ARBITRATION
AWARD

Commissioner: MBULELO SAFA
Date of Award 11 July 2024

In the ARBITRATION between: –

EASTERN CAPE DEPARTMENT OF EDUCATION
Applicant/EMPLOYER

And

NTUTHUZELO GCABA
Respondent/EMPLOYEE

DETAILS OF THE HEARING AND REPRESENTATION

1. The matter set down for Arbitration on the 10 April 2024, 16 May 2024 and concluded on the 24 June 2024. The venue was Luphaphasi Primary School in Mount Ayliff.

2. The employer was represented by Mr Loyiso Magupheni who is the Labour Relations Officer of the Employer and the employee represented himself.

3. Ms Sindiswa Myataza was the interpreter and Ms Nolulamo Nxala was the intermediary and both of them were appointed by the ELRC.

4. The proceedings were recorded in an audio recorder.

ISSUES TO BE DECIDED

5. Whether or not is the employee guilty of the charges proffered against him, and if he is guilty impose an appropriate sanction in terms of the Employment of Educators Act.

BACKGROUND TO THE ISSUE

6. The employee is employed by the Respondent in terms of the Employment of Educators Act as an educator at Ntabankulu Primary School (the school) in Alfred Ndzo West District in the Eastern Cape.

7. He was charged (1) in terms of section 17(1)(b) of the Employment of Educators Act in that he is alleged to have sexually assaulted two learners at Ntabankulu Primary School, (2) contravention of section 10 of the South African Schools Act in that he applied corporal punishment to learners of the school and (3) contravention of section 18(1)(f) of the Employment of Educators Act in that he conducted himself in an improper manner whilst at the school premises.

8. The proceedings were in terms of ELRC Collective Agreement 3 of 2018 which provides that it is mandatory that in misconduct cases where the allegations against the educator relate to alleged sexual misconduct against a learner the matter must be dealt with as an inquiry by arbitrator in terms of section 188A of the Labour Relations Act.

SURVEY OF EVIDENCE AND ARGUMENT

9. The employer led oral evidence through two witnesses and submitted one bundle of documents.

10. The employee led oral evidence through three witnesses.

11. There were two other witnesses called by the arbitrator.

EMPLOYER ’S EVIDENCE

12. The first witness of the employer was a minor child ML who at the time of the incident in 2022 was eleven(11) years old and doing in grade five(05) at Ntabankulu Primary School. In order to ensure that she did not come face to face with the employee she testified in camera.

13. She testified that in November 2022 during examination time the employee was absent at school. She said that AP suggested that she and her friends; Eminathi, Viwe, Mandy, Siwaphiwe must go to the classroom of the employee.

14. When they got to the classroom two friends; AP and Eminathi started to finger each other. After sometime they swept the class and left when the school bell rang for the end of the day.

15. She said the following day the employee was at school and he called the witness and Mandy and asked what they were doing in his class. Witness said she initially said she did not know what they were doing but when the employee threatened to beat them she told him what AP and Eminathi were doing. After that the employee called AP and Eminathi and asked what they were doing in his classroom. AP denied what she was doing. She said the employee then beat them; other learners were given fifteen (15) latches and the witness was given twelve (12) latches. The employee instructed the witness and her friends to come back to him after writing their examinations on that day.

16. After finishing their examination that day they went back to the employee who instructed that they must get inside the classroom one by one. The witness was the first to be called in.

17. When the witness got inside the classroom she was directed to close the door and the employee again asked her what they were doing in his classroom. After she has once more explained what AP and Eminathi were doing the employee asked the witness to come closer to him, lifted her skirt and inserted his finger under the panty of the witness. The witness said she pulled her skirt down and went to the door. The employee asked her not to tell anyone about what happened and also asked her to call AP.

18. She admitted that the employee initially asked what fingering was and also said after that the employee asked her to come closer so that he can demonstrate the fingering on her.

19. After AP has got inside she also told them that the employee did the same thing to her. The witness with her friends then left without the other learners being called.

20. The second witness of the employer was an educator, Ntombizonke Nonkondlo(Nonkondlo), who testified that after they heard a report from another learner they called ML and her friends and asked them if the employee had fingered them. Witness then told Nonkondlo what happened and she said she(Nonkondlo) was in turn going to tell a Miss Siguqa.

