IN THE EDUCATION LABOUR RELATIONS COUNCIL (ELRC)

Case No: ELRC 16-24/25GP

In the arbitration proceedings between:

SHADRACK NDIFELANI NDOU Applicant

And

HOD, DEPARTMENT OF EDUCATION, GAUTENG PROVINCE Respondent

PANELIST:
Ntjatja Klaas Aphane
HEARD:
30 May, 17 & 18 July,28 & 29 August and 17 & 18 October 2024
DELIVERED:

13 NOVEMBER 2024 

 ARBITRATION AWARD   

Applicant’s representative: Solane Mlambo (SADTU Official) Shadrack Ndifelani Ndou
Respondent’s representative: Phindi Mokeseng (Labour Relations Manager) Department of Education: GP

DETAILS OF THE HEARING AND REPRESENTATION:

1. This is the arbitration award in the arbitration proceedings concerning an alleged unfair dismissal related to misconduct dispute between, Shadrack Ndifelani Ndou, the Applicant and the Department of Basic Education: Gauteng Provincial Government.
2. The dispute was referred to the ELRC in terms of section 191(5)(a) of the Labour Relations Act 66 of 1995 (LRA).
3. The arbitration was scheduled and on 30 May, 18 and 19 July, 28 and 29 August and 17 and 18 October 2024. The arbitration proceedings were held under the auspices of the ELRC in terms of section 191 (5)(a) of the LRA. The arbitration proceeding was held virtually but due to IT glitches, was moved physically to 17 Simmonds Street, Johannesburg on 30 May 2024. The other dates were at 44 Wolfgang Street, Norwood.
4. The Applicant appeared in person, and he was represented by his SADTU representative, Solang Mlambo, whilst the Respondent was present and represented by its employee, Phindi Mokheseng, Labour Relations Practitioner.
5. The arbitration award is issued in terms of section 138 (7) of the LRA.
6. The arbitration proceedings were digitally recorded and handwritten notes were taken.
7. The relief sought by the Applicant was retrospective reinstatement

THE ISSUES TO BE DECIDED:

8. I am required to determine whether the dismissal of the Applicant was substantively and procedurally fair or not. If not fair, I must determine the appropriate relief. THE BACKGROUND TO THE DISPUTE:
9. The Applicant started his employment relationship with the Respondent on 06 February 1996. He was employed as a school principal and he was earning a basic monthly salary of R55 158,25.
10. The Applicant’s employment relationship with the Respondent was terminated on 02 April 2024, consequent to an internal disciplinary hearing and the internal appeal process. The outcome of the appeal process was communicated to the Applicant on 02 April 2024, and he acknowledged receipt thereof.
11. The Applicant referred the alleged unfair dismissal related to misconduct dispute to the ELRC. The dispute was unresolved through conciliation process and the dispute was then scheduled for arbitration process on 30 May 2024.
12. The arbitration was scheduled and on 30 May, 18 and 19 July, 28 and 29 August and 17 and 18 October 2024. The arbitration proceedings were held under the auspices of the ELRC in terms of section 191 (5)(a) of the LRA. The arbitration proceeding was held virtually but due to IT glitches, was moved physically to 17 Simmonds Street, Johannesburg on 30 May 2024. The other dates were at 44 Wolfgang Street, Norwood.
13. The Applicant’s representative and the Respondent’s representative pleaded to submit written closing arguments on 28 October 2024 and cited several reasons to justify the deviation from the norm of seven (7) days. It was agreed that both parties should submit written closing arguments on 28 October 2024.
14. The Applicants dismissal was not in dispute, both the Applicants representative and the Respondents representative conceded that the Applicant was dismissed.
15. The Respondent’s representative called eight (8) witnesses namely Gladness Noxolo Maphala, Belinda Fisher, Buyisiwe Mavis Mabuya, Resoketsoa Regina Mbele, Tsholofelo Molefi, Lindokuhle Tracy Nyathi, Delisiwe Bongangane Tledima and Wilson Modise Pooe whilst the Applicant’s representative called the Applicant to testify in support of his case, and four (4) more witnesses namely (Mologadi Vinicia Mashao, Nomathemba Ndlovu, Catherine Mmalehu Chauke and Patrick Ngwato Selowa in support of the Applicants case.
16. The Respondent’s representative submitted a bundle of documents, bundle, “R”, consisting of pages 1 to 18, whilst the Applicant’s trade union representative submitted bundle of documents, bundle, “A”, consisting of pages 1 to 431.
17. The procedural and substantive fairness of the dismissal was in dispute.
18. The Applicant was represented by an official of his trade union, SADTU, so I adopted an adversarial approach to the arbitration process in order to determine the merits of the dispute fairly.
19. The relief sought by the Applicant was retrospective reinstatement.

SURVEY OF EVIDENCE:

20. I wish to state from the onset, that not all the evidence presented will be set out hereunder. Only a summary of the relevant evidence is contained herein.

