IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD IN
CAPE TOWN

Case No ELRC356-24/25WC

In the inquiry between

EP Coetzee Employee

and

DOE-WC Employer

Date of Award: 8 October 2024
Arbitrator: A.Singh-Bhoopchand

ARBITRATION AWARD

DETAILS OF HEARING AND REPRESENTATION

1. This Inquiry by Arbitrator was held on 16 August 2024, and 26 September 2024 in terms of the provisions of section 188A of the Labour Relations Act no.66 of 1995, as amended (LRA) read together with the provisions of Collective Agreement 3 of 2018, at the offices of the Western Cape Education Department in Cape Town on the first day and virtually on the second day. Mr Coetzee (hereinafter referred to as the employee) was represented by Mr Faiem Taseem, a representative of the trade union NAPTOSA. The employer was represented by Ms Chantal Steenkamp assisted by Mr Jansen and Mr S Daniels, from the Labour Relations Directorate of the Respondent.

2. The learners, the complainant in this matter and a witness, were assisted by an intermediary. An interpreter was also present to assist with translation of the learner’s evidence.

3. In keeping with ELRC Policy, the names of the learners are withheld. The complainant shall be referred to as Learner A and the witness shall be referred to as learner B

4. One bundle of documents was handed as supporting evidence and shall be referred to where necessary.

5. The parties made closing submissions in writing, the last of which was received on 1 October 2024

THE ALLEGATIONS

CHARGE 1
It is alleged that you are guilty of misconduct n terms of Section 17(1)(b) of the Employment of Educator, no 76 of 1998 (hereinafter referred toas the Act), in that during the 4th term of 2023, you sexually assaulted Learner A, a learner associated with Summerdale High School by touching her bum.

Alternative to Charge 1
It is alleged that you are guilty of misconduct in terms of Section 18(1) (q) of the Act, in that during the 4th term of 2023, while on duty, you conducted yourself in an improper, disgraceful or unacceptable manner towards Learner A, a learner associated with Summerdale High School by touching her bum,

ISSUE IN TO BE DETERMINED
6. I must determine whether the employee is guilty of the allegations against him, and if so, the appropriate sanction.

PLEA
Not guilty

BACKGROUND
7. The employee is employed as a post level 1 educator at the Summerdale High School. He has been at this school for the past twelve years and has served as an educator for the past 35 years.

EVIDENCE
Employers Evidence
Three witnesses testified-the complainant and another learner who was present at the time of the alleged incident as well as an educator to whom the complainant reported the alleged incident.

8. Zakia N. Moosa: She is an educator at Summerdale High School. She testified that she knows learners A and B as she taught them business studies last year. They are vibrant and outspoken and well – disciplined learners. Learner A came to her on the day in question and said that she had something very serious to discuss. Learner A then went on to ask her what she should do if a teacher touched her inappropriately. She then related that Mr Coetzee had touched her on her buttock. She was very shocked when she heard this allegation, but she believed what the learner reported to her as she is an honest child.

9. Learner A: She is 18 years old and currently in grade 12. She was in grade 11 last year. Mr Coetzee taught her class Geography last year. She said that he had his favourites in class, and he generally only interacted with the learners that sat at the front of the class. She sat at the back of the class.

10. One day, during break, her friend Learner B asked her to accompany her to Mr Coetzee’s class as she wanted him to assist her with a problem on her phone. They then went to his class. She stood next to Mr Coetzee. He gave her an instruction to search for something on her phone and while she was busy doing that, she felt her buttock being touched. She asked Mr Coetzee what he was doing. He said he was reaching over to the plug point. She then moved away and made it clear to him that he should not touch her, but he touched her in the same manner for the second time at which point she told Learner B that they should leave. She then went to Mrs Moosa and after asking her what a learner should do if a teacher touched then inappropriately, she reported the incident to Mrs Moosa. Mrs Moosa reported the incident to the Head of Department. While demonstrating how the incident happened, she said that she did not believe Mr Coetzee when he said that he was reaching for the plug point as the plug point was not close to her.

11. During cross examination when it was put her that the touching could have happened accidently, she said that she believed it was deliberate and intentional as it happened the second time. Further there was quite a distance between her and the plug which was way down.

12. Learner B.: She is 17 years old and currently in grade 12. She was in grade 11 last year. She confirmed that she asked Learner A to accompany her to Mr Coetzee’s class as she wanted him to fix her phone. Learner A stood next to Mr Coetzee, and she stood in front of them. She saw Mr Coetzee touch Learner A’s buttock. Learner A moved away, probably to try and stop him.

