IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD IN BLOEMFONTEIN (FREESTATE PROVINCE)

In the matter between

FREE STATE DEPT OF EDUCATION EMPLOYER

and

H LABUSCHAGNE EMPLOYEE

ARBITRATOR: Monde Boyce

HEARD: 25 October 2023 and 29.11.2023

CLOSING ARGUMENTS: 05 December 2023

DATE OF AWARD: 18 January 2024

AWARD

PARTICULARS OF PROCEEDINGS AND REPRESENTATION:

[1] The ELRC scheduled the inquiry in terms of Section 188A of the Labour Relations Act 66 of 1995 as amended (LRA) and the inquiry was held on 25 October 2023 at the Free State Education Department Provincial Offices in Bloemfontein. The employee was represented by Miss Tamane, a trade union official from NAPTOSA while Miss L Cweba represented the employer.

[2] I should mention that a different representative was to represent the employee in the proceedings of 29 November 2023. But Miss Tamane advised that the representative was still booked off sick and was unable to represent the employee. An interpreter and an intermediary were present as the main witness was a leaner who is under the age of 18 years. No bundles of documents were exchanged except the charge sheet the employer prepared. The employee’s representative had alerted me to the existence of medical certificates that confirmed that the employee was diagnosed with depression.

THE ISSUE TO BE DECIDED:

[3] I am required to decide whether the employee is guilty of the charge preferred against him by the department, and to make the appropriate award.

THE BACKGROUND TO THE DISPUTE:

[4] The employee, Mr Henning Labuschagne is employed as an educator at Hodisa Technical College in Bloemfontein. The charge preferred against him emanates from an incident that occurred on 17 May 2023 where he is alleged to have engaged in inappropriate conduct against a leaner at St Micheal Senior Secondary School in Bloemfontein. The following charge was preferred against him:

Allegation 1:

“You have contravened Section 18(1)(q) of the Employment of Educators Act No 76 of 1998 (the Act) in that on 17 May 2023 while on duty, you conducted yourself in an improper, disgraceful, or unacceptable manner when you touched a Grade 11 leaner, leaner A on her waist and hugged her.

[5] The employee pleaded NOT GUILTY to the charge.

SURVEY OF EVIDENCE AND ARGUMENT:

Employer’s Evidence

[6] Leaner A was called as the employer’s first witness. She is 17 years old and is currently a leaner at St Michael Senior Secondary School. On a date she could not remember in May 2023 she was at the balcony near the computer laboratory (lab), and while standing there, a man she did not know, and who she only could identify as the employee in the inquiry, approached her and hugged her from behind. She turned towards him, and the gentleman proceeded to ask if she knew a Mr Van Wyk. She responded that she did and that Mr Van Wyk was her former principal. The gentleman proceeded to ask her what grade she was in, and that was when he put his hand on her right shoulder. She could not fully recall the conversation she had with the gentleman, but he pulled her closer and hugged her. After the hug, the gentleman walked away.

[7] She immediately thereafter proceeded to the computer lab along with her friend who is a fellow leaner at the school. When they got to the computer lab, they found one of her friends who was already inside the computer lab. She told her two friends what happened, and they told her to go and report the incident. They went and reported the incident to Mrs Ndiweri who does the school’s marketing. Mrs Ndiweri went to ask for a camera footage, and then went to report the incident to Mrs Stumpfe, the school’s principal. Mrs Stumpfe called her to her office to write a statement about what happened. She gave the statement and thereafter left the office.

[8] The educator did not ask permission to touch her. She was shocked and uncomfortably when the educator touched and hugged her because she did not know him and did not like him and did not understand why he hugged her. The educator did not apologise to her. She would have reported the incident even if her friends did not ask her to. She had let the educator touch her because she wanted to be kind but did not like what he was doing. She did not want to act otherwise because she was not sure what the educator’s reaction would have been.

[9] Miss Nolene Elizabeth Stumpfe, was called as the employer’s second witness. She testified that on 17 May 2023, there was an Arts and Culture workshop at her school arranged by the learning facilitator. Teachers were taken to the computer lab that the leaners use on the school’s second floor. She was in a meeting, and when the meeting ended, leaner A was waiting outside her office with her two friends. Inside the office, learner A told her that a white gentleman put his arms behind her and hugged her, and she was not comfortable with that. She contacted the school’s safety officer and asked the safety officer to accompany her to the lab where the workshop was. When she got to the computer lab, she spoke to the learning facilitator. She did not know the gentleman’s name that leaner A referred to but had been told by leaner A that it was a white gentleman. She was told by the learning facilitator that the educator had already left the workshop. She Was shown the attendance register where she ascertained that the educator concerned was Mr Labuschagne. She asked Mr Elmar Henning to pull the video footage, and Mr Henning did. She took the video footage, and it was only then that she saw the educator. She thereafter spoke to leaner A’s parents and Mr Makati, the Circuit Manager about the incident. Mr Makati asked her to fill in a report form to report the incident.