THE RESPONDENT’S CASE:

21. The first witness for the Respondent was Gladness Noxolo Maphala, who testified under oath that she is an employee of the Respondent and was employed as a PL1 Educator at Asteri Primary School, from January 2013.
22. She knows the Applicant as her former boss and the school principal, who was initially more like a father and was more caring during her early days at school. It was initially more like father and daughter as the Applicant used to say, she reminded him of his daughter.
23. Page R7 to R9 are back up WhatsApp message between her and the Applicant wherein in the main the Applicant was professing romantic relationship with her and she was rejecting the Applicant’s advances, advising the Applicant to provide workplace leadership as she was not interested in his romantic interests.
24. The true caller was used during the investigation phase and the number belonged to the Applicant, but now, during the arbitration process, the number was changed and belongs to someone else.
25. She was advised by the NAPTOSA colleagues to back up by the messages.
26. The Applicant used to call her constantly and randomly to come to his office to ostensibly discuss work related matters and that practice was stopped when the Applicant came back from precautionary transfer / suspension. During one-on-one meetings in his office, the Applicant would express romantic relationship interests to her. Several colleagues inclusive of the administration officer were used to call her and other staff members to come to his office.
27. At some stage the Applicant would instruct her to come and make photocopies which was not in her job description as an Educator, but she would comply out of respect for the authority.
28. Prior precautionary transfer, the educators used to report directly to the Applicant, any late comings, absenteeism, leave matters, early departures and all operational matters at school. Department Head were only responsible for curriculum matters.
29. The Applicant used to borrow her money and she would repay the money back to him, to be precise at some stage he gave her R10 000,00 and at some stage it was R3000,00. This was during the early stage of caring.
30. In 2022, after sexual harassment training at the school, she requested a transfer to another school.
31. The Applicant told her that there are rumours doing the round that they are dating and they might as well start dating.
32. When the Applicant returned from precautionary transfer, he stopped declaring romantic interest in her but started ill treatment, accusing her of stealing school equipment’s and sending the SAPS to arrest her during school hours.
33. During cross examination, she conceded attending the Applicant father’s funeral at Venda, with other colleagues, its humanity as African to do that irrespective of the differences between them.
34. During cross examination, she conceded that she drove with the Applicant to attend the learner’s funeral at Northern Cape. They left Johannesburg around 01h00 for the funeral that took place around 08h00. They drove back the same day and arrived at Johannesburg around past 15h00.
35. The second witness for the Respondent was Berlinda Fisher, who testified under oath that she is an employee of the Respondent. She is employed as a social worker, employed to deal with Educator social aspects and she has 28 years’ experiences.
36. She met the witness, Maphala, around July 2023. The first consultation was on 26 September 2023, she conducted a home visit, debriefing due to stress and she compiled a report for the Director. The Educator was referred to an external PHS service provider to assist her with counselling. The Applicant was traumatised, extremely fearful and was booked off sick as a result of sexual harassment at the workplace.
37. Some of the anomalies identified were that she was emotional, traumatised, fearful and under constant anxiety attack.
38. The third witness for the Respondent was Tsholofelo Molefi, who testified under oath that she is an employee of the Respondent, employed as an Educator and based at Asteri Primary School. She is thirty
    (30) years of age. During the year 2019, the Applicant started offering inappropriate awkward hugs wherein his genitals would touch her, and the Applicant would make filthy sounds. This happened in his office and during school hours. He told the Applicant that his conduct makes her uncomfortable.
    At some stage the Applicant put his two hands in her skirt and touch her bums.
39. They were advised, upon realising that GDE, Respondent, was failing them, to escalate the sexual harassment claims to Cutting Edge (a media program) to get the attention of the Respondent and highlight the plight of young female educators at some schools. This prompted the Respondent to take disciplinary steps. It was the social media that brought a response from the GDE.
40. The Applicant was not found guilty at the disciplinary hearing and the Presiding Officer was laughing at the Applicant’s representative calling her a dog. She reported the sexual harassment at SADTU, SAPS, GDE and SACE, and the Applicant was found guilty at SACE
41. The Applicant started bullying, harassing and shouting at her at every turn upon his return to school from a precautionary transfer. She is shouted at in front of learners. She was admitted at AREASO for 21 days as the result of depression caused by sexual harassment and bullying by the Applicant.
42. The fourth witness for the Respondent was Lindokuhle Tracy Nyathi, who testified under oath that she started working at Asteri Primary school as a grade R Educator from 2017 to date.
43. The Applicant requested her over a period of time, to take her out for a date but she refused, telling the Applicant, that she has a boyfriend and she is not interested in going out with the Applicant.
