Panellist: Themba Manganyi
Case No.: ELRC641-20/21GP
Dates of Hearing: 20 July 2021 and 16 August 2021;
Date of Arguments: 23 August 2021
Date of Award: 16 September 2021

In the Arbitration Hearing between

SADTU OBO NYIKO B. BALOYI APPLICANT

And

GAUTENG DEPARTMENT OF EDUCATION RESPONDENT

Applicant’s representative:
Mr Ben Moyo
E-Mail Address: bentseleng@gmail.com

Respondent’s representative:
Mr Simphiwe Hadebe
E-Mail Address: Simphiwe.Hadebe@gauteng.gov.za

Details of hearing and representation

1. SADTU referred an alleged unfair dismissal dispute in terms of section 191(1) of the Labour Relations Act 66 of 1995 (“the LRA”), as amended, to the ELRC on 14 January 2021. The arbitration proceedings were held on 20 July 2021 and 08 August 2021 at Wonderboom Junction in Pretoria North. The parties to the dispute are the Gauteng Department of Education (“the Respondent”) and SADTU obo Mr Nyiko B. Baloyi (“the Applicant”). Mr S.N.C Hadebe represented the Respondent and Mr B.T Moyo, a SADTU Official, represented the Applicant.

2. The parties conducted a pre-arbitration meeting on 26 May 2021 and submitted the minutes thereof to the Council on even date. The parties submitted bundles of documents into record and the authenticity of the contents of the documents was not in dispute. At the end of the proceedings, parties agreed to submit their heads of arguments in writing on or before 23 August 2021 and they duly complied. The proceedings were digitally recorded and the recordings were submitted to the Council.

Issue/s to be decided

3. I am required to determine whether the dismissal was procedurally and substantively fair. In the event that I find that the dismissal was unfair, I would be required to determine the appropriate relief.

Background

4. The Applicant was appointed as a Principal, Post Level 10, at Thornridge Secondary School on 01 January 2017. The Applicant was dismissed on 14 December 2020 following an allegation of sexually assaulting Nomhle Shaku, an employee at Thornridge Secondary School, on 16 July 2019. The charge was in terms of section 17(1)(b) of the Employment of Educators Act 76 of 1998, as amended. The Applicant earned R496 698, 00 per annum at the time of his dismissal. The Applicant sought reinstatement if I find in his favour.

Survey of evidence and arguments

5. What follows hereunder is a summary of the witnesses’ submissions and not a verbatim account of their testimony. All the witnesses testified under oath and with an aid of an interpreter where necessary.

The Respondent’s case

6. Ms Nomhle Shaku (“Nomhle”) testified that the statement on page 3 and 4 of the bundle was her statement. She stated that on 16 July 2019 whilst she was standing with her two colleagues, Baloyi came to her with letters and requested her to proof-read the letters. She went with Baloyi to his office to proof-read them. After proof-reading them, Baloyi requested her to hug him. She stood up and hugged him. Baloyi squeezed her tightly and forcefully wanted to kiss her. She told Baloyi to stop what he was doing and he requested for a baby kiss. She moved her face away and told him again to stop what he was doing. She could feel Baloyi’s erection because he was squeezing her very tightly. She told Baloyi that she needed to fetch her daughter and that it was late. When she got out of Baloyi’s office she met her mom in the passage and she told her mom that they should leave. When they got into the car, as she was about to tell her mom what happened in Baloyi’s office, her mom said she saw what happened. Then her mom sent Baloyi a WhatsApp message on page 6 of the bundle. She had to attend counseling sessions because she was not coping after the incident.

7. Under cross-examination, she stated that she had a very great relationship with Baloyi and she considered Baloyi like a father, pastor and mentor. She stated that her mom and Baloyi had a brother and sister-like relationship. She denied that she went to Baloyi’s office on her own and stated that Baloyi called her. She denied that there were teachers in the admin office who were preparing reports at the time of the incident and stated that the parents were only coming at 17h00 to collect the reports. She refuted that the words “this deserves a hug” were ever uttered. She was adamant that she was the one who was reading the letter from the laptop and that Baloyi was standing. She stated that when she left Baloyi’s office she saw her two colleagues and told them that they (including herself) could knock off, but she did not tell her colleagues what happened in Baloyi’s office as she was still in shock. She confirmed that she has been with Baloyi being only the two of them when they were looking for a venue for matric dance. She conceded that she saw one Mr Mashimbye when she went to the car, but she did not talk to him. She refuted the version that Baloyi asked her to bring the letter to show to Mashimbye.