21. She said that on the day of the incident was the last day for the examinations and she(witness) never went back to the school as in the following year she was advised by parents to change schools.

22. The witness denied that among the friends was her boyfriend and that she kissed with him. She said she did not have a boyfriend.

23. When asked she said she knew about sex because they are taught about it at school. She said on the day AP and Eminathi only fingered each other.

24. At cross-examination she said she remembered when the employee previously said to them no one had a right to touch their private part. She however said she did not know if it was possible for the employee to do the same thing he warned them against.

25. She recalled that she and AP approached the employee and told him that there were learners who were spreading rumours about the employee, witness and AP.

26. When it was brought to her attention that on the day there were learners who were using the classroom to write their examination and the educators could at any time get into the classroom to take their scripts, the witness said the learners had finished writing their examination and were playing outside when he called them one by one. She said even in front of the classroom there was no one.

27. The other witness of the employer was Ntombizonke Nonkondlo who is an educator at the school.

28. She testified that she heard from another learner about the incident and called ML who told her what happened.

29. She said ML told her that on a certain Friday after cleaning they stayed in the classroom with their boyfriends. The following week they were called by the employee who asked them what they were doing in his classroom. LM told her(witness) that the employee then put his hand under the skirt of LM up to her underwear. She said LM also said something about being beaten by the employee.

30. She also said she did not know any conspiracy against the employee at the school and also personally did not have anything against him.

31. She also said she was not aware that the employee faced the allegations after the principal became aware that he(employee) was recommended for the post of Deputy Principal. She also said she was not aware that the principal tried to convince the School Governing Body(SGB) to recommend another educator for the post. She said she had no knowledge about the appointment of the deputy principal at the school.

32. The other witness of the employer was a minor who testified in camera whose name is only captured as AP .

33. She testified that she was fifteen (15) years old and was currently doing grade 8 in another school but in 2022 she was at Ntabankulu Primary School.

34. She said that sometime in November 2022 she was with her friends; Alatha, Siwaphiwe, Lindi, Viwe. Whilst they were there another learner called Eminathi came and asked that they (Eminathi and witness) do sex. She said she initially refused but later agreed and they both went to the classroom of the employee where Eminathi removed her(witness) tunic and started to finger her(witness).

35. On the same day when one of the leaners(Anathi) got home her mother, who is the traditional healer, asked her about what had happened at school. The learner then informed her mother about what AP and Eminathi did at the classroom. The mother of Anathi then made a call to the employee and gave the phone to the Anathi and asked her to tell the employee what happened at the school.

36. The following day Anathi informed the witness that her mother had asked what had happened at the school the previous day.

37. That day the employee called them and asked them (witness, ML, Eminathi and Viwe) why did they do that in his classroom. She said they did not respond when the Applicant asked them. The employee then beat them for doing sex in his classroom. After beating them he released them and asked them to come back after finishing their examination paper for that day.

38. When they came back after the examination paper the employee called in ML first and after sometime she came out. Thereafter the witness was called in. When asked what had happened she informed the employee that she and Eminathi were having sex.

39. She said the employee then asked that she lift her uniform and turn around. He then asked her to come closer to him. The employee then put his finger under the panty of the witness and fingered her. She said she jumped and moved away from the employee. The employee again asked her why she wanted to be played by the boys and then asked her to leave the class.

40. The witness said she did not tell her mother about the incident. Her mother got to know about the incident when she was called by the principal and asked to come to the school.

41. After the incident she was referred to the social workers who recommended that she be transferred to another school so that she does not feel hurt in the presence of the employee.

42. She disputed that she ever went to the employee when he was alone in the class after the incident. She admitted that she had some discussions about the subjects with the employee but said she did not go to him alone.

43. She said that she knew the difference between sex and fingering and that what she and Eminathi was fingering not sex.

44. When asked she could recall that she drew a sketch of a vagina in the board and showed the employee on the sketch how fingering was done. She however said the sketch was made by the employee and she was asked by the employee to demonstrate on the sketch. When a clarity seeking question was put to her about the sketch she said the sketch was made by her after the employee has fingered her. She said she made the drawing after the employee has asked her the difference between sex and fingering and used the sketch to point at where the boy puts his hand in the vagina. She insisted that the employee physically fingered her.

