APPLICANT: SANDILE NGUBO
Represented by Mr Sazi Ngubo
TKN INCORPORATED
Telephone: 031 3032022
Mobile: 078 122 4851
Fax: 0313033545
Email: sazi@tkninc.co.za
madoda@tkninc.co.za
Applicant Mobile : 0723228248
Applicant’s email: sandilengubo@gmail.com

RESPONDENT: DEPARTMENT OF EDUCATION (KWAZULU NATAL)
Represented by Mrs Nokuthula Nxumalo
Telephone: 033 8465409
Fax: 0866418606
Email: Nokuthula.Nxumalo@kzbdoe.gov.za

DETAILS OF HEARING AND REPRESENTATION

1. The Arbitration proceedings were finalized on the 24TH APRIL 2018 under the auspices of the ELRC, in the boardroom of the Respondent , located at 166 Jabu Ndlovu Street, Pietermaritzburg in terms of section 191 of the Labour Relations Act No 66 of 1995 (the LRA”). The Parties were required to submit, which they duly complied, closing arguments by no later than the 10th May 2018.
2. Both parties were in attendance and were represented by their respective legal representatives. For the sake of completeness, the Applicant was initially represented by Mrs Madari of NATU. In January 2018, Attorneys TKNINC applied and were duly granted the right to legally represent the Applicant. The matter was finalized on the 24th April 2018
3. The primary issue in dispute was couched in terms of section 191(1) [read with section 191(5)(a)] of the LRA] –Dismissal related to misconduct.
4. The proceedings were conducted in English and were digitally as well as manually recorded.
5. Both the Respondent and the Applicant, each submitted a bundle of documents as part of its evidence which I marked “A” and “B” respectively .

BACKGROUND TO THIS DISPUTE

6. It is common cause that
a. The Respondent, the Department of Education KZN provides employment to educators.
b. The Applicant was an educator since 1991,
c. and that, from 2009 to the date of his dismissal, he was a level one educator, at Mount Pleasant Primary School where he taught mathematics and social science.
d. It is not in dispute that the Applicant was a committed educator and that he was a dedicated educator serving his profession and the school by immersing himself with administrative duties at the school and as such he was appreciated by the principal Mr DP Moodley.
e. It is also not in dispute that he had applied for and that he was the preferred candidate for the post of Deputy Principal at the school and that this post was also contested by a Mrs HN Mdlangathi, who had acted as Deputy Principal at the school but who wasn’t shortlisted for the post.
f. On the 4th February 2016, there was an alleged incidence of sexual assault involving the Applicant and a female colleague Ms Z.P Kuhbeka at the school which resulted in an internal disciplinary hearing, on the 27th July 2016, where he faced three charges of misconduct as follows:

i. Charge 1
He sexually assaulted, Ms ZP Kuhbeka ( hereinafter referred to as the “complainant”) in that , on that date, he touched her private part when she consulting him, regarding a lesson plan for Social Science, in his class room. In so misconducting himself, he contravened section 17(1)(b) of the Employment of Educators Act, as amended.

ii. Charge 2
He showed disrespect towards the complainant in that he told her that perhaps she had slept with the Principal of the school or the Circuit Manager in order to secure a job as a substitute teacher at the school. In so doing he contravened section 18(1)(t) of the Employment of Educators Act as amended.

iii. Charge 3
While on duty, he attempted to force the complainant to join NATU and as an incentive she would secure a permanent post. In so doing he contravened section 18(1)(q) of the Employment of Educators Act, as amended

g. He was found guilty and dismissed on the 15th August 2016, whereafter he unsuccessfully appealed against the decision on the 8th December 2016.
h. He referred a dispute to the ELRC on the 12th May 2017.
i. The relief he seeks is reinstatement.

OPENING STATEMENTS
The parties were invited to make opening statements. For the sake of brevity, what follows is a summary and not a verbatim account thereof.
APPLICANT
7. He will prove that the charges and the subsequent dismissal followed a promotional dispute .The main thrust of his defence is that there was a conspiracy against him and that the charges of sexual assault were fabricated against him.
8. He challenges his dismissal on procedural as well as substantive grounds. The relief he seeks is reinstatement.

RESPONDENT

9. The Applicant was charged and dismissed on the aforementioned three counts.
10. It will produce four witnesses who will testify and prove that the Applicant was dismissed for fair reasons and that the dismissal was procedurally as well as substantively fair.
11. As it was established that a dismissal had taken place (s 192 (1)), the respondent bore the onus to prove that the dismissal was substantively and procedurally fair (section 192 (2)).
ISSUE TO BE DECIDED

12. The issue to be determined is whether the dismissal of the applicant was procedurally as well as substantively fair.
13. Should I find in favour of the Applicant then I am required to consider what remedy would be appropriate.
14. Should I find against the Applicant, then the matter would be dismissed and the Applicant would not be entitled to relief.

