IN THE EDUCATION LABOUR RELATIONS COUNCIL
In the INQUIRY BY ARBITRATOR between

DEPARTMENT OF EDUCTION – GAUTENG PROVINCE “the Employer”

AND

M NGADLELA “the Employee”

SECTION 188A IBA RULING

CASE NUMBER: ELRC55-22/23GP
DATE OF INQUIRY: 25 July 2022 and 5 September 2022
LAST CLOSING ARGUMENTS RECEIVED ON: 13 September 2022
DATE AWARD SUBMITTED: 2 October 2022 (Extension granted)
NAME OF COMMISSIONER: Coen Havenga

Education Labour Relations Council
ELRC Building
261 West Avenue
Centurion
Tel: 012 663 0452
Fax: 012 643 1601

Details of hearing and representation

1. This process was set down in terms of section 188A of the Labour Relations Act 66 of 1995 as amended (hereafter “the LRA”), and ELRC Collective Agreement 3 of 2018. The last day of the inquiry took place on 5 September 2022. The last of the closing arguments were received from the parties on 13 September 2022.

2. The Employer is the Gauteng Department of Education, represented by Mr Nkuna, N. The accused Employee is Mr Ngadlela, M, (“Ngadlela”), represented by Mr Luvhengo, TD, a SADTU official. Mr Seale, M and Mr Matsenene, H, acted as interpreters on the respective dates, and the intermediary was Ms Shibisi, E.

3. The Employer submitted the documents in Bundle A, whilst the Employee did not submit any documents.

Issue to be decided

4. I am required to determine whether Ngadlela is guilty of the charge levelled against him. Should I find him guilty of the charge, then I need to determine the appropriate sanction, as well as make a determination in terms of section 120(1)(c) of the Children’s Act 38 of 2005 whether Ngadlela is unsuitable to work with children.

Background and charges

5. Ngadlela is charged in terms of section 18(1)(q) of the Employment of Educators Act 76 of 1998 with the misconduct of improper, disgraceful, and unacceptable conduct in that he on 11 November 2021 sexually harassed a female grade 9 learner (“the Complainant”) at Missourilaan Secondary School (“the School”) by grabbing her and kissing her.

Plea

6. Ngadlela pleaded not guilty to the charge, and denied all the allegations against him

Summary of evidence

7. The proceedings have been recorded digitally, and a summary of the Employer’s and Employee’s witnesses’ evidence follows below. What follows is only a summary of evidence deduced at the inquiry and does not purport to be a verbatim transcription of all the testimony given. The digital record of the proceedings will reflect the complete testimony of the witnesses.

8. The matter relates to allegations of sexual harassment of on a learner who was a minor at the time of the alleged incident. In accordance with the protection of the rights of minors afforded them in the Constitution of the Republic of South Africa, the identity of that learner and other minor witnesses will not be disclosed. I will refer to the minor complainant as “the Complainant” in this award, and the other minor witness as “Learner X”. The minor witnesses testified by making use of the assistance of an interpreter and an intermediary through TEAMS virtual process.

Employer’s case

9. The Complainant, 17 years of age, testified under oath that Ngadlela is her teacher at the School. In November 2021 she was in a classroom when Ngadlela passed the class on the way his classroom. The examination timetable created confusion as to how many time EMS would be written, and they wanted to clarify it with Ngadlela. She and Learner X went to him, and he said it would not be written again.

10. Thereafter Ngadlela hugged them and told them he loved them. Ngadlela asked the Complainant whether she had a mobile phone. She said she did not have one, and he asked her how he was going to talk to her when he missed her.

11. The Complainant felt uncomfortable about what he said to her, and she wanted to leave. Ngadlela then grabbed her and kissed her. She was scared and shocked and ran down the stairs to the classroom where she was before she went to Ngadlela. She found Learner X and Mr Sellden (“Sellden”) there. She told them what Ngadlela did to her. She also told Ms Manche (“Manche”) what happened, and Manche said that they should go to the principal’s office.