45. The witness again admitted that she lied with regards to the drawing of the sketch but said no one coached her to lie and that she was no deliberately lying.

46. She recalled that she and ML went to the employee and told him about a learner who was spreading lies that the employee having touched and fingered her. She said that time she said those were lies because she did not want other learners to know that she was fingered by the employee.

47. She also admitted that there were contradictions in what she said.

48. With regards to the statement she made to police that the fingering occurred in the office of the employee she said the policeman who took the statement may have made a mistake otherwise the fingering occurred in the classroom and not in the office as the employee did not have an office. During re-examination she said in the statement she wrote herself she wrote “classroom” but the police officer chose to write “office”. She later admitted that she lied to the police to say the incident occurred in the office. She however said no one said she must lie.

49. When told that on the day the classroom was used to write examinations and asked how would the employee have the nerve to touch the private part of the witness knowing that after writing the subject teacher would anytime come to the classroom to fetch the scriptures, the witness said she did not know but insisted that the employee said they must come to him in the classroom.

50. She also said there was another rumour doing rounds in the school that the employee was not punishing the witness like he did with other learners and was generally treating her differently from other learners.

51. When asked if there were other rumours she said there were none but when she was reminded that she said to the police there were rumours that she and the employee were in a relationship she agreed that indeed there were such rumours doing rounds where learners were suspecting that they were in a relationship. She again admitted that her statements(evidence) were changing time and again.

52. Asked why she took action about the fingering by the employee by going to court only in February 2023 she said she did not know why she took so long.

EMPLOYEE’S EVIDENCE AND ARGUMENT

53. The first witness of the employee was himself. He testified that sometime in November 2022 he left school early and his classroom was not locked.

54. When he came to the school the following day he was approached by two learners who were doing grade 6 that year. The two learners told him that AP and ML were in his classroom with their boyfriends and were engaged in mischievous activities. When he wanted explanation about mischievous activities the learners told him the AP and ML were fingered by their boyfriends. He said the learners told him that fingering involved inserting the finger in the private part of the girl.

55. He said he asked the two learners to call ML whom he did not know and wanted to see. When ML came she denied being fingered by her boyfriend in the class. She said she was with her boyfriend and AP also was with hers. When AP was called she initially denied but later admitted that she was with her boyfriend and they were fingering each other. The two boyfriends were called and they confirmed what fingering was and how it was done.

56. Since the start of the examination for that day was fast approaching he released the learners and asked them to come back after finishing their paper.

57. When they came again he said he wanted to speak to them on a one to one basis as he wanted to show them the dangers of their mischievous activities.

58. He first called ML who was the youngest and was eleven (11) years old. When he asked her why she was engaging in this type of mischievous activity she said she was doing it because her friends were doing it and she wanted to know how it feels. She said they were taught the subject Life Skills and she thus knew that no one had a right to touch her private part. He then warned her about the dangers of being involved in these things at such an age and released her.

59. He said he then called AP who was asked why they did that in the classroom and she responded to say her boyfriend asked her to do it. AP said she initially did not want to go to the classroom but her boyfriend begged her and she relented.

60. When the employee enquired from AP she said she came to the school to study like all other learners and was busy with boys as her friends had boyfriends. He said he reminded AP about a previous incident when AP was found with a boy. She said her mother was very worried that she(AP) was busy with boys. AP then said she would not like her mother to find out about the latest incident as this would cause her mother’s health to deteriorate. He said she(AP) begged him not to inform her mother.

61. He said he asked her what fingering was and how it was done. He said AP made a sketch on the chalkboard and showed the employee how fingering was done. After showing the sketch the employee asked her if she allowed a boy to insert his finger in her private part what would be inserted next. Her response was that if they were alone the boy would like to insert his penis in the private part. When asked AP said this was not what she wanted.