44. The Applicant said to her, “umuntu wakho ungudlisa ngamapipe”, and at some stage she was supposed to attend a workshop at Marlboro and the Applicant offered to drive her to the workshop and told her that “don’t be scared my girl”.
45. The following Monday, after giving feedback about the workshop, the Applicant asked her, “why did you not call me, how will I get you if you are always with old people” and he was referring to Educator Tledima.
46. During term 4 in 2021, she bumped into the Applicant carrying the printer, whilst walking towards the parking lot, He was walking with Educator Tledima, and the Applicant instructed her that she assist him to carry the printer to the Applicant’s office. She complied and carried the printer to his office, once in the office, the Applicant squeezed her, and he pinned her against the cupboard and pulled her firmly towards him. She was scared and trembling and the Applicant assured her, not to be scared, and she managed to push the Applicant and get off him, and runaway, and slammed the door behind her, running out. She reported the incidence to Educator Tledima, who waited for her to return, and they walked together and exited the school premises.
47. Mr Wilson Pooe was in the administration office when she was carrying the printer to the Applicant’s office, Educator Tledima and the Personal Assistant of the Applicant saw her carrying the printer.
48. The sexual harassment took place over a long period of time and she was scared of reporting as she did not even know how to report and to whom. She was enlightened by Director Mbuyi’s training on sexual harassment.
49. The sexual harassment affected her badly to a point where she was diagnosed with depression, and she was admitted at a psychiatric hospital for twenty (20) days and was equally booked off work for three (3) months
50. If the Educator reports late or there is early departure, such Educator must go and report to the Applicant. The time book is kept at the administration office but if late, it is moved to the Applicant’s office, so that late comers can account to the Applicant.
51. The practice changed upon the return of the Applicant, from precautionary transfer.
52. The fifth witness for the Respondent was Delisiwe Bongangane Tledima, who testified under oath that she is an employee of the Respondent, based at Asteri Primary School. She started working at Asteri Primary School around 2007. She is a grade R Educator.
53. She walks home with Educator Nyathi, most of the time and they work closely together.
54. One day, she does not remember the date, they locked their classroom, went to the administration office, to sign out the time book, and left. On their way towards the parking lot, they met the Applicant and the Applicant requested Educator Nyathi, to assist him to carry the printer to his office and Educator Nyathi obliged.
55. I waited for Educator Nyathi to drop the printer at the Applicant’s office and after some time, she came and she was not looking well, breathing heavily and her face looking sad. Educator Nyathi told her that the Applicant pushed her and pinned her against the cupboard and touched. She asked Educator Nyathi, why did you scream, and she responded that she just froze. She was scared and shaking. All teachers were gone and they were leaving as well. The school administration officer was still there in the administration office.
56. The sixth witness for the Respondent was Wilson Modise Pooe, who testified under oath that he is an employee of the Respondent, employed as an administrative assistant from March 2020 and worked closely with the Applicant. He knew Nyathi as a colleague at the school and as an Educator. They are not friends but enjoy a healthy working relationship as they greet and bid each other good bye when they knock off.
57. One-day Educator Nyathi and Tledima came to sign the time book and bid each other bye and left the school. He was still at school working.
58. Educator Nyathi came back carrying a printer and asked the Applicant, where to put the printer, and the Applicant responded, and said in his office. The Applicant open his office door for Nyathi.
59. Within a short space of time, matter of minutes, Educator Nyathi, came running out of the Applicant’s office, banged the door and did not even say, good bye. The following day, he asked Nyathi, why did she not say good bye and she told him that the Applicant, pushed her against the cupboard and pinned her and touch her inappropriately. That’s why she banged the door and ran away.
60. Since arriving at school, the Applicant would ask him to call Educators’ to his office from time to time, for one-on-one meetings with him. He will be send by the Applicant to call different educators from time to time to meet with him in his office.
61. The seventh witness for the Respondent was Buyisile Mavis Mabuya, who testified under oath, that she is an employee of the Respondent, employed as a Director: Transformation. She is in charge of employment equity, gender issues, disability issues and development of the policies that ensure that all the employees are treated fairly.
62. She met the Applicant in 2016 to discuss the reasonable accommodation of one Educator based at Asteri Primary School. One of the Deputy Director, Bongi Memeza, brought to her attention that there are sexual harassment allegations levelled against the Applicant by Educator Molefe.
63. Training at school was convened to equip Educators to deal with allegations of sexual harassment and to bring sexual harassment awareness to the workplace. The core training of sexual harassment was mainly to convey the meaning of sexual harassment and support for victims of sexual harassment. Immediately, after training was conducted, at the school, several female Educators came forward and reported several incidences of sexual harassment at the school, allegedly perpetuated by the school principal. To be precise, the complaints were from Educators’ Molefe, Nyathi and Maphala.