12. The Complainant spoke to her parents, and they went to the police. Ngadlela’s conduct of grabbing her and kissing her on the School premises was inappropriate. She was in grade 9 at the time. She no longer feels free and comfortable to talk to educators. She is afraid to talk to male educators when she needs assistance with schoolwork.

13. The atmosphere at the School was calm and quiet at the time. The learners were in classes busy with writing tests. The incident with Ngadlela happened on the stairs. He grabbed her and kissed her. She reported the incident on the same day to Sellden, Manche, the principal and to her parents.

14. It is untrue that Ngadlela always teased her and hugged her. She denies that Ngadlela was feeling down and that she approached him to give him a hug. That is not what happened. All the learners were inside the classroom. After Learner X left her with Ngadlela, and she went back to the classroom, and other learners saw the state that she was in.

15. She never socialised with Ngadlela, be it alone, or in a group. They had a learner – educator relationship. The police officer said the police will decide on how to handle the incident in consultation with the principal.

16. The Complainant has no reason to falsely implicate Ngadlela. She would never lie about what he did.

17. During cross-examination the Complainant testified that A13 is her statement. She wrote it herself without assistance. She was told to write a statement in respect what actually happened to her. She did not have a personal vendetta against Ngadlela. She denied that her complaint was the result of indoctrination by her brother and family. Her brother did ask her whether Ngadlela still had the tendency to ask learners for their telephone numbers. It is not her biological brother, but someone from church she calls brother. A friend once told her that Ngadlela asked her for her number. She told her that after the incident with Ngadlela.

18. She used to sometimes carry Ngadlela’s books. Sellden never saw her carrying the books, and never asked her about it. Ngadlela knew the Complainant had a problem with reading, and he would walk with her on the way to class to help her with her reading.

19. Ngadlela hugged her and Learner X. She doesn’t know why he kissed only her, but Learner X was called away, and when she left, the Complainant wanted to leave too, and the Ngadlela grabbed her and kissed her. Learner X did not see the kissing because she already went back to the classroom. The Complainant was on her way to also leave like Learner X did when he grabbed her and kissed her. She was scared and just ran down the stairs.

20. Sellden came to the door of the classroom and asked what was happening, as he saw that she was crying. He than called Manche.

21. They followed Ngadlela up the stairs to enquire about the examination timetable. The incident happened on 11 November 2021 which was a Thursday. They only went to Ngadlela on the Thursday, not on the Tuesday.

22. The Complainant denied that she was lying when she testified there were no learners outside the classrooms. All the learners were in the classrooms to write examinations. She did not share a desk with Learner X. She was not a prefect. They saw Ngadlela pass their classroom, and the Complainant told Learner X that they must go to him to enquire about the timetable. Their teacher went to fetch papers they were going to write.

23. She is not lying, Ngadlela did kiss her. He kissed her on the lips. She cannot recall whether she wore her mask. Manche did remind her later to wear her mask. She did tell Manche that she lost her mask during the incident. She did not have her mask on at the time that Ngadlela kissed her on her lips. She cannot remember whether she was holding it in her hand, or whether she lost it. She ran away from Ngadlela after he kissed her.

24. The Complainant has never been kissed by an educator before. Ms Makhado (“Makhado”) is their geography teacher. They had to write her paper on that day. She did tell Sellden and Manche what Ngadlela did. Learner X did not see when Ngadlela kissed her, as she had already gone back to the classroom by that time.

25. The Complainant denies that she was framing Ngadlela because her friend told her that he asked for her phone number. It is not the case because her friend only told her about it after Ngadlela already grabbed her and kissed her.

26. Priscilla Manche (“Manche”) testified under oath that she is Ngadlela’s HOD at the School. She is the coordinator of the school-based support team (SBST). She was at the office when she was called by Sellden to attend to a matter at Makhado’s class. She asked why he was calling her, and he said it was because she was dealing with learners’ problems.

