In the ARBITRATION between

SADTU obo SIVE NDOBENI
(Applicant / Employee)

And

DEPARTMENT OF EDUCATION – EASTERN CAPE
(Respondent / Employer)

DETAILS OF HEARING AND REPRESENTATION

1. The enquiry by arbitrator was held under the auspices of the ELRC in terms of section 188 (A) of the Labour Relations Act 66 of 1995 as amended in 2015. The hearing took place on the 03rd & 04th of May 2022 and the 28th & 29th of March 2022 at 09:00 at the Mandla Makhupula Education Institute in Stirling in East London.

2. The employee Mr. Sive Ndobeni attended the hearing and was represented by Mr. T. J. Mncotsho a shop steward of the employee’s trade union SADTU. The employer also attended the hearing and was represented by Mr. T. W. Hena an official of the employer.

3. The enquiry by arbitrator proceeded on the 03rd & 04th March 2022 and 28th & 29th of March 2022 as indicated above in the presence of both parties. The parties further requested to file closing arguments on this matter not later than the 05th of April 2022 and both the employer representative and the employee representative filed their arguments with the ELRC on the 05th of April 2022.

4. The notice to attend the enquiry by arbitrator was properly drafted and served on the employee and the employee attended the hearing as indicated above.

ISSUE TO BE DECIDED

5. I am required to determine whether or not the employee Mr. Sive Ndobeni is guilty of the charges levelled against him by the employer and if so whether a sanction of a dismissal is appropriate to be imposed on him in the circumstances.

BACKGROUND TO THE ISSUE

6. The employee is employed by the employer as an educator and is now charged by the employer in respect of the incidents appearing here under outlined in the charges. The parties agreed that the matter should instead of being set for a disciplinary hearing be enrolled straight at the ELRC as an enquiry by arbitrator in terms of section 188 (A) of the Act in accordance with the ELRC Collective Agreement 3 of 2018.

7. This therefore means that the status of the outcome of this process will be an award that is final and binding on the employer and employee. The charges against the employee are as follows.

– It is alleged that the employee is guilty of misconduct in terms section 17 (1) (b) of the Employment of Educators Act 76 of 1998 (as amended), which inter alia reads as follows:

(1) “An Educator must be dismissed if he or she is found guilty of committing an act of sexual assault on a learner, student or other employee” In that on or about the period 21st of October 2019 at Mzamowethu Public School the employee touched the private parts of SN had sexual relationship with the learner from the same school.

(2) The employee contravened section 18 (1)(q) of the Employment of Educators Act 76 of 1998 in that while on duty, the learner conducted himself in an improper, disgraceful and unacceptable manner in that the learner on the 21st October 2019 watched pornography video in his cellular phone and made the learner SN watch.

8. The employee Mr. Sive Ndobeni denies these allegations and pleaded not guilty to the said allegations hence the matter was set down for section 188 (A) inquiry as directed by ELRC Collective Agreement 3 of 2018.

SURVEY OF EVIDENCE

9. The employer representative called their 1st witness SN (a minor child) who testified with the assistance of the intermediary Mrs. Noluthando Nxala – appointed by the ELRC. She testified that in 2019 she was a learner grade 5 at Mzamowethu Public School, she was 11 years old and she knows Sir – referring to Mr. Sive Ndobeni the employee.

10. On the 21st of October 2019 she was at school and during break time she went out to play with her fellow learner Layla Ngcukana and whilst she was playing she was called by Sir – and she didn’t hear him first but heard him when he was called her for the 2nd time, because he called her louder.

11. She attended to the call with her friend Layla and when they approached him Sir asked her to leave Layla behind and that she think that Layla heard this because Sir – was loud when he was saying that. She stated that Sir – was in the classroom when he called her and he was holding a cellular phone and watching videos and he asked her to go to the corner of his desk.

12. He asked her if she knows how to type and she replied that she does not know how to type and Sir – said he will teach her how to type and opened his laptop and said she must type a letter and she said again she does not know and again said he was going to teach her.