64. The sexual harassment forms were completed and forwarded to the labour relations unit for further investigation. The forms were facilitated by the sexual harassment advisor of the district. The Applicant was not found guilty of any sexual harassment in respect of Molefe. The sexual harassment forms of Nyathi got lost and the sexual harassment claims were later raised and the Applicant was charged again. The first complaint and the sexual harassment form was completed around September 2022 and was not acted on until Nyathi reverted back to the unit in August 2023. This sparked the process that is dealt with in these arbitration proceedings.
65. The Applicant also lodged criminal charges against the Educator, Maphala, which the Educator believes were attempts to intimidate her.
66. The victims of the sexual harassment were referred to wellness practitioners for counselling and support. They were mostly traumatised and suffering from depression. They were assisted internally and were also referred outside for more in-depth support.
67. During the first disciplinary process and the second disciplinary process, the Applicant was placed on precautionary transfer, to mitigate against possible interferences.
68. The eighth witness for the Respondent was Resoketswe Regina Mbele and testified under oath that she is an employee of the Respondent, employed as a labour relations officer. Her core task is to preside over misconduct cases, incapacity hearing cases, pronounce verdicts based on evidence tendered as well as pronounce sanction after analysis of all the evidence presented.
69. She presided over the disciplinary hearing of the Applicant and there were no procedural irregularities, as she ensured that there was compliance with disciplinary hearing checklist. The rights of the Applicant were explained to the Applicant and observed. The Applicant’s rights were read on record and these rights were emphasized on record.
70. There were no procedural issues that were raised by any of the parties to the disciplinary hearing and there was total compliance with the process and checklist.
71. There was evidence led that demonstrated that the Applicant conducted himself in an improper manner towards the educators, Nyathi and Maphala.
72. In her experience, sexual harassment, by its nature, happened in private and in a clandestine and perverted manner and therefore the Applicant would not do it public for all to see. That is why his office is far away from other colleagues.
73. During cross examination, she confirmed that the seating arrangements was proper and that the evidence of all witnesses could be heard openly and she could see all witnesses that gave evidence.
74. During cross examination, she indicated that the Applicant was represented by SADTU, and there were recourses available to the Applicant, including an application for her recusal, of which she would had considered if it was raised.
75. The Applicant was charged with the following counts of misconduct:
    a. It is alleged that between the period 2015 and 2019 or anytime incidental thereto, as a principal, you conducted yourself in an improper, disgraceful and unacceptable manner by sexually harassing a female educator, Ms Maphala, in that you called her to your office and said, “stand there, turn around so that I can your body”, licking your lips, whilst you knew or ought to know that it was wrong to do so. In view of your action, you are thus charged with misconduct in terms of section 18(1) (q) of the Employment of Educators, Act 76 of 1998 as amended.
    b. It is alleged that between the period 2015 and 2019 or anytime incidental thereto, as a principal, you conducted yourself in an improper, disgraceful and unacceptable manner by sexually harassing a female educator, Ms Maphala, in that you called her to your office, hugged her, physically, brushed your body against her and touched her body inappropriately, whilst you knew or ought to know that it was wrong to do so. In view of your action, you are thus charged with misconduct in terms of section 18(1) (q) of the Employment of Educators, Act 76 of 1998 as amended.
    c. It is alleged that between the period 2015 and 2019 or anytime incidental thereto, as a principal, you conducted yourself in an improper, disgraceful and unacceptable manner by sexually harassing a female educator, Ms Maphala, in your office, in that you tried to kiss her, whilst you knew or ought to know that it was wrong to do so. In view of your action, you are thus charged with misconduct in terms of section 18(1) (q) of the Employment of Educators, Act 76 of 1998 as amended.
    d. It is alleged that around the year 2021 or anytime incidental thereto, as a principal, you conducted yourself in an improper, disgraceful and unacceptable manner by sexually harassing a female educator, Ms Nyathi, in that you said, “umuntu wakho ungudlisa ngamapipe”, “don’t be scared my girl”, “why are you always with Ms Tledima, how will I get you if you are always with old people,” whilst you knew or ought to know that it was wrong to do so. In view of your action, you are thus charged with misconduct in terms of section 18(1) (q) of the Employment of Educators, Act 76 of 1998 as amended.
    e. It is alleged that around the year 2021 or anytime incidental thereto, as a principal, you conducted yourself in an improper, disgraceful and unacceptable manner by sexually harassing a female educator, Ms Nyathi, in that you held her hands, pushed her against the cupboard and pinned your body against hers, whilst you knew or ought to know that it was wrong to do so. In view of your action, you are thus charged with misconduct in terms of section 18(1) (q) of the Employment of Educators, Act 76 of 1998 as amended.