8. Mrs Angelina Shaku (“Shaku”) stated that page 5 of the bundle was her statement that she dictated to Nomhle and that Nomhle was her daughter. She stated that she saw Baloyi through his office window holding Nomhle whilst she was talking over her phone. She then ran to go to Baloyi’s office, but as she entered the admin office, Nomhle came and told her that they should leave, there is something bad that happened. She testified that she saw Nomhle standing facing Baloyi and Baloyi was facing the window. She stated that she could see that Baloyi was leaning trying to kiss Nomhle. She confirmed that she sent Baloyi the WhatsApp message on page 6 and that Baloyi responded. She stated that Nomhle opened a sexual harassment case, but the case was still pending because there were claims that there were nude pictures that she (Shaku) allegedly sent to Baloyi. She stated that Baloyi’s wife called her and told her that she (Baloyi’s wife) wanted to come with her uncles to pay damages.

9. Under cross-examination, she stated that she had a very close relationship with Baloyi and that she approached him for a vacancy at the school for Nomhle to volunteer. She stated that Baloyi was generally a very kindhearted person. She reiterated that she saw Nomhle and Baloyi through Baloyi’s office window whilst she was busy on her phone and she ran back to enter the admin office, but met Nomhle at the passage. Nomhle told her that they should leave. She submitted that she did not want to confront Baloyi at that stage out of respect for him, because she possibly would have said things that she would later regret. She confirmed that there were two ladies (Tebogo and Rankapole) at the admin office, but she did not know if the ladies saw that Nomhle was crying. She confirmed that after she met with Nomhle, she went to bid Baloyi good bye, but she could not face Baloyi as she was hurt. She confirmed that when she got her exam time table she went to Baloyi for a prayer. She further confirmed that she called Baloyi regarding a list for food parcels.

The Applicant’s case

10. Baloyi testified that Nomhle was appointed as his PA, assisted with admin duties and she was also a secretary for the SGB. Nomhle was very energetic and they used to work until around 21h30 and he would drop her off at her home after work. They would at times work on Saturdays and they travelled together on many occasions. He stated that Nomhle made these allegations against him because of her mother’s influence. He said that Shaku made sexual advances on him. He stated that on the day of the alleged incident he came back from the district at around 14h30 and Nomhle came to his office and asked him if there was anything that he wanted her to do for him. He gave her two letters to proof-read. After she proof-read the letters, he sent the e-mail. He said that Nomhle was in his office for less than six (6) minutes. He stated that after Nomhle read his letter, she said the letter deserved a hug and she put her hand around his neck. He put his hand around her waist whilst he was still on his chair. He refuted that he hugged and tried to kiss Nomhle and stated that it was busy at the school on that particular day because they were issuing reports. Regarding the WhatsApp message, he stated that he was apologizing for having kept Nomhle long after her knock off time and that he was referring to Shaku when he stated that ‘sometimes when you are stressed you end up acting funny.

11. Under cross-examination, he confirmed that the document on page 9 and 10 was written by him. He disputed that Nomhle was seated when she proof-read the letter. When he commented about Nomhle’s statement on page 3 and 4, he stated that the statement was written at home with her mother’s assistance. He refuted that he neither hugged Nomhle tightly nor asked her for a kiss. He stated that on the WhatsApp message he apologised for wasting Nomhle’s time. He submitted that he called Shaku the following day for her to explain her WhatsApp message.

12. Mrs Angel Baloyi (“Angel”) testified that was Baloyi’s wife and that Baloyi told her about the allegation on page 5 of the bundle. She could not comment about the allegation levelled against Baloyi. She stated that she was shocked when she heard about the allegations. She stated that she never called Shaku as stated in Shaku’s statement to arrange her uncles to pay damages.

13. Under cross-examination, she submitted that these kinds of allegations would affect the family emotionally. She stated that she would not support her husband if he has done something bad. She conceded that she was not at the school when this incident occurred.

Closing arguments

14. As indicated herein above that the parties submitted their heads of arguments in writing, I do not propose to restate them in this award as they are a matter of record. I will only make mention of them in my analysis whenever necessary.

Analysis of evidence and argument

15. This is an arbitration award in line with the prescripts of section 138(7) of the Labour Relations Act 66 of 1995 (“the LRA”), as amended. It is therefore not the intention of this award to repeat all the submissions made during these proceedings. Only salient points that I considered to be of importance to me to arrive at a reasonable finding will be restated in this award.

