In the ARBITRATION between

LUVUYO ALFRED SALISO
(Respondent / Employee)

And

DEPARTMENT OF EDUCATION – EASTERN CAPE
(Applicant / Employer)

DETAILS OF HEARING AND REPRESENTATION

1. The enquiry by arbitrator was held under the auspices of the ELRC in terms of section 188 (A) of the Labour Relations Act 66 of 1995 as amended in 2015. The hearing took place on the 07th of March 2024, the 18th & 19th of March 2024, 16th & 17th of April 2024, 14th of May 2024 and 29th August 2024 at 09:00 at the Butterworth District Office in Butterworth.

2. The employee Mr. Luvuyo Alfred Saliso attended the hearing and was represented by Mr. Sakhumzi Nombambela an attorney appointed by the employee / trade union SADTU. The employer also attended the hearing and was represented by Mr. Xolani Sam an official of the employer.

3. The enquiry by arbitrator proceeded on the dates as indicated above in the presence of both parties. The parties further requested to file closing arguments together with mitigating and aggravating circumstances in writing on this matter not later than the 06th of September 2024. Both the employer representative and the employee representative had filed their arguments with the ELRC by the 06th September 2024.

4. The notice to attend the enquiry by the arbitrator was properly drafted and served on the employee confirmed receipt and attended the hearing as indicated above. Employee confirmed that the notice was properly served on him.

ISSUE TO BE DECIDED

5. I am required to determine whether or not the employee Mr. Luvuyo Alfred Saliso is guilty of the charge levelled against him by the employer and if so whether a sanction of a dismissal is appropriate to be imposed on him in the circumstances where he is guilty.

BACKGROUND TO THE ISSUE

6. The employee is employed by the employer as an educator and is now charged by the employer in respect of the incident of sexual misconduct appearing here under and outlined in the charges. The parties agreed that the matter should instead of being set for a disciplinary hearing be enrolled straight at the ELRC as an enquiry by arbitrator in terms of section 188 (A) of the Act in accordance with the ELRC Collective Agreement 3 of 2018.

7. This therefore means that the status of the outcome of this process will be an award that is final and binding on the employer and employee. The charge against the employee are as follows.

8. Charge 1.

– It is alleged that the employee Mr. Luvuyo Alfred Saliso committed acts of misconduct as contemplated in 17 (1) (b) of the Employment of Educators Act 76 of 1998 (as amended), which inter alia reads as follows, committing an act of sexual assault on a learner in that:

(1) On the 1st of June 2023 the employee inserted his hands under the skirt ok K.S. and told her to open her thighs and touching her panties in grade 4 class at Mzomtsha Primary School .
(2) That the employee touched K.S. on the buttocks (umbhantsa) on the same day.
(3) On the 14th of February 2023 the employee kissed and touched the breasts of I.N. asked her to sleep with him, requested her contact numbers and instructed her not to tell anyone about that, all of that happened in office.

9. The employee Mr. Luvuyo Alfred Saliso denies these allegations and pleaded not guilty to the said allegations hence the matter was set down for section 188 (A) inquiry as directed by ELRC Collective Agreement 3 of 2018.

SURVEY OF EVIDENCE

Submissions by the employer

10. The employer representative called their 1st witness the learner K.S. who testified that she is currently studying grade 5 at Mzomtsha Senior Primary School. She averred that she knows the employee Mr. Luvuyo Saliso because he is one of the teachers at her school and at the time of the incident she was doing grade 4 during the year 2023. She stated that she also knew the employee teacher Saliso as her former teacher at the above school.

11. She testified that on a certain day their class teacher was not on duty and two classes were combined into one class and that teacher Saliso entered in their grade 3 class and went to sit at the table that is behind the learners in the class. He then requested the class to bow down and he requested her to make tea for him.

12. She submitted that he had instructed her to go and borrow tea bag from Ms. Mbodla in order to make tea and when she was back in class with a tea Mr. Saliso instructed the class to bow down on top of their desks and it was during this time that teacher Saliso lifted her skirt, uniform and touched her private parts.