SUMMARY OF THE EVIDENCE AND ARGUMENT

15. Section 138(7)(a) of the Labour Relations Act 66 of 1995 (“the LRA”), requires me to issue an award with “brief” reasons”. I do not propose to offer an exhaustive survey of all the evidence and argument led at the arbitration hearing.
16. However reference to “brief reasons” doesn’t mean that I must not consider all relevant evidence adduced during this arbitration and not to record thm. I am supported by persuasive case law on this point. Furthermore, given the number of witnesses (six in all who testified and reference to the documents used and referred to in these proceedings) this award is in line with the principle enunciated by the Labour Court in Country Fair Foods (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Another, [1999] ZALC 182 (19.8.1999) to the effect that as an arbitrator I am obliged to apply my mind to all the facts. As Zondo, then JP, reminds is in the LAC judgment in Naepe v Commission for Conciliation, Mediation and Arbitration, [2008] ZALAC 2 ( 18 April 2008), that although a commissioner is expected to give “brief reasons” he or she is expected to take into account all the facts and factors which are of great significance to or which are critical to one or other of the issues he or she is called upon to decide. It is my respectful understanding that I must make mention as to what these facts are and what are the factors that inform my finding as recorded in this award.

Respondent’s case

Respondent led the evidence of four witnesses. They were
(a) Mr M. M. Mabaso
(b) Ms ZP Kubekha ( the complainant)
(c) Mrs HN Mdlangathi
(d) Mr DP Moodley ( the principal)

Arbitrator’s note

The common thread woven by the Applicant during cross examination of each of these witnesses, it will be seen, is that the Applicant was a victim of a conspiracy. This becomes profoundly clear once the Applicant testified and led evidence.

(a) M.E Mabaso

His evidence in chief

17. The salient points of Mr Mabaso’s evidence are as follows:-
a. He was the deputy manager in the Employee Relations Directorate.
b. He chaired the internal disciplinary hearing at which the Applicant was charged with and found guilty of the offenses that ultimately led to his dismissal.
c. As such he was well versed and extremely proficient in the processes and procedures relating to chairing disciplinary hearings.
d. He also explained what his functions were.
e. His functions related
i. mostly to disputes as well as grievances .
ii. He also represents the Respondent in arbitrations, conciliations and misconduct cases.
iii. And finally he also chairs disciplinary hearings.
18. As the Applicant challenged his dismissal on procedural grounds, Mr Mabaso’s testimony provided a comprehensive insight as to the procedure that was followed during the internal disciplinary hearing of the Applicant which, Applicant’s representative at the time, Mrs Madari, never seriously challenged and his testimony remained intact during a robust cross examination by her.

Cross examination
19. He candidly testified that he never explained to the Applicant that as he was charged in terms of section 17, he could be dismissed if found guilty. His justification for this was that the Applicant was represented at the time by a union official. Furthermore he stated that if he did inform the Applicant about the possibility of dismissal, it could have led to the perception that he had already decided on the outcome.

Arbitrator’s notes

The Applicant was an educator of considerable seniority as well as well-versed and articulate. He was a teacher in Mathematics and therefore highly intelligent. He ought to have known or should have been advised by his representative and furthermore as the charge of sexual assault he faced were extremely serious he ought to have been alert to that possibility. Mr Mabaso was candid and never attempted to mislead or excuse away why he never explained the possibility of dismissal as an outcome.

20. Mrs Madari put to him that the Applicant never understood the charges. His response was that the Applicant was represented at the time and therefore he didn’t see the need to explain the charges to the Applicant. Furthermore, at no time did the Applicant raise the issue now being put to him. He understood that the Applicant understood what charges he was facing and the possible outcomes thereof if he were found guilty.

Arbitrator’s notes
Nothing turns on this for two reasons, namely, that the Applicant was a senior educator who, secondly I found to be extremely well versed with the provisions of the Employment of Educators Act. In fact the Applicant’s legal representative who took over from Mrs Madari in January 2018, do not challenge or put into issue or argue against the procedural aspect during the internal hearing and inferentially they concede in the closing argument that there were no issues pertaining to the procedural aspects during that internal disciplinary hearing.
Their major, though subtle shift in focus , was that there was no investigation in terms of the “Code of Ethics of Educators” as governed by the South African Council of Educators Act No 31 of 2000 ( see para 3(a) of the Applicant’s legal representative’s closing argument).
Section 18 of the Employment of Educators Act requires the Education Department to appoint an inspector.
However, how fatal this was is not made clear in their closing arguments. Even if one concedes that there was procedural unfairness, one has to ask, considering the extremely serious nature of the allegations, would an investigation have led to a different outcome. In any case, it can be argued that the Applicant, was provided with every opportunity during that internal disciplinary hearing to challenge the evidence led against him and to adduce evidence to contradict the version of the Respondent and its witnesses, particularly the complainant.
21. Mrs Madari took Mr Mabaso through the outcome and findings he had made which was included in the bundle of documents, especially whether the version of the complainant was verified. Significantly, Mrs Madari questioned ( why I fail to understand as Mr Mabaso didn’t witness the alleged sexual assault and neither was he privy to what happened on the 4th February 2016) Mr Mabaso as to why he had accepted the version of the complainant regarding what had transpired . The significance lies in the maturity and the quality of Mr Mabaso’s response. He responded that the Applicant did not put his version to the complainant (page 23 of the typed transcripts). The Applicant merely came out with his defence without disputing what was said by the complainant. This, I submit is evidence that Mr Mabaso had scrupulously applied his mind to the evidence before me.

(b) Ms Zandisile Pride Kuhbeka ( the “complainant”)

Her evidence in chief

22. She was the erstwhile educator at Mount Pleasant Primary School ( hereinafter referred to as “the school’) and it was she who alleged that she had been sexually assaulted by the Applicant on the 4th February 2016.
23. On the 1st February 2016 the district office sent her to the school as a substitute teacher to teach life skills, social science and English.

