In the matter between

SADTU obo Tonjane Applicant

And

DOE-FS Respondent

Union/Applicant’s representative: SADTU: V.Duma
Tel. No 056 212 3851
Fax No 056 212 2550

Respondent’s Representative DOE-FS : TP Motsoeneng
Tel No: 051 404 4293
Fax No: 051 404 4388

DETAILS OF HEARING AND REPRESENTATION.
The arbitration was held on 3 November 2004 at the DOE-FS offices in Sasolburg. Mr MV Duma, SADTU official, represented the applicant while Mr TP Motsoeneng, DOE-FS Labour Relations Officer, represented the respondent.

Two sets of bundles of documents were presented from each party.

ISSUE TO BE DECIDED.

I am to determine whether the dismissal of the applicant was substantively fair or not.

SURVEY OF EVIDENCE AND ARGUMENTS.

Evidence of the Respondent’s witness: F.M. Motloung.
The witness testified that she was the principal at Ipatleleng Primary School where the applicant was the Head of Department (HOD) of Intermediate Phase.

She testified that on 28 May 2002, Mrs Ramphalile came to complain about the alleged sexual relationship between her daughter, Mahadio, a learner at Ipatleleng and the educator at the same school, the applicant.

She averred that she called members of the School Management Team (SMT). As most SMT members were on a workshop, only one attended together with Mahadio’s sister, friends and classmates. In the meeting Mahadio, at first denied, but later admitted that she was having an affair with the applicant. She averred that when the applicant was later confronted denied having a sexual relationship with the learner.

She averred that some of the educators confirmed that there was a relationship between Mahadio and the applicant. She further averred that on one trip the applicant paid for the learner and the learner did not sleep at her home that night.

She testified that during the hearings the applicant went to Mrs Ramphalile to ask her to drop charges and that the applicant would pay everything, and even after his dismissal the applicant contacted Mrs Ramphalile, as the witness was told by Mrs Ramphalile.
Evidence of the Respondent’s witness: M.S Ramphalile.
The witness testified that she was Mahadio’s sister. She testified that the applicant used to teach her Technology.

She averred that she suspected that her sister, Mahadio, was having a sexual relationship with the applicant because of ‘their actions.’ She asked Ms Ntatiso to look into the matter, but Ms Ntatiso never came back to her. She also told their mother about her suspicion, and the confrontation that ensued Mahadio denied everything.

She averred that Mahadio used to go to the applicant’s office under the pretext that the applicant was helping her.

Evidence of the Respondent’s witness: M.M. Kaemane.
The witness testified that she was Mahadio’s mother. She knew the applicant as the HOD at Ipatleleng Primary School.

She testified that she was not aware of the relationship between her daughter and the applicant until her other daughter told her. She averred that she went to Ipatleleng, where Mahadio and the applicant were called, in that meeting the applicant denied having an affair, while her daughter admitted that they were having a sexual relationship. She testified that she requested that the applicant be called to order.

She testified that she was not called when the hearing took place. She averred that the applicant came to her after he received a letter in which he had to make a statement.

Evidence of the Respondent’s witness: Mahadio. A. Ramphalile.
The witness testified that in 2002 she was a learner at Ipatleleng Primary School, that the applicant taught Technology and Mathematics at the school.

She testified that she had nothing to share, that she had never met the applicant anywhere outside school. She, was, thereupon declared a hostile witness.
She testified that she knew document A, ‘True Love- Secret Book’ that she did write in it on Pages 2, 4 and 5 but she did not write on Page 2 Paragraph 2 that was written by a friend, Modiehi, as the handwriting was different. She testified that the photographs, taken at the farewell function, in the bundle depicted herself with the applicant. She averred that she was not the only one who took photographs with the applicant; there were other learners who also did.
She averred that she was not in love with the applicant, that when she admitted to having a sexual relationship with him she was not under oath, Document B- Transcript of Disciplinary Hearing.

She testified that they have never met, never phoned or spoken to him. She testified that she did not know the applicant’s cell phone number or his home numbers, that she had his numbers when he was still an educator because they were on the ‘wall’ (notice board). She testified that he had never phoned the applicant or be phoned by him. She admitted under oath that the cell phone numbers on Page 1 of Document A were of the applicant.

