18 October 2022 – ELRC 325-22 23 GP

Case Number: ELRC 325-22 23 GP
Part Time Senior Panelist: M.A. HAWYES
Date of Award: 14TH October 2022

In the ARBITRATION between

Gauteng Department of Higher Education

(Employer)

And

E.Khunoana

(Employee)

DETAILS OF HEARING AND REPRESENTATION

1. The case was scheduled for an inquiry by arbitrator at the Soshanguve Teachers Centre, Soshanguve on the 27th September 2022. The inquiry into the merits was finalized on the same day.
2. After completion of the inquiry the parties requested the opportunity to submit written closing arguments by the 4th October 2022. The closing arguments were timeously received and my award now follows.
3. Mr. P.M Masiane, a union official from SADTU, represented the employee
4. Ms. W. Sekhwala, a labour relations official, represented the employer.
5. The proceedings were digitally recorded and long hand notes were also kept of the proceedings. Only the Respondent made use of a bundle of documents.
6. An intermediary assisted the minor witnesses and the said witnesses testified remotely from the hearing room where the arbitration hearing itself took place.

ISSUE IN DISPUTE
7. The employee pleaded not guilty to three counts of alleged misconduct in terms of section 18 (1) (q) of the Employment of Educators Act, 76 of 1998 (as amended) (EEA).
8. It is common cause that the employer employs the employee as a PL1 educator at FR Smangaliso Mkhatshwa Secondary School and at the relevant time periods in this inquiry the employee taught Life Orientation and Social Sciences.
9. It was alleged firstly that on the 10th February 2022 the employee conducted himself in a disgraceful unacceptable and improper manner by insulting SK, a grade 11 learner, by saying that she has a big vagina.
10. Secondly, it was alleged that, between the period 2021 and 2022, on various occasions, the employee conducted himself in an unacceptable manner in that he proposed to have a love affair with SK, a grade 11 learner.
11. Thirdly, it was alleged that, between the period 2021 and 2022, on various occasions, the employee conducted himself in an improper manner in that he remarked to SK to show him how she was having sexual intercourse with her boyfriend.

SURVEY OF THE EMPLOYER’S EVIDENCE AND ARGUMENT

12. The employer led the evidence of five witnesses in support of its case namely the complainant KS and two of her classmates KN and BM. The employer also led the evidence of PL 2 HOD for English at the school, Ms M. Lesiba and the Deputy Principal, Mr B.J Kheswa. All of the evidence led by the witnesses was short and succinct.
13. KS a 17 year old grade 11 learner at FR Smangaliso Mkhatshwa Secondary School was clearly able to distinguish between right and wrong and took the oath.
14. KS testified that during the time of the final exams in 2021 the employee called her to the staffroom after she had written one of her exams. KS remarked that in 2021 the employee did not teach her any subjects at school.
15. During the conversation the employee took her hand and told her that he is waiting for her to finish grade 11 so that she could become his girlfriend. (KS was referring to count 2 of the allegations against the employee).
16. The employee then related the second incident (count 3 according to the allegations against the employee). The incident occurred in February 2022 when the employee was one of KS’s class teachers. The employee approached her and asked if she was dating. She said yes. He then asked her if they were having sexual intercourse and she said- no; they were too young for that. The employee then told her that when they began having intercourse she should show him (the employee) how they did it.
17. The third incident (count 1 of the charge sheet) related to another incident in 2022 in class. As she was leaving the class the employee remarked that there was something that really attracted him on her body and as he spoke he was staring at her private parts. The employee further remarked that when she sat in class he could see that she had a big vagina.
18. KS testified that shortly after the last incident she reported what the employee had said to her friends KN and BM.
19. It is common cause that the girls were exchanging conversation in the toilets about the third incident and their conversation was overheard by a cleaner who encouraged them to report the incident to Ms Lesiba and that is what they did. Lesiba then reported the incident to the Deputy Principal Kheswa who later reported the matter to the District office for further investigation.
20. Both BM and KN gave evidence supporting KS’s version that the employee was engaged in sexual verbalizing with her related to the incidents in question.
21. Lesiba and Kheswa both confirmed the respective reports made to them.
22. During cross-examination the employee denied any knowledge of the incidents described by the respective witnesses.

SURVEY OF THE EMPLOYEE’S EVIDENCE AND ARGUMENT

23. After conferring with his union representative the employee elected not to lead any evidence or call any witnesses and closed his case.

ANALYSIS OF EVIDENCE AND ARGUMENT

24. The onus rests on the employee to prove all allegations of misconduct against the employee on a balance of probabilities.
25. An important aspect is the credibility findings in respect of the various witnesses. I was impressed with all the witnesses for the employer. All the evidence provided one detailed and comprehensive flow of the sequence of events.
26. KS evidence is crucial because it is the only direct evidence and it lays the basis for the other witnesses’ evidence that followed. She was a single witness to the three separate incidents. During cross examination she remained firm and consistent in her convictions. I find that her evidence is satisfactory in all material respects.
27. It is clear that KS was offended and alarmed by the unwanted and unsolicited sexual affections of the employee.
28. The general consensus of the employers witnesses was that the employee is a good educator and well-loved by staff and pupils alike. This militates against any suggestion that KS and her friends may have concocted false evidence against him.
29. No attempt was made during the employer witnesses cross examination to put the employee’s version to the respective witnesses. The employee was content to deny that any of the incidents occurred but could not explain why the incidents were alleged to have happened in the first place.
30. The employee was unwilling to testify under oath and subject himself to cross-examination. In find that this is decisive in deciding the matter. The evidence of the employer witnesses are accepted as fact and truth and the employee’s bare denial is rejected. I find further that the Applicant acted in a disgraceful, improper and unacceptable manner in the way he spoke to KS.

RULING AND SANCTION

31. The employee is found guilty of all three counts of misconduct in terms of section 18 (1) (q) of the EEA.
32. Both parties are directed to make submissions in mitigation and aggravation within 48 hours of receiving this award. No late submissions will be accepted. Please forward submissions to the same e-mail address where the written closing arguments were sent i.e., mark@advocare2.com.

MARK HAWYES
PART TIME SENIOR PANELIST