16. Section 192(1) of the Labour Relations Act 66 of 1995 (“the LRA”) places the onus on the employee to establish the existence of a dismissal. Once that has been established, section 192(2) of the LRA places the onus on the employer party to prove on a balance of probabilities that the dismissal had been for a fair reason and that a fair procedure was followed, with due regard to the standard of the Code of Good Practice: Dismissals as contained in Schedule 8 to the LRA (the Code). Dismissal was not in dispute. Therefore, the Respondent bears the onus of proof.

17. The Code of Good Practice on Handling Sexual Harassment defines sexual harassment as unwanted conduct of a sexual nature. The Code further states that the forms of sexual harassment may include unwelcome physical, verbal or non-verbal conduct and that the physical conduct of a sexual nature includes all unwanted physical contact, ranging from touching to sexual assault and rape, and includes a strip search by or in the presence of the opposite sex.

18. I have been presented with two mutually destructive versions in these proceedings and I am therefore required to employ a technique as laid out by the Supreme Court of Appeal in Stellenbosch Farmers Winery Group Limited and Another v Martell et Cie and Others. The SCA had this to say:

“…The technique generally employed by courts in resolving factual disputes of this nature may conveniently be summarized as follows. To come to a conclusion on the disputed issues a court must make findings on (a) the credibility of the various factual witnesses; (b) their reliability; and (c) the probabilities. As to (a), the court’s finding on the credibility of a particular witness will depend on its impression about the veracity of the witness. That in turn will depend on a variety of subsidiary factors, not necessarily in order of importance, such as (i) the witness’ candour and demeanour in the witness-box, (ii) his bias, latent and blatant, (iii) internal contradictions in his evidence, (iv) external contradictions with what was pleaded or put on his behalf, or with established fact or with his own extracurial statements or actions, (v) the probability or improbability of particular aspects of his version, (vi) the calibre and cogency of his performance compared to that of other witnesses testifying about the same incident or events. As to (b), a witness’ reliability will depend, apart from the factors mentioned under (a) (ii), (iv) and (v) above, on (i) the opportunities he had to experience or observe the event in question and (ii) the quality, integrity and independence of his recall thereof. As to (c), this necessitates an analysis and evaluation of the probability or improbability of each party’s version on each of the disputed issues. In the light of its assessment of (a), (b) and (c) the court will then, as a final step, determine whether the party burdened with the onus of proof has succeeded in discharging it. The hard case, which will doubtless be the rare one, occurs when a court’s credibility findings compel it in one direction and its evaluation of the general probabilities in another. The more convincing the former, the less convincing will be the latter. But when all factors are equipoised probabilities prevail.”
19. The crux of this dispute is centered on the alleged sexual assault perpetrated against Nomhle by Baloyi. Distilled, it was alleged that Baloyi forcefully hugged Nomhle and tried to kiss her. Baloyi’s version was that Nomhle commended him on the craftiness of his letter and she said he deserved a hug. It was further his version that Nomhle hugged him around his neck whilst he was seated on the chair and he half-rose to extend his hand to hug her around her waist. On the other hand, it was Nomhle’s version that she was seated on the chair and after proof-reading the letter, Baloyi requested her for a hug and she stood up and turned towards her left to hug Baloyi. Then Baloyi hugged her tightly and requested her to kiss him. She told him to stop.

20. It is not in dispute that Baloyi and Nomhle were in Baloyi’s office on 16 July 2019. However, it is in dispute as to who was seated on the chair between them. It is also not in dispute that there was some hugging that took place after the proof-reading, but it is in dispute as to who initiated the hug. In most cases than not, the allegations of sexual harassment do not occur in full view of witnesses. In this instance, Shaku (Nomhle’s mother) alleged to have seen the incident through the half-closed window blinds of Baloyi’s office. I must indicate at this juncture that I together with the parties conducted an inspection in loco to ascertain if it was probable that Shaku could have seen inside Baloyi’s office with half-closed blinds when she was outside. My observation was that one could see inside the office even though the view was a little blurry.