13. During cross examination she said that when he touched Learner A the first time, Learner A asked him what he was doing. He responded by saying that he was reaching for the plug which was behind her. Learner A moved away but he touched her again. When Leaner A asked him what he was doing, he “made a funny face”. She does not believe that it happened accidently as it happened twice.

The Employees Evidence
14. He testified that Learner A and B came to his class during break. Learner B requested assistance with her phone. Learner A stood next to him. He reached down to plug in his laptop charger. It is possible that in the process of reaching down for the plug that he could have touched learner A by mistake. It is possible that he “brushed “against her body twice -that is once in the downward movement to reach the plug and then again as he came up. He is unsure as to whether it could have been her buttock that he “brushed” against. He apologised to Learner A. He also said that there were other learners in the class at the time.

15. During cross examination, in response to the learner’s version that he did not apologise he said that he must have apologised.

16. In mitigation, he said that he would never touch a learner inappropriately. His colleague was dismissed for touching a learner inappropriately. This was an “eyeopener” for him. He has a clean disciplinary record in his long career of 35 years.
He has two grown daughters, a son and four grandchildren.
There is no reason why his employer should not trust him. He was not suspended and continues to be trusted to work with children.

ANALYSIS OF EVIDENCE AND ARGUMENT

The applicable legal principles

17. The employer bears the onus to prove the allegations on a balance of probabilities. Sexual assault is viewed in a very serious light in terms of the Employment of Employment Act to the extent that the sanction of dismissal is mandatory if the employee is found guilty.

18. Section 17(1)(b) of the Employment of Educators Act 96 0f 1998 (as amended) reads as follows:
An educator must be dismissed if he or she is found guilty of committing an act of sexual assault on a learner, student, or other employee.

19. 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 the victim is violated or threatened. The element of unlawfulness means that there must not be a justification ground for the action, such as for example consent by the victim or lack of intention to commit the misconduct -in other words accidental unintentional bodily contact is excluded from the definition.

20. The Applicant is charged in the alternative in terms of section 18(1)(q) of the Act. Misconduct of a sexual nature that does not constitute misconduct in terms of section 17, would generally constitute misconduct in terms of section 18. The sanction of dismissal is not mandatory in this instance, but the decision maker has a discretion in deciding on an appropriate sanction.

21. Conduct of a sexual nature perpetrated on learners is also prohibited in terms of the SACE Code of Ethics to which all educators are enjoined to adhere to.

22. The test to be applied in determining whether conduct has the requisite sexual nature is an objective one, viewed in the light of all the circumstances. The part of the body touched, the nature of the contact, the situation in which it occurred, the words and gestures accompanying the act and the circumstances surrounding the conduct.

Is the employee guilty of the allegations?

23. The test for whether something has been proved on a balance of probabilities is whether the version of the party bearing the onus, is more probable than not. In determining the probabilities, evidence is assessed against human experience, logic, and common sense. Evidence must be evaluated holistically and not piecemeal.

“The credibility of the witnesses and the probability and improbability of what they say should not be regarded as separate enquiries to be considered piecemeal. They are part of a single investigation into the acceptability or otherwise of the Respondent’s version. “

24. In dealing with conflicting versions the Supreme Court of Appeal has provided guidance:

“The technique generally employed by courts in resolving factual disputes of this nature may conveniently be summarised as follows: To come to a conclusion on the dispute issues a court must make findings on (a) the credibility of the various factual witnesses; (b) their reliability; (c) the probabilities. As to (a) , the courts finding on the credibility of a particular witness will depend on its impressions about the veracity of the witness, That in turn will depend on a variety of subsidiary factors, not necessarily in order of importance , such as (i) the witnesses’s candour and demeanour in the witness box, (ii) his bias, latent and blatant,(iii) internal contradictions in his evidence,(iv) external contradictions with what was pleaded or put on his behalf, or with established fact or with his own extra curial statements or actions, (v) the probability or improbability of particular aspects on his version, (vi) the calibre and cogency of his performance compared to that of other witnesses testifying about the same incident or events. “

25. Learner A’s evidence was clear and consistent and was corroborated by Learner B who was present at the time. The fact that she asked Mr Coetzee what he was doing is an indication of her discomfort. Both learners confirmed that the touching happened twice and that it therefore could not have been accidental. Learner A’s discomfort was compounded when it happened for the second time to the extent that she told her friend that they should leave, which they did. That the incident was reported to an educator soon thereafter lends further credence to her version.

