IN THE EDUCATION LABOUR RELATIONS COUNCIL ARBITRATION MEETING HELD VIRTUALLY

Arbitrator: Moraka Abel Makgaa
Date: 08 July 2024

In the matter between: –

Mokwena Thato Isaac Applicant
And

Department of Higher Education & Training Respondent

ARBITRATION AWARD

DETAILS OF THE ARBITRATION AND REPRESENTATION

1 The arbitration hearing was held virtually on 30 May 2024 and concluded on 19 June 2024. The applicant was present and represented by Ms Rejoyce Komane, an Attorney from Sakala Attorneys whereas the respondent was represented by Mr Duke Nyathi, employed by the respondent as Assistant: Labour Relations. Mr Nyathi was accompanied by Memeng Morobe as an observer on the side of the respondent.

2 Ms Sharon Maunatlala provided interpretive services during the two days of the arbitration process. The proceedings were conducted in English, and were digitally recorded.

ISSUES TO BE DECIDED

3 I am required to determine whether the dismissal of the applicant was substantively fair. Should I find that the dismissal was unfair, I am required to determine the appropriate remedy.

BACKGROUND TO THE DISPUTE

4 The applicant was employed by the respondent with effect from 29 January 2016. He was appointed as a PL1 Lecturer at Sedibeng Technical Vocational Education and Training College (“TVET College”), Van der Bijl Park Campus. He was charged with misconduct couched in the following terms:
“It is alleged that on the 21 February 2023, while on duty at block L3 classroom you sexually harassed Ms Palesa Xaba (a learner) in that you inappropriately touched her on or around her waist without her concern or approval while you knew or ought to have known that it was wrong for you to do so”.

5 He was found guilty and dismissed with effect from 30 May 2023. The outcome of the appeal was received on 27 February 2024, confirming the dismissal. Aggrieved by the respondent’s decision, the applicant referred a dispute of dismissal relating to misconduct to the ELRC for conciliation.

6 The matter could not be resolved during the conciliation phase. It was referred to arbitration and served before me for the first time on 30 May 2024. Pre-arbitration minutes were drawn up and signed by and on behalf of the parties. At the time of his dismissal, the applicant was earning R28 372.50 per month.

7 Procedural fairness is not in dispute. The applicant challenges the substantive fairness of his dismissal on the ground that he has not committed the acts of misconduct he is accused of. Simply put, it is the applicant’s case that he has not contravened a rule or standard regulating the professional relationship that a lecturer is required to have with a learner or student of the TVET College.

8 The respondent submitted a bundle of documents on the date of the arbitration hearing. The evidence bundle was marked “STVET1”, made up of 19 pages. Ms Komane indicated that the applicant is not intending to submit any evidence bundle. The documents submitted by the respondent were as such used as a joint evidence bundle.

9 The respondent called four witnesses whereas the applicant called two witnesses, including the applicant himself. The parties were given until 25 June 2024 to submit their written closing arguments. I wish to confirm receipt of the parties’ closing arguments, which have been taken into account in arriving at my decision.

SURVEY OF THE RESPONDENT’S EVIDENCE AND ARGUMENT

10 Tessa Curry, testified under oath, and her testimony can be summarised as follows. She testified that she is a Career Guidance Officer/ Student Counsellor at the College, and that she is registered with the Health Professional Council of South Africa (“the PHCSA”). She further testified that Palesa was brought to her office on 24 March 2023 for counselling in connection with allegations of sexual misconduct made against the applicant.

11 She managed to have a total of three counselling sessions with Palesa during which Palesa explained to her as to what happened in class on 21 February 2023 during the Contact Centre Operations and Marketing lessons. She also told her about the kind of favours which the applicant requested from her in the past, which included her to fetch water for him, mostly after adjournment of the class.

12 During the first session Palesa was very unstable and not in a good state of emotions. She appeared stressed, shaking and crying. She gave Palesa tasks and instructions, which included speaking to her friends and members of her family about the incidents of 21 February 2023 in order to reduce her stress so that she could function normally.

13 She also testified about of the College’s Policy Manual, particularly provisions dealing with acts of misconduct relating to sexual harassment of learners and any other conduct which could constitutes an inappropriate relationship between employees and learners.