13. She averred that the employee – Sir said she stand at the corner of the table, held her tight from behind her buttocks and said must type a letter with the name dear. He then pressed and touched her from the front on her vagaina through her clothing school uniform and he did not undress her and that it was painful when he was touching her and later said she must go.

14. When he was touching her and holding her closer she could smell alcohol from his breath and when she went outside her friend Layla was not there and she met the other friend Andisiwe Dyani behind the classroom and she told Andisiwe what happened. She averred that Andisiwe advised that they must go to Catch Projects where they were advised to report such issues because there are Social Workers there.

15. They went there and asked for Vanessa who was not there but met a lady by the name of Mama Sue and narrated the story and she said she will handle the matter. They then went back to school and when they went to school the bell had already rang went to class and was later called to the staff room and also called to Mam Mandlas office where she found Mam Mandla, Sir with the other teachers and they asked what happened.

16. She told them what happened and they asked why she did not start reporting the matter at school before going out to Catch Projects and she told them she was advised by Andisiwe to go and report the matter at Catch Projects and they said she can go. She then went home and when she got home she saw police and at home there was her grandmother, her mother and Layla’s mother who was the member of the SGB.

17. They asked her what happened and she told them and Layla’s mother asked her why she went to Catch and her mother asked them to leave them alone. She confirmed that she watched pornography and in those videos she saw the nude pictures of ladies opening legs and vagaina showing.

18. She confirmed that that she had a good relationship with the employee – Sir because he liked her because she was a brilliant student, used to send her to the staff room and would also ask her to help the other learners in class and on the notes on the board and would call her by her surname.

19. At cross examination she stated that she does not think other learners saw what happened because it was break time and does not know where the principal was at the time. She confirmed that she could feel his pennis hard at her back and she believes it was a pennis because she was holding her close whilst she was writing on the laptop.

20. The 2nd witness of the employer was Ms A N who testified that she is a mother to “SN”, the learner and on the 21st of October 2019 she was called by the Social Worker from Catch Products and she was at work and she was asked to go home and when she got there her child the learner and grandmother were there.

21. She stated that they were told by SN that it was break time at school and she was called by Sir- Employee Mr. Sive Ndobeni and she attended to the call and when she entered the classroom Sir asked to close the door and also asked her if she can write a letter and he was watching a pornographic video.

22. He then held her from the back touched her vagina, could feel his hard pennis from the back and was smelling alcohol and she later ran away and went to Catch Projects with Andisiwe and narrated the story to Mama Sue and she confirmed that it is at that point when she received a call from Mam Sue. She then went to Layla’s mother who said she was called from school and she gave the school her number because she could not go to school at that time.

23. She was then called by Jonas from school and asked her not to report the matter and that it must be dealt with amicable because the employee is a breadwinner and has just started working but she reported it because she wanted justice for her child. She averred that Jonas told her that she can just name the price even if its R10 000, 00 and the employee is willing to pay that so that the matter can be resolved.

24. She asked him not to call her again and the matter was reported and the police advised her not to talk about the case. She noticed that there was a change in her child’s behavior and that her child had developed continuous headache, and sometimes shouts and cry. She was also told that she want to commit suicide by drinking paraffin and she went for counselling for 2 months.

25. The employer representative then closed their case and the applicant Mr. Sive Ndobeni took the witness stand and testified that he works for the employer as an educator at Mzamowethu Public School. He disputed the allegations leveled against him.

26. He confirmed that he knows the learner and stated that she is a student in his class and because she is a brilliant student he would ask her to assist others and would send her to the staff room and had that type of a relationship.

27. On the 21st of October 2019 during break time he was in his class typing and doing marking and he needed a learner who can assist him and he called the learner SN whilst she was passing by and asked her to type for him a letter to the parents. He called her twice and she came in and he showed her how to type the letter he wanted to type and that he was sitting on his chair and the learner was standing by the corner of the table whilst she was typing and he was calling the words for her to type.

28. He discovered that the learner was too slow and he asked her to leave it. She then left the classroom, he disputed that he came very close to her. He stated that he asked her to help him because she asked her to assist because Layla who was also there was from the other class and stated that his class is in between other classes and the visibility is clear for everyone passing to see inside.