Her version of the sequence of events and what transpired on the 4th February 2016

24. Her sworn testimony was as follows:
a. As she was a new educator, on the 4th February 2016, she was referred to the Applicant by Ms Madlangathi ( who also testified in this arbitration) for a lesson plan in social science as he also taught the course at the school.

Arbitrator’s notes
It is relevant for the sake of context to state here that , during her cross examination by Mrs Vishi Madari, she testified that when she first arrived at the school on the 1st February 2016, she had undergone orientation by the principal on the 2nd or 3rd February at the school and it was during this that she was referred to the Applicant by Mrs Madlangathi. This is consistent with her version
b. When she got to his class she had found him outside, on his mobile phone ,talking to someone . After she introduced herself to him, she was invited to take a seat in the class room which she did. There were learners in the class room.

Arbitrator’s notes
The Applicant’s representative challenged this version stating that the true position was that the Applicant wasn’t on the phone as alleged but that he was talking at the time with a Mr Kabushe , the SGB treasurer. It is relevant for me to state here that Mr Kabushe was never called to testify as a witness for the Applicant to gainsay his version. He had enough time to secure the attendance of Mr Kabushe who would have impacted on the credibility and veracity of the evidence of the complainant. No explanation was provided as to why this was done although Mrs Madari stated that Mr Kabushe would indeed come and testify. The inference that can be drawn here is that the Applicant’s version never happened and that it was a fabrication.

c. A while later he entered the class room, took one of the learner’s chairs and went and sat down next to her.
d. The next thing he did was that he touched her private part. When pressed to describe how he had touched her, she initially stated that she couldn’t describe it but she later demonstrated how he placed his hand on her private part. She was surprised and instantaneously she stood up and asked him “what are you doing?” and she indicated that she wanted to leave the class room. Her path was blocked and he refused to let her pass through. She then sat down again. However, she wasn’t forced to sit down.

Arbitrator’s notes
It is apposite that, for the sake of context , I record here that
(a) the Applicant denied this version of the complainant and that she produced a witness, a Mrs Zuma, who testified on his behalf. Although she wasn’t a witness to the alleged assault, she testified that she had entered the class, ostensibly for an eraser and she had seen the Applicant and the complainant sitting not close as alleged, but her version was that there was a set of drawers separating the Applicant and the complainant, and that they were discussing something with reference to a file that was on the table before them and that she had not seen anything untoward. She also testified that there was enough space for the complainant to get past the Applicant if she wanted to.
(b) During vigorous cross examination by Mrs Madari, the complainant acquitted herself and reiterated that she asked the Applicant what he was doing and that, she added that she got angry after he had touched her private part and that she had told him that she wanted to leave but that he had refused her to leave.

e. He apologized to her for touching her private part, but he didn’t let her leave “until we are talking as adults”.
Arbitrator’s notes
She was mollified, it seems, and, even though she wasn’t forced to sit down, she wanted to leave but was forcibly detained since her way out was barred. This explains her reaction that she was surprised and asked him what he was doing. And his alleged apology which he denied during his evidence in chief.
f. He asked her to join NATU. She indicated to him as she was new to the school she didn’t want to join any union which but he was persistent by telling her that if she didn’t join NATU he couldn’t help her secure a permanent post.
g. She alleged that he had asked her how she got the teaching post at the school and whether to secure that, she had slept with the circuit manager or the principal. She denied that telling him that she was sent to the school by the district office. He accused her of lying, boasting that he knew that “each and every woman in education (got) the job by sleeping with either the circuit manager or the principal”.
h. About the same time as he was persistently trying to secure her membership, another female educator whose name she didn’t know at that time ( Mrs Zuma) came into the room and invited her to join NATU hinting that those who didn’t join eventually left the school. NATU was the only organization that had the power at the school. They couldn’t find the forms in the drawers of his class room table and she left to locate same but returned and told him through the window that she was unable to find any forms.

Arbitrator’s notes
The complainant wasn’t very clear on what she meant by this. I noticed that she was, at this point during her evidence in chief, on the verge of tears and she was emotional, so I offered her a glass of water. Mrs Zuma’s version, for the sake of context and comparison varied with the version of the complainant as we shall soon see. Mrs Zuma testified that when she entered, she saw them discussing something with reference to a file on the table and that it was she who broached the topic with the Applicant regarding inviting the complainant to join NATU.

After the 4th February 2016

i. Eventually she left and she immediately reported the matter to the HOD Mrs Madlangathi as the principal was not available on that day the 4th as well as on the 5th which was on a Friday.
j. On the 8th February 2016, she reported to the Principal, Mr DP Moodley who asked her what she wanted to do. She wanted to lay a formal charge at the police station and as she was not familiar with the area and that she depended on public transport she was taken by Mr Moodley to the police station that culminated in the Applicant being charged for sexual assault which she withdrew against the Applicant on the advice of her mother, ostensibly for safety reasons.
k. She told him that she would be proceeding with the case before the department of education. She also stated she refused to be bribed with an unspecified sum of money, by the Applicant ( which the Applicant would deny) .

Cross-examination

25. Her chief mode of conveyance was public taxi. However, as she wasn’t familiar with the area in which the school was located , she was fetched from an area where a high school was located in Hopewell by the principal Mr DP Moodley.

