17 January 2023 – ELRC193-21/22 GP

Panelist: Kuvonakala Chavalala
Date of Award: 09 December 2022

In the ARBITRATION between:

Kishan Hansraj
(Union / Employee)

and

Department of Education Gauteng
(Employer)

Union/Employee’s representative: Mr. Kubayi

Employer’s representative: Mr. Macheke

DETAILS OF HEARING AND REPRESENTATION

[1] This is an award between Kishan Hansraj (hereinafter referred to as “the employee”) and Department of Education Gauteng (hereinafter referred to as “the employer”). The matter was set down as an inquiry by arbitrator in terms of section 188A of the Labour Relations Act 66 of 1995 as amended (“the LRA”) and also in terms of clause 32 of the ELRC Constitution (as amended). The hearing sat on several occasions and was finalised on 23 November 2022.
[2] Clause 3 (3.1) Collective Agreement 3 of 2018 of the ELRC provides that in all matters in which an employer wants to take disciplinary action against an educator for alleged sexual misconduct towards any learner, an inquiry by an arbitrator, as intended by section 188A of the LRA, and clause 32 of the Dispute Resolution Procedures of the Education Labour Relations Council (“ELRC”), shall be mandatory. All the charges the employee faced were alleged sexual misconduct against learners.
[3] I informed the parties that the names of the learners will be omitted from the award since they are still minors.
[4] The employee was represented by Mr P Kubayi, an official from SADTU. Mr Macheke represented the employer.
[5] The employer submitted a Bundle of documents which we named Bundle R. The employee submitted a bundle which was marked Bundle A.
[6] Parties had to submit written closing arguments on or before 30 November 2022 and both did so.
[7] The hearing was held in English and it was digitally and manually recorded.

ISSUES TO BE DECIDED

[8] I am required to decide whether the employee committed misconduct as per the allegations levelled against him. If I find that he did commit the misconduct, I have to decide on an appropriate sanction.

BACKGROUND TO THE ISSUES TO BE DECIDED

[9] The employee is currently employed as an educator at Discovery Primary School. The employee was notified of the allegations on 23 March 2021 and he was placed on precautionary transfer since the notification of the allegations.

[10] The allegations levelled against the employee are as follows:
• Allegation 1

You are charged with misconduct of sexual assault in that on the 02 March 2021, or anytime incidental thereto, as an educator at Discovery Primary School, you inappropriately touched the shoulders of a Grade 6 female learner, LH, from behind and as she shrugged your hands off, you touched her around her upper arm, slid your hands from behind and squeezed her breast, whilst you knew or ought to have known that it was wrong to do so.

Therefore you are charges in terms of section 17(1)(b) of Employment of Educators Act 76 of 1998 as amended

• Allegation 2

You are charged with misconduct of sexual assault in that on the 01 March 2021, or anytime incidental thereto, as an educator at Discovery Primary School, you inappropriately touched the shoulders of a Grade 6 female learner, LH, in that you caressed her with your hand around her waist area, from left to right at the back, whilst you knew or ought to have known that it was wrong to do so.

Therefore you are charges in terms of section 17(1)(b) of Employment of Educators Act 76 of 1998 as amended
• Allegation 3

You are charged with misconduct of sexual assault in that on the 02 March 2021, or anytime incidental thereto, as an educator at Discovery Primary School, you inappropriately touched the shoulders of a Grade 6 female learner, KC, by brushing her with your right hand on her right breast, whilst you knew or ought to have known that it was wrong to do so.

Therefore you are charged in terms of section 17(1)(b) of Employment of Educators Act 76 of 1998 as amended

[11] The employee pleaded not guilty to all charges.

[12] The parties agreed that the following were common cause issues: –

a) The employee has been employed by the employer since 1 May 2020 as a PL1 educator. He was first employed on a fixed term basis and was absorbed on a permanent basis in January 2021. He was stationed at Discovery Primary School and is earning a basic salary of R23686.50 per month.
b) The employee has been precautionary transferred to Johannesburg West district offices. Employee was given a notice to attend disciplinary hearing with clear charges and it informed him of his rights.
c) All offences under section 17 of Employment of Educators, Act 76 of 1998 (as amended) (hereinafter referred to as EE Act) prescribe a mandatory dismissal.
d) The employee has a clean disciplinary record.

