16 November 2022 – ELRC 924-21/22 GP

Part Time Senior Panelist: M.A. HAWYES
Date of Award: 13th November 2022

In the ARBITRATION between

Gauteng Department of Education

(Employer)

And

Peter Williams

(Employee)

DETAILS OF HEARING AND REPRESENTATION

1. The case was scheduled for an inquiry by arbitrator at the GDE Head Office on the 29th June 2022, 28th September 2022 and finalized on the 20th October 2022.
2. After completion of the inquiry the parties requested 14 days to submit their written closing arguments. The request was approved and the closing arguments were due on the 4th November 2022. The closing arguments were timeously received and my award now follows.
3. Mr. A Pietersen, a union official from NAPTOSA, represented the employee.
4. MR. T. Siphamela, a labour relations official, represented the employer.
5. The proceedings were digitally recorded and long hand notes were also kept of the proceedings. The employer made use of a bundle of documents marked Bundle ‘A’ and the Applicant made use of a bundle of documents marked Bundle ‘B’.
6. An intermediary and interpreter assisted the minor witness and the said witness testified remotely from the hearing room where the arbitration hearing itself took place.

ISSUE IN DISPUTE
7. The employee pleaded not guilty to two counts of alleged misconduct in terms of section 18 (1) (q) of the Employment of Educators Act, 76 of 1998 (as amended) (EEA).
8. It is common cause that the employer employs the employee as a PL1 educator at FJ Wells Primary School and at the relevant time periods in this inquiry the employee taught Life Orientation.
9. It was alleged firstly that on the 28th October 2021 the employee conducted himself in a disgraceful unacceptable and improper manner in that he inappropriately kissed and touched a Grade 5 learner, JP, on the buttocks.
10. Secondly, it was alleged that, during the period 2019, the employee conducted yourself in an improper, disgraceful or unacceptable manner, in that he referred to QN, a Grade 7 learner, as “love, angel, honey, babes”, on a daily basis through WhatsApp.
POINT IN LIMINE
11. At the outset of proceedings Mr. Pietersen raised a point in limine on the viability of count 2 and requested that the charge be eliminated. Mr Siphamela, responded by saying that QN had relocated to KwaZulu-Natal and his parents were unwilling to allow him to come to testify at the hearing.
12. Siphamela stated further that the Department would not be pursuing count 2 as such since they did not believe that they were able to prove the allegation as a whole.