27. She found that the Complainant was crying and shaking. The Complainant told Manche that they went to Ngadlela to enquire about the EMS timetable. Ngadlela asked the Complainant how he was going to communicate with them as they were good in EMS. Ngadlela asked the Complainant for her phone number, and she told him that she did not have a phone. Ngadlela then asked to hug them, and he did hug them. Ngadlela then asked her to kiss him, and she refused. Ngadlela thereafter grabbed her and kissed her.

28. Manche said the matter was too difficult for her to deal with and she took it to the principal. Makhado was the geography teacher. The Complainant was crying. Manche asked the Complainant to put on her mask. The Complainant said that she has lost her mask during the incident.

29. Manche did not confront Ngadlela, as she took the matter to the principal to deal with. Ngadlela is the EMS teacher. He likes to hug people. She did not advise the Complainant or Learner X after the incident. The principal told her that the matter was in the hands of the district office. She did not meet with the parents.

30. During cross-examination Manche testified that she has 15 years’ service at the School. She has known Ngadlela for 14 years. Sellden is their colleague. She is not aware of previous transgressions by Ngadlela. She is not aware of a vendetta by Sellden against Ngadlela. She is on good terms with Ngadlela.

31. The confusion on the timetable with EMS was explained to the learners, although not all were present. The Complainant was shaking and crying. She asked her to calm down so that she could relay her story. Sellden was present. The learners told Sellden about the incident. She has no reason to believe that Ngadlela and Sellden are not in good terms. Manche has no vendetta against Ngadlela.

32. Learners X testified under affirmation that she is 16 years old. Ngadlela is her former EMS teacher. The Complainant is her friend since primary school. On 11 November 2021 they were sitting in the geography class waiting to write the exam. They saw Ngadlela passing the classroom and decided to approach him to confirm when and how many times they will write the EMS exam.

33. They found him on the stairs. He told them that they were not going to write EMS for a second time. Ngadlela gave them hugs and told them that he loved them. He said they were his best students.

34. Learner X was then called back to the classroom, and she went to the classroom. The Complainant stayed behind with Ngadlela. When the Complainant returned to the classroom, she was scared, and she was crying. She told Learner X that Ngadlela pulled her by the hand and kissed her.

35. Leaner X said that they had to report the incident. As they went out of the classroom door, they saw Sellden. He asked them what happened. They told him, and he said that he will call Manche. When Manche arrived, they told her what had happened. They were taken to the principal’s office, and Manche reported the incident to the principal. The principal advised them to write it down in statements. After they wrote their statements, they went back to the classroom to write their geography exam.

36. Ngadlela hugged them at the same time when he said he loved them both. She did not take offence as she thought it was a teacher – learner hug and relationship. There were no learners in the corridors as everyone was in classrooms for exams. The atmosphere was quiet.

37. The Complainant was fine when they went to Ngadlela, and when she returned to the classroom she was crying and unhappy, which made Learner X believe that something had happened with Ngadlela. The Complainant was afraid and did not want to report it, but on advice of Leaner X decided to do so.

38. The Complainant had her mask. When she came back to the classroom, she was not wearing a mask. They were in grade 9 at the time. It is true that they would seek assistance with schoolwork from Ngadlela. It was always the two of them together. It was not common for him to hug them and tell them that5 he loved them. It is untrue that he was feeling down and that is why they hugged him.

39. Learner X has no vendetta against Ngadlela. He was just not supposed to do what he did. She denies that it is charges that were fabricated by school management. A14 is her statement.

40. During cross-examination Learner X testified that she testified what the Complainant reported to her. When they went to Ngadlela they were happy and fine, and when the Complainant returned she was crying, and she was frightened. The Complainant told her what Ngadlela did to her. Learner X did not see the incident. She believed the Complainant.

41. She wrote her statement in A14 without assistance. The principal advised them to write statements. He did not assist them in writing the statements. Manche is the teacher who assists girl learners with problems, and that is why she went with them to the principal.