SUMMARY OF THE PARTIES’ EVIDENCE AND ARGUMENT

This section only records the summary of the evidence that was tendered and not the verbatim testimony of the witnesses. The case was digitally recorded, and such recordings can be provided to the parties upon request.

Employer’s case

[13] The employer called six witnesses who testified as follows:

First witness: Learner LH, whose identity is withheld due to the fact that she is a leaner who was at the time of incident and testimony a minor. She understood what taking an oath is. She is 13 years old and testified under oath with the assistance of an intermediary, Ms Padi who also took an oath. She testified in camera. The summary of the evidence is as follows:
[14] She was in grade 6 at the time of the incidents as per allegation 1 and 2. The employee was teaching her Social Sciences and PSW subjects, he was kind to her and he made her feel comfortable, she trusted him. She explained that on the day of allegation 1 and at the end of the 4th period, the learners were walking out of the class when the employee told her to wait. The rest of the learners walked out. He put his hand on her shoulder and she moved her shoulder up and told him he cannot touch her as per Covid-19 regulations. She demonstrated that as she moved her shoulder up, she folded her arm with her hand toward the shoulder physically remove the employee’s hand (her elbow pointed). His hand travelled under her armpit and he held and squeezed her breast. She removed his hand with her other hand, turned around and exclaimed Sir! She immediately walked out of the classroom and the employee just stayed in class. She felt extremely uncomfortable, she did not immediately tell anyone about this incident.

[15] On the day of allegation 2 she went to the office and stood at the foyer waiting for the person in front of her to finish. The employee walked behind her and caressed his hand around her waist. She demonstrated that he put his hand just above the bum area and moved it on her body from left to right as he was walking past her. She looked at him and he walked to staff room.

[16] She was uncomfortable and she was afraid of what he would do next. The incident of the waist happened first. She told Ms Duarte about the incidents. Ms Duarte is her Grade 2 teacher and she is friendly. She and Ms Duarte had a good relationship and she could confide in her as she had known her for a long while. Ms Duarte encouraged her not to be afraid to tell him that he is not allowed to touch her. Ms Duarte said that she would report the matter.

[17] About a day after she told Ms Duarte, the employee called her and told her he had heard from Ms Coetzee that there is a rumour about a teacher who is touching learners inappropriately. He told her that if anyone asked her if he ever touched her, she must say no. She said ok and went to tell Ms Duarte about that conversation also.

[18] KC is her friend at school and she told her about the incidents and KC told her about her own incident with the very same employee.

[19] She conceded that the foyer is next to the reception and she does not know if anyone saw the incident. Her relationship with the principal is normal. She did not really interact with him before the incidents were reported to him.

Second Witness: Learner KC, whose identity is withheld due to the fact that she is a leaner who was at the time of incident and testimony a minor. She understood what taking an oath is. She is 13 years old and testified under oath with the assistance of an intermediary, Ms Mule Padi who also took an oath. She testified in camera. The summary of the evidence is as follows:
[20] On the day of incident on allegation 3, she thinks it was on 03 March 2022, while in the employee’s class, the employee went over to her desk and he looked at her textbook. He brushed her breast with his right hand and she moved her chair back to create a distance as she was uncomfortable and she said sir! He just moved along in class without saying a word.
[21] On the next day he met her and asked her where LH is. She told him she does not know and asked why he is asking. He told her he knows she is in Mr Peter’s office, he told her to tell her that “our relationship may be rocky but it’s fine.’ She did not understand what he meant by that.
[22] She told Ms Duarte about the incident. Ms Duarte was friendly and kind and treated her like her daughter. She felt comfortable talking to her. She knew Ms Duarte through LH who used to say Ms Duarte is a nice person. She trusts Ms Duarte because LH also trusts her. LH is not her best friend but a certain Ms T is her best friend. She only told LH about the incident because a similar incident had also happened to LH.
[23] On a certain day in 2020 after school, on her way to her dad car while still in the school yard, Mr Hansraj had touched her around the chest. Her father saw and asked her who the educator was and if he taught her.
[24] She doubts anyone saw the employee touching her breast because she sits at the back at the class.

