorded in the judgement of the chairperson of the disciplinary hearing, she first replied that she can see that the presiding officer noted that she testified that she had slapped applicant. She said that she cannot remember this. Shortly thereafter she said that it does come back to her now, and that she can now remember that she did slap applicant. As to whether applicant made her to apologise she said that she can still not remember that, but that it is possible. She can however not recall that.

[19] Johanna D is the mother of the complainant, learner T. She testified that after her daughter was raped in February 2011 her daughter went through a difficult period and had regular nightmares. She told her daughter that if anything like this ever happened again, then she must immediately tell her. When the alleged incident involving applicant happened, her daughter immediately told her about it. Later that year her husband became terminally ill after an accident, and after being at home for several weeks, he died early in 2012. It was therefore a very traumatic period for the family. After the incident in March when applicant touched her daughter, children at school started teasing her, and they decided that it was best to move the children to another school.

[20] During November 2011, whilst her husband was lying terminally ill at home and shortly before he passed away, applicant and his wife came to see them at home. He asked them to withdraw the charges against him. He asked them not to tell Rebecca. Rebecca is respondent’s labour relations officer who worked on the case at the time. They told applicant that they cannot withdraw the charges as it was their daughter’s decision and not theirs.

Evidence on behalf of respondent
[21] Hermanus Phillipus van den Berg, the applicant testified that 4 March is his birthday. He was on terrain duty the week of 4 March 2011. On 4 March 2011 between the second and third period when the incident allegedly happened, he was in his classroom and the school principal was with him. He never touched the complainant as she claims, she never slapped him, and he never made her apologise for anything. Although the staircase that the complainant testified about is just outside his classroom on the way to the administration block, he was not behind this learner on the staircase as she claims. He has never taught learner T, although he invigilated once when she wrote exams. He could not even recall her face when he was first informed of the charges against him and had to draw her file in the admin block to look at her photo in order to put a face to the name.
[22] He believes that the complainant learner T made up this version to sympathise with learner S who was the complainant in the disciplinary hearing of February 2011. He knows that these two learners were friends because he saw them walking together on the school grounds regularly. He was asked why this was never put to learner T during her evidence as she denied that she knows learner S and as I explained to him at the commencement of the hearing that if he gives new evidence that was not put to a witness, I will probably not believe him. His response was that he is not experienced in arbitration proceedings. He confirmed that he can recall that I did warn him earlier that it is his duty to ensure that his representative puts his entire version to the complainant.

[23] He admits that he did ask the parents of learner T to withdraw the charges. He did this because he was innocent. Asked if he did not think It would be a problem for him to approach the parents of learner T, he replied that in his previous case where learner S was the complainant, the labour relations officer said that if he wanted to approach the complainant and her parents he could do so but must just be very careful about what he says to them. He therefore thought that it would not be a problem if he approached the parents of learner T. He is still unemployed and asked for reinstatement. There are approximately 100 teachers employed at Monument High School and the school has 1500 learners.
[24] Dr Frans Edwin van der Schyff is employed at Monument High School as a post level 1 educator. In 2011 learner T was in his register class and English class in grade 10G. Learner T left the school during July 2011. He knows nothing about the alleged incident for which applicant was dismissed.

The Inspection in loco at the school
[25] During the inspection in loco at Monument High School we inspected the staircase which is outside and where the incident allegedly occurred. The staircase is not far from applicant’s class and in order for applicant to walk to the office and admin block, which we also visited during our inspection, one would need to use this staircase. Photos of the staircase in black and white can be found in Bundle A. I also took colour photos of the staircase during our inspection which both representatives viewed on my laptop afterwards and which they confirmed on record they agree with. These photos I have stored in a separate file on the CD containing the electronic recordings of the evidence. The position of the staircase in relation to applicant’s classroom and the admin block can be seen in a terrain plan of the school contained in Bundle A.

VI ARGUMENTS
[26] Written arguments were submitted by both representatives. For the sake of brevity I do not intend to summarise the arguments in detail as they have been reduced to writing and form part of the record. I have carefully considered these arguments and am indebted to both representatives for the heads of argument. On behalf of respondent it was argued that it was proved on a balance of probabilities that applicant is guilty as charged and that the dismissal should be upheld. On behalf of applicant is was argued that it was not proved that applicant was guilty and that he should be reinstated.

VII DISCUSSION
[27] It is common cause that applicant was dismissed. The fairness of the dismissal is in dispute. In order for a dismissal to be fair, the LRA requires such dismissal to be effected for a fair reason and in accordance with a fair procedure. The onus is on the employer to prove the substantive and procedural fairness of the dismissal.

PROCEDURAL FAIRNESS OF THE DISMISSAL
[28] It is common cause that the chairperson of the disciplinary hearing made his finding in 2012 and that in April that same year the employer appealed against the finding. It is further common cause that in May 2014 the MEC finally determined the appeal. Her decision was to uphold the appeal and she dismissed applicant. Ms. Labuschagne submitted that this was a lengthy delay and procedurally unfair.