13. She stated that after the incident she was angry because she felt she was violated, in Xhosa “waziva enomsindo, walila wa baleka waya ku maka I.N”, She was angry cried and ran to I.N’s mother (Ms. Moshoeshoe) who is a meal server at the same school and was also her aunt.

14. She stated that she reported the matter to I.N’s mother because teacher Saliso had inserted his hand inside her panties and touched her private part. She testified that when they were instructed to bow down by Mr, Saliso they didn’t bow and watched and she and O.M. saw Mr. Saliso giving L. money.

15. She stated that she is 11 years old now and has forgotten the date when she was touched and can’t remember the month but it was in 2023 however she did indicate that Mr. Saliso was at school on the 01st of June 2023 and that teacher Saliso had done what he did before when they were doing grade 3.

16. The 2nd witness of the employer was the learner O. M. who testified that she knows K. S. as they were both learners at Mzomtsha P.S. and were in the same class grade 4. She testified that on the day in question their class teacher was not at school and the class was combined with the other class. She averred that while in class teacher Saliso asked K. S. to make tea for him.

17. She stated that K. S. went to fetch hot water in preparation to make a tea for Mr. Saliso while he was sitting at the back of the class and teacher Saliso had instructed the whole class to bow down on top of their desks but her and I.N. pretended to have bowed down though they looked at what teacher Saliso was going to do. She testified that they knew that teacher Saliso would touch K. S. as he had done that while they were still at grade 3.

18. She testified that teacher Saliso instructed K. S. to open her thighs and touched her private parts and touched her bums too. She testified that after the incident her and I. N. told K.S. to report the matter to her grandmother but K. S. indicated that she was afraid of her grandmother. She further stated that Mr. Saliso used to touch them whilst they were doing grade 3 and that is why she knew he was going to touch K.S.

19. She testified that they then went to check the Principal Ms. Ntatala but she was not available because she had attended an English workshop. She averred that they went to tell Ms. Nosongezo Moshoeshoe who is a meal server about the incident.

20. At cross – examination the witness indicated that he was giving an account of what he knows and disputed that she was telling lies about Mr. Saliso and that she was not told what to say at the hearing.

21. The 3rd witness of the employer was called was Ms. Nosongezo Moshoeshoe who testified that she works at Mzomtsha Primary School as a meal server and she knew Mr. Saliso as an educator at Mzomtsha Primary School. She stated that she also knows K. S. and O. M. as learners at their school at the time of incident. She stated that between 1st and 2nd June 2023 she was at work at Mzomtsha P.S. as meal server and while she was busy cooking 4 pupils came to the kitchen running and K. S. ran behind her.

22. When she asked them what was happening she noticed that S.K. was shaking “uyaduduzela“ her body was shaking in fear and she told her teacher Saliso asked her to open the thighs, touched her bums, tummy and front.

23. She testified that on that day the principal was not present at school because he had gone to attend a meeting. She testified that she asked K.S. to tell her mother and grandmother but K.S’s told her that she was afraid to do so and her mother was staying in Johannesburg while the grandmother was having a loud voice. She then went to meet K.S’s grandmother who was coming from town and requested her to sit down with K. S. and ask her what is happening at school and she did it that way because she wanted K.S. to relay the story herself.

24. She testified that though she was not sure about the date of the incident it had happened on Thursday and that the Thursday was the 1st and the 2nd June 2023 was on Friday and that Mr. Saliso was at school on the day which is the 1st of June 2023 and had seen that teacher Saliso was present at school on the day of the incident.

25. The 4th witness of the employer was Ms. Cikizwa Ntantala – Somdaka who testified that she works as a principal at Mzomtsha P.S. and has been there from 2013 till to date. She averred that she knows Mr. Saliso because he is a teacher at their school and was also an SMT member at Mzomtsha .

26. She testified that on the 1st June 2023 she called in Mr. Saliso and Ms.Mbodla and told them that she was leaving for the workshop and instructed them to take care of her class while she is away and that class was a grade 4 class.