Third Witness: Ms Ferahana H, whose full names are withheld due to the fact that she is a parent to the alleged victim, who is a minor leaner. Stating her full names may expose the identity of the minor learner. She gave evidence under oath as follows:

[25] LH is her youngest child and she was 12 and in grade 6 in the year of the alleged incident, 2021. On a certain day when picking LH from school, she told her that something wrong had happened and asked her not to get angry. She told her that the employee had touched her on her shoulder, she shrugged his hand, and he slid it under the armpit and squeezed her breast.
[26] The principal called the witness to school. She went to the school and she was incredibly angry, more so that the employee was there. She also met the other girl and her dad at the office. She had not met them before going to the office.
[27] LH was distraught when she explained. She was apologetic and close to tears. She had to reassure LH that it was not her fault. LH was a grade top achiever from the time she started school. She is still a top achiever but her standard has dropped since the incident. She has become more introverted and has started wearing baggy clothes.
[28] The employee’s mom once called her trying to talk about the employee. She told the employee’s mom to stay away from them.
[29] LH’s favourite teacher is Ms Duarte ever since she taught her from Grade 2. There are two who are LH’s least favourite but employee is not part of those. LH would almost never mention the employee in their random chats at home.
Cross examination
[30] She was very furious when she was at school and cannot remember what was said about the CCTV footage. She remembers asking for them but LH had also stated that the employee would make sure not to touch her in front of the cameras.
[31] She recorded the employee’s mom when she was talking and if the employee so wishes she could play the recording. She was surprised where the employee’s mom had gotten her details.
[32] She did have Ms Duarte’s phone numbers while LH was still in Grade 2 and had them again recently because of the case. She does not talk socially to Ms Duarte at all.

Fourth Witness: Nadia Duarte testified under oath and the summary is as follows:

[33] She is an educator at Discovery Primary School and working at the foundation phase. She has been at the school for 6 years now. She has a great relationship with most of her learners, LH too, whom she taught in grade 2. She did not teach KC but she knows that KC is a friend of LH as they sometimes visit her class together.
[34] LH reported to her that the employee had touched her in appropriately. She immediately went to the office to report the matter to Mr Peters, the principal but he was not there. She reported the matter to Mr Feldman, the deputy principal. A meeting was held between her, principal, and LH. A separate meeting was held with KC who also related her incident. After this, she heard that other teachers had complained of his over familiarity with female students.
[35] She authored the email on 23 March 2022 as appears on page 13 of Bundle R explaining what had happened. She only wrote it then because it was requested of her to write it then. But she reported the matter immediately.
Cross examination
[36] She has no social relationship with LH’s mom, she only knows her as a parent to one of her learners. She did exchange her number with LH’s mom during the hearing of this case and that was in order to arrange for transport to the employer’s head-office when the case was sitting there.
[37] She also had a good working relationship with the employee, they have never had any altercations. The employee was fairly new and she was at the far end of the school at the foundation phase and did not readily interact with him.
[38] She never thought of requesting for a footage because her primary concern was to report the matter as the learner had confided in her.
[39] It was reported to her that the incident took place on or around 26 February 2021 and meetings were held with herself, principal, and learners on 1 and 2 March 2021. She cannot explain why the charge sheet had recorded the 1st and 2nd March as dates of incidents.

Fifth witness: Jodie S , whose full names are withheld due to the fact that he is a parent to the alleged victim, who is a minor leaner. Stating his full names may expose the identity of the minor learner. He gave evidence under oath as follows testified under oath and the summary is as follows:

[40] He is KC’s stepfather and has been staying with her and her mom for the past 7 years. He takes turns with her mom to drop and pick her from school.
[41] On a day he was fetching KC from school, she reported that the employee had touched her breast while he was standing on her desk and checking her work. They were in the car on their way home. He immediately called his wife and told her what happened. His father-in-law called him and told him to turn back and go back to school to report the matter. His father-in-law arrived at the school also and they met Mr Peters, the principal.
[42] KC’s performance has dropped since the incident and has become withdrawn socially.
[43] He does not know the employee but recalls he once saw him in 2020 having a conversation with KC at the waiting area after school and they were laughing. He extended his hand towards her as if he wanted to tap her shoulder and she bumped his hand on her chest are towards shoulder. He asked her who the educator was and if he taught her. She said it was Mr Hansraj and he did not teach her. She said Mr Hansraj had told her that they are friends. He cautioned her against talking to educators that do not even teach her. He found it strange that that he would be familiar with a learner he did not teach.

Cross-examination
[44] He did not ask for a footage when he reported the matter to the principal. He does not know the employee and has no vendetta against him.