[29] We must understand that the MEC is not the employer of educators in relation to discipline. It is the HOD who is their employer for purposes of discipline. The MEC has however been designated by Parliament as the appeal authority. There are a number of reasons why I am of the view that the delay cannot be regarded as unfair conduct by the employer:

29.1 Although the Employment of Educators Act prescribes time frames for practically everything that can be done in terms of the Act, it is significant that no time frame has been prescribed in the Act or Schedule within which the MEC must finalise an appeal;

29.2 The MEC is an official with many duties. Not only must she perform her political duties and attend provincial government cabinet meetings and take part in deliberations in the provincial legislature, but she also has numerous administrative duties imposed by legislation. As part of her responsibilities she must also attend various social gatherings and address the media. Seen against this background, it must be understood that deciding appeals is not her main function and priority. Her first priority is to fulfill her political duties in the provincial legislature and in the provincial cabinet. Parliament must have realised this, and this is why in all probability no time frame was laid down for the MEC to finalise appeals.
29.3 Because the MEC is not the employer of educators for purposes of discipline, it is hard to understand on what basis it could be said that the employer can be blamed for a delay by the MEC in finalising the appeal. The HOD has no control over the MEC and cannot give the MEC any instructions. It is in fact the HOD who reports to the MEC. The HOD cannot even, as is the case with other employers, remove the MEC as appeal authority and appoint another appeal authority, because this is regulated by an Act of Parliament. Hence, where the HOD submits an appeal within the prescribed time limits, and the MEC thereafter delays the appeal, it would in my view be wrong to say that it is the employer who treated the employee unfairly.
[30] For these reasons I find that the employer did not treat the applicant unfairly from a procedural point of view. The dismissal was procedurally fair.

SUBSTANTIVE FAIRNESS OF THE DISMISSAL
[31] In determining whether there was a fair reason for the dismissal, I am guided by item 7 of the Code of Good Conduct on Dismissals contained in Schedule 8 to the LRA (hereinafter referred to as “the Code”) which requires me to consider:

(a) whether or not the applicant contravened a rule regulating conduct in or of relevance to the workplace;

(b) if a rule was indeed contravened, whether or not:
(i) the rule was a valid or reasonable rule
(ii) the applicant was aware or could reasonably be expected to be aware of the rule
(iii) the rule had been consistently applied by the respondent
(iv) dismissal was an appropriate sanction for the contravention of the rule.

The issues to be determined
[32] It is in dispute whether or not applicant is guilty of any misconduct. The existence of the rule that has allegedly been breached, the reasonableness of it and applicant’s awareness of the rule is however not in dispute. Whilst it was placed on record in the pre-arbitration minute that the appropriateness of the sanction is also an issue in dispute, Ms. Labuschagne did not make any submissions in this regard in her closing arguments. She did however submit that the employer did not present evidence that the employment relationship is irretrievably damaged.

[33] It is not always necessary for an employer to present evidence about the breakdown of an employment relationship. It is trite law that certain misconduct is by its nature so serious that from itself the inference could be drawn that the trust relationship and therefore the employment relationship had been destroyed. There is a zero tolerance policy in relation to any form of molestation with sexual undertones of learners by teachers. It is not necessary that a teacher must rape a child in order to get dismissed. Any form of improper physical contact with sexual undertones should attract summary dismissal. This in my view is part of the common knowlegde known by everyone that has anything to do with education. It is not necessary for an employer to prove this.
[34] Hence in the event that applicant is guilty of the misconduct that he was charged with, this is a form of misconduct which by its nature is so serious that from itself the inference could be drawn that the trust relationship and therefore the employment relationship had been destroyed and that dismissal is the only appropriate sanction. Accordingly the only finding for me to make is whether it has been proved on a balance of probabilities that applicant is guilty of the misconduct that he was charged with. An employer need not prove with absolute certainty that an employee is guilty of alleged misconduct. Proof on a balance of probabilities is sufficient.

[35] The technique generally employed by courts and tribunals in resolving factual disputes involving two irreconcilable versions is well known. In resolving such factual disputes, a court of tribunal must make findings on (a) the credibility of the various factual witnesses; (b) their reliability; and (c) the probabilities.
Is applicant guilty?
[36] The complainant, T has no apparent motive to falsely incriminate applicant, especially since she is no longer in school, has no contact with applicant and never had any altercations with him before the alleged incident. She could not gain anything by falsely implicating him in misconduct that he did not commit. Then there is all the similar fact evidence tendered by applicant himself namely that two other girls at the school also made similar charges against applicant on separate occasions, also for no apparent reason whatsoever. One wonders why three school girls, for no apparent reason, would single out applicant from 100 teachers at their school, and falsely accuse him of sexual molestation. Under these circumstances, I have strong suspicions that applicant is guilty of the misconduct for which he was dismissed. However, we do not make factual findings based on suspicions and it is impermissible to dismiss an employee for misconduct based on suspicion, however strong or reasonable such suspicion may be. The question therefore is not really whether in fact applicant is guilty or innocent, but rather whether the respondent has succeeded to prove on a balance of probabilities that applicant is guilty.
The findings of the MEC vs the findings of the chairperson
[37] I am aware that an arbitration under the LRA is not a review or appeal, but a full rehearing de novo on the merits. Therefore the motivation for the findings of the disciplinary tribunal or the appeal tribunal, are actually of no relevance to the arbitrator. The arbitrator must make his own factual findings de novo based on the evidence before him.

[38] However, as a background, and because of the seriousness of the charge against applicant, I believe that it is proper to briefly deal with the findings of the chairperson and the findings of the MEC on appeal.