27. She stated that she then left school after 10H00 and on Friday the 2nd which was the following day she received a message from K. S.s mother stating that she heard gossip from the taxi going home that her grand child is being abused at her school by Mr. Saliso. At that point nothing had been reported to her.

28. She stated that she promised the grandmother that she will attend at the matter on Monday the following week. On Monday the following week, 5th June 2023 she called K. S. after the assemble and asked her what was happening and K. S responded by saying teacher Saliso called her and touch her inappropriately.

29. She then asked her why she didn’t report this matter and K. S. responded by saying “my cousin said to me even if you report the matter you won’t take any actions against Mr. Saliso because you know what Mr. Saliso was doing“. She averred that she called a staff meeting in order to report the matter as a problem and amongst the staff present were Educator Assistant but Mr. Saliso was not at school at that time as he arrived at a later stage around 09H00 .

30. While she was trying to address the staff K.Ss grandmother arrived at the school and wanted to see her then called Ms. Mbodla to be the second witness. K. S’s grandmother asked where is teacher Saliso and said all these years she is not mental stable even if you send her to fetch water she will bring half of the container because she is confused and disturbed.

31. She testified that K.S’s grandmother told them that she was being abused by Mr. Saliso and they called the SGB Chairperson to come and listen to what they were hearing .She testified that Ms. Mbodla went to check Mr. Saliso within the school premises and told some EA’s that K.S’s grandmother was available and wanted to fight with him and he must not go to the office. She testified that she had conversation with SADTU site steward in order to report the matter to SADTU and also reported the matter to the Circuit Office.

32. An attendance register was submitted by Ms. Ntantala and pointed out on the 1st, 2nd and 05th of June 2024 Mr. Saliso did not sign the register but here was an entry that he arrived at school. She stated that Mr. Saliso was not signing the attendence register when he likes and it could not be proof that he was a t school or not.

33. The attendance register confirmed what the witness was saying because most of the times he would not sign even for those days he was saying he was at school and that other teachers were signing the register. The witness also pointed other days where he was present but didn’t sign and stated that those days included the 1st & 2nd June 2023 but a time was indicated next to his name by someone else.

34. She denied that she gave permission to Mr. Luvuyo Saliso to attend a mourning ceremony on the 01st and 2nd of June 2023 and that Mr. Saliso simple absented himself on the said dates as he would usually do.

35. She testified that Mr. Saliso together with other educators had a transport contract and he was arriving early in the school but when the contract stopped he started arriving late around 09h00 mostly. She testified that Mr. Saliso was present at school on the 1st June 2023 though he left without telling her and he had arrived late around 09h00.

36. She also testified that because Mr. Saliso had stopped signing the register her and Ms. Mbodla an educator would indicate the time he had arrived at work next to his name and sometimes the time he is going out. She stated that Mr. Saliso will attend work when he was and sometimes stay away from work and would not submit any leave form nor sick certificate.

37. He stated that that as the school management they were concerned about the behaviour of Mr. Saliso and he would continue not signing attendance register or did not enter accurate time on the attendance register.

Submissions by the employee

38. The employee Mr. Luvuyo Alfred Saliso took the witness stand and testified that he is an educator at Mzomtsha Primary School and is now placed at T. S. Matsilisa in Good Hope in Idutywa. He stated that he understand the charge that is levelled against him and he denied the allegations levelled against him.

39. He confirmed that the incident referred to in the said charge is alleged to have happened on the 01st of June 2023 and he was not at school on the said date and had asked for permission from Mrs. Ntantala to attend a mourning ceremony at his home.

40. He confirmed that he know the learner by the name of K.S. but disputed that he was left with 2 classes that were combined on the 01st of June 2023. He stated that he was not at school on those date because he was granted permission by Ms. Ntantala and he came back from school on the 06th of June 2023.

41. When the employer witness testified on the events of the 01st of June 2023 he failed to challenge their evidence that was led by the witnesses of the employer and state his version that he had permission to attend a mourning ceremony on the 01st and the June 2023.