[10] She does not know if the educator had asked to be excused earlier because the workshop was still ongoing. It was the first time that she saw the educator at the school. Leaner A was not crying when reporting the incident but was visibly upset.

Employee’s Evidence

[11] The employee, Mr Henning Johannes Labuschagne, testified that he was diagnosed with severe depression in the early stages of 2023. He was put on some pills to assist with his illness. The medication he took did not treat him well, and he had mood swings. He attended an Arts and Culture workshop at St Micheals school on 17 May 2023. While walking inside the school, his mood was lifted when he saw the beautiful gardens, seeing everything green and the leaners who cheerfully greeted him all the way. He thought to himself that it would be lovely to teach at the school as the environment at the school he is currently teaching at is not conducive. He touched leaner A on her shoulder because he was in a good mood and had, before meeting leaner A, greeted other leaners. He gave leaner A a hug and did not touch her on any other parts of her body. After hugging the leaner, he realised that he was wrong. But he soon after left for the workshop. He did not act in any sexually inappropriate manner or meant any harm when he hugged leaner A. He had later left the workshop and the school after having received a call.

[12] If he intended any malice, he would have done what he did in private. But he hugged the leaner in public and in full view of other people who could have seen him. He did not believe that he acted inappropriately but just wanted to show kindness given the mood he was in on the day.

ANALYSIS OF THE EVIDENCE AND ARGUMENT

[13] Sections 17 and 18 of the Act have, as one of their primary purposes, protecting leaners by ensuring that untoward and inappropriate behavior by educators towards leaners is kept in check. In terms of Section 18(1)(q), and as set out in the charge preferred against the employee, an educator conducts himself or herself in an improper, disgraceful or unacceptably manner where he or she engages in any conduct that seeks to or have the potential of disrespecting the dignity of a leaner. In terms of the Constitution every child has a right to respect and protection of his or her bodily integrity. Not that it would be any less serious if done by anyone else, an educator who engages in any improper, disgraceful of or unacceptably conduct against a leaner commits a grave act that should invite the harshest of sanctions. This is because educators are charged with the responsibility of not only educating leaners but to protect and nature them to be model citizens.

[14] It is against the above background, in my considered view, that the South African Council of Educators’ Code of Professional Ethics provides that educators must: ““respect the dignity, beliefs and constitutional rights of learners and in particular children” and that they (educators) must: “refrain from any form of sexual harassment (physical or otherwise) of learners, and to refrain from any form of sexual relationship with learners from any school.” Leaners attend school to learn, and an environment where learners feel protected at all times must be created. It is against this trite requirement and the Constitutional provision that “A child’s best interests are of paramount importance in every matter concerning the child” that any conduct that seeks to undermine the Constitutional rights of leaners and breaching of the ethical code required of educators should be harshly dealt with.

[15] Evidence led points to the employee having engaged in the conduct as alleged. Leaner A set out in her testimony in detail what happened on 17 May 2023. The employee, while having pleaded not guilty to the allegation, conceded during his evidence in chief that he had actually touched leaner A. On his own version, he realised that what he did was wrong. While the employee did not dispute having engaged in the conduct as alleged, he disputed that he touched leaner A from behind. But evidence in the form of video footage shown does show the employee approaching leaner A while she was leaning against the rails on the balcony and touching her above her waist from behind, an act that caused leaner A to turn around and face him. He then could be seen touching leaner A on her shoulder and thereafter hugging her before he turned away and proceeded to the computer lab. Based on the video footage and the employee’s own version, it is my finding that he did touch and hug the leaner as alleged.

[16] While leaner A and the school principal, Miss Stumpfe gave differing version on how the incident was reported and how the video footage was obtained, with leaner A stating that she went to report the incident to Miss Ndiweri who was the schools marketing officer and that it was Miss Ndiweri who went to obtain the footage, and Miss Stumpfe testifying that she was the one who obtained the video footage, I do not find this contradiction to be any damaging to the case against the employee to the extent that, irrespective of how the video footage was obtained, it (footage) does show the employee engaging in the act as set out in the charge.