[39] The chairperson gave a very brief motivation for his findings – In my view too brief. Nevertheless he at least gave reasons for his finding. The MEC as appeal authority on the other hand, gave absolutely no reasons for her finding. And when I say no reasons, I mean not one single reason. Nothing. This is unfortunate, because it may be that the MEC might have had good reasons for her decision, but unfortunately we would never know, because she chose not to disclose them.

[40] Generally a trial judge or chairperson of a disciplinary hearing has advantages over an appeal court or appeal authority, which often makes if unsafe for the appeal court or appeal authority to interfere with the findings of the trial judge or chairperson of the disciplinary hearing. In 1948, in the case of R v Dhlumayo the former Appellate Division set out the principles that are applicable when deciding appeals. Today these same principles are still applied by courts of appeal in this country in criminal, civil and labour cases. These principles include the following:

• The trial Judge has advantages – which the appellate court cannot have – in seeing and hearing the witnesses and in being steeped in the atmosphere of the trial. Not only has he had the opportunity of observing their demeanour, but also their appearance and whole personality. This should never be overlooked;

• Consequently the appellate court is very reluctant to upset the findings of the trial Judge;

• The mere fact that the trial Judge has not commented on the demeanour of the witnesses can hardly ever place the appeal court in as good a position as he was;

• Even in drawing inferences the trial Judge may be in a better position than the appellate court, in that he may be more able to estimate what is probable or improbable in relation to the particular people whom he has observed at the trial;

[41] I am not suggesting for one moment that the MEC when acting as appeal authority is in exactly the same position as a court of appeal. She has much wider powers than a court of appeal, which would include the power to hear new evidence, which power is not subject to the same limitations as is the case when courts of appeal hears new evidence.

[42] However, in a case such as this, where the MEC chose to decide the matter based on the transcribed record of the disciplinary hearing, and heard no new evidence, she is for all practical intents and purposes in the same position as a court of appeal. She has a disadvantage because unlike the chairperson of the disciplinary hearing who had the unique opportunity of observing the witnesses testify and being steeped in the atmosphere of the hearing, the MEC did not have that benefit and advantage. Accordingly, if the MEC despite these disadvantages has sound reasons to overturn the finding on the merits of the chairperson, then in order for her finding to have any persuasive force, it would be wise for her to record those findings. In the case at hand, the MEC did not do so, and accordingly the fact that she decided that applicant is guilty cannot have any weight. If therefore I arrive at a different decision than the MEC, it needs to be borne in mind that whereas I gave reasons for my finding, the MEC did not. It should also not be overlooked that whereas I had the benefit of observing the witnesses testify, the MEC did not.
Applicant’s version
[43] Applicant was not one of the worst witnesses that I have observed in my 25 years of practice, but he was certainly also not one of the best witnesses that I have come across. Instead of confining himself to the allegations before him and instead of answering the questions that were put to him, he was longwinded and argumentative.

[44] When being asked straight forward questions, he would at times, instead of answering those questions directly, present arguments as to why the evidence of the complainant should be rejected. He would for example remind me of the fact that the evidence of the complainant that he had touched her bum was not consistent with the charge sheet that states that he touched her thigh – an argument which had nothing to do with the question that he was asked to answer. It is however impermissible to reject the evidence of a witness merely based on his demeanour because demeanour is notoriously fallible and an unsafe ground to make factual findings and ascertain the truth.

[45] At the commencement of the hearing I spent approximately 5 minutes explaining to applicant that unless he ensures that his entire version is put to the complainant by his representative, I may, if he tenders evidence that was never put to the complainant, reject his evidence. Despite this warning he gave completely new evidence that had never been put to the complainant during her cross-examination and that I heard for the first time when he gave evidence. The most important example of this is the fact that applicant testified that learner S (the complainant in the other case against applicant) and the complainant learner T, were friends because he saw them walking together on the school grounds sometimes. During the evidence of the complainant learner T, she was asked whether she knew learner S, and when she replied that she did not, it was simply left there. At no stage was it put to her that applicant will say that they were friends and that he saw them walking together on the school grounds.

[46] Where a party or his representative fails to put his version to the witness of the other side during cross-examination, and then gives complete new evidence when he testifies and on which the witness for the other side would have been able to comment, an inference may be drawn that he has given false evidence.
[47] However this is not an invariable rule as the probabilities must be assessed holistically in order to determine whether the party on whom the onus rests has discharged it. Furthermore, the most important aspects of applicant’s version, namely that he denies that he touched the complainant and that he denies that he was behind her on the staircase as she claims, are things that were indeed put to the complainant during cross-examination.

[48] Insofar as applicant’s alibi is concerned, applicant’s version is also not beyond criticism. During his evidence he gave an alibi and testified that when the misconduct was allegedly committed between the second and third period on 4 March 2011, the school principal was with him in his office. I have perused the judgement of the presiding officer and I do not see that it is recorded that applicant ever gave this alibi during the disciplinary hearing. Our courts have always held that an accused person who has an alibi, must disclose the alibi at the earliest possible opportunity so that the other side can investigate the alibi and stop the prosecution should it appear to be a valid alibi. I see no reason why this proposition should not apply in disciplinary matters in the workplace. It is only logical that a person who is innocent and has an alibi would want to tell his prosecutors about this at the earliest possible opportunity as this may cause them to withdraw the charges against him.
[49] In S v Thebus the Constitutional Court per Moseneke J confirmed this principle and said that the late disclosure of an alibi is one of the factors to be taken into account in evaluating the evidence of the alibi, although standing alone, it does not justify an inference of guilt. Secondly, such late disclosure is a factor to be taken into consideration in determining the weight to be placed on the evidence of the alibi. The Court stated further:

“The failure to disclose an alibi timeously is therefore not a neutral factor. It may have consequences and can legitimately be taken into account in evaluating the evidence as a whole. In deciding what, if any, those consequences are, it is relevant to have regard to the evidence of the accused, taken together with any explanation offered by her or him for failing to disclose the alibi timeously within the factual context of the evidence as a whole.”