She testified that she dictated the affidavit to the police, but it was not read to her before she signed.

Evidence of the Applicant’s witness: T.D. Tonjane.
The witness testified that he was the HOD- Intermediate Phase appointed on 1 January 1996 and dismissed on 20 August 2004. He was earning R8800 per month. He headed sports, coached soccer and volleyball. He testified that he knew Mahadio.

He averred that he taught her Technology, that he was never sexually involved with the learner. He testified that as sports organiser his cell phone numbers were readily available, he issued business cards to people as a sign writer and video developer.

He averred that in 2002 at the farewell function of Ms Rasenyalo, many learners requested to appear with him in their photographs. He testified that he helped many learners in Mathematics and Art and that Mahadio was one of those learners he helped.

ANALYSIS OF EVIDENCE AND ARGUMENTS.

I am to determine whether the dismissal of the applicant was substantively fair or not.

I considered evidence led, 5 witnesses in total, documents tendered and closing arguments.

The sister’s testimony revealed that she merely suspected that there was a sexual relationship between Mahadio and the applicant. Her suspicion and the fact that she enlisted the help of one of the educators at school do not prove that there was, indeed, a sexual relationship.

The mother impulsively went to school to find out what was happening. I am of the view that she was supposed to have gone to school after she had investigated the matter. She was not aware of any sexual relationship between her daughter and the applicant. It was a waste of time and money to have her travel from Koppies to come and testify to nothing concerning the alleged sexual relationship of daughter and the applicant.

The principal testified on what she was told for a greater part. It would have been better to have called those who told her! She, however, was present when Mahadio admitted to the relationship and the applicant denied the allegations.

The evidence led during the enquiry and probably at appeal differs markedly from the one presented to me by the learner, Mahadio. She admitted to having an affair with the applicant and went on to describe in detail what transpired during their sexual encounter at the applicant’s house during the disciplinary hearing (Document B, Page 12). This admission was not challenged. I am presented with evidence, backed by an affidavit, that the sexual relationship never existed.

The matter was initially set down for disciplinary hearing on 16 May 2003, postponed to 28 May 2003. There were 12 days between the dates. Surely if there was any doubt in her mind it could have cleared, that if there was evidence to be presented she should have known what be prepare and what to say. It is even more strange that she had to get an ‘affidavit’ for something that she should have said in her testimony. She could not even explain why did her testimony change from what she said in the hearing. There was an affirmation at disciplinary hearing levels when she gave details of their sexual encounter.

It could have been interesting to be told why was the applicant’s cell phone number the first entry in her secret book. The applicant was supposed only to be helping how come he was number one in her secret book. He was not even the class teacher. What informed the sequence?

Document A was a secret book, yet there entries attributed to other persons.

I see no sexual relationship in the photographs presented. Evidence was also led that it was common for learners to take photographs with educators, and on that day Mahadio was not the only learner who took the photographs with the applicant.

The applicant was HOD, a position of authority and trust. He should have been aware of Section 17(1)(c) of the Employment of Educators Act, which states that:

An educator MUST be dismissed if he/she is found guilty of having a sexual relationship with a learner of the school where he/she is employed.

Both the learner and the applicant/educator were at Ipatleleng Primary School. It is not only a breach of discipline to be involved with minors sexually but also a criminal offence.

I find the dismissal of the applicant to have been effected for a fair reason.

AWARD

1. The matter is dismissed. The dismissal was substantively fair.
2. I make no order as to costs.

ELRC Panellist Saki Makume
Date 17 November 2004

EDUCATION LABOUR RELATIONS COUNCIL

ARBITRATION AWARD

CASE NUMBER PSES 345-04/05 FS
APPLICANT TONJANE (SADTU)
RESPONDENT DEPARTMENT OF EDUCATION FS
NATURE UNFAIR DISMISSAL
ARBITRATOR DATE OF ARBITRATION 3 NOVEMBER 2004
VENUE SASOLBURG

REPRESENTATION:

APPLICANT MR M V DUMA (SADTU)
RESPONDENT MR T P MOTSOENENG

AWARD:

1 The matter is dismissed. The dismissal was substantively fair.
2 I make no order as to costs.

DATE OF AWARD 17 NOVEMBER 2004