Sixth Witness: Raymond Charles Peters testified under oath and the summary is as follows:

[45] He is the principal of Discovery Primary School since November 2011.
[46] Mr Feldman reported to him that Ms Duarte had reported on an incident of alleged inappropriate touching of a learner. He spoke to Mr Hansraj and told him what had been reported. He also reported to the district office of the employer and to the parents of the minor children.
[47] He authored the report on page 4 of the bundle explaining what had been reported to him.
[48] All educators are inducted and professional conduct was addressed in these inductions. It was Covid times and the Standard Operating Procedures (SOPs) had changed meaning that distance and no touching was the order of the day. Other colleagues had previously complained about the employee’s over-familiarity’ with girl learners. He spoke to Mr Hansraj to caution him who indicated that he was counselling a specific girl regarding family issues.
[49] They do have CCTV cameras at the school. They were functional but he never thought of checking the footages at that time. The recording of the CCTV footage lapses every second month. The employee never requested the CCTV footages as well.
Cross -examination
[50] He is aware that the employee converted into Muslim religion when he was a teacher at the school. Arrangements were made for him to go to pray at the Mosque on Fridays and does not recall ever denying him to go.
[51] His relationship with the employee was fine, the employee is a jovial person and he has at some point done gate duties with him. Except for the complaint about his close proximity with the learners, there has not been any complaint against the employee from the other educators or staff. If his memory serves him well, the ones who had complained about the matter were Mr Ward, Mr Williams, and Ms Damens. The employee has also never reported any animosities from other colleagues.
[52] He denied on strongest terms and disagreed with the notion that he had colluded with the other teachers and the minor children to lie. He denied that he had favourites and that he had influence on who gets a permanent position at the school. He recalls that the employee’s absorption process took time but that was due to the employee’s results that were still pending and SACE processes that were delayed because we were in Covid-19 Lockdowns.

THE EMPLOYEE’S CASE

First witness: Kashan Rai Hansraj, the employee testified under oath and the summary is as follows:-
[53] He was employed on a temporary basis in 2020 and became a permanent employee in January 2021.
[54] His relationship with Mr Peters, the school principal was tumultuous, it depended on what someone would have said about the employee to Mr Peters. He had altercations with Mr Peters, one was when Mr Peters prevented him from going to the Mosque twice and the second one was when people started spreading rumours about the employee. He confronted Mr Peters about the rumours that were spread and Mr Peters just pushed the matter aside. Mr Peters had also prevented him from getting absorbed.
[55] He knows the two learners who laid the complaint against his as he was teaching them.
[56] Ms Duarte, Mr Ward, and Ms Coetzee hated him. These three educators were remarkably close to the two learners, yet only Ms Coetzee taught the learners. These educators had informally reported him on late coming, abandoning classes and Mr Peters would chastise him by shouting at him.
[57] The allegations against him are lies and are fabricated and he believes the two learners were used as a means to get him out of school. All three incidents allegedly occurred in places where there are multiple people walking around and there are cameras. There is no eyewitness and no footage so all these are lies.
[58] When Mr Peters called him to tell him about this complaint, he was with Mr Feldman. He told him that he has received the complaints and he believe them to be true. Mr Peters hurled insults him. The employee asked Mr Peters to rather report the matter at the district office.
[59] Besides a handful of people, no one likes Mr Peters, he is incompetent and does not follow processes, he shows heavy favouritism.
Cross examination
[60] He conceded that the versions that he stated regarding Mr Peters hating him and all the altercations were never put to Mr Peters while he was on the stand.
[61] He stated that he does not know the reason the three teachers hate him, he just realised they hated him when they spread rumours about him. The two learners were rudely behaved and loud in his class, he conceded that he never put this version told the learners when they testified that they had a good relationship with him. He has actually seen the two learners together with Ms Duarte and Mr Ward talking but he does not know what they were discussing.
[62] He does not believe that the parents were part of the collusion. He also does not believe the principal colluded with the teachers. When it was put to him that his version is that the principal colluded with the teachers, he reverted to the version that the principal was part of the colluding group.
[63] In 2020, it is possible that he extended her hand to stop KC from running, not to touch her.
[64] He recalls the testimony of LH’s mom when she testified that his mom contacted her. He chose not to let her play the recorded message because he did not want to be ambushed and he viewed it irrelevant and not beneficial for him.
[65] He would not want to be placed at the same school even if he is to be found not guilty because the principal and his allies create a very toxic environment. He has never before laid a grievance regarding the conduct of any of the educators.
[66] He received the charge sheet on 21 May 2021. Mr Mbonani deposed to the affidavit on page 1 to 5 of Bundle A on 16 July 2021. Mr Mbonani is seeking justice for him; he never asked him to write the affidavit. He is aware as stated in the affidavit of Mr Mbonani that people are jealous of his car because they have jestingly told him they are jealous of his car. Mr Mbonani is not an educator but a general assistants who is never in class when educators are teaching.
[67] He was aware of the presence of CCTV cameras at school from the time of his appointment in 2020. He did not ask for the video footage because he was transferred to the district to forthwith report there. He recalls having called the principal who said he cannot discuss case with him. He remembers asking a lady at the labour relations office to call the principal. The lady called the principal and he said he would call back. He did tell his representative, Mr Kubayi that he had requested the video footage, he does not know why it was not asked. In any event, the employer must prove his guilt.