[50] There are however several interrelated factors that have persuaded me not to attach too much weight to this issue:

50.1 Firstly, it is only an assumption that applicant did not disclose this alibi earlier. Applicant was never cross-examined by the employer’s representative about this aspect;

50.2 Because applicant’s evidence during the disciplinary enquiry was never referred to during the evidence before me, I only read that part of the record after the evidence was concluded, when I prepared my award, and only then did I realise that the alibi tendered during the arbitration, is not discussed at all in the jugdment of the presiding officer. Accordingly I too did not ask questions in clarification to applicant about the fact that the alibi is not mentioned by the presiding officer. I assumed during the arbitration hearing when the respondent’s representative did not ask questions about the alibi, that it was indeed discussed in the chairperson’s judgement;

50.3 Since a verbatim transcript of the evidence before the disciplinary tribunal was not handed in during the arbitration proceedings, I do not know how complete the judgement of the presiding officer is, and whether he recorded everything that was said at the disciplinary hearing in detail. It may be that the alibi was mentioned, but that it was just not recorded;

50.4 The reason for the failure of the employer’s representative to cross-examine the applicant on this aspect, may well be because the employer was aware of the alibi prior to the abritration already, and because it might have been raised during the disciplinary hearing, but just not mentioned by the presiding officer;

50.5 In S v Thebus, the Constitutional Court stated that an accused must be asked to explain the fact that his alibi was only disclosed at a late stage, and that his explanation in that regard must be taken into account. Precisely because this issue was never raised with applicant during cross-examination and because he was never asked for an explanation, it would be unfair to draw any negative inferences against him in this regard.

[51] Then there is the fact that applicant paid a visit to the parents of the complainant and asked them to withdraw the charges against him. They refused to do so. As if this was not enough, he did so without the knowledge of the labour relations officer Rebecca who was assigned to the case, and not only did he do that, but he specifically asked the parents not to tell Rebecca.
[52] Applicant explained that he thought that it would not be a problem if he went to see her parents as in the previous case where learner S was the complainant, Rebecca gave him permission to speak with the parents of learner S. Applicant however never gave any satisfactory explanation as to why he asked the parents of T not to tell Rebecca. It can however not be said that for this reason his evidence must be rejected in its entirety. One lie does not imply that the entire version of the other side is necessarily the truth and a court or tribunal should be careful to guard against rejecting a version as a penalty for perjury.

[53] During closing arguments Mr. Tshitshiba submitted that the inspection in loco proved that applicant’s classroom is in the vicinity where the incident happened. I agree. That was my observation as well during the inspection in loco. In fact, to say that applicant’s classroom is in the vicinity of the alleged incident, is to put it mildly. The school grounds are extremely large, with different blocks of classrooms, large playgrounds and large sports fields. There are approximately 1500 learners at the school. The staircase on the other hand, is within metres from applicant’s classroom and the staircase leads to the admin block and the principal’s office. Should applicant want to proceed from his classroom to the admin block or to the principal’s office, he would need to use the very same staircase where the complainant claims the incident occurred.
[54] All of this however only proves one thing and that is that it would not have been impossible, unexpected or unusual for applicant to have walked up the staircase on the day in question. It is not as if the staircase was on the other side of the school yard in an area where applicant has no reason to be and never goes to. This however does not mean that the probabilities are tilted in respondent’s favour and against applicant. It merely proves the ability on the part of applicant to have committed the misconduct. Ability to commit misconduct still does not mean that it is more probable than not that the misconduct was committed.

[55] Mr Mr. Tshitshiba further submitted that applicant has merely put up a bare denial and that his version should therefore be rejected. It is true that courts are generally skeptical about bare denials especially if there is no apparent motive why the witnesses for the other side would lie and where the denial lacks sufficient materiality. On the other hand it would be unreasonable and unrealistic to reject the version of an accused person symply because he puts up a bare denial.
[56] If indeed a false allegation is made against an accused person, and the accused was honestly not involved in the misconduct and was not even present at the scene of the alleged misconduct, then the accused has no choice but to put up a bare denial. To convict an accused person under such circumstances would be unsafe and would ignore the fact that a finding must be made with reference to an overall assessment of the probabilities.

[57] In the circumstances, despite the demerits of applicant’s version, there is nothing that is so inherently improbable in applicant’s version that it justifies rejecting his version as completely false. This however alone is not the test to be applied in determining factual disputes in civil proceedings. The credibility of witnesses and the probabilities of their versions are not subjects of separate inquiries but forms part of a single inquiry into the credibility of a party’s version. The evidence of all the witnesses must be weighed up together against the overall probabilities. I will accordingly proceed to discuss the rest of the evidence and then finally weigh up the probabilities with reference to all the evidence before me, including applicant’s evidence.