42. They did not go to Ngadlela on 10 November 2021 to ask about the same issue with EMS. They did not go to other teachers to clarify exam timetables, because there were no confusion with other subjects, only with EMS.

43. Sellden found them at the door of the classroom of Makhado. The Complainant was about to speak to Sellden when he asked her why she was crying, when he said that he will rather call Manche. When Manche arrived, the Complainant told her what happened.

44. Learner X left the Complainant with Ngadlela because she went back to the classroom. Someone, another girl learner, called her to the classroom from a distance. It is not true that there were learners outside. The girl who called her came from inside the classroom to call her. No teacher questioned her and the Complainant’s relationship with Ngadlela.

45. It was the first time that Ngadlela hugged them. It is untrue that he always hugged them to congratulate them. It is untrue that Sellden told them what to put in their statements.

Employee’s case

46. Mthunzi Ngadlela (“Ngadlela”) testified under oath that on 11 November 2021 he was on his way from block A to block C. as he was going up the stairs the Complainant and Learner X came to him and stopped him.

47. They said they had a question about EMS. He responded that they asked him the day before. He asked them whether it was their way of telling him they were missing him. He said to them: “okay, come let’s hug because I also miss you”. They then hugged separately.

48. He then said to them that he was rushing to fetch a key. Learner X left because she was called by someone. He was left alone with the Complainant. He asked her why she was still there, and whether there was something she wanted to say. He said she could go with him. She said she couldn’t as she had to return to class. They then parted ways. He went up the steps, and she went down. That is all that happened.

49. He never had been in such a situation before since 2010. He had teacher – learner relationships with them. They were his best students. He did not grab and kiss the Complainant. He did hug them both. After he hugged them he went two steps up. There was a wall between them.

50. It is true that there were no learners outside the classrooms. It was just before exams, and they made sure all the learners are in their classrooms. He had a relationship with the best learners in his class. He focused on his best learners.

51. Manche is his HOD, and they do not have the best relationship. Ngadlela thinks that she influenced the learners into accusing him. He is not friends with Sellden.

52. The principal did not ask him to write a report. He told Ngadlela that two learners wrote statements, and he advised Ngadlela to write a letter of resignation so that the principal can submit it. A9 is his response.

53. During cross-examination Ngadlela testified that he did ask the tow learners whether they were missing him when they approached him. He made them feel good about themselves by telling them he also missed them.

54. They were on the top of the stairs when they hugged. He then took another two steps up and there was a railing between them. He denies that he took advantage of being alone with the Complainant after Learner X left. He cannot remember whether they had masks on. He had his mask on.

55. He always hugged colleagues and learners. He also hugged Manche. When it was put to Ngadlela that it is odd that he hugged Manche while he testified that they did not have a good relationship, he replied that they were not always sour with each other. He was then asked why she would then have influenced the learners against him, and he replied that she told them to report the incident to the principal. Ngadlela then testified that he did not believe that Manche had a personal vendetta against him. He agreed that she was only doing her professional duty and was not influencing the learners.

56. The EMS exam did appear twice on the timetable. He did not inform the learners when he became aware of the typing error. It was not wrong of them to approach him to clarify the timetable.

Summary of arguments

57. Both parties submitted extensive written closing arguments which form part of the record and will not be repeated here. I have considered the arguments, together with the other evidence, oral and documentary, presented by the parties during the inquiry, as reflected in the record of the hearing.

Analysis of evidence and argument

58. This inquiry was conducted in terms of the principles contained in section 188A, as well as Schedule 8 of the LRA, and ELRC Collective Agreement 3 of 2018, in respect of the fairness of disciplinary action against educators charged with sexual misconduct in respect of learners. In applying those principles, the following factors were considered:
a) Whether or not the accused employee contravened a rule or standard regulating conduct in, or of relevance to, the workplace; and
b) If the rule or standard was contravened, whether or not –
i. The rule was a valid or reasonable rule or standard;
ii. The accused employee was aware, or could reasonably be expected to have been aware, of the rule or standard;
iii. The employer has consistently applied the rule or standard.
iv. Dismissal would be an appropriate sanction for the contravention of the rule or standard.