42. His explanation for failing to dispute the version of the employer was that he didn’t think he was required to ask those witnesses and dispute their version. He stated that he wrote the 09:00 that is written on the attendance register for the 01st & 02nd of June 2023. He confirmed that he did not ask for permission to be absent from work on the 05th June 2023.

43. He stated that he did not have a good relation with the learner K.S. and had said she will get him. The employee was represented by an experience representative and but his evidence was contradicted mostly. He denied that he asked the learner K.S. to make tea for him.

44. It was put to O. that Mr. Saliso will lead evidence disputing that he was touching other school kids at school but that he was involved in extra mural activities such as soccer, rugby and music. When he testified he contradicted that and pointed out that he was participating in football only.

45. He stated that the principal Ms. Ntantala had a vendetta against him but could not demonstrate where that accession is coming from. He testified that he was present from the 29th May 2023, 30th May 2023 and 31st May 2023 but all these dates are marked the same way on the attendance register and Mr. Saliso did not sign. All these dates the ttime when he arrived is entered or indicated but he didn’t sign on the register.

46. He confirmed that he is a professional educator an SMT member within the school he knows the leave policy and that he was required to submit leave when he is not at work.

FINDINGS ON THE CHARGES, ANALYSIS OF EVIDENCE & ARGUMENT

47. In respect of these charges set out in paragraph 8 above, the employer representative led evidence of 4 witnesses who are 2 learners and 2 educators at the school in question, Mzomtsha P.S.

48. The evidence of these four witnesses is detailed above in the topic that deals with survey of evidence. The employer managed to adduce evidence in relation to the charges confirming that the employee was guilty of those specific charges on a balance of probabilities. In essence the evidence of these witnesses linked the employee to the commission of the sexual offence in question.

49. In relation to the charges the employee confirmed that he is aware of the charges levelled against him, heard what the witnesses had to testify against him but stated that he denies that he ever lifted the learners skirt, put his hands in between the thighs and touched her bubs and private parts.

50. I must also clarify that the test used to arrive at a finding of guilt in labour matters is one of balance of probabilities as opposed to the beyond reasonable doubt that is used to determine guilt in criminal matters. From the evidence led at the hearing both the learners K. S. and O. M. led clear, coherent and collaborated evidence to the effect that the employee Mr. Saliso put his hands in-between K. S. thighs and touched K. S. on her private parts.

51. These witnesses demonstrated that it was the employee’s habit to do that and on the day when he asked her to make tea, they knew that he was going to do that because this was not for the first time in June 2023. It is normal that these incidents are not reported for first time but will be discovered appropriated when they persist.

52. Both witnesses located Mr. Saliso having seated at the back of the class and he requested K.S. to make tea for him. When this incident happened the learners felt there was a need to report it and immediately they went to Ms. Moshoeshoe who describe the learner K. S. as a person who was shaking with fear.

53. Even though she could not tell whether it was the 1st or 2nd June 2023 but she testified that the day of the incident was Thursday in that week and if one looks at the calendar for that year Thursday is on the 1st of June 2023 and that is not disputed.

54. All the 4 employer witnesses including Ms. Moshoeshoe and Ms. Ntantala collaborated each others evidence that Mr. Saliso was at school on the 1st June 2023. This is the only defence of the applicant that he was not at school on the 01st of June 2023. He stated that he had asked for permission to attend a morning ceremony at home from Ms. Ntantala which evidence is denied by all employer witnesses.

55. Mr. Saliso cannot use the attendance register to state or demonstrate that he was not at school on the 1st of June 2023 and has not provided any form of proof or evidence to support his version that he was away on an authorised leave and that he attend the morning ceremony. His version stand to be rejected in this regard.

56. He also cannot use the attendance register because he is the one who defies the authority of the employer and does not sign the attendance register if he wants. The most crucial parts of the evidence on the version of the employee were not put to the witnesses and came as an afterthought. This is because his version is not reasonable possible true.