Second Witness: Mfundhisi William Mbonani testified under oath and the summary is as follows:

[68] He has been working at discovery Primary School since 2015 as a general assistant. He considers himself the ears and eye of the school.
[69] Mr Peters, the principal has a favouritism. He doubts the employee can touch girls inappropriately because he is friendly to learners and he loves his job.
[70] He normally works outside and sees people interacting with one another. He knows LH and KC; he has not seen them at school recently. As per his affidavit, around November or December 2020, he heard other teachers complaining about the employee’s close proximity with learners. He went to report to Mr Peters and told him that he thought people were just jealous of the employee. Mr Peters responded by saying that if there are any allegations of that nature, even if they were against the witness himself, he would report to the district without hesitation.
[71] In March 2021, he met the employee at school crying saying there were allegations against him that he touched learners inappropriately and he told him that his friends are the once spoon-feeding Mr Peters with these allegations. Ms Coetzee, Mr Ward, and Mr Williams once asked him to be on the lookout for the employee and if he observes him touching or in close proximity with learners, he must take pictures of him. This idea was also given to one Israel, the security guard.
[72] He doubts that the employee can have an affair with people of a Black race because Indian people who are of Muslim religion normally do not have affairs with Black people.
Cross examination
[73] When it was put to him that LH is Indian, he had no comment.
[74] He conceded that he could not have been with the employee or could not have been able to see the employee all the time. There are about 45 classes at the school and as much as he views himself as the eyes and ears of the school, he cannot possibly see everything.
[75] What he found so wrong about that idea of taking pictures of the employee is that it would amount to a trap. That is why he went to report the matter to Mr Peters.
[76] Although he knows that Mr Peters practices favouritism, he is not sure whether or not Mr Hansraj was favoured or not.

Third Witness: Khethiwe Emelda Mtshali testified under oath and the summary is as follows:

[77] She works at Discovery Primary School as an educator and has been working there for the past 10 years. The employee is her colleague and her observation is that he generally has a good relationship with learners and other colleagues.
[78] She basically does not believe that the employee has committed the offences. At the foyer, there are about five ladies working there and someone would have seen something. There are also CCTV cameras in classrooms. The employee is also married and he is a professional so he would not touch women inappropriately.
[79] The principal has his favourite educators at school and does not know if the employee is part of his favourites. Ms Paul, Mr ward and Mr Williams are favoured by the principal as they are related.
Cross examination
[80] She is not always with the employee all the time. She has 34 years working as an educator and has heard cases of sexual assault and she doubt professionals can do such a thing.
[81] No training is needed to know that you cannot touch breast of other people and educators know that as part of their professional conduct.

Fifth Witness: Riyaadh Khan testified under oath and the summary is as follows:
[82] He has been an educator at Discovery Primary School since 2018. The employee started as a colleague who later became a friend.
[83] The foyer is quite busy as there is one finance lady and four other ladies at the other office. There are often other educators passing by and learners queuing for something
[84] He taught LH and KC Maths an LH was one of the top learners.
[85] He knows the employee as a good person. The employee converted to Muslim and they used to go to Mosque together. He doubts the employee did this because there is no evidence to support that he did.
Cross examination
[86] He does not recall a day where the principal ever denied them or the employee a chance to go to the Mosque. They often used to travel together in the employee’s car.
[87] He conceded that he could only speak to the character of the employee and not the allegations.
[88] He has not experienced any favouritism by the principal and therefore cannot comment. He does not think the employee had conflict with any educator and he doubts anyone was jealous of the employee.