Arbitrator’s notes
This line of questioning during cross examination is thematic of the defence consistently punted by the Applicant through his representative Mr Vishi Madari, about there being a conspiracy against the Applicant after he had got the nod as the preferred candidate for the contested post of Deputy Principal at the school. I reiterate what the complainant testified he had accused her about how all the women got their posts in education.
26. She was forced to leave the school , thereafter, after the SGB had complained to the principal that her appointment was irregular and she had been shown the letter of complainant.
27. She remained steadfast in her testimony despite the mention by Mrs Madari that a witness, Mr Kabushe would be coming to testify that at that time when she saw the Applicant on the phone in fact he was talking to the Applicant outside the class. She also remained steadfast when it was put to her that the Applicant never touched her as alleged.

Arbitrator’s notes

I reiterate what I stated earlier on, with the addition, that this version was never proved by the Applicant and therefore it appears to be highly improbable and is a fabrication.

28. She remained steadfast when it was put to her that
a. She was never touched by the Applicant as alleged, as
b. They were sitting apart from each other separated by a chest of drawers under the table,
c. And that he was sitting at the side of the table. And that
d. Mrs Zuma would come and testify to that effect regarding that aspect of the allegation that he had sat next to her and was thus able to touch her private part.
29. She reiterated under cross examination when challenged about whether she was touched by the Applicant in her private part, and that after he had made a lewd comment namely “Wow this is a big thing you have” she had asked him what he was doing and that she got angry and wanted to leave but that he would refuse her to leave and that to calm her down he had apologized to her.

Arbitrator’s notes

This aspect of the evidence was critical for it goes to credibility of the complainant. Her testimony was unshaken.

30. She was asked why she didn’t leave when Mrs Zuma came in. Her immediate response was that as soon as Mrs Zuma walked into the classroom the Applicant was asked by her whether he told her about NATU and, as she was “on his side” so she couldn’t tell her that she wanted to leave. She reiterated during vigorous cross examination that there was no chance for her to tell Mrs Zuma for that reason. They were allies.

Arbitrator’s note

Much was focused on what happened after the alleged incident, especially whether she was free to leave or not. However, we cannot lose focus on what allegedly happened and was it probable or improbable. That is the issue for if it is proved on a balance of probability then the dismissal of the Applicant was substantively fair. To her credit, Mrs Vishi Madari robustly challenged the complainant’s version of events and in so doing elicited some evidence supplementing what she had she had submitted during her evidence in chief , that she had not mentioned before probably because, and she had alluded to this, she was very embarrassed and humiliated by what had transpired.

31. She could not remember whether the principal had come into the class room, when she was challenged by Mrs Madari , the purport of this being that she could’ve told him then what had happened.

Arbitrator’s notes
In fact the principal, Mr DP Moodley, did testify to the effect that he had gone to the class room to secure the signature of the Applicant in a cheque. Her not remembering this was out in issue. However, does it sufficiently render the version of the complainant improbable when weighed against the totality of all the evidence particularly the failure of a key witness, Mr Kabushe, whose testimony if true would have negatively impacted on the complainant’s version.

(c) Mrs HN Mdlangathi

Her evidence in chief

32. She was the HOD and the acting Deputy Principal at the time and the salient points of her testimony are as follows: She testified that
a. she and the Applicant were colleagues at the school.
b. On the 4th February 2016 the complainant reported that she had allegedly been sexually assaulted by the Applicant after she had gone to see the Applicant as referred by her.
c. The complainant had
i. vividly described how she had been assaulted and that
ii. she had asked the Applicant what he was doing and ho he tried to calm her down after she expressed anger.
iii. She also was told about how the Applicant had accused her of sleeping with the circuit manager or the principal to secure the job at the school.
d. They agreed to meet the next day, the 5th February 2016, and as the principal was at a principals meeting it was decided that the incident be reported to him on Monday the 8th February 2016. She had gone to see the principal on the 8th February ahead of the complainant and related to him what she was told by the complainant.
33. The complainant was called in to narrate what had transpired and she had got very emotional as he did so. At her behest and choice a police docket was opened and the Applicant was charged

Cross examination
34. Her reply to as to why she had left the school on the first day of the second term was that the school had been shut down because the SGB and parents were unhappy with her presence at the school as she had lodged a dispute about that vacant deputy principal’s post that she had unsuccessfully contested (and in respect whereof the Applicant was their preferred candidate). She had been acting in that post.
35. It was put to her that “this drama” which I take to mean the allegation of sexual assault etc, was because of that post.
36. She denied that she had attempted to bribe a Mrs Zumkhize. ( Mrs Zumkhize never testified at all). This challenge is significant as it goes to the root of his defence .
37. She was asked about her relationship with the Applicant which the witness described as a “good working relationship”.
38. She was asked why would she send the complainant to the Applicant as there was another educator a Mr Ndunge who also taught social science and it was put to her that she was part of a conspiracy to get him dismissed. This she vehemently denied.