57. His own testimony Mr. Saliso is that he was not signing attendance registers as required at times he forgets and this evidence collaborates that of Ms. Ntantala. Mr. Saliso was referred to the attendance register for that week which started on the 29th May 2023 where he had not signed the attendance register when entering workplace but the indication of time next to his name was written.

58. He confirms that first 3 days he was at school and conveniently asks for permission on the 31st of June 2023 for absence on the 01st June 2023. This evidence is rejected as it is just mean for the employee to run away from responsibility.

59. He testified that he was present from the 29th May 2023, 30th May 2023 and 31st May 2023 all of them were similar because time is indicated but he didn’t sign. The 1st & 2nd June 2023 on the time indicated as 09h00 indicates that he was present as it is similar to all other 3 previous days.

60. No leave form was submitted for his absence and he knew what is expected of him as experienced professional educator and SMT member within the school. He knows the leave policy as indicted in the enquiry and confirmed by him. He knows that he should have submitted leave of absence if he was absent and I conclude that he was at school on the 1st June 2023 and that the employees defence amount to a bare denial.

61. In Small v Smith 1954 (3) SA 434 (SWA) at 438 Claassen J said: “It is, in my opinion, elementary and standard practice for a party to put to each opposing witness so much of his own case or defense as concerns that witness and if need be to inform him if he has not been notified thereof, that other witnesses will contradict him, so as to give him fair warning and an opportunity of explaining the contradiction in defending his own character.

62. The only conclusion to be drawn from what happened is that the employee is guilty of the sexual misconduct charges as discussed above. It must be emphasized again here that the test for a guilty finding in labour matters is one of balance of probabilities not beyond reasonable doubt.

SANCTION

63. Section 185 (a) of the Labour Relations Act 66 of 1995 as amended provides that:
– Every employee has a right not to be unfairly dismissed.

64. The Act recognizes 3 reasons for the termination of the employee’s services by the employer and these are the conduct of the employee, incapacity of the employee and the employer’s operational requirements.

65. In this matter the employee is charged because of his conduct and the employer has to prove that the employee has committed misconduct on a balance of probabilities. In terms of section 192 (2) of the Labour Relations Act the employer has the onus to prove the existence of any one of these grounds as a reason to dismiss the employee and that the dismissal of the employee is fair.

66. The employer’s evidence was clear, coherent and corroborated on materiel aspects as can be seen in the summary and analysis above. I do not have any reason to doubt and reject the employer’s evidence in relation to the charges for which the employee has been found guilty.

67. In the circumstances I accept the employer’s witness’s testimony that the employee is guilty of such transgressions. The other question that I have to answer in this award is whether the conduct of the employee constitutes a serious act of misconduct and whether the sanction of a dismissal is appropriate in the circumstances.

68. The Constitutional Court in Sidumo & another v/s Rustenburg Platinum Mines Ltd and other (2007) 12 BLLR 1097 held that in deciding whether dismissal is an appropriate sanction for an act of serious misconduct, the test is whether the misconduct renders the continued employment relationship intolerable.

69. The acts of misconduct committed by the employee in the context of his employment renders the employment relationship involving learners intolerable. This type of misconduct is also expressly prohibited by the employer and organized labour in the ELRC Collective Agreement Resolution 3 of 2018 and the employer is bound by this Collective Agreement and expected to apply discipline in a consistent manner.

70. On the appropriateness of the sanction the LAC court in its decision in Nampak Corrugated Wadesville v/s Khoza (1999) 20 ILJ 585 (LAC) Ngcobo J.A. held that the determination of the appropriate sanction is a matter which is largely within the discretion of the employer, however that discretion must be exercised fairly. It would be fair and reasonable to impose a sanction of a dismissal for these transgressions.

71. In De Beers Consolidated Mines Ltd v/s CCMA & others (2000) 21 ILJ 1051 (LAC) the court accepted that the ultimate justification for the employer’s powers to impose discipline flows from the right to manage their business effectively. The court held further that “dismissal is not an expression of moral outrage, much less it is an act of vengeance. It is or should be sensible operational response to risk management in the particular enterprise”. In Standard Bank of South Africa Ltd v/s CCMA and others (1998) LC 7 the court stated that it is trite principle that breach by the employee of the duty of good faith to the employer is destructive to the employment relationship. The employee has breached this duty of good faith to the employer and learners.