59. The LRA does not prescribe the standard of proof to be used in labour matters. It is however universally accepted that the standard of proof that is applicable in disciplinary hearings, and therefore inquiries by arbitrators of this nature is identical to the civil standard – “the employer must prove the case against the employee on the balance of probabilities and not beyond reasonable doubt” – Meadow Feeds (Pietermaritzburg) vs. Sweet Food and Allied Workers Union (1998) Arb1.2.1.

60. All the allegations in the charge against Ngadlela, as well as the evidence, documentary and otherwise, deduced in support thereof by the employer, and the evidence deduced by Ngadlela in defence, were considered and weighed against the abovementioned standard of proof.

61. It is not disputed by Ngadlela that the actions he had been charged with constitute misconduct. He merely denied committing such misconduct, i.e., improper, disgraceful, and unacceptable conduct in that he on 11 November 2021 sexually harassed a female grade 9 learner (“the Complainant”) at Missourilaan Secondary School (“the School”) by grabbing her and kissing her.

62. I am mindful of the fact that Ngadlela is charged sexual misconduct. It is a natural response in matters relating to the sexual assault or sexual harassment that the reasonable person might view such conduct with disgust and revulsion. This is even more applicable where a trust relationship is abused. As arbitrator one should however be conscious of the need to not to prejudge but to objectively consider the facts of the matter on a balance of probabilities and credibility of the evidence adduced.

63. In respect of the allegations of sexual harassment of the Complainant, Ngadlela disputes the version of the Employer’s witnesses, and denies any wrongdoing, and I must decide on a balance of probabilities which version to accept.

64. Ngadlela’s defence in respect of the alleged sexual harassment of the Complainant is a blanket denial of any wrongdoing. He submits that it is all a fabrication of lies.

65. I take cognisance of the fact that the Complainant is a single witness in respect of what transpired after Learner X left her alone with Ngadlela. It also important to remember that this is an arbitration hearing, and the matter needs to be dealt with the minimum of legal formalities, as it is not a criminal trial. Even if the rule is not applicable in civil proceedings or arbitration proceedings, I must nevertheless be satisfied that the evidence of a single witness is reliable and trustworthy before relying on it.

66. It must be remembered that the Complainant was only seventeen years old at the time of the incident. Despite her young age, there were no inconsistencies in her evidence. She stood steadfast by her version that Ngadlela grabbed her and kissed her on her lips. I find no discrepancies in her evidence that should impact negatively on her credibility.

67. The Complainant clearly remembers the specific dates and times when Ngadlela grabbed her and kissed her. Although children may confuse calendar dates and may have trouble reporting events in chronological order, it was not the case with the Complainant’s evidence. Children who are sexually abused, also concentrate on the core details of the incident and not so much on peripheral details. The omission of peripheral details or contradiction relating thereto, is not usually a basis for rejecting the testimony of a child witness. What is most important is consistency regarding the core details of the experience. Refer to the ELRC Guidelines: Inquiries by ELRC arbitrators in terms of section 188A of the LRA relating to misconduct of a sexual nature in respect of learners.

68. The Complainant was consistent in her testimony. She did not contradict herself in any material way. She came across as a reliable witness. Her emotional testimony never appeared to be feinted.

69. The Complainant was very clear in respect of how Ngadlela grabbed her and kissed her on her lips. The fact that he is inclined to hug colleagues and learners cannot be said to be the reason for engaging in such improper conduct of a sexual nature. All the witnesses for the Employer testified that she was crying and scared when she returned to the classroom after she was left alone with Ngadlela. This specific evidence was not disputed and would strengthen the probabilities that something improper happened to the Complainant. Learner X testified that the Complainant was happy when she left her with Ngadlela, but that she returned to the classroom crying and afraid.