26. Mr Coetzee’s evidence on the other hand can only be described as ambivalent. He confirmed and recalled that the learners did come to his class with a request to assist with Learner B’s phone. He also confirmed that Learner A stood next to him. His initial version was that he could have (accidently) “brushed” against Learner A while bending to reach the plug point behind him. My understanding of this version is that he does not recall this happening but that since the learner is saying that he touched her that it could have happened. In other words, he is not saying that the learner is not telling the truth. Whilst on the one hand he claims that it could have happened accidently even though he does not recall it happening, he also claims that he apologised to the learner. He had to have been aware that he touched her if he apologised. There was no clear version that he touched her accidently and that he apologised. during cross examination his version changed to “he must have apologised.” There was no explanation provided for how the touching happened twice when on the learner’s version she moved away after the first touch. His version that he bent down once to reach the plug and that the touching could have happened once during the downward movement and then again on the upward movement was never put to the learners. The impression that I got was that he was adapting his testimony as he went along.

27. Learner A on the other hand was clear in her testimony that after the first incident, she moved away from him, but that he bent down again and touched her again. Both learners agreed that since it happened twice that it could not have been accidental.

28. Neither of the learners testified that there were other learners in the class at the time. Mr Coetzee on the other hand claimed that there were other learners in the class at the time, yet this was not put to Learner A or Learner B for their response.

29. Overall, when weighing the version of the learners against that of Mr Coetzee, it is more probable that the incident happened as described by the learners and that the act of touching was deliberate and not accidental. The fact that it made the learner uncomfortable, that it was unwelcome and when considering the part of her body that was touched, the only conclusion is that the act was sexual in nature. The part of the body that was touched resulted in the learner’s sexual integrity being violated or at the very least that it inspired the belief that it would be violated. The learner’s reaction of moving away, questioning Mr Coetzee about his conduct, leaving the classroom after the second incident and then reporting the incident and seeking advice from a female educator are all clear indicators of the extent of the learner’s discomfort. These factors persuade me to conclude that the misconduct was a sexual assault and not just a misconduct of a sexual nature.

30. Section 28(2) of the Republic of South Africa provides that the best interests of the child are of paramount importance in every matter concerning the child. I have accordingly considered the effect that this decision will have on the life of this child as well as the other children in that school and any other that the educator may be tasked to teach in his teaching career. Children have a right to be protected, more especially in the school environment where they are placed in the care of educators.

31. In terms of the common law, educators of our schools have a legal duty to take care of the children entrusted to them. Learners being vulnerable and since the teachers are the closest adults them during their school lives, teachers ordinarily have a positive duty to provide a safe educational environment to them, free from fear, abuse, intimidation, coercion or physical and/or emotional harm.

FINDING
Charge 1: Guilty

SANCTION
32. I have already stated that in terms of Section 17 (1) of the Employment of Educators Act, an educator must be dismissed if he or she is found guilty of misconduct of a sexual assault on a learner of a school where he or she is employed.

33. There is no discretion for the arbitrator to consider any other alternative sanction, short of dismissal. Dismissal is the statutory sanction.

34. I have considered Mr Coetzee’s submission that the fact he has not been suspended means that his employer trusts him to continue to work with children. I disagree that this necessarily means that he is trusted to continue to work with children. Prior to this finding, the charges were mere allegations. Following the finding of guilt of sexual assault and the ensuing mandatory sanction of dismissal, it must follow that Mr Coetzee cannot be trusted to work with children.

AWARD
1. The employee, EP Coetzee is found guilty of Charge 1.
2. The employee, EP Coetzee, is dismissed with immediate effect.
3. The employer, The Western Cape Education Department must inform the employee, EP Coetzee of his dismissal immediately upon receipt of this award.
4. The Education Labour Relations Council as the Administrator of this Section 188A inquiry is entitled:
• In terms of section 122 of the Children’s Act, Act 38 of 2005, to notify the Director General: Department of Social Development, in writing of the findings of this Tribunal.
• To send a copy of this arbitration award to the South African Council for Educators (SACE) for the revoking of Mr SACE Certificate.
5. Mr Coetzee is found unsuitable to work with children in terms of section 122(4) of the Children’s Act 38 of 2005.
6. The General Secretary of the ELRC must in terms of Section 122(1) of the Children’s Act 38 of 2005, notify the Director General of Social Development inwriting of this finding made in terms of section 120(4) of the Children’s Act 38 0f 2005, that Mr Coetzee is unsuitable to work with children, for the Director General to enter his name as contemplated in section 120-part B of the register.

A. Singh-Bhoopchand
Arbitrator
Senior ELRC Panellist