14 Under cross examination, she testified that she could not have follow-up counselling sessions with Palesa because there were student riots at the campus which took about three weeks. She disputed the proposition that the fact that she could not have six sessions with Palesa had rendered her (Ms Curry’s) report to be premature. She insisted that the three weeks period of the students’ riots helped Palesa a lot because she had enough time to meditate, interact with other students and members of her family. This became clear during the second session because Palesa was calm, no longer crying and able to function better. She was convinced that extra counselling sessions may not be necessary, and in fact that was the request of Palesa.

15 She also insisted that although she did not personally witness the incident that Palesa was complaining about, she believed that Palesa was telling the truth. She disputed the proposition that Palesa is generally a dramatic person and that by crying during their consultations she was putting an act. She, however, agreed that it is possible for a person to exaggerate or being dramatic, but insisted that she asked specific questions to determine the reason why a person needs psychological intervention.

16 Palesa Xaba, testified under oath, and her testimony can be summarised as follows. She is a student at Sedibeng TVET College, Van der Bijl Park. Regarding the incident of 21 February 2023, during the third period of CCO, she testified that Mr Mokwena instructed all the learners to stand up beside their tables and that they should put their books in front of their faces. Mr Mokwena, as he usually does, was walking in between the rows. He came to her table and upon arrival he touched her on the waist with his right arm and also tried to move his hand towards her buttocks.

17 She further testified that the reason why other learners could not see what Mr Mokwena did to her was because all learners were instructed to put the books in front of their faces. She also did not make noise. She just shifted from the position she was standing. She was angry, scared and had mixed emotions because she believes that a lecturer is not allowed to touch a learner in the manner which Mr Mokwena touched her on that day.

18 She later attended the fifth period, i.e. the Marketing period, which was also taught by Mr Mokwena. During the period Mr Mokwena came to her table and gave her a written note asking her to remain seated after the lesson. She testified that she is not aware of any other learner who was given such kind of a note by Mr Mokwena. She did not follow the instruction because she thought Mr Mokwena wanted to repeat what he did to her during the CCO period.

19 After the lesson, she left the class. She met with her friend, Relebogile, and told her about what happened during the two periods. They went to Mrs Mokoena and told her about what happened during the two periods. She also told Mrs Mokoena that during 2022 Mr Mokwena used to give her his blue tupperware bottle and sent her to fetch water for him. The request was always made when Mr Mokwena’s period was left with about five minutes. When coming back from fetching water, other learners would have left the class. Mr Mokwena once asked for her cell phone numbers and her home address. She refused to give him the information and walked out of the class.

20 The matter was also reported to Mrs Thipe, who asked her to write a letter about everything which Mr Mokwena has been doing to her, which she did. The letter was submitted to Mrs Thipe on 22 February 2023. She also reported the matter to her parents after school, and ultimately opened a case of sexual harassment against Mr Mokwena. She disagreed with the version that the applicant may have bumped against her by mistake contending that if that was the case he could have touched her either on the hand or the shoulder as opposed to touching her on the waist and buttocks.

21 Under cross examination, she stuck to her guns about what happened with regard to the incidents of 21 February 2023. She disputed the proposition that the applicant gave her a note during the Marketing lesson was because he wanted her to remain behind so that he could brief her on the peer education lesson she was expected to offer during the next lesson. She insisted that if that was the reason the applicant could have made the announcement loud and clear in class instead of giving her a written note. She did not solicit any help from the applicant because she had been doing well on her own.

22 She disagreed with the version that the applicant may have mistakenly bumped against her because of the narrow space in between the rows in class. She advanced the same reasons which she gave during her evidence-in-chief. She also disputed the proposition that she had sexual feelings for the applicant and that she falsely accused the applicant in order to punish him because he did not have such an interest in her. She testified that she would not have had sexual feelings for the applicant because he is an old man, whom she saw as her father.