ANALYSIS OF THE PARTIES’ EVIDENCE AND ARGUMENT

[89] The employee was charged under sections 17 (1) (b) of the Employment of Educators Act which provide as follows:
17(1) An educator must be dismissed if he or she is found guilty of –
b) committing an act of sexual assault on a learner, student, or other employee;
[90] The allegation against the employee is that he committed an acts of sexual assault on two learners by touching them of their breasts and waist area. Allegations 1 and 2 relate to sexual assault of LH while allegation 3 relate to sexual assault of KC. The employee denied that these incidents as alleged took place. The employer relied on the evidence of the learners who gave version of events regarding the incidents; the evidence of Ms Duarte, and the children’s parents whom the incidents were reported to and also that of the principal who reported the matter.
[91] The employee relied on his own testimony and that of three witnesses who were his colleagues at the school.
[92] The employee’s witnesses all testified on the character of the employee and gave their reasons why they believe the employee could not commit such an offence.
[93] As a rule, evidence pertaining to the character of an accused employee against or in connection with whom any offence of an indecent nature is alleged to have been committed, shall not be adduced, and such person shall not be questioned regarding same, except where the commissioner is satisfied that such evidence or questioning is relevant. One of the enduring sexual offences myths is that the perpetrators of such offences are often strangers who look and behave like monsters who are abusive all the time. The reality is that perpetrators of sexual offences can be gentle, loving, and friendly people who are esteemed in the society. The perpetrators are often known to the victim. This is part of the reasons why character evidence in these case is not admissible. There is no one correct answer that can be given on the question of how a sexual offender looks or behaves like. Character evidence, if it were allowed would do nothing but to perpetuate a myth about who and how a sexual offender is.
[94] In this case, I have heard the most appalling reasons as to why this employee could not have committed such a crime. Stemming from the fact that because he is an Indian Muslim cannot sexually assault a girl from another race and that he, being a trained professional cannot commit such an offence. It is perturbing that such misconception comes even from the likes of Ms Mtshali who has more than 34 years as an educator and still armed with the duty to ensure that the best interest of the child is safe guarded. The statements by the three witnesses of the employee that they do not believe that the employee can commit such an offence were especially irresponsible considering that they are in the education industry. The two, Ms Mtshali and Mr Khan are on the stead of parents while at school with the learners. What makes the statements irresponsible is that they solely relied on the character of the employee. They all testified that the minor children were good learners and had no reason to believe the children would lie.
[95] Mr Mbonani and Ms Mtshali testified that Mr Peters had favourites at the school. They both testified that they do not know whether the employee was on the ‘favoured- list’ of the principal or not. Their testimony regarding the alleged favouritism did nothing to assist the employee’s case.
[96] Mr Khan and Ms Mtshali testified that whether trained or not, educators know that one cannot touch the breasts of learners. Training becomes irrelevant when the offence is of such as this.
[97] The evidence of Mr Mbonani, Ms Mtshali and Mr Khan as regards their view on whether the employee committed the offence and as regards the character of the employee unreliable and inadmissible and is subsequently rejected.
[98] The assessment on whether the employee committed the offence subsequently boils down to the children’s evidence and that of the employee.
[99] The learners’ evidence was congruent and free from contradictions. They both were able to recollect and/or narrate in respect of the incidents and answered all questions to satisfaction. It must be noted that no evidence was given regarding what the learners’ motive for telling lies would have been, it seemed that the employee and the learners enjoyed a normal teacher and learner relationship. They both testified that they had a good relationship with the educator and had no reason to lie. The educator also stated that he believes the learners were coached to lie against him. It was never his version that the learners themselves concocted the allegations.
[100] On the other hand, the evidence of the employee leaved much to be desired. Basically, he submitted that the educators coached the learners to start this lie against him. The applicant stated that the principal did not like him and he wanted to get rid of him. Almost immediately he stated that he doubts the principal was part of the alleged collusion against him. He then reverted to the version that the principal does not like him. The applicant’s version on this aspect was not steady.
[101] He testified that he saw that the principal does not like him because the principal would deny him an opportunity to go to the Mosque. Even his witness Mr Khan is unaware of this allegation. Actually, according to Mr Khan, they would often travel in the employee’s car and he had never reported that he was refused an opportunity to go to the mosque. The principal denied that he ever refused him an opportunity to go to the mosque. Clearly, this version is just fabricated in order to create an impression that the principal did not like employee.