21. Shaku’s allegation that she saw Baloyi hugging Nomhle was supported by her WhatsApp message to Baloyi on page 6 of the bundle sent at 17h12 on the same day of the incident. The message read thus:

“What you do is not acceptable they way you were hugging Nomhle and trying to kiss her I saw you through the window I was waiting for Nomhle to say something but she didn’t Am very disappointed I can’t believe it it’s from you”. (sic)

22. Baloyi’s response to this WhatsApp message was at 17h23 and it read thus:

“I was just joking with her, sorry my sister, I appologise. Think you will find a place in your heart to forgive me. Sometimes when you are stressed you end-up acting funny Will talk tomorrow Please” (sic)

23. It was Baloyi’s version that when he apologized to Shaku in this conversation, it was for having kept Nomhle long after her knock off time and that when he stated that when you are stressed, he was actually referring to Shaku. He qualified this statement by stating that Shaku acted out of the ordinary when she was stressed. He stated that they (him and Nomhle) shared a joke about winning a lotto and they laughed about it. It is my view that Baloyi was misleading these proceedings with his revised version about his response to Shaku’s WhatsApp message.

24. Shaku’s message was unambiguous as to why she was disappointed in Baloyi. In her message, she was unequivocal that she saw Baloyi hugging Nomhle and trying to kiss her. This was an opportune moment for Baloyi to refute Shaku’s assertion when he responded to her message, but he failed to do so solely because, in my view, Shaku’s allegations were factual. Baloyi failed to put his version to Shaku when she was on the witness stand that Shaku made sexual advances to him save for allegations of nude pictures. Baloyi also indicated at the commencement of these proceedings that there were nude WhatsApp images from Shaku that he would submit into record, but to no avail. I therefore find Shaku’s version as the more probable version than Baloyi’s version.

25. Baloyi held a managerial position at the school and he conceded during cross-examination that he was familiar with Circular 1 of 2016. I concur with Hadebe in his closing arguments where he stated that Baloyi expectedly knew that it was unacceptable to allow a hug from a female colleague. He was duty bound to advise Nomhle that it was improper of her to request a hug from him. In his version, Nomhle initiated the hug and he returned the favour by hugging her on her waist. Even if I were to believe his version, his conduct would still be inappropriate. Nomhle’s version was consistent with Shaku’s version supported by the WhatsApp message from Shaku. Nomhle’s demonstration during the hearing and during the inspection in loco was that Baloyi was facing the window and she was facing him was corroborated by Shaku in her evidence. I therefore find that Nomhle and Shaku were credible and reliable witnesses and I consequently believe that their version is the most probable version in this regard.

26. As for the nude WhatsApp messages allegedly sent by Shaku to Baloyi, it is my considered view that if indeed Shaku sent those images to Baloyi, it was inappropriate of her to do so. Therefore, it was incumbent on Baloyi to institute disciplinary actions against Shaku for her inappropriate conduct. There was no evidence that was presented in these proceedings that Baloyi has ever reprimanded Shaku for her inappropriate behaviour. I therefore conclude that the version that there were nude pictures is a fabrication by Baloyi.

27. I have considered Moyo’s arguments about Nomhle not remembering where Baloyi was coming from on 16 July 2019 and all the other peripheral issues like the half-closed blinds; that Baloyi and Nomhle often worked together alone; the list for food parcels. I have also considered the time differences of the occurrence of the incident as stated by Nomhle and Shaku. However, I did not find all this material in assisting me to make a determination. I must also state that I did not find Mrs Baloyi’s evidence of any assistance in this tribunal. However, I found her to be truthful when she stated that she did not call Shaku to arrange for the payment of damages. Nonetheless, her evidence was not of assistance to me as it did not deal with what I needed to determine.

28. Having made a determination that the Respondent’s witnesses were credible and reliable and having found that their version was the most probable, I find that Baloyi was guilty as charged. I will now turn to determine the appropriateness of the sanction. Baloyi was charged In terms of section 17(1)(b) of the Employment of Educators Act 76 of 1998, as amended. In terms of this section, dismissal is the only sanction that must be returned. I therefore do not have any reason to interfere with the Respondent’s decision in this regard. Consequently, I find that the dismissal was substantively fair.

29. There was no evidence that was led in these proceedings regarding the procedural fairness of the dismissal. The Applicant only stated on the referral form that his dismissal was procedurally unfair based on the biasness of the chairperson. In the absence of a challenge on this aspect during the proceedings, I conclude that the dismissal was procedurally fair.

Award

I therefore award as follows:

30. The Applicant, Mr Nyiko B. Baloyi dismissal was procedurally and substantively fair.

31. The Applicant is not entitled to any relief.

Arbitrator: Themba Manganyi