62. The witness then went on to ask if AP has started to engage in sexual intercourse and her response was in the negative. He said he asked her about her sexual life because he wanted to warn her about dangers of engaging in sex at an early age like teenage pregnancy, sexually transmitted diseases. AP then revealed that at some stage she was raped by a relative at Macwerheni Administrative Area. After divulging the information AP looked like she was about to cry and the employee then stood up and petted her on the shoulder to comfort her. He said that was the only instance he had physical contact with AP.

63. After warning AP about the dangers of being involved with boys the employee promised her that he was not going to disclose the incident to the school disciplinary committee but if AP was involved in another similar transgression the current transgression was to be disclosed.

64. The employee then called Eminathi who confirmed that he was fingering his girlfriend in the classroom. He asked him to explain what fingering was and he(Eminathi) explained what it was. Eminathi admitted that fingering was not what he came for at school and that there was no subject where fingering was taught.

65. He(Eminathi) said he was doing this because his friends were doing it and he wanted to have something to talk about when with his friends. When asked, he(Eminathi) said besides fingering if he was alone with his girlfriend he would have wanted to have sex with her. Eminathi also said he knew the consequences of having sex. After further warning him about the dangers of engaging in sex he released Eminathi.

66. The last learner he called was Viwe who also stated that they were fingering each other in the classroom which idea came from Eminathi. He(Viwe) said he was engaging in this fingering thing because his friends were doing it.

67. The employee said he did not report the incident to the school disciplinary committee and it was not the first incident he did not report.

68. He said that on the 30 November 2022 after he has left school earlier to go to the bank he received a phone call from the Circuit Manager who was at the school. On arrival he was informed that the Circuit Manager was investigating allegations of sexual assault against the employee. He was informed that the people who were sexually assaulted were the two learners who were fingered by their boyfriends.

69. The employee said he was initially reluctant to give his side of the story on the allegations because he was questioning the procedure used in the investigation. He though the matter should have first been handled by the principal, if not resolved there it would then be referred to the School Management Team and later the SGB. He said he was not happy that the matter was first escalated to the office of the Circuit Manager and when it was reported the facts were twisted and he revealed as the perpetrator. After questioning the procedure, he decided to tell the Circuit Manager his side as he had nothing to hide.

70. He said that on the 06 December 2022 he was called to another meeting of managers of the employer including the Circuit Manager and the Labour Relations Manager. The purpose of the meeting was for him to respond to the allegations of sexual assault.

71. After finishing to put his side of the story in the meeting he was asked how many male teachers were at the school and why was he the only one accused of sexual assault. He responded to say he applied for the post of Deputy Principal but the principal had someone else in mind and even influenced the teachers, individual members of the SGB and members of the interview committee to recommend the other educator and not the employee.

72. He said there was another meeting at the school where another delegation came to investigate the sexual assault allegations. He said that he was informed that in that meeting the issue of the post of Deputy Principal arose and it was discussed. In that meeting the Manager for Labour Relations remarked that it was clear that the members of the SGB had preferred another candidate for the post of the Deputy Principal. The chairperson of the SGB said he would have preferred the other candidate either than the employee.

73. Employee testified that before the interviews he was never accused of sexual assault against any learner but soon after he was successful in the interviews the allegations emerged because he was not the preferred candidate of the principal. He said he suspected that the principal was the one who coached the learners to twist what transpired on the day because he(principal) was hoping that the employee would be removed from the post.

74. He denied that he ever sexually assaulted or beat any learner. His only crime was to apply for the post of Deputy Principal and get recommended by the SGB.

75. The other witness of the employee was Nomawethu Ntiyane who is an educator at the school since 2016 when the school was then a Junior Secondary School.

76. She said she served in the SGB and in some other committees of the school and had never heard of any rumours that the employee was sexually assaulting learners.

77. She said as the SGB they became aware of the current allegations against the employee in the special meeting of the SGB. However, as members of the SGB they were surprised that one member was informed about the allegations in a telephone call made by the principal prior to the meeting of the SGB.

78. In the meeting of the SGB it was decided that the matter was not going to be discussed but was going to be escalated to the office of the Circuit Manager. The principal, the clerk and another member of the SGB then wrote the letter to the Circuit Manager.

