19 January 2023 – ELRC294-22/23 KZN

IN THE EDUCATION LABOUR RELATIONS COUNCIL

In the matter between

Department of Education KZN Employer
And
N. Sibiya Employee

ARBITRATOR: R. Shanker

DELIVERED: 17 January 2023

DEFAULT AWARD

DETAILS OF HEARING AND REPRESENTATION
1. This matter was referred to the Education Labour Relations Council (ELRC) in terms of section 188A of the Labour Relations Act 66 of 1995, as amended. It was set down at the Department of Education office in Eshowe on 22 September 2022 and, as agreed by the parties, at the Department of Education office in Pietermaritzburg on 23 November 2022.
2. The employee, N. Sibiya, attended the hearing on 22 September 2022 and made an application for postponement on the basis that he did not have representation. The application for postponement was initially refused but that decision was rescinded when it became apparent that Sibiya did not have the necessary ability to proceed and that it would be unfair to allow the process to continue without representation. The matter was accordingly postponed on condition that there would be no further postponements.
3. Sibiya did not attend this process scheduled for 23 November 2022. I decided to proceed with the matter in default as I was satisfied that notice to attend this process was sent timeously to Sibiya by email and there was no application for postponement or an explanation for his absence. The employer, Department of Education KZN, was represented by M. Mtetwa.
4. The matter relates to the sexual harassment of learners who are minors. In accordance with the protection of the rights of minors, the identity of the learners will not be disclosed. I will refer to them as Learners A, B and C. Their evidence was given via an intermediary an interpreter.
ISSUES TO BE DETERMINED
5. The issue to be determined is whether Sibiya committed the misconduct as per the charges set out below and, if so, to determine an appropriate disciplinary sanction.
Charge 1: It is alleged that during the period 2022, you committed sexual misconduct against a learner, in that you proposed love to Learner A, Learner B and Learner C who are learner in your school. You thereby contravened section 17(1) of the Employment of Educators Act (“Act”)
Charge 2. It is alleged that during the period 2022, you committed an act of misconduct against learner A in that you tried to kiss her in the mouth and or you slept on top of her and/or forced her to touch your private part. You thereby contravened section 17(1) of the Act.
BACKGROUND TO DISPUTE
6. The employer called three witnesses in support of its version that Sibiya committed acts of sexual misconduct as set out in the charges above. Documentary evidence was submitted as per Bundle A. The employee was not present and therefore did not testify.
7. As relief, the employer requested that the employee be dismissed.
SURVEY OF EVIDENCE AND ARGUMENT
8. The evidence hereunder is not a verbatim account of the proceedings but evidence deemed necessary to determine the issues in dispute. All evidence and arguments were considered prior to drafting this award.
9. Sibiya was a geography teacher at the school where the learners are based. The learners are aged 16 and 17 years old.
10. Learner A testified that she rents accommodation near the school as her home is far away and, when she did go home, she would get a lift from Sibiya. On one Sunday, Sibiya gave her a lift from home to the place she rented near school. After he dropped off another teacher, Sibiya asked her to sit in front. As they came nearer to the school, Sibiya asked her to be his wife and that she must come to his house. He asked her for a hug but she refused.
11. On another day, her mother sent her shoes with Sibiya. She went to school with Learner C to fetch the shoes from him. He arrived late at night and offered to drop them off at their residence. He dropped off Learner C at the tuck shop. He pulled her out of the back seat and made her sit in the front seat of his vehicle. He reclined her seat and jumped over from his seat onto her. He asked her to kiss him whilst he was on top of her. She refused and put her hand across her mouth. He removed her hand and pressed her back with his elbow. A car arrived with bright lights and he jumped back to his seat. He drove for a while and then stopped again. He jumped back onto her seat and was on top of her. He again asked her to kiss him. She turned her head and started crying. He then said she must touch his penis. She pinched his penis. He went back to his seat and said “You can’t injure me”. He drove until he got to his house. When he stopped, he again jumped onto her seat and said he wants her to kiss him and it not that he wants to sleep with her. She was crying and he hit her lightly on her forehead with his hand before he moved back to his seat. She reported the incidents to her sister who then reported it to her mother. Her mother reported it to the principal. There was also an incident where Sibiya had hit her in class with a pipe.
12. Learner B testified that on a certain day, after they had written a geography exam, Sibiya phoned her and asked her what she was doing. He told her that he loves her, she is beautiful and he can’t wait anymore. He thereafter phoned her between 5 – 10 times telling her the same thing.