72. I am satisfied that the rationale that I have used in coming to this conclusion is one that qualifies when we talk about reasonableness and weighing the interests of both parties as directed in the Constitutional Court in its decision in NEHAWU v/s University of Cape Town (2003) (CC) where the Constitutional Court held that the arbitrator is expected to have regard to the interest of both parties in coming to a conclusion whether the conduct of the employer to dismiss the employee was fair or not.

73. In Council for Scientific & Industrial Research v/s Fijen 1996 (2) SA 1 (A) at page 26 the court held that it is a natural term of the employment contract that there is a reciprocal duty not to conduct oneself in a manner which is calculated to destroy the relationship of trust and confidence essential to the continuation of the employment relationship.

74. In this matter the interests of the employer and learners far outweigh those of the employee. The employee did not come forward and admit his wrongdoing, instead throughout the processes he denied having committed any transgression and this can only be regarded as an aggravating factor.

75. The charges for which the employee has been found guilty and summarized above constitute a serious acts of misconduct and even though discipline has to be applied in a corrective and progressive manner in terms of the Code of Hood Practice in the Labour Relations Act 66 of 1995 as amended, these acts of misconduct are so serious that when proved as has happened here call for a sanction of a dismissal for the first offence.

76. Further these transgressions are not only acts of misconduct but they also go against the spirit of the Constitution of the Republic of South Africa which is the supreme law of the country provides in section 28 (2) in any decision that has to be taken involving children, the interests of children (learners) enjoy paramount importance.

77. From his transgressions that have been proved the employee cannot be trusted to work in the school environment where there are learners. The employer and learners will suffer severe prejudice if this wrong doing can be condoned and that discipline has to be applied consistently.

78. The employer’s version in so far as it relates to the reason why the employee must be dismissed is accepted. This means that the employer has managed to discharge its onus in terms of section 192 (2) of the Act. I have found the employee guilty of Section 17(1) (b) of the Employment of Educators Act 76 of 1998 transgression and in terms of this subsection an educator must be dismissed if he or she is found guilty of such a transgression.

79. Section 120 (2) of the Children’s Act no 38 of 2005 provides that a finding that a person is unsuitable to work with children may be made by such forum on its own volition or on application by an organ of state or any other person having sufficient interest in the protection of children.

80. The representative who acts for the Department of Education (employer) would accordingly have the right to make such an application. The arbitrator may however also make the finding on his own accord.

81. In the circumstances I hereby make the following award.

AWARD

82. The employee Mr. Luvuyo Alfred Saliso is found guilty of the allegations levelled against him in respect of charge 1 as appearing in the Notice of Disciplinary Hearing.

83. The employee Mr. Luvuyo Alfred Saliso employment is terminated with immediate effect, without notice. The Provincial Department of Education of the Eastern Cape must inform Mr. Luvuyo Alfred Saliso of his dismissal.

84. I further find that the employee Mr. Luvuyo Alfred Saliso is unsuitable to work with children in terms of section 120 (2) of the Children’s Act no 38 of 2005.

85. The General Secretary of the Education Labour Relations Council must:

– As the administrator of this Section 188A enquiry, in terms of section 122 (1) of the Children’s Act 38 of 2005, notify the Director General: Department of Social Development in writing of the findings of this forum that the employee Mr. Luvuyo Alfred Saliso ID no 65112257124089 & Persal No 52968791 is unsuitable to work with children, for the Director General to enter his name as contemplated in section 120 Part B of the National Child Protection Register.

– Send a copy of this arbitration award to the South African Council of Educators (SACE) for the revoking of Mr. Luvuyo Alfred Salisos SACE certificate.

86. The employee has the right to take this award on review to the Labour Court.

Signature:
ELRC Arbitrator / Commissioner: Malusi Mbuli