79. She said she was part of the meeting with officials of the Department on the 13 December 2022 where the Manager for Labour Relations made a comment about members of the SGB bidding for a losing horse, referring to the post of the Deputy Principal. She said she was also part of the staff meeting when the educators were caused to ‘vote’ for their preferred candidate for the post of the principal. In that meeting the educators ‘voted’ for the other candidate either than the employee. She also said that immediately after the interviews the allegations emerged.

80. She stated that she could not say whether or not the employee inappropriately touched the learners because she was not there when the alleged incident occurred.

81. The other witness of the Applicant was Bukeka Petela who was the member of the SGB when the alleged incident occurred.

82. She testified that as the members of the SGB they became aware of the allegations in a special meeting of the SGB. As members they were surprised that one additional member of the SGB was informed about the allegations prior to the special meeting after being called by the principal.

83. The witness also stated that the principal of the school came to her house and asked her to influence other members of the interview committee to recommend another candidate either than the employee for the post of Deputy Principal. The principal again influenced the interview committee just before the interviews for the post of the Deputy Principal. She also said there was an attempt to influence her by another member of the SGB. All these influences were to the effect that the employee must not be recommended for the post of Deputy Principal at the school.

84. She also said after the interviews for the post of Deputy Principal she overheard the principal talking to somebody and saying something to the effect that things did not go well and that they were going to make another plan. She also said she would neither confirm or deny that the incident of inappropriately touching the learners did not occur.

85. The other witness who was called by the arbitrator was Mr Loyiso Mashwayi who is the Chief Education Specialist of Labour Relations at the Alfred Ndzo West District of the employer.

86. He recalled that he was delegated by the District Director to attend to a complaint of the SGB of the school about the appointment of the Deputy Principal. He went to the meeting together with other officials of the employer including the Circuit Manager.

87. He said that when in the meeting the members of the SGB could not raise valid concerns on the appointment of Deputy Principal but instead raised the allegations of sexual assault. He asked if they were raising the allegations because the employee was promoted and they responded in the negative.

88. He said he was hearing about the sexual assault allegations for the first time and then directed that the allegations be brought to his office. He learnt then that already there were letters written by the school to the Circuit Manager on the allegations. Having heard about the allegations he then sent officials to investigate the allegations. The officials who did the investigation submitted a report which is part of the bundle.

89. He also confirmed that he held another meeting sometime in November 2022 where he wanted to hear the side of the employee with regards to the allegations and that he asked if the employee was the only male at the school and why was he the only one accused of the allegations.

90. The other witness which was invited by the arbitrator is the principal of the school Mbuyiselo Gono. He testified that he became aware of the allegations of sexual assault against the employee at the beginning of 2023. When probed further and reminded about other events he admitted that the allegations emerged sometime in November 2022.

91. He said the allegations started with a report that some learners were fighting about the rumours being spread about the other. He said he referred the matter to the SGB which also referred it to the Circuit Manager who investigated the allegations with the parents of the affected learners and the Learner Support Agent(LSA).

92. He said he decided to refer the allegations to the higher office because of their seriousness and he also did not see the need to seek to have the side of the employee as he did not want to be involved in the serious allegations.

93. He also testified that the interviews for the post of the Deputy Principal were held in November 2022. He encouraged educators at the school to apply for the post and three of them applied, including the employee. He admitted that he approached some members of the SGB to recommend someone else for the post but was not successful as the employee was recommended.

94. He said when the appointment letter of the employee he immediately showed it to him and had the letter corrected. He disputed that he influenced the learners to lie about the employee. If he did not want the employee to be appointed, he could have influenced the SGB not to shortlist him.

95. He also testified that he had nothing against the employee and they were working very with the
ANALYSIS OF EVIDENCE AND ARGUMENT

96. As stated at paragraph 8 the enquiry is held as per the provisions of ELRC Collective Agreement 3 of 2018 which provides that when an educator is accused of sexual related allegations the enquiry must be held as an inquiry by the arbitrator in terms of section 188A of the Labour Relations Act.

97. In addition to charge 1 which has allegations of sexual assault the other two charges have nothing to do with sexual related misconduct and as such are not covered by the collective agreement. However, I do not intend to be technical about the charges but to focus on the conduct of the employee being complained of.

98. Since this was the disciplinary enquiry the onus was on the employer to prove the allegations on a balance of probabilities.