23 Relebogile Tladi, who also testified under oath, testified that she is a student at Sedibeng Campus, doing Marketing NCV at level 4. She further testified that the applicant was her lecturer for CCO and Marketing. She corroborated Palesa’s evidence, particularly as regards what Palesa told her concerning what happened during the periods of CCO and Marketing, as well as the reasons for the involvement of Mrs Mokoena and Mrs Thipe in the matter.

24 She further testified that it was during Mr Mokwena’s disciplinary hearing when she became aware of the voice note between Palesa and Nthabeleng Semela regarding allegations that Mr Mokwena had sexual feelings for Palesa. She confirmed Palesa’s evidence that the applicant used to send Palesa to fetch water for him, and that he used to do that a few minutes before the end of the period. She further testified that Palesa once told them about the applicant’s request for her cell number and residential address.

25 Under cross examination, she conceded that the applicant did not instruct them to cover their faces with their books, but he instructed them to look into their books. She also conceded that she did not see the applicant winking at Palesa. She agreed with the proposition that the spaces between the learners’ tables were not very wide. She also agreed with the proposition that other learners were also asked by lecturers to fetch water for them.

26 Mpolokeng Belinah Mokeona, testified under oath, and her testimony can be summarised as follows. She is one of the lecturers for Marketing at Sedibeng Campus. She confirmed Palesa’s evidence to her and Mrs Thipe about the incidents of 21 February 2023. She further testified that Palesa was crying uncontrollably when meeting with them. She decided to involve their Head of Department, Mrs Thipe, who advised her to write a letter about Palesa’s case, which she did.

27 Under cross examination, she agreed that the spaces between the rows of the learners’ tables in L3 class were narrow. She further testified that she sometimes gives learners a note, especially when she wanted to communicate with someone outside the classroom. She has never issued a note requesting a learner to remain behind after the lesson.

SURVEY OF THE APPLICANT’S EVIDENCE AND ARGUMENT

28 Paulina Leshedi Dolamo’s testimony, which was given under oath, can be summarised as follows. She has been employed as a senior lecturer for hospitality at Sedibeng TVET College since 25 July 2016. The applicant is her colleague and friend. She further testified that she does not know about the practice where lecturers communicate with learners through the use of written notes.

29 Under cross examination, she testified that the applicant did not go into details when telling her that Palesa has accused him of touching her inappropriately. She reiterated her lack of knowledge about the practice of lecturers communicating with learners by way of written notes.

30 Thato Isaac Mokwena, who is the applicant in this matter, testified under oath, and his evidence can be summarised as follows. He is responsible for Contact Centre Operation and Marketing Research. Palesa is one of the learners in his Marketing and CCO classes. Regarding the incident in the CCO class, he testified that it is a norm that whenever learners do not answer questions, they are instructed to stand up. On 21 February 2023 he had a CCO lesson in L3 class. During the lesson he instructed learners to stand up beside their tables with books in their hands.

31 He denied having instructed learners to cover their faces with their books. He also denied that he had touched Palesa inappropriately. He reiterated his version, which was put to Palesa, where it was suggested that the fact that there was no movement or reaction from Palesa proved that he did not touch her inappropriately. He also reiterated the version which was put to Palesa and other witnesses of the respondent regarding the possibility that he could have mistakenly bumped against Palesa.

32 He denied that he had ever asked Palesa for her cell phone numbers and her home address because he could have easily obtained such information from the data base at the College, if indeed he wanted such information. He testified that he used to send learners such as Moloi MD and Jamekoane, both of whom are male students, as well as Mokoana BM, who is a female student, to fetch water, make coffee or collect scripts for him. He denied that he had ever winked at Palesa. He reiterated the version, which was put to Palesa and the other witnesses of the respondent, concerning the purpose for which a written note was given to Palesa.

33 Under cross examination he insisted that he did not touch Palesa but acknowledged that there is a possibility of bumping against a learner when walking in between the rows of the learners’ tables. He testified that he had given plenty of the students a note similar to the one he gave to Palesa on 21 February 2023, but insisted that it was for the first time he gave Palesa the note. He further testified that he wrote the note in question while standing in front of Palesa, and gave it to her in the presence of other learners in class.

34 He disputed the version that he had ever requested Palesa to go and fetch water for him. As to why he could not announce openly in class that he wanted Palesa to offer a class on peer education, he testified that he needed to first consult with Palesa in order to check whether she would be comfortable to give a lesson on peer education.