The complainant being a single witness
[58] The complainant is a single witness. There is no independent evidence to corroborate her version. This however does not mean that her evidence needs to be treated with caution, because the single witness rule that is applicable in criminal trial and calls for a cautionary approach, is not applicable in civil proceedings and arbitration proceedings. A court or arbitrator must however be satisfied that the evidence of a single witness is reliable and trustworthy before relying on it.

No motive on the part of the complainant to fabricate false evidence
[59] What weighs most heavily against applicant’s version and favours respondent’s version is the fact that there is no apparent reason why the the complainant, T would have fabricated false evidence against applicant. There were no unpleasant incidents between them before the alleged incident of March 2011, and neither was the complainant a learner in applicant’s class.
[60] What is more is that in 2014 when the complainant testified before me, she no longer had any contact with applicant. She left Monument High School in 2011 and is currently no longer in any school. This makes it even more improbable that she would give false evidence against applicant.

[61] The motive suggested by applicant during his evidence why the complainant would have a reason to lie, and the motives suggested by Ms. Labuschagne in her closing arguments, amount to no more than speculation and have no factual basis in the evidence before me.

[62] The fact that applicant cannot provide a plausible motive why the complainant would lie, is however not sufficient reason to reject his version and accept the version of the complainant. While the absence of a motive to lie is always a significant factor to consider in assessing the probabilities and making credibility findings, a court or tribunal may never base a credibility or factual finding solely on the reasoning that the witness making allegations has no motive to commit perjury and that therefore her evidence must necessarily be the truth and accepted.

[63] Had the complainant’s evidence been more satisfactory, then the absence of any motive on her part to falsely incriminate applicant would certainly have weighed heavily against applicant’s version in assessing the probabilities. However, unfortunately her evidence is far from beyond criticism and I will elaborate on this in more detail later in this award.

Failure to call a corroborating witness
[64] The complainant testified that she was with two friends when the alleged incident occurred. None of them were called as witnesses by respondent. Respondent’s representative also made no effort to inform me why he did not call them as witnesses. If unsuccessful efforts were made to trace them, then all that respondent’s representative could do, was to place this on record. Instead, no explanation was provided for not calling them. It however goes much further than this.

[65] I will accept that it may be unrealistic to find witnesses who were in High School in 2011 and would now have left school already, and who may by now, even if they could be traced, no longer remember the alleged incident which took place more than 3 years ago. However, these witnesses were also not called by respondent’s representative during the disciplinary hearing in November 2011 and there is also no explanation on record why they were not called in the disciplinary hearing.
[66] In fact the chairperson of the disciplinary hearing also criticized the employer for not having called the complainant’s friends as witnesses to corroborate her version. In November 2011 when the disciplinary hearing took place it should have been easy for the employer to trace the complainant’s friends that she claims witnessed the incident. Since the alleged incident occurred in March 2011, the incident, if it did occur, would still have been fresh in the memories of complainant’s friends during November 2011. It is accordingly difficult to understand why they were not called as witnesses during the disciplinary hearing.

[67] Where a material available witness is not called, a negative inference may be drawn against the party on whom the onus rests. The reason why a negative inference may be drawn is because the failure to call the witness leads to the inference that the party fears that such evidence would expose facts unfavourable to his case.

[68] The complainant’s friends were material witnesses, and in the absence of an explanation why they were not called as witnesses at the disciplinary hearing or during the arbitration, a negative inference must be drawn against respondent when assessing the probabilities.
Failure to call the first report witness
[69] Although previous consistent statements made by a witness is not generally admissible evidence, evidence that the complainant in a sexual case made a complaint soon after the alleged offence, and the terms of that complaint, is admissible evidence to show the consistency of the complainant’s evidence. In order to demonstrate consistency, this is evidence that the prosecution in a criminal case, or the initiator in a disciplinary hearing, should generally present. It assists in strengthening the case against the accused when the first person to whom the complainant reported the incident is called to give evidence about the statement that was made to her. This evidence is invariably helpful because this witness, referred to as the “first report witness” is often able to give evidence about the emotional and physical condition of the complainant when she made the first report. When the complaint was made immediately after the incident, the testimony of the witness to whom the first report was made is particularly helpful because her observations about the emotional condition of the complainant at the time, can serve as independent corroboration of the complainant’s version that she was sexually assaulted. It is a pity that the employer made no attempt to call the first person to whom the complainant reported the incident, as such evidence could have significantly strengthened respondent’s case
The discrepancy between the charge sheet and evidence
[70] In the charge sheet it is alleged that applicant had touched the complainant’s thigh whereas the complainant testified during the disciplinary hearing and before me that applicant touched her bum. In rejecting the evidence of the complainant, the presiding officer of the disciplinary hearing thought that this was significant and in her heads of argument Ms. Labuschagne on behalf of applicant also submitted that this demonstrates the complainant’s untruthfulness.

[71] Our courts have pointed out that it would be dangerous to reject the evidence of a witness and acquit and accused person, merely because the evidence of the witness differs from the allegations made in a charge sheet. However the witness may be cross-examined based on the contradiction, and the court or tribunal may in assessing the weight to be attached to evidence, compare the evidence actually presented and the allegations made in the charge sheet.