99. The employer relied on three witnesses to prove the allegations two of who whom were minors who were the victims(complainants) of the alleged sexual assault.

100. In her evidence ML testified that whilst she was with the employee in the classroom the employee lifted her skirt and put his finger under her panty. During the cross-examination this piece of evidence was not challenged by the employee save for him asking ML how he could demonstrate fingering on her if he did not know it. He had the opportunity to put his version (deny the allegation) to ML but he did not do it. For his defence the employee also relied on his version that the classroom was that day used to write examinations and there was no way that he could have done what is alleged because of the likelihood that another educator would walk in anytime and there were learners around.

101. With regards to the learners who may have been around the classroom ML insisted that other learners were playing outside and the classroom door was closed after she was called in. Thus the employee defence that there were learners playing around was successfully disputed by ML. Even if there were learners nearby this could not have stopped the employee from doing what he is alleged to have done for two reasons. The first is that according to the description of the incident by ML the incident occurred over few seconds and could have occurred even if there were other learners around. The second reason is that according to the undisputed evidence of ML the door to the classroom was closed and therefore any educator or learner outside could not have seen what was happening inside. My finding is therefore that the employee inappropriately touched the private part of ML.

102. Again the employee failed to put her version in order to dispute the version of AP that he touched her private part. Instead the employee seemed to rely on the fact that after the alleged incident AP visited him in his class and the employee held a view that if he touched AP inappropriately she would not have visited him whilst alone in class. AP insisted during cross-examination that she never visited the employee alone. With that insistence from AP the employee abandoned the line of questioning which on its own was a sign that he failed to shake the evidence of AP that she was never alone with the employee after the incident.

103. There were contradictions in the evidence of AP with regards to who made the sketch of the vagina on the chalk board and with regards to whether the touching occurred in the classroom or in the office. These contradictions were not material considering the totality of circumstances surrounding the incident or allegations.

104. It was the undisputed evidence (during cross-examination) of AP that there were rumours doing rounds amongst the learners that the employee was treating her differently (not punishing her) from other learners. The other rumour was that the other learners were suspecting that AP and the employee were in a love relationship. To me these rumours point to the positive relationship that existed between AP and the employee. With that type of relationship there was no way that the AP would falsely accuse the employee.

105. It was common cause that the employee asked each of the two complainants more than once, firstly when they were in a group in the first meeting and when he met them individually, what fingering was. He also testified that he also called the two boyfriends and asked each one of them what fingering was. Even if the employee may not have known what fingering was, which is not probable, there was no need for him to ask each learner more than once what fingering was to the extent of causing AP to even make a sketch of the vagina to demonstrate fingering. The persistent asking of the learners what fingering was amounted to intruding into their private life and had a sexual undertone.

106. It was the evidence of the employee that he asked AP if she has started to engage in sexual activities. Even though the employee reasoned to say he asked about the sex life of AP because he wanted to warn her about being involved with boys at an early age, but I hold the view that asking about the sex life of a thirteen (13) year old girl whilst you are with her only in a classroom with a closed door also amounted to intruding into the private sexual life of AP.

107. To confirm the intrusion into the private life of AP it was testified by the employee that she even confessed to the employee that she (AP) was once raped at Macwerheni area in Ntabankulu. Apart from comforting the learner there was no evidence led to suggest that something was ever done by the employee after AP has made such a serious confession to him. Surely AP made the confession because she saw the employee as someone who she could trust and was there to protect and assist her. Sadly, instead of protecting and assisting her the employee betrayed that trust by subjecting AP to a similar experience she wanted to be comforted by the employee from.

108. It was not clear why, after he has interviewed the learners about what they did in his classroom and allegedly given them corporal punishment for what they did, the employee decided to again invite the learners to come to him for the second time after writing the examination paper on the day. When the learners came after writing the paper the employee took another unexplained decision to interview the learners one by one in a closed classroom. The decision of the employee to handle the misconduct involving girl learners on his own without involving other members of the school disciplinary committee is also questionable and was ill conceived. It can then be surmised that the employee made these decisions as part of laying the ground for what he intended to do.