ANALYSIS OF EVIDENCE AND ARGUMENTS

35 Most of the material facts in this matter are either common cause facts or not disputed by one or both of the parties during arbitration. The disputes of facts which must be resolved, relate to the truth or accuracy of the versions of the applicant and Palesa as to what happened during the CCO period, the purpose for which a written note was given to Palesa during the Marketing lesson, and other acts of sexual advances alleged to have been made to Palesa by the applicant on previous occasions.

36 It is clear that the versions of the respondent and the applicant on the facts of disputes which must be resolved are, largely, irreconciliable and mutually destructive. In Platinum Mile Resources (Pty) Ltd v CCMA and Others , the Labour Court, making reference with approval to the judgment in Sasol Mining (Pty) Ltd v Nqgeleni NO and Others (2011) 32 ILJ 723 (LC), held that the arbitrator must conduct an assessment of the credibility of the factual witnesses, their reliability and overall assessment of the inherent probabilities of the irreconcilable versions before him or her.

37 Palesa, Relebogile and the applicant are agreed about the fact that the applicant, during the CCO lesson, instructed the learners to stand up beside their tables. They are also agreed with regard to the fact that the applicant was moving in between the rows of the learners’ tables. Their versions differ with regard to the allegation that the learners were also instructed to cover their faces or eyes with their books. Palesa sought to suggest that the applicant’s intention was to ensure that he could not be seen by other learners when touching Palesa inappropriately. Both the applicant and Relebogile did not explain as to why the learners were also instructed to have their books in their hands. Be that as it may, I do not think it is necessary for me to resolve this factual allegation because it does not necessarily answer the question whether or not Palesa was inappropriately touched.

38 Palesa’s evidence as to where she was sitting or standing during the CCO lesson and the fact that the applicant came to her table during the period when they were instructed to stand up have not been disputed or contradicted by the applicant. Palesa’s version regarding the allegation that she was inappropriately touched by the applicant during the CCO lesson, remained the same and consistent both during evidence-in-chief and under cross examination. The evidence of the other witnesses of the respondent corroborated Palesa’s evidence, particularly as regards the incidents of 21 February 2023 and other acts of misconduct alleged by Palesa against the applicant.

39 The applicant on the other hand, has advanced three reasons as to why his version should be accepted as the most plausible version of what may or may not have happened on 21 February 2023 and in relation to other allegations of misconduct made against him. Firstly, it was contended that it would not have been possible for the applicant to touch Palesa on the waist and buttocks because the applicant and learners were facing the same direction. Secondly, it was suggested that if indeed Palesa was inappropriately touched, she would have made noise or a movement which could have attracted the attention of other learners.

40 The third, and perhaps the most problematic reason is the applicant’s acknowledgement, on his own version, that it is possible that he could have mistakenly bumped against Palesa. This acknowledgement is attributed to the theory of a narrow space between the rows of the learners’ tables. The fundamental problem with this proposition is that the applicant did not unequivocally deny having had a bodily contact with Palesa. By accepting that he may have had a bodily contact with Palesa without proffering a contradictory version leaves Palesa’s version that she was touched on her waist and/or buttocks uncontradicted.

41 The other area in which the applicant’s version is problematic is with regard to why was Palesa given a written note to the effect that she should remain seated after the lesson. It became clear that Palesa was either not aware of the existence of or did not understand the meaning of peer education, especially from the perspective of the applicant. She appears to have understood the suggestion of peer education as being about the applicant’s attempt to assist her, the assistance which she said was uncalled for. Even Ms Mokeona and Ms Dolamo, as colleagues of the applicant, gave evidence which was clearly restricted to their theoretical understanding of the meaning and purpose of peer education, and could not go as far as confirming that such a practice was common at the College.