[72] The discrepancy between the evidence of the complainant and the allegations in the charge sheet is in my view not particularly striking. The thigh is in the same area of the body as the bum, not far from it. Had the allegation been that the applicant was touched somewhere which is not even close to her bum, such as the breast or head, the discrepancy would have been more significant and would in all probability have formed a proper basis for rejecting the complainant’s evidence on this basis alone. That however is not the case here. Given the close proximity of the thigh to the bum, it is quite possible that the person who took the complainant’s statement to draft the charge sheet, could have misunderstood her. It is also possible that there may have been language and cultural differences between the witness and the person taking down her statement which can stand in the way of what precisely was meant. However, it would have been easy for respondent’s representatives to have explained this to the disciplinary tribunal when the apparent contradiction arose. Apparently, no effort was made to do so. Three years later before me, again no attempt was made by respondent’s representative to explain the apparent contradiction. While this in itself is not sufficient reason to reject the complainant’s evidence it does play a role when determining whether the probabilities favour applicant’s version or respondent’s version, or whether the probabilities are merely evenly balanced.

The complainant’s evidence
[73] Overall the demeanour of the complainant, T was acceptable in the witness stand. She answered all questions directly. She appeared comfortable and at ease as a witness and never became hostile or argumentative. She rarely hesitated when answering questions and there were no long silences between questions and answers. She came across as a pleasant person and did not give the impression that she exaggerated or was out to destroy applicant or his reputation.

[74] It is however not permissible to accept the evidence of one witness and reject the evidence of another merely based on their demeanour because demeanour is notoriously fallible and an unsafe ground to make factual findings and ascertain the truth. Demeanour may only be used to reinforce a credibility finding already arrived at with reference to the probabilities.

[75] Furthermore, the content of the complainant’s evidence with regard to core details left much to be desired. She was uncertain and forgetful about core details relating to the incident which one would have expected to have remained indelibly impressed upon her mind.
[76] It is not only the credibility of a witness that is of importance, but also her reliability. Truthfulness is not synonymous with reliability. Vagueness and uncertainty as to facts could be an indication of unreliable evidence. In her evidence in chief the complainant made no mention of the fact that she had slapped applicant or that he made her to apologise for having slapped him. During cross-examination the complainant was referred to the summary of her evidence in the disciplinary hearing, as recorded by the presiding officer. It was pointed out to her that in the disciplinary hearing she testified that after applicant has allegedly touched her, she slapped applicant and that she also testified in the disciplinary hearing that applicant then forced her to apologise to him. After reading the summary of her evidence, the complainant first replied that she can see that the presiding officer noted that she testified that she had slapped applicant. She then said that she cannot remember that she had slapped the applicant. Immediately thereafter she testified that it does come back to her now, and that she can now remember that she did slap applicant. As to whether applicant made her to apologise she testified that she can still not remember that this occurred, but that it is possible that it might have happened. She said that she cannot recall that anymore.
[77] I accept that the complainant has suffered terrible trauma since 2011. First she was raped at school in February 2011. This must have caused tremendous psychological trauma. Her mother confirms this, as she testified that after the rape the complainant regularly experienced terrible nightmares. She also fell pregnant during 2011, as a result of which the school that she attended after leaving Monument High School, apparently refused to allow her to attend school, and she thereafter dropped out of school. As if all this trauma was not enough, her father was injured in an accident in 2011, and spent the last days of his life at home before he passed away early in 2012. I can understand how traumatic this must have been for the complainant, as I have gone through similar trauma years ago when my father was terminally ill at home before he passed away. I therefore have empathy with the complainant and have assessed her evidence against this background.

[78] That the complainant can no longer recall in September 2014 whether or not applicant made her apologise in March 2011, whereas she could remember this in November 2011, is not the most problematic part of her evidence. What is however of significant importance is the fact that the complainant could not remember during her evidence in chief that she had slapped applicant in March 2011. I take into account that the alleged incident occurred more than 3 years before she gave evidence before me.
[79] However I would think that if a learner has done something so drastic as to slap one of her teachers, this is something that she would remember for the rest of her life. She would probably recall this each time that she sees that teacher again during later years. The complainant T, could remember other trivial details, for example that applicant grinned when she turned around. Yet, when she was first referred during cross-examination to the summary of her evidence during the disciplinary hearing where she testified that she had slapped applicant, she first said that she still cannot recall it. Later she said that it now comes back to her and that she can now recall it.

[80] I would certainly have recalled it had I slapped a teacher many years ago and it would not have been necessary for somebody to remind me of it, in order for me to recall it when I see the teacher again years later or when his name is mentioned. But then again, unlike the complainant, I have never been raped, and I have never been expelled unfairly from school because of a pregnancy. What effects these things might have had on the memory of the complainant is therefore hard to tell. I can therefore not say that because of the defects in her evidence and her inability to recall events that she mentioned at the disciplinary hearing, therefore the complainant was the liar and applicant told the truth. However, these are important considerations that must and will play a role in deciding the probabilities.
The probabilities and the onus
[81] The onus is on the employer to prove the substantive and procedural fairness of the dismissal. This means that where the guilt of the employee is in dispute in a dismissal case relating to misconduct, the onus is on the employer to prove the guilt of the employee on a balance of probabilities.