SURVEY OF THE EMPLOYER’S EVIDENCE AND ARGUMENT

13. The employer led the evidence of four witnesses in support of its case the first of which was the principal of Mr. S.J Mphatswe. The second witness was the mother of JP Mrs. Khaugelo Padi, the third witness was JP himself and the fourth and final witness was the the deputy principal of the school, Mrs. Rosemary Mazibuko.
14. Mphatswe testified, inter alia, that he was the principal of a former mine school that now fell under the auspices of the Respondent.
15. Mphatswe testified that Mr and Mrs. Padi met with him on the 23rd November 2021 and reported that they had found inappropriate conversations with their son JP and the employee on JP’s cell phone.
16. The parents stated that they had noted poor performance and behavioral aggression on the part of their son and decided to check his phone at which time they discovered the messages. Mphatswe admitted that JP had passed grade 5 and was currently in grade 6.
17. Mphatswe requested the parents to give him time to investigate the allegations and report back to them.
18. Mphatswe testified that he was shown the messages and their respective times and expressed the opinion that it was inappropriate to call a child ‘honey’ or ‘love’ and the issues raised a concern for him.
19. Mphatswe testified that he conducted an intensive investigation in which the employee, amongst others, was interviewed.
20. During cross examination Mphatswe was questioned about why he conducted the investigation on his own and did not immediately report the matter to the District office. Mphatswe responded that he had to write a report based on the allegations that were made to him.
21. During the interview with the employee the employee admitted that he used the words alleged because he was showing love and affection. Affection means to love and take care of somebody. When asked about the touching and kissing the employee had admitted that he did it to all learners. He did not see anything wrong with this conduct.
22. Pietersen emphasized on numerous occasions during cross examination that Mphatswe had conducted an unprocedural investigation into the matter and in so doing had usurped the role and function of the relevant officials at the District office who were specifically tasked with investigating alleged sexual misconduct. Mphatswe responded that he had received a call from the District Director office (from Ms Loraine Mfokeng) where he was asked to assist in the investigation.
23. Mphatswe testified during cross examination that the trust relationship had broken down following these allegations and he did not believe the trust relationship could be recovered. Mphatswe conceded to being aware of the employee’s medical problems that the employee had challenges with his nervous system and that he was in and out of hospital.
24. Mphatswe testified that in 2016/2017 the employee had a major operation and was off work recuperating at home for five months. The Respondent engaged an SGB educator to cover the employee’s subjects in his absence.
25. Mphatswe also mentioned during cross examination that the employee had initially been appointed to teach English but because of performance issues he had been changed to Creative Arts and Life Skills.
26. Mphatswe conceded that that there was no policy or law that prevented educators in communicating with learners via Whats App although the practice was not encouraged.
27. The second witness Khaugelo Padi testified that she is the mother of JP. She observed JP becoming violent towards his sister and became alarmed and decided to check his phone. There were also concerns about JP’s performance at school in the third term. She found the messages between JP and the employee that had the words ‘honey’ and ‘angel’ with a heart and a rose. She expressed being scared and mad for her son. She also questioned why the employee had her son’s cell phone number.
28. Mrs. Padi testified that she went to the District office first and then she spoke to the Principal at the school. She found it inappropriate for an educator to send a message to her son and reiterated that he should not have had her son’s cell phone number. JP had mentioned that one of the learners gave the employee his cellphone number. Mrs. Padi stated that there was no mention of school work in the messages.
29. Mrs. Padi also expressed concern that the employee was too physically expressive in the way he touched and kissed JP at school.
30. The principal had expressed shock to her when he saw the messages and had stated that they were ‘not right’.
31. During cross examination Mrs. Padi admitted that it had not been established that the messages in any way related to JP’s alleged change of behavior.
32. The third witness was JP himself. JP indicated that he was currently 12 years old and in Grade 6. After questioning JP I was satisfied that he was capable of distinguishing between right and wrong and JP was encouraged to only tell the truth. After count 1 was read out JP stated that he could not remember things very well but he would tell what he could remember.
33. JP testified that the employee was his grade 5 teacher in Life Orientation in 2021.
34. JP testified of various instances of the employee kissing him and various other learners on the cheek and touching one girl learner on the buttocks when he granted her permission to go to the bathroom.
35. JP testified that when the employee kissed him in class first it felt OK but after a while he felt uncomfortable. The employee would also hug him around the waist at times.
36. JP stated that he thought the employee had got his number from his friend Qawe. It is common cause that JP had initiated a Whats App conversation with the employee on the 12th November 2021 with the word ‘Hi’. The further messages are found at pages 15,15A of Bundle ‘A’. The employee asked ‘Who is this?’ and JP identified himself. JP then asked the employee: “Are you OK”? and the employee replied “Yes my angel I’m good and he then posed the question to JP: “Are you OK angel” and JP replied that he was good.
37. On the 14th November 2021 at 11H32 the employee initiated a discussion to JP on Whats App that read: “Thinking of you angel. Hope you’re doing OK. Love you”. JP only responded to the employee on the 15th November 2021 at 15H53. At 15H46 the employee responded: “Hello how are you hun. It was great chatting…hope you enjoy your afternoon.” At 19h17 on the same day the employee posed a question: “All ok your end.” JP appears to have only responded on the 18th November 2021 although the time and words of his response are not indicated.
38. The final witness was deputy principal Mrs. Rosemary Mazibuko, who gave similar evidence as the principal.
39. The employee was called into a meeting with the principal and her. Mazibuko testified that the employee had a habit of using various terms of endearment with the learners such as ‘lovey’, ‘honey’ and ‘baby’. The employee admitted to communicating with learners through Whats App if they did not understand the work. Mazibuko raised a concern that the employee had communicated with JP late in the evening.
40. The employee had responded that he was affectionate with the children. Mazibuko expressed the view that the employee was too close to the learners and that some social distance was required.
41. At the enquiry with the principal and herself the employee had apologized stating that he did not know that what he was doing was wrong.
42. Mazibuko testified further that the employee’s conduct and use of various terms of endearment would be inappropriate in her culture.
43. Mazibuko testified during cross-examination that the employee’s health challenges sometimes affected his work performance although this had never progressed to a serious extent.
44. Mazibuko testified that despite the employee’s health challenges the employee brought value to the school. The employee would paint and was generally very artistic and had helped out on numerous instances in decorating the hall for school plays etcetera. Mazibuko recalled the employee helped her son with Afrikaans and also did a drawing of a flying car for him.
45. Mazibuko conceded that the subject Life Orientation included physical training, drama and visual arts and social wellbeing and accessibility to the learners was always an advantage.
46. Mazibuko confirmed that the Applicant was currently the only white educator and indeed white person at the school.
47. Mazibuko testified that children in black culture did not generally talk the way the employee did with adults and certainly not teachers.
48. Mazibuko testified that she was not aware of any rule or code of conduct at the school that prescribed how an educator should interact with learners. Mazibuko once again expressed the opinion that a healthy distance should be maintained between educators and learners.
49. Mazibuko conceded during cross examination that during 2021 because of CoVid 19 mask wearing by educators and children was mandatory.
50. Mazibuko expressed the view that the employee had admitted to disgraceful and improper conduct because he had apologized when he was called into the meeting with the principal and her.