13. There was a sports event when the term ended but she didn’t attend and went home. Sibiya, after saying the same things again, asked her what was delaying her. He told her that he loves her and she must be careful about this (meaning the relationship). She said okay but immediately sent him a message stating that she cannot be a part of what he was asking of her. He asked “why my dear” but she didn’t reply. He sent another message asking her to think about it carefully and make a decision (conclude) before they open. She submitted WhatsApp printouts from her phone in support of her version.
14. Learner C testified that in Term 2 of 2022, Sibiya started complimenting her by telling her that she was beautiful and had a well-shaped body. She received messages on Facebook from Sibiya telling her that he loves her and sees a future in her. At that stage, she didn’t know that it was him and so she asked “Why, because I am a learner at school”. He replied “I see lots of potential and can build a good future with you”. She asked
“Why because you already have a future?”. He replied “What kind of future you can have with an adult when you already an adult. To have a future, you need a younger person. We need to discuss this properly”. He then asked her to come to his office to talk about it.
15. The next day, as she was leaving school, Sibiya stopped her in the parking and asked her if she remembers what they spoke about the previous day. She said she didn’t and he said “don’t make me a fool, I am going to hit you”. She left but on the way home, he phoned her and offered to give her a lift so that they could “talk about us”. He said “It was a matter of love”.
16. During a Facebook conversation, she asked him why he was approaching her because she was the same age as his daughter. He replied “What is wrong with that because I love you”. He asked her to think about it and trust that she would give a positive response. She replied by saying that she would never do such a thing. He replied “I am having wishes that will never be fulfilled by falling in love with you”. When she said that what he was doing was wrong, he replied “No, because I am having feelings for you”. When she said that she was still a learner, he replied “I am aware but, in a few years, you will no longer be a learner. I can see a future wife in you”.
17. On another day, he asked her why she didn’t go to the sports event and asked whether it was because of money problems. He offered to give her money from the school and also give her pocket money. He requested that that conversation stays between them. She thereafter blocked him on Facebook.
ANALYSIS OF EVIDENCE AND ARGUMENT
18. In this matter, I have heard the evidence of three learners. I considered them to be credible and reliable witnesses. They gave a precise and detailed account of what had happened and there was absolutely no reason to believe that they were not being honest and truthful. There was nothing inherently improbable in their versions. Their versions, in some instances were supported by print outs from their phones. Sibiya was not present to dispute their evidence. I therefore accept the learners’ versions that Sibiya proposed love to them and in case of Learner A, he tried to kiss her on her mouth, slept on top of her and forced her to touch his penis. Sibiya’s conduct was, therefore, of a sexual nature.
19. I find that Sibiya committed the misconduct in terms of Charge 1 and 2 and thereby contravened section 17 of the Employment of Educators Act. The employer did not pursue Charge 3 at this hearing. Any misconduct of a sexual nature by an educator on a learner is regarded by the Act as serious misconduct for which dismissal is a mandatory sanction.
20. Having regard to the egregious nature of the sexual misconduct, I find that dismissal is an appropriate sanction and that Sibiya should never be allowed to work with learners and/or children in the future. Educators are employed in a position of trust and work closely with learners. Section 28(2) of the Constitution imposes a duty on all of those who make decisions concerning a child to ensure that the best interests of the child enjoy paramount importance in their decisions. Courts and arbitrators are bound to consider the effect their decisions will have on the lives of children, not only in the life of the child who is a victim of sexual misconduct but also the lives of children in general who have the right to be treated with dignity, respect and without emotional and/or physical abuse.
AWARD
21. In the circumstances I make the following award:
21.1. The employee, N. Sibiya, contravened section 17 of the Employment of Educators Act, 76 of 1998.
21.2. The employer, Department of Education KZN, must immediately impose the sanction of dismissal on N. Sibiya in terms of section 17(1) of the said Act.
21.3. The ELRC General Secretary must forward this award to the Department of Social Development for N. Sibiya’s name to be included in the National Child Protection Register as unsuitable to work with children and to the SA Council for Educators (SACE) for appropriate action.