[82] While I have suspicions that applicant has lied to me and the complainant told the truth, these are merely suspicions and I cannot, even on a balance of probabilities, find that applicant is the one who lied to me and that the complainant is the one who told the truth. This is not where the enquiry ends because making credibility and factual findings, is extrinsically bound up with the probabilities. It is part of one single enquiry. And as was said by Nienaber JA in Stellenbosch Farmers’ Winery Group Ltd v Martel, in making factual findings when there are mutually destructive versions, probabilities must eventually prevail.

[83] Based on my evaluation of the evidence I have come to the conclusion that this is one of those rare cases where the probabilities do not assist me in making factual findings and deciding who has lied to me and who told the truth because the probabilities are merely evenly balanced.
[84] Inasmuch as applicant’s version can be criticized with reference to its demerits and the overall probabilities, the same could be said for the complainant’s version. The plus points and negative points on both sides have balanced the probabilities evenly. There is not even a slight balance of probability either way.

[85] Where the probabilities are evenly balanced our law is very clear as to what finding the judge or arbitrator must make. It is a well-established principle in our law that where, as in this case, there are two mutually destructive versions, and the probabilities are evenly balanced, a court or arbitrator may only find for the party upon whom the onus rests, if he is satisfied on a balance of probabilities that the story of that party is true and the other is false.

[86] I have already held that I do not know whether it is applicant’s version that is the truth or whether it is complainant’s version that is the truth. I merely have suspicions, and suspicions, even on a balance of probabilities, however strong, is not enough to make a factual finding.

[87] In the circumstances, since the onus is on respondent, and since the probabilities are evenly balanced, this necessarily means that respondent has not discharged the onus and has failed to prove applicant’s guilt. I must make it clear that I am not giving applicant “the benefit of the doubt” as this is not a criminal case where the benefit of the doubt can be given to an accused person. Neither am I making a finding that implies that applicant is in fact truly innocent or that his version of innocence is more probable than the employer’s version that he is guilty. Whether or not he is innocent, I do not know. I only have suspicions. What I am doing is to apply the well-established principle laid down in National Employers Mutual General Insurance Association v Gany. Based on that principle, fortunately for applicant, the probabilities were evenly balanced, and because the onus was on the employer and not on applicant, the result is that this necessarily implies that the employer has failed to prove applicant’s guilt and failed to prove the substantive fairness of the dismissal.

[88] I trust that respondent’s labour relations officials would learn from the mistakes that have been made in this case and would ensure that in future such mistakes are not made again in cases involving sexual assault on learners. In particular I would advise that labour relations officers take note of the following when handling disputes of this nature:
• Before a charge sheet is served on an educator accused of any form of sexual assault, labour relations should consult with the learner through an interpreter in her mother tongue in order to ensure that all the allegations in the charge sheet are correct so that discrepancies between the charge sheet and the evidence of the learner can be avoided;

• Witness statements, which need not be taken under oath should be taken by means of an interpreter from complainants in their own mother tongue shortly after the incident has been reported to labour relations at a time when the incident is still fresh in the memory of the learner;

• Before the learner is called as a witness at a disciplinary hearing or at an arbitration hearing, she should be provided with her witness statement to read so that she can refresh her memory from her statement. It is manifestly unfair to expect a learner to testify from her memory months or years after an incident has occurred, without giving her an opportunity first to refresh her memory from a witness statement made at a time when the allegations were still fresh in her mind. This is standard practice in criminal proceedings and there is no reason why complainants in sexual misconduct cases in the workplace should be treated differently;

• Every effort should be made to trace and consult with eyewitnesses who according to the complainant witnessed the incident, and every effort should be made to take witness statements from such witnesses and to call them as witnesses at the disciplinary hearing and at the arbitration hearing;

• Every effort should be made to take a witness statement from the first person to whom the complainant reported the incident, and every effort should be made to call such witness during the disciplinary hearing and at the arbitration hearing in order to give evidence about the first report and about the emotional and physical condition of the complainant when she made the first report;

• In the event that a material witness who witnessed the incident is no longer available, this should be placed on record by the initiator at the disciplinary hearing and at the arbitration so that it can be apparent to the arbitrator and presiding officer that there is a bona fide explanation for not calling the witness and that no negative inference can be drawn from the failure to call the witness;

• If an educator charged with misconduct raises an alibi for the first time at arbitration, the respondent’s representative should place this on record and ask the employee on record for an explanation for the late disclosure of the alibi. If the alibi is disclosed at an early stage, it should be investigated, and if necessary witnesses should be called to rebut the alibi if it appears to be false.

[89] I make these remarks because it is in the public interest, the best interest of learners, and the best interest of public education that matters involving sexual assault on learners should be thoroughly investigated and professionally handled. It is not the first time that the ELRC has observed that cases of this nature are not being dealt with as they should.
[90] We cannot afford that educators who may be guilty of molesting learners remain in the public education system or are reinstated because of the inadequate manner in which the case was investigated, prepared or presented. I would accordingly hope that respondent’s director of labour relations take note of these comments and ensure that his labour relations officers who handle cases of this nature, are all made aware of what is expected of them. Cases involving the alleged molestation of learners are difficult to investigate, prepare and present. It calls for expert skills. It is imperative that those who deal with such cases receive specialised training where they are thoroughly trained to handle such cases.