42 I am of the view that the applicant’s explanation that he opted for a written note as opposed to making an announcement openly in class is simply illogical and unmeritorious. I am also of the view that the applicant’s failure to proffer a good and acceptable explanation for opting to use a written note when communicating with a learner, is not the only challenge confronting the applicant in this matter. In President of the Republic of South Africa v South African Rugby Football Union , the Constitutional Court said the following about a duty to cross-examine on aspects which a party disputes: –
“The institution of cross-examination not only constitutes a right; it also imposes certain obligations. As a general rule it is essential, when it is intended to suggest that a witness is not speaking the truth on a particular point, to direct the witness’s attention to the fact by questions put in cross-examination showing that the imputation is intended to be made and to afford the witness and opportunity, while still in the witness-box, of giving any explanation open to the witness and of defending his or her character…”

43 As correctly argued by Mr Nyathi, Palesa’s version which sought to suggest that the written note in question was clandestinely given to her was never challenged. In addition to this, the applicant’s version that the note was written in front of Palesa in the presence of other learners was never put to Palesa. The same criticism should go to the manner in which the controversies around the fetching of water for the applicant were dealt with by the applicant. The version which was put to Palesa under cross examination was to the effect that she was not the only learner who was sent by the applicant to fetch water for him. In other words, except denying that the applicant had requested Palesa’s cell numbers and home address, other allegations, such as sending Palesa to fetch water when the period was just about to come to an end so that it could be possible for the applicant and Palesa to be together in the absence of other learners, were not disputed.

44 During evidence-in-chief the applicant did not only present a version which was never put to the applicant, but he also denied having sent Palesa to fetch water for him. The applicant’s version about circumstances surrounding the coming into being of the written note in question and reasons why it was given to Palesa during the Marketing period, must be rejected. I am inclined to accept Palesa’s version that the controversial written note may have been given to her for reasons that had nothing to do with peer education.

45 Another critical question that may have to be answered in the process of determining whether the applicant has indeed committed the acts of misconduct under investigation, is whether the applicant was charged for an ulterior purpose, as he sought to suggest during the arbitration hearing. During the arbitration hearing it was, for instance, suggested that Palesa has, because of her dramatic nature, delusion or even an infatuation, decided to fabricate allegations of an improper and unethical conduct against the applicant. This version must be rejected because it is not only incomprehensible but it was also not supported by any evidence whatsoever.

46 In the final analysis, the evidence presented on behalf of the respondent, suggests that Palesa was, immediately after the end of the Marketing period, involved in a marathon of activities, which included discussing and reporting what is alleged to have happened during the CCO and the Marketing lessons with her friend, two of her lecturers, her parents and the police. Palesa was also subjected to counselling sessions whose findings suggested, inter alia, that she went through a period of emotional and psychological suffering as a result of what she said happened during the incidents of 21 February 2023. Besides try to suggest that the counselling sessions were insufficient, the findings made by Ms Tessa Curry could not be successfully challenged by the applicant. I accept the findings of Ms Tessa.

47 I also accept Palesa’s evidence that she could not have suddenly decided to involve her lecturers, the Student Counsellor, her parents and even the police in a matter which had no factual foundation. In any event the applicant did not present any evidence that sought to prove or suggest that Palesa harboured ill-feelings or hatred against the applicant which motivated her to have said or done anything and everything to punish the applicant.

48 As to whether the applicant touched Palesa inappropriately, I am persuaded that Palesa’s version is, on a balance of probabilities, a true reflection of what happed on 21 February 2023, during the Contact Centre Operations lesson. It is therefore my finding that the applicant has committed misconduct relating to sexual harassment of a learner.

49 I am of the view that the totality of the evidence presented on behalf of the respondent has established, on a balance of probabilities, that the applicant has committed the misconduct which is the subject of the present proceedings. The applicant’s persistence, both during the disciplinary enquiry and at the arbitration hearing, that he had not committed any misconduct, has disqualified him from showing any remorse. In the circumstances, I do not think there is a justification warranting interfering with the sanction imposed by the respondent.

AWARD
50 The dismissal of the applicant, Mokwena Thato Isaac, by the respondent, the Department of Higher Education & Training, was both procedurally and substantively fair.

51 The applicant’s case is dismissed.
DATED AND SIGNED AT POLOKWANE ON THIS 8TH DAY OF JULY 2024.

MORAKA ABEL MAKGAA
ELRC PANELIST