Arbitrator’s notes

I reiterate that this line of questioning during cross examination is thematic of the defence consistently punted by the Applicant ( vide his opening statement) through his representative Mr Vishi Madari, about there being a conspiracy against the Applicant especially after he had got the nod as the preferred candidate for the contested post of Deputy Principal at the school. No evidence was ever put before me up till this stage and beyond. All I heard was the bare bones of allegations with no meat in them. None of the witnesses testified,

(d) Mr DP Moodley

39. He is the principal at the school since 2013. The salient points in his testimony are as follow:
a. He had been to a principals meeting on the 5th February 2016.
b. On Monday the 8th February 2016, Mrs Madlangathi had come to his office and told reported to him about the alleged sexual assault on the complainant by the Applicant.
c. The complainant was summonsed and
i. she directly narrated to him what had allegedly occurred.
ii. She was very uncomfortable in explaining what had occurred.
40. He advised her that the allegation was very serious and that there would be repercussions and he had asked her if she wanted to go ahead with the matter. She affirmed that she wanted to. He asked her for a written report and he contacted the circuit manager who instructed him to compete an “Annexure G” form ( On cross examination he clarified that Annexure G was a document whereby a request was made to appoint an investigating officer or charging an educator with misconduct) and to submit that with the report. He also asked her whether she wanted to report the issue to the police and again she affirmed. She had requested a lift to the police station as she was not familiar with the area she transported her and left her there and waited for her at a nearby school, After she had completed , he fetched her and they returned to the school.

Arbitrator’s notes
This substantially corresponds with the version of the complainant.

41. He also testified that on the 9th February 2016, a Mr P.E Ngobese who was an educator at the school approached him and expressed concerns about the alleged political activity of the Applicant at the school. He called for the Applicant and in the presence of Mr Ngobese he informed the Applicant of the allegations against him.

Arbitrator’s notes

Note “allegations against him” meaning the allegation of sexual assault and the allegation of political activity at the school. It is relevant to note here that the Applicant’s version is at substantial variance with this version. There was a meeting between him and the principal in the presence of Mr Ngobese . The Applicant’s version was that, on the 9th Februarys 2016, he was informed of the allegation of sexual assault on the complainant by an educator, whom he did not name, from the junior phase at the school. He returned to his phase of the school, “took an old man, Mr Ngobese,” and took him to the principal’s office to ask him “about these allegations” .
Pertinently, this Mr Ngobese was never called to testify by the Applicant. Interestingly, this version was not put before the internal disciplinary hearing either. It is also relevant to note that neither was the defence of there being a conspiracy against the Applicant was put before the disciplinary hearing.

42. He also testified that the complainant had be forced to leave by the SGB as they felt that it was procedurally flawed.

Cross examination

43. Annexure G was a document whereby a request was made to appoint an investigating officer or charging an educator with misconduct.
44. He also testified how he fetched the complainant after he had got a call from the circuit manager and that he had got a letter of appointment regarding her and that there was no procedural flaw in her appointment as she was a substitute teacher and the procedure of appointing such an employee did not require an input from the SGB He also reiterated that he received a letter from the SGB about her and he let her go.
45. He testified that on the 4th February 2016
a. he had gone to the class of the Applicant with a cheque concerning catering for learners during the sports day as the Applicant was a signatory and not him.
b. He had seen the Applicant sitting next to the complainant. She was sitting near the wall in the corner.

Arbitrator’s notes
This is critical when compared with the version of Mrs Zuma.

c. He hadn’t noticed anything untoward ( he said that she did not tell him there was anything going on) at the time and when she met her on the 8th February when he asked her why she tell him her reply to him was that she was afraid.

46. He testified when asked by Mrs Madari, as to whether the complainant was able to walk out from where she was sitting ( she testified she couldn’t as the Applicant had barred her exit) that she couldn’t unless the Applicant got up first but he qualified his answer that he wasn’t 100% sure as he had not paid any particular attention at the time.

Arbitrator’s note
In my opinion, nothing turns on this as the focus was actually on whether or not the Applicant had committed the misconduct and that whether or not she was able to leave is an issue after the fact.

47. In his estimation the Applicant was an extremely diligent educator committed and eager to assist in the administrative affairs of the school and he was on several committees . He had high regards for him and in fact paid him the highest compliment for the assistance he provided at the school.
48. He was also asked by Mrs Madari about the vacancy that had occurred at the school for a deputy principal and that as he needed to appoint someone for the acting position, Mrs Madlangathi assumed the post after two other educators had declined the post. After she assumed the post there arose a need for a substitute teacher and this was how the complainant came to be sent to the school.
49. He rejected the version that the allegations against the Applicant was an orchestrated event because of that position of Deputy Principal he had contested and for which he was the preferred candidate of the SGB.

The Respondent closed its case

Applicant’s case

Apart from the Applicant the following witnesses also testified

(a) Ncunisa Nieta Ntanjana
(b) Abigail Zuma

(a) Sandile Ngubo

Much of his testimony is common cause and to avoid unnecessary prolixity, I will record only the relevant salient aspects thereof. His version of the events of 4th February 2016 are as follows and gleaned from the evidence tendered under oath:
1. He was outside his classroom talking to a Mr Khweshube who was the treasurer of the SGB about a finance meeting needed to be scheduled.
2. Whilst they were chatting, the complainant greeted them and went into his class room.

Arbitrator’s notes
The complainant testified that he was outside his class room but that he was talking on his mobile phone to someone. She greeted him and she was asked to go into the classroom and take a seat which she did. This Mr Kweshube never testified or was he called to testify at this arbitration. I have analysed this elsewhere in this arbitration award.