[102] Some of the versions that were stated by the employee regarding the principal were not even put to the principal when he was on the stand. One such version is that the employee did request from the principal to be provided with a footage shortly after the matter was reported. This was never put to the principal; he was only asked why he did not view the footage. The purpose of a proper cross-examination is to place a one-sided version, into proper perspective by eliciting facts which place a different complexion on the matter, or by demonstrating that the witness is untruthful. Failure to cross examine a witness of material aspects renders the evidence of that witness to be accepted as unchallenged.
[103] The applicant submitted that Ms Duarte hated him because she once asked for assistance on IT issues and he did not assist. He stated that the other teachers were jealous of him and they jestingly told him that. Ms Duarte denied that she ever had any altercations with the employee. In fact, she sated that she had very few interactions with him since he was new and she was at foundation phase which is at a distance from senior phase side. The version of the employee is improbable. Even if he indeed had not assisted Ms Duarte with IT issues, Ms Duarte would really have to be vindictive to want to concoct such a serious allegations against the employee. This is considering there is even no evidence of what the so-called IT issues were and what bearing the IT issues had on Ms Duarte’s life or work. Again, the employee stated that “they” jestingly told him they hate him. It is improbable that they all would tell him they hate him. If one person said it, how did the employee decide he/she was speaking for other educators. Why would they hate him? If they really hated him, would they really tell him? All these rhetoric questions augment the improbability of the employee’s version that the educators hated him.
[104] On question of the video footage, the employee argued that it is in any event for the employer to prove that the employee is guilty and it was incumbent on the employer to provide the footage. During arbitration, while the overall onus never shifts from the employer, the need to present or counter evidence may rest on different parties. In a case involving misconduct, once the employer has assembled out its allegations with evidence to a degree that its version requires an answer or rebuttal lest it be believed, the evidentiary burden shifts onto the accused employee to prove otherwise. This simply means that the employee may not sit and fold his arms because the overall onus is not on him.
[105] I am guided in this regard by the case of Woolworths (Pty) Ltd v CCMA and Others (2011) 32 ILJ 2455(LAC) at Para 34 where the Labour Appeal Court held that video footage capturing an employee concealing merchandise on his person while working in a retail store constitutes a prima facie case of dishonesty against the employee. This then shifts the evidentiary burden to the employee. In the absence of a credible and probable explanation from the employee, the inference that the arbitrator can most reasonably draw is that the employee acted dishonestly and that the employer has discharged its onus.
[106] Again, acts of sexual harassment often takes place in isolated circumstances, away from the glare of the third parties. Even those that are committed in public areas are committed in such a manner that passers-by would not see. The act of sliding the had around the waist area as demonstrated by LH or touching KC’s breast in class would not have taken even 3 seconds for passers-by and other learners to actually observe what was going on. It is probable that such incidents could have happened at the foyer and in class without anybody noticing. It is equally probable that the employee touched the breast of LH in class when he asked her to remain behind.
[107] The learners had no reason to lie. The employee dismally failed to prove his allegation of vendetta against him by the principal or other colleagues. There also had been concerns from other staff about the applicant’s close proximity with girl learners which had been raised with the employee. It must be noted that these were Covid-19 times and as testified by the principal, touching was strictly prohibited as per Covid-19 regulations. It is highly probable that the employee was grooming the learners.
[108] Weighing the totality of the evidence and probabilities in both parties’ version, it is my finding that the probabilities favour the version of the employer that the employee is guilty of allegation 1,2 and 3. His conduct is improper, disgraceful, and unacceptable and amounts to sexual harassment. Legislation prohibits such conduct. I have particularly considered the EE Act as well as the SACE Code of Professional Ethics for educators (South African Council for Educators, as intended in the South African Council for Educators Act, 31 of 2000). Offences in section 17 of the EE Act are dismissible offences and no further discretion is required from the commissioner once a finding of guilt is made in that section. There can also be no gain-saying that the nature of the offence of sexual assault on a minor child automatically breaks the trust relationship between the educator and the employer.
[109] In these circumstances based on the evidence and my conclusions above, the employee must be dismissed with immediate effect.
AWARD