THE APPLICANT’S CASE:

76. The Applicant was the first to testify in support of his case. He testified under oath that he was an employee of the Respondent, employed as a School Principal at Asteri Primary School.
77. The Applicant testified that dates are very important and all of the Respondent’s witnesses, do not remember critical dates of the alleged misconducts and/or the dates of the alleged sexual harassment and therefore all charges are a fabrication. All incidences are dateless, month less, period less and they don’t even remember the dress code they were wearing. The educators are required to record the dates of the incidences. A341 and A354 are examples of how educators used to report incidences at school.
78. He was not found guilty on allegations by Tsholofelo at the disciplinary hearing. He was acquitted by the criminal justice system on allegation of sexual harassment by a competent court of law. He was arrested on 17 February 2022, and he appeared in court on 18 February 2022, and he was acquitted on 20 March 2024. Molefe failed to submit assigned tasks to the Departmental Head, and also insulted the Applicant and retaliated by laying false claims because she was aware that consequence management would take place.
79. Sunday Times of 07 March 2022 referred him as a sex pest principal. The witnesses appeared on Cutting Edge together alleging sexual harassment at school which programme was televised on 25 September 2022.
80. He was placed on precautionary transfer twice; this was prompted by anger and revenge and not because of the commission of any misconduct. All allegations are just spurious fabrications against him.
81. Upon resumption of duty from precautionary transfer on 06 February 2023, he was met with A387-A388, letter from SACE, dated 011 February 2023, this demonstrated that there was a vendetta against him. That correspondence was written by Maphala. For years there are stories after stories.
82. He supported the appointment of Maphala during her pregnancy because he does not support discrimination, he interviewed her, shortlisted her and therefore there was no need to be bad to her.
83. He does not visit the educators’ classes, and there are systems at school, where educators report to the department head and not him. In terms of the school organogram, there is a principal, two deputy principals, and 4 departmental heads. There are 18 female educators and 15 male’s educators.
84. His is a parent, principal and a very busy person at school, he never called any of the complainants, never visited them, and they all failed to bring evidence that he called them to his office. They do not report to the office of the Principal but to the departmental head. The Educators are not allowed to leave learners alone because of the high risk of low grades learners.
85. The WhatsApp communication are not his written communiques, the cell phone is not his and the conversation is typed.
86. Somango left the school in 2016 due to reasonable accommodation as alluded to by the Director: Transformation.
87. He does not know of any printer or any printer that Nyathi was asked to assist in carrying to his office. 2021 was Covid 19 times and therefore social distance was encouraged, they were wearing masks and therefore he could not squeeze her and pin and touch her.
88. He enjoyed a cordial, excellent and collegial relationship with Nyathi. He never communicated with her and she never asked him for direction,
89. Maphala used to write incidence report, A6869 and 70 and therefore why did she not annotate the sexual harassment claims.
90. He reported the criminal cases at SAPS against Maphala for theft of school uniform, laptops and computers. That was not harassment.
91. A326 is the induction policy of the school that prohibited visiting each other at school, no missing of class periods.
92. A347 is the organogram of the school and clearly demonstrated that educators were reporting to the Departmental head and not the principal.
93. The time book is removed at 07:45 to monitor punctuality and late comers must report to their Departmental head and the departmental head must accompany educators to the principal’s office.
94. During his disciplinary process, there were several irregularities, SABC Cutting Edge compromised disciplinary confidentiality, influenced decisions of the Respondent. Further pre-hearing minutes were not adhered to, and his cell phone was confiscated and his WhatsApp opened. He was harassed by the presiding officer; some witness were using isiZulu which he is not conversant with.
95. He never met Nyathi with Delisiwe Tledima and it is a fabrication as they do not remember the date.
96. Modise Pooe’s evidence was a fabrication and he joined the school during the third term of 2020 and that was during the Covid-19 pandemic and therefore he could not call educators to his office. The Covid-19 protocol did not allow this.
97. The second witness for the Applicant was Mologadi Vinicia Mashao, who testified that she is an employee of the Respondent based at Asteri Primary School. She is currently a Departmental Head for grade R and grade 1. She started working at the school during 2012 and was later promoted to Department Head.
98. Grade R and 1 are lower grades, and the learners are mostly from four (4) years old, and those learners require more attention and more supervision. They are risky and to ensure risk mitigation, supervision and attention is required.
99. Therefore, there is no Educator that is allowed to leave the learners at the lower grades unattended and/or leave those learners classes with learners alone. The risk is high at this level of learners.