SURVEY OF THE EMPLOYEE’S EVIDENCE AND ARGUMENT

51. The employee testified under oath and called no witnesses.
52. The employee gave a detailed account of his upbringing and academic endeavors. The Applicant admitted to being adopted by his current mother because his biological mother was an alcoholic. His adoptive mother (Gwendolyn Williams) was a single parent and he had never known his father. They were poor and life was never easy.
53. The employee testified that he was a single straight person and regarded himself as a born again Christian. The employee later admitted to having effeminate mannerisms due to his artistic gifting. The employee described himself as a friendly, loving and outgoing person who was emotional and sensitive to the feelings and hurt of others. He was talkative, bubbly and an extrovert and did things in large measures.
54. The employee then explained that when a child he was diagnosed with Hydrocephalus (water on the brain). A shunt was embedded in his brain to drain off water from the brain through a long thin pipe laid under the skin that drained excessive water into the stomach. The shunt and pipe broke and had to be replaced on numerous times over the years. This normally required lengthy hospitalization where he would be visited by many educators at the school. Bundle ‘B’ contains a series of photos providing proof of the employee’s assertions. The Applicant described that he was plagued with migraines and other severe headaches because of his ongoing health conditions. Luckily he had not been hospitalized in 2022. The employee described that he also enjoyed flower arranging and baking and he had helped the learners, educators and the school with various projects. The children were mostly poor and he often brought material to help the learners in their projects.
55. The employee described how he had helped out in transportation and done handiwork to fix things in his classroom and beautify it and later those of his colleagues. He did this out of the kindness of his own heart and expected no payment.
56. The employee stated that he took his role as in loco parentis very seriously and had attended to one medical situation in the past by assisting to pick up the grandmother of a child that had broken his arm and transporting both to Leratong Hospital.
57. The employee testified that he became aware of the allegations against him by one of the learners/educators whilst he was officiating athletics that asked him to come to the office where he found the principal and deputy principal. He was then questioned by same about the allegations leveled by the parents of JP.
58. The employee admitted to the Whats App conversations with JP. When asked if he had apologized to the principal the employee testified that he did not know that what he had done was wrong.
59. The employee denied kissing JP and other children by removing his and their masks. This is not something he would have done because he would have put himself and children at risk because of Co-Vid 19.
60. The employee testified that he got on well with his learners and was always trying to help them. To that end he made his cellphone number available to them and expected them to furnish his number to their parents and/or guardians.
61. He employee gave a detailed account of his interaction with JP. He described himself as a caring person who always had the best interests of the children he taught at heart.
62. The employee testified that he saw no harm in the short conversations that he had with JP. The employee pointed out that his message contained a tulip and not a rose. His messages were indicative of a sign of caring and affection.
63. The employee pointed out that context was everything. His actions and words should be seen in the context of a caring in loco parentis. There was nothing sexual stated or implied in his conversation or interactions with JP.
64. The employee testified that JP had never told him that he was uncomfortable. The complaint had emanated from JP’s mother and not JP himself. The employee expressed the view that JP had been influenced by his mother as an 11 year old to say some of the things he had said.