29. He testified that the learner took about 15 to 20 minutes and when she was there she did not show any negative response or discontent. He confirmed that she was right next to him and there was a small gap between them and that he never touched the private parts of the learner.

30. He confirmed that he has a smart phone and sometimes opens videos and Facebook, his phone was opened but he does not know what the learner saw from his phone but disputed that it was pornographic material or videos. He confirmed that Mam Mandla told him about the complaint the following day and was asked to take time off and was called by the detectives from the SAPS and was detained the following month and later given bail.

31. He appeared in call on a number of occasions and when he was given bail he was ordered to go and leave in Umtata and on 21st July 2019 his case was struck off the roll and was later called for this hearing.

32. He stated that he was not part of the amicable negotiation of the resolution on this matter and did not give anyone any instruction to negotiate that on his behalf. He confirmed that his relationship with the learner was good and that he never contacted the learner after that because of the bail condition placed on him and could not answer the question why the learner would implicate him in this type of an offence when he has not committed the offence.

33. The employee representative then closed their case.

ANALYSIS OF EVIDENCE & ARGUMENT, FINDINGS ON THE CHARGES

34. In respect of these charges set out in paragraph 7 above, the employer representative led evidence of 2 witnesses including the victim, a learner, who is the subject of the said sexual assault SN.

35. The evidence of these witnesses is detailed above in the topic that deals with survey of evidence at paragraph 9 – 24 of this award. These witnesses led clear, coherent and corroborative evidence to the effect that:

36. The learner SN – who is a learner at Mzamowethu Public School testified with the assistance of the intermediary Mrs. Noluthando Nxala that in 2019 she was a learner grade 5 and she was 11 years old at the time. She clearly narrated the story of what happened between her and Mr. Sive Ndobeni the employee on the 21st of October 2019.

37. She said she was at school with her friend Layla during break time when she was called by her teacher calling him Sir – Mr. Ndobeni and when she attended to his call with her friend Layla, Sir asked her to leave Layla behind. She entered the classroom and Sir – was holding a cellular phone and watching videos and he asked her to go to the corner of his desk.

38. She was asked by him if she knows how to type and she replied that she does not know how to type and Sir – said he will teach her how to type and opened his laptop and said she must type a letter and she said again she does not know how to type and he again said he was going to teach her. Sir said she must stand at the corner of the table, held her tight from behind her buttocks and said must type a letter with the word dear.

39. He pressed and touched her from the front on her vagina on top or the outside of the school dress and he did not undress her and that it was painful when he was touching her and later said she must go. When he was touching her and holding her closer she could smell alcohol from his breath and when she went outside her friend Layla was not there and she met the other friend Andisiwe Dyani behind the classroom and she told Andisiwe what happened. She was advised by Andisiwe that they must go to Catch Projects where they were advised to report such issues because there are Social Workers there.

40. They went there and asked for Vanessa who was not there but met a lady by the name of Mama Sue and narrated the story and she said she will handle the matter. They then went back to school and when they went to school the bell had already rang went to class and was later called to the staff room and also called to Mam Mandlas office where she found Mam Mandla and Sir with the other teachers and they asked what happened.

41. She told them what happened and they asked why she did not start reporting the matter at school before going out to Catch Projects and she told them she was advised by Andisiwe to go and report the matter at Catch Projects and they said she can go. She then went home and when she got home she saw police and at home there was her grandmother, her mother and Layla’s mother who was the member of the SGB.

42. They asked her what happened and she told them and Layla’s mother asked her why she went to Catch and her mother asked them to leave her alone. She confirmed that she watched pornography from Sirs phone and in those videos she saw the nude pictures of ladies opening legs and vagaina showing.

43. She confirmed that she had a good relationship with the employee – Sir because he liked her because she was a brilliant student, used to send her to the staff room and would also ask her to help the other learners in class and on the notes on the board and would call her by her surname. She confirmed that she could feel his pennis hard at her back and she believes it was a penis because he was holding her close whilst she was writing on the laptop.