100. All Educators were inducted and all new Educators are inducted when they joined Asteri Primary School, in order to empower them with the rules and regulations that applied at the school, to ensure total compliance and risk mitigation during school hours.
101. If any of the Educators were to leave his / her class, such educators would report to her. She is always moving around the school premises to monitor if all was going well, educators in their class performing their works. Those educators at grade R and 1 are reporting to her, any late coming and if they were to leave the school early or were to run any school errands, they will report to her, and she would then report to the Principal.
102. If any of the educators were to allege that she was called into the principal’s office, during contacts hours, she thinks such educator would not be telling the truth. If educators were to go to the principal’s office, she would accompany such educator to the principal’s office. There is time book at the administration office, adjacent next to the principal’s office, the time book is kept at the administration office until 07:45am and thereafter taken to the principal office for late comers to account.
103. If there were workshops to attend by educators, such educators would give feedback at the staff meeting.
104. There is a printing room at school and all the photocopy work must be submitted to her, to check and take the photocopy work to the photocopy room.
105. Educator, Nyathi, was reporting to her during the year 2021, and it was during Covid 19 and social distance, wearing of mask and sanitizing was adhered and enforced at all times. There was no hugging of Nyathi and if there was any hugging, Nyathi did not report to her.
106. In terms of the organogram of Asteri Primary School, educators were reporting to the departmental head, and departmental head were reporting to the two deputy principals, who were reported to the school principal.
107. During cross examination, she indicated that she was mostly the first to arrive at the school and the last one to leave the school premises, and she never observed educators leaving the school premises after work. She also confirmed that her direct line manager was the deputy principal.
108. During cross examination, she confirms that there is a cordial relationship between educators as colleagues, departmental heads, two deputy principal and the principal at Asteri Primary School, even though the principal is very strict on compliance with the rules and policies of the school and that all educators must be in class teaching learners during contact time.
109. The third witness for the Applicant was Nomathemba Ndlovu. She testified virtually and testified under oath that during the period 2009 to December 2019. she worked at Asteri Primary School. She was working at the school as the school administrator and as the Personal Assistant to the Principal. Her main tasks were to help parents of the learners, manage the diary of the school principal and be a liaison between the district office and visitors to the school,
110. She kept the time book during her employ at the school, at her office. In the morning, she would put the time book for educators to annotate and append their signatures and after half past 7 in the morning, she will highlight those educators that reported late for work. She reported late comers and as well as early departures at school through highlighting their names on the time book.
111. The educators were never called into the principal office during school hours, and during her employment at school, she never saw Maphala going into the principal office. Her office was closer to the principal office and she could hear the conversation in the Principal office.
112. The Applicant does not see the educators during school hours. She was always in the Applicant’s office during the meeting or any interactions between the educators and the Applicant, in order to take notes.
113. She was the last one to leave the school in order to ensure that the school premises are locked properly.
114. The fourth witness for the Applicant was Catherine Mmalehu Chauke, who testified under oath that she is an educator at the school. She started at the school as an educator in 2003 and was later promoted to the Departmental Head around 2016. She is a Departmental Head for grade 2 and 3. The educators that are reporting to her were for grade 2 and 3. The educator’s late departure and late arrival were reported to her and she would accompany educators to the Principal office for explanation and to annotate on the time book.
115. Her educators were always in their classrooms with learners and there was no classroom that was left with learners unattended. There are no class monitors at the foundation phase.
116. She is the first to arrive at school and the last to leave the school premises.
117. The fifth and the last witness for the Applicant was Patrick Ngwako Selowa. He testified virtually. His testimony was mainly about the logistics with regards to the disciplinary process of the Applicant. He cannot confirm if the Applicant was placed on precautionary transfer or suspension.
118. When the Applicants representative subpoenaed him to give evidence, he did not have recollection of all details about the disciplinary inquiry of the Applicant.
119. He could not confirm if there was a misalignment between the transformation unit and the labour relations unit. He equally confirms that the internal appeal of the Applicant was not processed within the prescribed time frames. He also indicated that the failure to process the appeal on time, in line with prescribed time frame did not prejudice the Applicant because he was on full pay.