3. To his “surprise” when he went into his class room she was sitting on his chair on the side of the table and he grabbed a learner’s chair and sat on the ( he specified) “other side, on the side of the table.”(sic). She informed him of the purpose of her visit. He wondered why as by that time he and Mrs Madlangathi , who he described as his enemy, wouldn’t even greet him sent the complainant to him.
4. He obtained the containing the Social Science lesson plans and he proceeded to show her. That was all they spoke about.
5. While she was there Mrs Zuma came in to fetch an eraser. He described that between the table where they were sitting and the chalkboard, there was there was a steel cupboard with drawers , and took an eraser from one of the drawers and she noticed the complainant as the new educator and asked him whether he had spoken to her “about our organization”, meaning NATU. He replied that he hadn’t as they were looking at “these prep things”(sic). He told her that he hadn’t got any forms after checking his drawers.

Arbitrator’s notes

Mrs Zuma’s testimony was that when she walked in she noticed the Applicant and the complainant discussing something from a file on the desk in front of them. She never mentioned that they were “these prep things” which the Applicant apparently showed her. Another thing Mrs Zuma testified that she first checked the drawers and couldn’t fund the forms and left promising to look for forms in her class. She would later return and inform him through the window that couldn’t find any forms.
6. A short while later Mr DP Moodley, the principal, came in with the cheque for the catering. He had noticed them sitting and he commented “Oh what are you doing with my girlfriend there?” After the cheque was signed he left.

Arbitrator’s notes

Mr Moodley‘s testimony as regards the purpose of his visit corresponds with the version of the Applicant but varies with the comments.
7. She later left at around 1:30 pm and the next day was schools sports.
8. He heard on the 9th February 2016 when he was with a colleague in the junior phase that he ( the colleague) had heard Mrs Madlangathi saying that the Applicant had touched “the woman’s private part´. He returned to his part of the school took Mr Ngobese ( referred to earlier one) to Mr Moodley’s office to ask him “about these allegations” and why hadn’t Mr Moodley informed him? Mr Moodley allegedly replied that he had been instructed to charge him on these allegations and that he was “protecting ( his) job”(sic).

Arbitrator’s notes

Neither this unnamed colleague nor did Mr Ngobese testify to gainsay his version. What is also glaring is that this version was never put to either Mrs Madlangathi or Mr Moodley when they testified

9. He asked Mr Moodley what had he written to the department as he hadn’t heard his side and that he had taken the “woman” to the police station. He accused Mr Moodley of hating him so much.
10. He then used the school phone and informed the SGB chairperson.

Arbitrator’s notes

This is the Mr Moodley who spoke so highly of the Applicant during his evidence in chief ? This version too was never put to Mr Moodley whom he met face to face during cross examination at the arbitration .He was never denied that opportunity to put his version across.

11. He also testified as to how , after he was informed by the prosecutrix ( who testified at this arbitration) that the charge was withdrawn against him
a. He had asked the complainant why she was so cruel and
b. Why was she doing this?

12. He went to testify that
a. While he and his colleagues were sitting outside the prosecutrix’s office she warned him that if he told anybody that she withdrew the case, she would make sure he would get dismissed.
b. And what wihile they were seated in court waiting for the charge to be formally withdrawn she demanded “those two ( no names were provided by the complainant) may leave the room “because she didn’t want them to hear what she was going to say.
c. He also testified under cross examination that he never apologized to the complainant.

Arbitrator’s notes

None of the foregoing too was ever put to the complainant by Mrs Madari who had robustly engaged with and vigorously cross examined the complainant. None of his colleagues who were sitting with him outside the office of the prosecutrix or in court were called to testify.

(b) Ncunisa Nieta Ntanjana

13. She was the prosecutrix in the criminal case against the Applicant that was withdrawn by the complainant in the magistrates court . The salient and relevant points in her testimony were as follows:
a. During the mediation process, the complainant indicated to her that she wanted to withdraw the case against the Applicant. At that time the matter was not set down for trial.
b. The matter was subsequently withdrawn in open court.
14. The complainant had informed her at the commencement of the mediation process that she didn’t want to carry on with the case and thereafter she formally signed a withdrawal statement. The complainant had told her that “there was something going on’ and that she didn’t want to get involved in school politics, but she did not elaborate further.

(c) Mrs Makhosaze Abigail Zuma

Her evidence in chief

15. She was an educator at the school and was the “Mrs Zuma” referred to elsewhere in this award A substantial part of her testimony is common cause and to avoid unnecessary prolixity, I will record only the relevant salient aspects thereof. She testified that
a. Between 12-1 pm on the 4th February 2016 she was requested by the principal to compile a list for the catering of learners who were going to participate in the sports programme and she needed an eraser.
b. She went to the Applicant’s class room and she saw the complainant sitting inside. She requested an eraser from him.
c. She explained that to the right of where the complainant was sitting , there was a set of drawers and the Applicant was sitting on the right hand side of the complainant. They were both looking at a file .
d. She went on the left side to a steel cabinet and took the eraser. She then asked the Applicant when he was going to have a chat with the complainant about joining NATU and his response was that she ought to have done so as she was around when the complainant assumed duties and that . Her reply to him was that they didn’t know how long she would remain at the school ( considering that she was a substitute and not a permanent educator).
e. The Applicant requested her to obtain the membership application forms. There was a discussion amongst them but the complainant indicated to them that se didn’t want to joi NATU as she was a trusted member of COSATU.