70. I find it highly improbable that such a young child would be coached into fabricating such a version, and then randomly choose Ngadlela to accuse him of sexual misconduct. If it was an elaborate fabrication involving educators, very young learners, and parents with the intent to get rid of Ngadlela, why then not make Learner X a witness to the fabricated kissing in order to lend more weight to the fabricated allegations, for maximum effect.

71. I find it improbable that the Complainant would disadvantage herself with a false version to satisfy another educator or family members, and more improbable that parents would allow their young child to go through the trauma merely to satisfy the whims of another educator. She testified that Ngadlela helped her with her reading, and I find it highly improbable that she would prejudice herself by falsely accusing the person that was helping her.

72. Ngadlela contradicted himself in respect of his alleged bad relationship with Manche. He at first testified that they had a bad relationship, suggesting that it was the reason why she influenced the learners, but later testified that he also hugged her. He wanted to use that evidence to support the notion that he is just a friendly person who goes around hugging everybody, but it then contradicts his testimony that they had a bad relationship.

73. Ngadlela never put it to Manche in cross-examination that she had a vendetta against him. He also never put it to any of the Employer’s witnesses that the principal tried to entice him into resignation. This is a material aspects of this case. In NUM and another v CCMA and others [2018] 3 BLLR 267 (LAC) the Court found that since keys aspects of the employee’s case were not put to the employer’s witnesses in cross-examination and had not been canvassed in the evidence of those witnesses in chief, their version on such aspects was not placed before the commissioner. The same principle will therefore apply in this matter.

74. Ngadlela’s representative put it to the Employer’s witnesses that Ngadlela will dispute their evidence that the atmosphere in the School was quiet, and their evidence that there were no learners in the corridors. However, Ngadlela contradicted his representative when he testified that the School was indeed quiet and that they made sure that all learners were in the classrooms for the exams.

75. Ngadlela confirmed that there was a typing error that made EMS appear twice on the exam timetable, which error he did not communicate to the learners. It therefore lends credibility to the Complainant’s evidence in respect of the reason why they approached him on the stairs on the day. I find that the manner in which Ngadlela spoke to the learners and telling them that he missed them, hugged them and asking for their phone numbers, probably equates to an attempt to groom them to gain their confidence and gain access to more intimate situations. He testified that he made them feel good about themselves, by telling them that he missed them. I find that Ngadlela probably used the opportunity that presented itself when the Complainant was left alone in his presence to sexually harass and/or assault the Complainant.

76. I find Ngadlela’s version that the Complainant decided to falsely accuse him because she was coached into it by other educators or her family, highly improbable. He failed to present any substantial evidence that would prove a fabrication. He merely made unsupported allegations in that respect. Ngadlela could not provide any substantial evidence that the alleged conspirators had anything to gain by falsely implicating him.

77. The risk of false incrimination in sexual cases is addressed in Hoffman and Zeffert, The South African Law of Evidence, 4th Edition, Butterworths, 1992, as follows: “Corroboration is the most satisfactory indication that the Complainant is truthful, but false evidence by the accused or his failure to testify may also be taken into account, as may any other feature of the case which shows that the Complainant’s evidence is reliable and that of the accused false.”. The Complainant’s version has been materially the same throughout the inquiry. I find it improbable that she would make up such a detailed version of events without any reason. Ngadlela’s version that it is a fabrication is not plausible.

78. There is a common misconception that sexual assault must necessarily involve contact with the genitalia, which is not the case. Assault is defined in our law as the unlawful and intentional act which results in another person’s bodily integrity being impaired, or which inspires in another person a belief that such impairment of his bodily integrity is immediately to take place. Sexual assault is any form of assault committed in circumstances of a sexual nature so that the sexual integrity of the victim is violated or threatened. I find that the grabbing and kissing of the minor Complainant on her lips by a male educator would probably violate or threaten the sexual integrity of the learner.