[17] The defense advanced by the employee for having conducted himself is such an inappropriate, disgraceful and unacceptable manner has to be the most astounding I have heard in my experience as an arbitrator (not that it would have made any difference if it was understandable). The employee stated that he takes medication as he had been diagnosed with severe depression and that the medication that he takes results in mood swings. He proceeds to state that on the date of 17 May 2023, as he was walking up to the class where the arts workshop was held, he “looked at the premises and the beautiful gardens, all the leaners looked happy and joyful and greeting me all along as I passed them.” He walked up to leaner A and asked if she knew a Mr Van Wyk and proceeded to show her the beautiful garden and touched her on the shoulder. He then asked to give her a hug and took care not to touch her on any other part of her body. He just held her around the shoulders, but after hugging the leaner, he realised he was wrong because he did not know the leaner.

[18] The defence advanced by the employee amounts to no defence. Even if I were to accept that the pills that he took resulted in his mood swings, I would still reject that his conduct on 17 May 2023 could have been influenced by the medication he takes. I, on the contrary, find that the employee’s actions were deliberate and calculated. There are other leaners that, on his own version, he passed on his way to the classroom where the workshop was held. He did not hug any of these leaners and did not act towards them in the manner that he did to leaner A. He attended the workshop and interacted with other people including fellow workshop attendees. No incident was reported of him having hugged any of the attendees. Overall, except for what he did to leaner A, no untoward conduct against any other leaners or attendees of the workshop he attended were reported, something that would lay credence to the claim he made that the pills he took caused him to conduct himself in the manner he did towards leaner A. It is accordingly my finding that his actions were not random, but were calculated and deliberate and were focussed towards leaner A.

[19] While the employee testified and argued that he could not have intended malice because he did what he did in public where he could be seen by other people and where there were other people around, the video footage does not show any other people in the vicinity during the time he touched leaner A from behind as if to embrace her, touching her on her shoulder and later hugging her before walking off. Leaner A’s friend only arrived later after the incident. He stated during cross examination that leaner A and her friend were laughing about the incident, suggesting that the leaner did not take his conduct seriously and may not have thought much of the incident. But leaner A testified and stated during cross examination that she did not like what the employee did to her and that she allowed him to touch and hug her because she was not sure what his reaction would have been if she acted otherwise. This is understandably if one has regard to the fact that the employee was a stranger to leaner A and her being unsure of how to react was not something out of the ordinary. The employee, knowing that he was not from the school and was unknown, may have taken advantage of leaner A hoping to get away with his conduct. I do suspect that he may not have been aware that there were CCTV cameras on the school premises and may have hoped to get away with his conduct.

[20] But even if the employee’s defence as to the pills he takes possibly having contributed to the mood he was in and the manner he conducted himself towards the leaner were to be accepted, same would not negate the fact that the best interests of leaner A as a child take precedent and are paramount. In other words, the best interests of leaner A, weighed against any negative effect the medication may have had contributing to him conducting himself in the manner that he did on the day, take precedent and are of paramount importance. Her (leaner A) Constitutional right to bodily integrity could not be disregarded. She has a right to respect of her dignity. As I earlier stated, schools should be safe havens for leaners and educators are duty bound to protect leaners and should, at all times, behave in a manner that is in keeping with the ethical conduct expected of them. The employee acted inappropriately towards leaner A and had no justification for doing so. It is accordingly my finding that the employee is guilty of the charge.

[21] Given the gravity that any act of sexual harassment by educators against leaners should be viewed, and on the basis of my having found the employee guilty, it follows that he is unfit to work with children and such finding is consistent with the provisions of Childrens Act 38 of 2005 .

[22] In the premises, I make the following award:

AWARD

[23] The sanction of dismissal is imposed effective from 29 December 2023.

[24] The General Secretary of the ELRC must, within 14 days of receipt of this award, report or refer the award to the educators’ professional body, SACE for its consideration of appropriate action to be taken.
[25] The employee, Mr Henning Labuschagne is found unsuitable to work with children in terms of Section 120(40 of the Children’s Act 38 of 2005.

[26] The General Secretary of the ELRC must, 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 made in terms of Section 120(4) of the Children’s Act 38 of 2005, that Mr Henning Labuschagne, is unsuitable to work with children, for the Director general to enter his name as contemplated in Section 120 in Part B of the register.

[27] The employee has the right to take this award on review to the Labour Court as envisaged in Section 145 of the LRA and must do so within the prescribed timeframe.

Monde Boyce
Panelist: ELRC