Arbitrator’s note

The Applicant mentioned that she was asked to fetch membership application forms after he had checked the drawers and couldn’t find any. This witness did not make mention about this. She said that as she was the secretary of NATU whilst the Applicant was its chairperson, she was asked to fetch the forms.

f. She testified, when asked, that the complainant was not prevented from leaving and that she could easily have gone out because on her left hand side there was a space. She reiterated this during her cross examination.
g. She also testified that they weren’t sitting “too close” as there drawers between them. She reiterated this during cross examination
h. She testified when asked that the relationship between the Applicant and Mrs Madlangathi was “not good”.
Arbitrator’s note

Mrs Madlangathi testified that she had a good working relationship with the Applicant. II have underlined aspects of her evidence for reasons that they specifically mention who was sitting where. What is I interesting is that Mrs Madari never put the complainant’s version to this witness as to the details of the discussion that took place and the evidence by the complainant how they had told her about how powerful and influential that NATU was. What is also interesting is that Mrs Zuma wasn’t asked, as was Mr Moodley whether he noticed anything untoward when she entered the class room to retrieve the eraser.

CLOSING ARGUMENTS

What is contained herein is a summary of my understanding of each party’s address highlighting their respective versions in order to persuade me which version was preferable as probable.
Respondent’s closing arguments

The Respondent submitted that on the conspectus of evidence it put before me it proved that the Applicant had perpetrated the misconduct and that his allegations that there were procedural irregularities were a smokescreen as there was no legal requirement in terms of the Disciplinary Code and Procedures for Educators where the employer was obliged to conduct a formal investigation. It was argued that this was an internal matter.

The testimony of the complainant
She had been consistent in her evidence regarding what had actually transpired and that even under cross examination, she remained steadfast.
The Respondent referred to inconsistencies and contradictions in the version and supporting evidence of the Applicant and his key witness. A point of note is the allegation that the Applicant had been chatting with a Mr Khweshube at the time when the complainant arrived at outside his class room. This Mr Khweshube was never called to testify to gainsay the version of the Applicant.
The testimony of Mrs Madlangathi
Her version that she had referred the complainant to the Applicant was never seriously challenged by the Applicant. She was clear that she had referred the complainant to either one of the two , the other being a Mr Ndunge, who also taught social science. If there was a contradiction, it was submitted that it was a minor one that in no way affected the totality of her version.
The testimony of Mrs Zuma
Her testimony didn’t exonerate the Applicant.
The testimony of the Applicant
His testimony was riddled with contradictions. And if one analysed the respective versions of the Applicant and the complainant, her version was more consistent and by inference probably true
The testimony of Mr DP Moodley
His version too about the allegations against the Applications and that he was approached by a Mr Ngobese could have been contradicted by getting Mr Ngobese to testify as it was the Applicant’s version that he had gone to the principal’s office with Mr Ngobese.

Applicant’s closing arguments

Procedural unfairness
The Applicant argued that that in terms of Code of Ethics of Educators as governed by South African Council of Educators Act No 31 of 2000, there ought to have been an investigation for breaches of the code and there was no investigation undertaken. Another alleged irregularity was that he was not informed of his right to legal representation. Hence it is argued that the dismissal of the Applicant was procedurally unfair.
Substantive unfairness
None of the Respondent’s four witnesses proved that the Applicant was guilty as charged. It is argued that the complainant had contradicted herself “ in every respect “. For instance it wasn’t clear whether the Applicant allegedly touched her vagina or in her private part/s. Her evidence was false and/ or improbable
The Applicant consistently denied that he sexually assaulted the complainant and that his version was corroborated by Mrs Zuma who, so it is argued , testified that it wasn’t possible , considering the way the Applicant and the complainant were seated , for the Applicant to touch the complainant at her lower body.
Even the prosecutrix Ms Ntanjana corroborated the version that there was something behind the sexual assault charge and that the complainant told her that she didn’t want to get embroiled in school politics and that is why she withdrew the charges. ( If anything Ms Ntanjana’s evidence feeds into the conspiracy narrative which appeared as the defence of the Applicant).

Analysis

1. The Applicant challenges his dismissal on procedural as well as substantive grounds. The allegations against him were extremely serious and the fact that he was detained by the police and appeared in court, even though the charge was withdrawn by the complainant, when he was charged and received notice to attend a disciplinary enquiry into the allegation of sexual assault he ought to have applied for and obtained legal representation. It was for that reason when, as late as in January 2018, his current legal representatives made an in limine application for legal representation I granted that application in the interests of justice.
2. I have considered all the evidence that was put before me as well as the closing arguments of the Applicant and the Respondent. I have analysed them as they were recorded elsewhere in this section of the award, under the heading “Arbitrator’s notes”, and accordingly I draw attention thereto as they must be incorporated by reference in supporting the ratio underpinning this award.
3. In the wake of global movements highlighting the scourge of sexual abuse and assaults, there is a greater need for more sensitization against the scourge of sexual abuse and harassment in the workplace. If we do not show our disgust through act and deed we fail in our constitutional duty to respect the rights of all citizens especially women to human dignity and protection against violations of their right to bodily integrity. It is my view that professional educators such as the Applicant, who was in the position of trust, must have been aware of their awesome responsibility and obligation to be courteous and respectful towards colleagues and to lead by example learners, at all times, as they represent the human face of their employer. In this respect, there was something of a deficit in the Applicant’s conduct.
4. Four witnesses including the complainant testified for the Respondent who was obliged to prove , on a balance of probability, that the dismissal of the Applicant was procedurally and substantively fair and that he was dismissed for a fair reason. Two witnesses together with the Applicant testified.