ANALYSIS OF EVIDENCE AND ARGUMENTS:

120. In considering the merits of this dispute, I had regard to the provisions of the LRA, the ELRC Dispute Resolution Procedure, the Code of Good Practice: Dismissal (the Code) of the LRA, the Code of Good Practice on the Prevention and Elimination of Harassment at the Workplace and the relevant case law.
121. Everyone has the right to fair labour practices. This cardinal principle is enshrined in section 23 of the Constitution of the Republic of South Africa Act 108 of 1996. This right is well entrenched by section 185 of the LRA, which provides the right not to be unfairly dismissed or subjected to unfair labour practices.
122. In the case of Sidumo and another v Rustenburg Platinum Mines (Pty) Ltd and others (2007) 28 ILJ 2405 (CC) 2007) 12 BLLR 1907 (CC), the court held that, “one of the primary objects of the LRA is to give effect to and to regulate the fundamental rights conferred by section 23 of the Constitution, including the right to fair labour practices enshrined in section 23(1).
123. Section 188 of the LRA provides that an employee’s dismissal will be unfair if the employer fails to prove that the dismissal was for a fair reason and that it was effected in accordance with a fair procedure.
124. In terms of section 192 of the LRA, the employee must prove that he was dismissed and the employer then bears the onus to prove that the dismissal was fair.
125. The dismissal of the Applicant was not in dispute; both the Respondent’s representative and the Applicant’s representative confirmed that the Applicant was dismissed.
126. Procedural fairness and substantive fairness was in dispute.
127. An arbitration process is a new (de novo) hearing, which means that the evidence concerning the reason of the Respondent’s decisions (which is challenged or in dispute) is heard afresh. That means I must determine the fairness of the Respondent’s decision on the evidence admitted and submissions made at the arbitration.
128. A teacher or an educator is defined by the Employment of Educators Act, (EEA) as any person appointed exclusively to perform extracurricular duties, who teaches, who educates and trains other persons or who provides professional educational services, including professional educational therapy and educational psychological services at a school.
129. Sexual harassment is the unwelcome conduct of a sexual nature that violates the rights of an employee and constitutes a barrier to equity in the workplace.
130. The Applicant was charged with five (5) counts of sexual harassment misconduct in that he conducted himself in an improper, disgraceful or unacceptable manner with regards to two female educators, Maphala and Nyathi, over a period of time. It deserves mention that this was not the first disciplinary process of alleged sexual harassment misconducts against the Applicant, of different female educator at the same school.
131. The Respondent’s witnesses, Maphala, Nyathi, Molefe, Tledima, Pooe and Mbele, with regards to the sexual harassment of female educators at school gave testimony which was credible, consistent and they corroborated each other and their version were highly probable and should be accepted.
132. Maphala testified that over a period of time, the Applicant pursued her and pleaded with her, for a romantic relationship, inclusive of touching her inappropriately in his office. Nyathi equally testified that on several occasions, the Applicant would conduct himself improperly by touching her and pleading for romantic relations. With regard to the printer, she was with Tledima who corroborated the printer incident, and Nyathi told Tledima of the incident the same afternoon. Pooe also corroborated the printer incident and saw Nyathi running out of the Applicant’s office banging the door and recalled the events the next day. Molefe was also a good witness and her version was credible, calm and consistent. Mbele also testified soberly about evidence presented and this has been taken into consideration.
133. Granted, the victims of this disgusting, predatory conduct should have reported the incidents on time, to ensure corrective actions, but their fears, correctly or incorrectly was also fueled by the failure of the Respondent to address these complaints promptly.
134. The lack of synergy or alleged lack thereof between the Directorate Transformation and Directorate Labour Relations, should not be an enabler of sexual harassment within the school premises. Losing educator statements, and failing to follow up with the educators, until the victims resorted to social media and print media, through a Sunday newspaper and Cutting Edge, is not condoned and constitutes a serious dereliction of duty.
135. Highly credible evidence was led by the Respondent’s witnesses, supported by Nomathemba with regards to a time book, late coming and early departures. Nomathemba was used a highlighter to ensure that educators who arrived late were held to account. The Applicant, in his statement that led to the arrest of Maphala at school, confirmed that the educators were allowed into the offices, Maphala, to make copies at the copy room. This, despite his evidence in chief, the educators were not allowed to make photocopies but it was the responsibility of the departmental head.
136. The Applicant testified that he enjoyed cordial, excellent and collegial relationship with all educators and therefore there is no bad blood that would entice the Respondent’s witness to testify the way they did. despite a strong denial that their evidence was fabrication. There was no plausible, reasonable and justifiable explanations for all incidences detailed by the witnesses except a hard denial.
137. The Applicant’s version, and his witnesses’ testimonies, were riddled with so many inconsistencies, deception, highly impractical and improbable. It was Mashao, Nomathemba and Chauke’s evidence in chief that they arrived at school first and were the last to leave, but they did not see each other when they arrived and when they left. All three testified that, “I am the first to arrive at school and last to leave the school premises”. Very funny is that Mashao and Chauke work closely together as departmental heads and therefore their versions cannot be the truth.
138. It was their evidence in chief that all educators are inducted when they arrive at school as per, A326 to 328B, but the same inducted educators did not append their signatures when they were inducted. The Respondent’s witnesses, Maphala, Nyathi and Molefe, despite been juniors at school, testified individually that they were seeing the documents for the first time.
139. The Applicant was said to be strong adherent of policies, rules, regulations and was very strict; he testified so himself. Mashao partially corroborated the Applicant’s version. In terms of A347, approved organogram of 2017, the departmental head was reporting to the Deputy Principal, but the evidence of Mashao and Chauke was that for late comers and early departures, the educators would report to them, and they would accompany the educators to the Applicant. If these were strong adherence to policies why was it easy so easy to flout A347.
140. The Applicant’s assertion that it was during Covid-19, and therefore distance was observed, cannot be a justification that excludeS wrongdoing on his part. The fact that he said he was busy at work equally does not exclude wrongdoing.
141. The conduct of the Applicant was without any fear of contradiction, improper, disgraceful, unacceptable, unprofessional and highly irregular of a school manager in his attempt to sexually exploit young educators.