VIII RELIEF
[91] Where an arbitrator finds that a dismissal is unfair, he may make grant one of the following orders as relief:

(a) order the employer to reinstate the employee;
(b) order the employer to re-employ the either in the work in which the employee was employed before the dismissal or in other reasonably suitable work or on any terms; or
(c) order the employer to pay compensation to the employee.

[92] Where an arbitrator concludes that a dismissal was substantively unfair, reinstatement is the primary remedy and should be ordered unless:

(a) the employee does not wish to be reinstated or re-employed;

(b) the circumstances surrounding the dismissal are such that a continued employment relationship would be intolerable;

(c) it is not reasonably practicable for the employer to reinstate or re-employ the employee; or

(d) the dismissal is unfair only because the employer did not follow a fair procedure.

Reinstatement
[93] The applicant asked for reinstatement. This is not a dismissal that is unfair because of procedural unfairness and neither did the employer present any evidence or arguments to show that reinstatement would not be reasonably practicable or that continued employment would be intolerable. Based on the available evidence before me and surrounding circumstances there is no basis to draw an inference that reinstatement would not be reasonably practicable or that continued employment would be intolerable. A suspicion that has not been proved on a balance of probabilities is not sufficient reason to refuse the primary remedy.
[94] Under these circumstances none of the circumstances provided for in sections 193(2)(a) to (d) of the LRA are applicable. That being the case, and since reinstatement is the primary remedy, I have no choice but to reinstate applicant. This would be the most appropriate order to make.

The extent of reinstatement
[95] The next issue to be determined is the extent of the reinstatement order. The LRA permits an arbitrator to reinstate an employee from any date not earlier than the date of dismissal. From a reading of arbitration awards, the impression is left that many arbitrators are under the impression that reinstatement should be automatically retrospective. This is however not a correct interpretation of section 193(1) of the LRA.

[96] The effect of section 193(1) of the LRA is that reinstatement should not automatically be awarded with full retrospective effect. Both the Supreme Court of Appeal and the Constitutional Court have held that in terms of this section, arbitrators are granted a discretion in determining whether reinstatement should be made retrospective and, if so, to decide the period for which the award should operate retrospectively.
[97] The only limitation in the discretion of arbitrators in this regard is that the reinstatement cannot be fixed at a date earlier than the actual date of the dismissal. Unless an arbitrator has exercised this discretion capriciously or upon a wrong principle or upon any other ground justifying interference, there is no ground upon which the Labour Court may interfere with his discretion. Often our courts, when granting reinstatement, order that such reinstatement shall not be retrospective and that the employee shall not be entitled to any back pay.

[98] In cases where an arbitrator finds that although the employee is guilty of some form of misconduct, dismissal is not an appropriate sanction, it may be appropriate not to order full back pay. The same would apply to cases where the employee delayed in referring his case to arbitration, where the employer offered to reinstate him and he refused, or where there is some other form of unreasonable conduct on the part of the employee. However, none of those scenarios are applicable in this case and I see no reason why reinstatement should not be fully retrospective with full back pay. It would be unjust to deprive the applicant of back pay merely because I have suspicions about his guilt that the employer could not prove. Accordingly, reinstatement will be with full back pay.
Backpay
[99] It is common cause that applicant was dismissed on 27 May 2014. Generally educators are paid before the 27th of the month for the entire month. I have no reason to believe that this did not occur in applicant’s case and accordingly the inference can be drawn that he was paid in full for May 2014. Back pay must accordingly be calculated from the 1st of June 2014 until the date of this award which is 10 October 2014. Applicant’s monthly wage at the time of dismissal was R31 995. This the parties indicated at the commencement of the hearing is common cause.

[100]In order to calculate the daily wages between 1 October and 10 October, I use the formula in the Basic Conditions of Employment Act. In terms of that formula, in order to convert monthly wages to weekly wages, the monthly wages must be divided by 4.33. Applicant’s weekly wage is therefore R7389,14. His daily wage would be one fifth of the weekly wage as educators work a five day week. Accordingly his daily wage would be R1477,82. This means that his wages between 1 October and 10 October 2014 amount to R14778. To that I must add his monthly wages for the four months between 1 June 2014 and 30 September 2014, which amounts to R127 980. The total amount of back pay is therefore R142 758 less income tax and other statutory deductions.

AWARD
In the premises I make and publish the following order and award:

1. The dismissal of the applicant Mr. H P Van den Berg was procedurally fair, but substantively unfair;

2. Applicant is hereby reinstated with full retrospective effect and full back pay as from 27 May 2014 in his previous position as post level 1 educator at Monument High School in Krugerdsdorp on conditions no less favourable than those that governed his employment at the time of his dismissal;

3. Applicant must report back for duty at Monument High School in Krugersdorp on the working day following the date on which this award was served on his union;

4. Respondent is directed and ordered to pay to applicant back pay in the amount R142 758 (One Hundred and Forty Two Thousand Seven Hundred and Fifty Eight Rand) less income tax and statutory deductions. This amount is payable immediately;

5. Interest on the aforesaid amount of R142 758 will accrue at the rate of 9% per annum from 30 October 2014 until date of payment;

6. The attention of respondent’s director of labour relations Mr Selowa is drawn to the comments I have made in paragraph 88;

7. No order as to costs is made

______________________________ D P Van Tonder FA. Arb
Senior ELRC Arbitrator
Cape Town