Was the dismissal procedurally fair

5. The testimony of Mr Mabaso who was called to testify as to this aspect, remained intact. He explained in detail as to the manner in which he went about to ensure that the process was fair.
6. The Applicant’s legal representative argued in their closing arguments that the dismissal was procedurally unfair as legal representation was not allowed during the internal disciplinary hearing. I don’t agree. There is no evidence that there was an application before Mr Mabaso by the Applicant for legal representation. In any case he was represented by an official from his union as he was also represented by such an official for a substantial part of this arbitration. The allegations against him were extremely serious.
7. It was also argued that there was no investigation that preceded the disciplinary enquiry. No evidence was out before me that there was an investigation. Nevertheless one must not lose sight of the fact a disciplinary enquiry does allow for any flaw or breach to be rectified for an enquiry is actually a form of investigation into the allegations against the Applicant. He had ample opportunity to cross examine the witnesses and to obtain documentary evidence and verification of the evidence that would have been presented in the internal proceedings. His union representative, like his later legal representative, ought to have proposed a pre-arbitration meeting where all the relevant enquiries and request for evidence would have been obtained. This wasn’t done. One should, furthermore , not lose sight of the question whether, given the scope and depth of the evidence presented during the internal disciplinary hearing as well as during this arbitration which is a hearing de novo the outcome would’ve have been any different than what was the outcome.
8. In the circumstances, I find that the dismissal of the Applicant was procedurally fair.

Was the dismissal of the Applicant substantively fair

9. The allegations against the Applicant were extremely serious. I have considered all the evidence which I have evaluated and analyzed and I have found that the Respondent has discharged its onus and that on a balance of probability. The complainant was honest in her testimony and was a credible witness, Her testimony was never contradicted and her version was not improbable.
10. The Applicant was a very unsatisfactory witness. His defence was that there was a conspiracy against him and that the charges of misconduct were fabricated and therefore the dismissal was substantively unfair. In other words the Respondent did not have a fair reason to dismiss him.
11. He made several allegations but he produced no evidence to gainsay them. He referred to witnesses such as Mr Kweshube and Mr Ngobese as well as those two colleagues who were with him in court but none of them came forth to testify on his behalf and this matter commenced in July 2017. He had ample opportunity to produce them. His allegation that was a conspiracy against him had no substance. Those who did testify on his behalf were not persuasive .
12. Considering the totality of evidence, I found that the version of the Respondent was overwhelmingly credible as well as probable than that of the version presented by the Applicant.
13. Section 138(6) of the Labour Relations Act No 66 of 1995, as amended, obliges me to take into account any Code of Good Conduct that has been issued by Nedlac or the guidelines published by the CCMA that is relevant to a matter being considered in these arbitration proceedings. Sexual assault is a form of sexual harassment Item 4 of the Code of Good Practice on the Handling of Sexual Harassment Cases defines sexual harassment as unwanted physical conduct of a sexual nature. Employers are enjoined by item 5 thereof to create and maintain a working environment in which the dignity of employees is respected.
14. I am persuaded that the Applicant had touched the complainant’s private part. I am alive to the imprimatur of the learned judge Tlhothalemaje of the Labour Court who in Rustenburg Platinum Mines Limited v UASA obo Pietersen and Others [2018] ZALCJHB 72 (27 February 2018) spoke of a “greater need” amongst commissioners “for more sensitization to the scourge of sexual harassment in the workplace” ( vide para 3), The conduct of the Applicant was clearly found offensive to the dignity of the complainant and should not be countenanced. I couldn’t ignore that moment during the testimony and cross examination of the complainant by Mrs Madari when she, that is the complainant had great difficulty to maintain her composure.
15. The allegations against the Applicant were extremely serious. This case is an example where a long service record cannot compensate for the serious misconduct of which the Applicant was found guilty of and dismissed. In the words of Goosen AJ “[M]isconduct of this nature cries foul of the rights of female members of society to be treated with dignity, respect and without abuse; whether emotional and/or physical.” ( Motshoane v Education Labour Relations Council and Others [2018] ZALCJHB 98 (9 March 2018) at para [59]).
16. Ultimately the Applicant was a senior educator of the school. He was employed in a position of trust and by breaching that trust, he brought about an irretrievable breakdown in that trust relationship.
17. I am unable to find any reason to conclude that all the witnesses that testified against the Applicant; with particular reference to the allegations relating to the sexual assault, conspired against the Applicant. There is absolutely no reason; based on the evidence; to find that all the witnesses of the Respondent, including the complainant, had a motive to lie and in doing so, to ensure the dismissal of the Applicant.
18. Considering the above; I find that the Applicant has failed to advance persuasive grounds as to why his version embellished with the evidence of his witnesses should prevail over that of the Respondent.
19. Accordingly the dismissal of the Applicant was procedurally as well as substantively fair and he is not entitled to the relief he seeks

AWARD
A. The dismissal of the Applicant was procedurally as well as substantively fair
B. The Applicant is not entitled to the relief he seeks
C. There is no order as to costs.

Dated at Durban on this the 19th May 2018

ELRC PANELIST
Saber Ahmed Jazbhay