79. In Sol Plaatje Municipality v South African Local Government Bargaining Council and Others (PA12/19) [2021] ZALAC 24 the Court stated that it has repeatedly held that there’s a major difference between the wording of charges in a criminal case and in a disciplinary case. An unduly technical approach to the description and consideration of disciplinary charges should be avoided.

80. Therefore, with consideration of all the relevant cautionary rules I find that the Employer provided evidence that proves on a balance of probabilities that Ngadlela committed the misconduct of sexual harassment and/or sexual assault in that on or around 11 November 2021, as an educator on duty at the School, sexually harassed and/or assaulted a female learner (“the Complainant”) by grabbing her and kissing her. There is therefore evidence before me that proves that Ngadlela contravened a rule or standard regulating conduct in, or of relevance to, the workplace.

Finding

81. The accused employee, Mr Ngadlela, M, is found guilty of the one charge of contravening section 18(1)(q) and/or section 17(1)(b) of the Employment of Educators Act 76 of 1998.

Sanction

82. In considering an appropriate sanction, I am required to exercise my discretion reasonably, honestly and with due regard to the general principles of fairness.

83. Although the Employer charged Ngadlela with sexual harassment under section 18(1)(q) of the EEA, it is evident that his conduct also falls within the definition of sexual assault on a learner, within the ambit of section 17(1)(b) of the EEA. The conduct was of sexual nature, which resulted in the victim, i.e. the Complainant’s sexual integrity being impaired, or at least it inspired the belief that it will be impaired, it was done intentional and without consent of the Complainant, which rendered it unlawful. Ngadlela’s conduct is in direct contravention of the values and obligations prescribed by The Code of Professional Ethics of Educators. He failed to act in a proper and becoming way so that his behavior does not bring the teaching profession into disrepute. The Code places emphasis on educators refraining from any form of sexual relationship with or assault on learners at a school, and not abusing the position he holds for personal gain. Section 28(2) of the Constitution of the Republic of South Africa 108 of 1996 provides that a child’s best interests are of paramount importance in every matter concerning the child. This is a factor that I keep in mind as surely it was not in the best interest of the Complainant being a minor female learner of 17 years old to be sexually harassed and/or assaulted by an educator.
84. Section 17(1) of the EEA states that dismissal is the mandatory sanction for the misconduct of sexual assault, which I keep in mind considering the nature of Ngadlela’s misconduct. Having considered all the facts before me, including but not limited to, the gravity of the offence, the position of trust the Employee was employed in, and the years of service of the Employee, I find that the sanction of dismissal is fair and appropriate in the circumstances.
85. I find that summary dismissal is an appropriate sanction in the circumstances.

Sanction

86. In terms of section 188A(9) of the LRA I direct that the employee, Mr Ngadlela, M, be dismissed summarily.
Finding in respect of section 120 of the Children’s Act 38 of 2005
87. 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 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. The arbitrator may also make the finding on his/her own accord.
88. The parties were given the opportunity to submit arguments in this respect. The Employer asked me to find that Ngadlela is automatically unfit to work with learners. Ngadlela made representations that such a finding should not be made.
89. I have considered both parties’ submissions. In view of my finding of the serious nature of the Employee, Mr Ngadlela’s conduct and the priority to protect the rights of children, I find that he is unsuitable to work with children. The fact that there are no previous incidents on record, does not necessarily mean that his 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 and in particular in this case, vulnerable young girls.
90. Mr Ngadlela, M, is found unsuitable to work with children in terms of section 120(4) of the Children’s Act 38 of 2005. The General Secretary of the ELRC 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 Children’s Act 38 of 2005, that Mr Ngadlela, M is unsuitable to work with children, for the Director General to enter his name as contemplated in section 120 in part B of the register.

COEN HAVENGA
Senior ELRC Arbitrator