109. In his other defence the Applicant raised alleged conspiracy against him because he was appointed as the Deputy Principal of the school. In his evidence and arguments, he gave the impression that the allegations only emerged after he was appointed as the deputy principal, an appointment the principal of the school did not support.

110. Even though the witnesses could not be specific about the exact date on which the incident occurred but it was clear that it was sometime in November 2022 and it is the same time in which the appointment of the employee as Deputy Principal was confirmed. So what transpired is that the events occurred at the same time or the difference in their timeframe was some days.
111. In his own evidence the employee stated that the timing of the accusations made him ‘smell a rat ’ and ‘strongly suspect ’ that the principal coached the learners to lie about him. The allegations that the principal may have framed the employee ended at the level of suspicion as there was no proof at the arbitration.

112. In this arbitration I was not focusing on the appointment process of the Deputy Principal and what went wrong therein. The issue here is whether or not the employee is guilty of the charges proffered against him.

113. In the case of Diholo v Gauteng Department of Education and Others (JR 1775/19) [2023] ZALCJHB 117 (2 May 2023) the court held that,
“The evidence points the applicant as someone who sought to take advantage of the Complaint by prying into her private life and invading her personal space and bodily integrity, in the guise of being caring and fatherly. He betrayed the trust of the Complainant through his conduct and created an unhealthy, insecure and hostile environment for her.”

114. I find that the dictum of the court in that case applicable in this dispute as the employee pretended to care and pried into the private space of AP and the other learners.

115. The court in Diholo further held,
“Such enquiries about the Complainant’s private life definitely created a hostile learning environment for her, and the applicant’s conduct towards her was improper, disgraceful, and unacceptable as contemplated in terms of section 18(1)(q) of the EE Act.”

116. Taking authority of the Labour Court in Diholo my findings are that the overall conduct of the employee towards AP and ML amounted to sexual misconduct as contemplated in section 17(1), section 17(1)(d) and he conducted himself in an improper, disgraceful and unacceptable manner as contemplated in section 18(1)(f) of the Employment of Educators Act.

117. The employee was entrusted by the parents, the school, the society and the government to at all times act in loco parentis to all the children in his school and to at all times ensure that the children at the school are in a safe learning environment. He betrayed all the trust that was bestowed on him.

118. Flowing from the above arguments I have come to the conclusion that the employer was able to prove on a balance of probabilities that the employee was guilty of the charges proffered against him.

119. In terms of section 17(1) of the Employment of Educators Act an educator must be dismissed if found guilty of committing an act of sexual assault on a learner. As I have found the employee guilty of sexual assault it is prescriptive that I impose a sanction of dismissal.

120. Section 120(1) of the Children’s Act provides that a children’s court, any court in civil or criminal proceedings or any platform recognized by law in disciplinary proceedings may make a finding that the person is not suitable to work with children. The finding may be made the court or platform on its own volition or on application by the relevant official of the state involved in the protection of children .

121. In this arbitration no evidence was led by parties on the suitability or not of the employee to work with children. However, the Children’s Act allows that the arbitrator can make the finding on his or her own volition. I have therefore decided that I am making the finding that the employee is, in terms of the Children’s Act, not suitable to work with children.

In the circumstances I make the following award;

AWARD

122. The employer is directed to make a follow up on the evidence led that the learner, AP, was raped at Macwerheni Area in Ntabankulu, provide whatever assistance the learner may need including providing psychosocial services to her and facilitating that the alleged rape (if proved to be true) is reported to all the relevant authorities.

123. The employer has succeeded to prove on a balance of probabilities that the employee, Ntuthuzelo Gcaba, is guilty of the charges proffered against him.

124. The appropriate sanction being imposed is DISMISSAL which must be effected within seven (07) days from the date of receipt of this award.

125. The Respondent, Ntuthuzelo Gcaba, is hereby found unsuitable to work with children in terms of section 120(4) of the Children’s Act . The General Secretary of the ELRC is, in terms of section 122(1) of the Children’s Act is hereby directed to notify the Director-General: Department of Social Development of the findings of this forum so that the Director-General can, in terms of section 122(2) of the Children’s Act enter his (Ntuthuzelo Gcaba’s) name as contemplated in section 120 in part B of the register.

Mbulelo Safa: ELRC Panelist