142. The Applicant also submitted that one witness attended his father’s funeral at Venda, such witness was with other colleagues at school. He was also invited to attend such witness child’s funeral. He also travels with such witness to attend learner’s funeral at Northern Cape. Therefore, that demonstrated that the Applicant was comfortable around him. The Applicant’s thinking and or submission was disingenuous and bizarre as colleagues support each other’s all the times. It is unheard off, that colleagues would invite each other for family funerals. This version is highly improbable.
143. The SACE, code of conduct for Educators, Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace, enjoined all in the workplace to acknowledge uphold and promote the basic human rights as embodied in the Constitution of the Republic of South Africa Act 108 of 1996 as amended.
144. The Applicant submitted that the chairperson of the disciplinary hearing was biased and that the outcome was predetermined. He also submitted that there was no credible evidence that the process was tampered with or tainted.
145. The Applicant submitted that the disciplinary process was concocted to get rid of him, but there is not a shred of evidence to suggest that any person needed him out of the system. It was actually his uncontested evidence that the relationship was professional, excellent cordial and collegial, inclusive of all at school.
146. In terms of item 4 (1) of the Code of Good Practice on Dismissal (the Code), the employer should notify the employee of the allegations using a form and a language that the employee can reasonably understand, and the employee should be entitled to a reasonable time to prepare the response and to the assistance of a trade union representative or fellow employee. After the enquiry, the employer should communicate the decision taken and preferably furnish the employee with a written notification of that decision.
147. The Applicant was charged and served with a charge sheet, served with notice to attended a disciplinary meeting and he participated in the disciplinary hearing. He was also represented by an official from SADTU, he was given a verdict, allowed mitigation and appeal, he was notified of the sanction and outcome of the appeal and advised to refer the dispute to the ELRC.
148. Therefore, the dismissal of the Applicant in fact complied with item 4(1) of the Code of Good Practice on Dismissal. I find that the Applicant’s dismissal was procedurally fair.
149. Equally, in terms of item 7 of the Code of Good Practice on Dismissal (the Code), the following must be considered in determining the fairness of the dismissal, whether the employee contravened the rule, if the rule was valid or reasonable, if the employee was aware of the rule or is reasonably expected to be aware of the rule, the rule is consistently applied by the employer and if dismissal is the appropriate sanction for the breach of such a rule.
150. In Woolworths (Pty) Ltd v SACCAWU and others (JA 56/2016) (2017) ZALAC 54, the court laid down the steps for an inquiry into a breach of a rule and held that in cases of a breach, the Commissioner must consider, whether there was a rule breached, the nature and importance of the rule breached, whether the employee had knowledge of the rule or was expected to have such knowledge, whether the rule had been consistently applied and whether dismissal was an appropriate sanction.
151. The Applicant despite denying all the evidence against him as a fabrication, was met with overwhelming, credible and corroborated evidence, which pointed clearly to the commission of sexual misconduct in relation to Nyathi and Maphala.
152. Based on the totality of evidence, and submissions at the arbitration processes, the Respondent cannot be faulted for terminating the employment of the Applicant.
153. In Department of correctional Services V Domingo and others (C154/16) (2018) ZALCCT 3, the Court held that when dealing with cases of sexual harassment the Commissioner is enjoined to properly evaluate the conflicting versions and make a credibility finding. Further when considering a case of sexual harassment in an employment context the Commissioner must interrogate the meaning of the common law offence comprising the alleged misconduct.
154. The Applicant showed no remorse for what he had done.
155. The Labour Appeal Court in De Beer Consolidated Mines v CCMA (2000) 9 BLLR 995 (LAC), the Court held that, “acknowledgement of wrongdoing is the first step towards rehabilitation. In the absence of a recommitment to the employer’s workplace values, an employee cannot hope to re-establish the trust which he / she has broken”.
156. In National Union of Mineworkers of South Africa obo Nganezi & others v Dunlop Mixing and Technical Services (Pty) Limited & Others (2019) 40 ILJ 1957 (CC) para 624, the Court held that the employment relationship is grounded on the fundamental values of trust, confidence, reliability, loyalty, mutual respect, and good faith. Consequently, these fundamental values form the heart of the employment relationship, which ought to be exercised by both the employee and the employer at all material times during the subsistence of their relationship.
157. The trust relationship is the cornerstone of the employment relationship and I find that it is broken beyond repair as both victims and colleagues have lost confidence in the Applicant as the result of his conduct. The Applicant does not trust the Respondent as he accused the Respondent of fabricating evidence against in order to get rid of him.
158. In Tseane v Get Ahead Foundation (1995) 16 ILJ 202 (IC), the Court held that an employee owes an employer a duty to always promote its business interests and act in its best interests. A breach of this duty by an employee entitles an employer to dismiss him.
159. In the Publication, Principles pf Practice Labour Law, issue 7, (2005) paragraph 245, it is held that, “When rendering services, the employee must ensure that his services are executed in good faith and that there is no breach of the relationship of trust”.
160. In Department of Labour v GPSSBC (2010) 231 ILJ 1313 (LAC), the Labour Appeal Court confirmed the principle that a sanction aimed at correction and rehabilitation is of no purpose when an employee refuses to acknowledge the wrongfulness of his / her conduct.
161. It goes without saying that the Applicant does not appreciate the wrongfulness of his conduct, and its impact on his junior colleagues, impact which is not positive at all, socially, morally, academically and humanely.
162. The misconduct collectively are of a serious nature and warrants the Respondent losing trust and confidence in the Applicant, more so that the Applicant was employed in a position of trust as a school principal.
163. The Respondent has discharged the onus to prove the existence of good reasons for the dismissal of the Applicant and therefore cannot be faulted on substantive fairness. The conduct of the Applicant was costly in terms of reputation of the educational sector and emotional trauma of sexual harassment victims at school.
164. Therefore, the Respondent cannot be faulted for dismissal on substantive fairness and procedural unfairness.
165. The prayer sought by the Applicant was retrospective reinstatement. The Applicant is not entitled to any reinstatement as relief sought for the alleged unfair dismissal. The relationship between the Respondent and the Applicant is beyond repair, based on the totality of the evidence presented.
     Award
     In the premises, I make the following award
166. The Applicant, Shadrack Ndifelani Ndou’s, dismissal by the Respondent, Gauteng Provincial Department of Education, is found to be substantively and procedurally fair.
167. The Applicant’s dispute referral is dismissed.
168. There is no order as to costs.

Thus, done and signed at Pretoria, dated 13 November 2024.