ANALYSIS OF EVIDENCE AND ARGUMENT

65. The onus rests on the employer to prove all allegations of misconduct against the employee on a balance of probabilities.
66. The employer has led no meaningful evidence against the employee in respect of count 2. The employee is found not guilty on this charge.
67. In respect of count 1 the only evidence detailed by JP is that the employee kissed him on the cheek. JP’s testimony is that the employee touched other female learner’s buttocks when she asked for permission to go to the bathroom. There is no evidence that the employee touched JP’s buttocks as the charge alleges.
68. No other minor witnesses’ evidence was led and the testimony of JP is that of a single witness. As such his evidence must be approached with caution.
69. It is common cause that JP did not lay a complaint with his parents or the school about his dealings with the employee.
70. Mrs. Padi has alleged that JP was showing signs of aggression and had been performing poorly at school. This prompted her to check JP’s cell phone at which time his messages with the employee were discovered. The Respondent provided no supporting evidence of either of these two manifestations. The only other evidence was from Mphatswe in that JP had passed grade 5 and was now in grade 6. I find that the employer has not proven on a balance of probabilities that JP was a troubled child with learning problems.
71. I find that it is clear from the employer’s evidence that JP’s mother had influenced the course of proceedings and it is probable that this included influencing what JP had to say at the inquiry. It is highly improbable that the employee would have kissed learners on the cheek or otherwise in an open classroom in the midst of a pandemic with everyone wearing masks. Even if I am incorrect in this finding I find that no sexual action was intended. The context of the employee’s conduct must be closely examined. There is no evidence to suggest that the employee was grooming JP with sexual intentions both in his conduct at school and his interaction with JP on WhatsApp.
72. I find that the employee was a caring empathetic individual who’s past and ongoing acts of kindness were not always understood, appreciated and reciprocated by his educator colleagues.
73. The WhatsApp messages are not mentioned in count 1 as part of the employee’s conduct which is regarded as improper, disgraceful and unacceptable. The reason for this is not clear.
74. The messages reveal that JP was the one who initiated conversation with the employee on the 14th November 2021. This is not the conduct of a child who feels uncomfortable in interacting with his Life Orientation educator. In fact it suggests just the opposite. The conversation mostly contains the two exchanging pleasantries and demonstrates the employee asking the question whether everything is alright. The employee seems surprised by JP initiating a conversation on WhatsApp with him and appears to be sensitive to the possibility of a problem which JP never articulates.
75. It is common cause that the employee initiated the second conversation on the 16th November 2021 and I find it probable that it was prompted by JP’s initial conversation on the 14th November 2022. The conversation is not continuous and stretches over two days and also consists of mostly greetings. It is clear that the employee used the word ‘angel’ and ‘hun’ and other terms of endearment frequently not as declarations of sexual interest but as a terns of genuine affection. The use of a tulip and a heart must be viewed in the same context.
76. I find that Mphatswe and Mazibuko embarked on an investigation that was outside their jurisdiction when they called the employee in to give an account for the complaint that they had just received. Anything stated by the employee at this “investigation” can probably be disregarded. The two witnesses expressed shock when they viewed the WhatsApp conversations and regarded the employee’s apology to contacting JP after hours as proof that he had confessed to misconduct.
77. I find that the employee’s assertion that he did not know that he could not contact learners after hours to be true and valid. No evidence was lead of any departmental policy that prohibits after hours or any hours contact with learners on WhatsApp. To be sure unscrupulous educators have and continue to use WhatsApp to contact learners with nefarious intentions but each case must be dealt with on its merits.
78. I find that the employee did not confess to misconduct when interviewed by the principal and had honorable intentions when he conversed with JP on WhatsApp.
79. The employee was a good witness who gave detailed viva voce testimony and documentary evidence to support his assertions. He withstood cross examination with his version unscathed. I observed the employee struggling to maintain focus during the arbitration process (obviously because of his medical condition) and we had to take frequent adjournments for him to recover his concentration.
80. I find that the employee did not commit misconduct in respect of count 1 because there is insufficient reliable evidence led by the employer that he acted in an improper, disgraceful and unacceptable manner.
81. The principal’s subjective assertions on the relationship of trust are more of an indictment on his ability to know and appreciate the quality of the educator that he has in the employee and his inability, in this instance, to objectively assess a factually bereft report.
82. The principal’s subjective bias in favour of a flawed report on the part a parent cannot form the basis for an objective enquiry into whether the relationship of trust has indeed broken down. I find that the relationship of trust is fully intact.
83. The takeaway learning for the employee is to be more aware of cultural differences in dealing with his learners, their parents and colleagues and to realize that just because you care for and respect everyone does not mean that they care for and respect you. Mankind is prone to take advantage of and abuse kindness and demand it undeserved when it is withheld.