44. I am referring to this evidence again in order to show how clearly and coherently the story was narrated by the learner and the flow of events as described by her represented a convincing testimony even though it was narrated by a minor child, a learner.

45. After that her mother took the witness stand and corroborated the evidence of this child as it was relayed to her by the learner and this evidence even though hearsay is admissible as it corroborates real evidence of the main witness the learner. Even though this is evidence of a mother and the child I do not have any reason to disbelieve and this evidence is believed because even tough cross – examination by the employee representative could not break its coherence.

– When this matter came to the attention of the school there was an intervention in favour of the employee Mr. Ndobeni by his colleagues at school in that the learner was called and asked why she didn’t first report the matter at the school, why she went to the Social Workers at Catch Projets and that was done to assist the employee even though he was not part of it.

– I accept that there is no evidence that the employee participated in this or instructed them to negotiate for him but this evidence that there was this type of intervention was not disputed because the applicant just denied it and did not call the witnesses who were implicated in the intervention to assist him. On a balance of probabilities test this cannot be ignored because a question has to be asked where the parent of the child got this information and why would she lie to implicate the employee.

– These questions have not been answered and there is no evidence that has been presented to rebut this evidence as I have said earlier. The employee confirmed that he had started working and was a breadwinner and this consistent with what has allegedly been said by his colleagues and if the colleagues intervened like this which is a normal there is a huge possibility on a balance of probabilities that they were reacting to something that has happened.

– The matter was then escalated and reported to the parent / mother of the child by Mama Sue from Catch Projects where the matter was reported and this evidence is not disputed. It is clear that the matter was reported to the Catch Projects and I cannot accept the argument that says that the learner of 11 years old could just approach the Social Worker institute and report something as sensitive as this.

– The only possibility is that the employee did something unacceptable to the learner and the learner has detailed what happened and her evidence was clear and coherent as I have indicated earlier and there is no way that this could not be believed.

– The matter was also reported to the police and the employee was subjected to internal disciplinary hearing which led to the hearing that the ELRC is attending now in terms of ELRC Collective Agreement 3 of 2018.

– All the evidence summarized above was not disputed by the employee on materiel facts except for a bare denial from the employee to say that the learner SN was not telling the truth. However, he at least admitted that he called the learner SN, was in the classroom with her alone, they viewed or looked at the cellphone and were on the laptop trying to do some typing and there is nothing substantive that was typed.

– These versions are not far from each other except the denial by the employee that he allowed the learner to look at the pornographic material, that he touched her on her private parts / vagina on top of the dress and hugged and held her close to him from behind where the learner felt the hard penis of the employee against her.

– The employee simply could not explain why he was implicated falsely and where the alleged conspiracy if any is coming from and most importantly could not explain why the parents would use their child like that in order to fight him.

46. For these reasons, this is highly improbable and the testimony of the employee cannot be believed, his version for the reasons listed above is rejected. The only conclusion to be drawn from that is that the employee is guilty of the charges levelled against him.

47. Section 185 (a) of the Labour Relations Act 66 of 1995 as amended provides that:
– Every employee has a right not to be unfairly dismissed.

48. The Act recognizes 3 reasons for the termination of the employee’s services by the employer and these are the conduct of the employee, incapacity of the employee and the employer’s operational requirements. In this matter the employee is charged because of his conduct and the employer has to prove that the employee has committed misconduct on a balance of probabilities. The employer has the onus to prove the existence of any one of these grounds as a reason to dismiss the employee.

49. The employer’s evidence was not successfully or adequately challenged by the employee on materiel aspects as can be seen in the analysis above. I do not have any reason to doubt and reject the employer’s evidence. In the circumstances, I will accept the employer’s testimony that there is a valid reason for the dismissal of the employee. The question that I have to answer in this award is whether the conduct of the employee constitutes a serious act of misconduct and whether the sanction of a dismissal is appropriate in the circumstances.

50. In response to that I find that the applicant has committed serious acts of misconduct and these transgressions are expressly prohibited by the respondent and punishable by a dismissal for the first offence in terms of the employer’s disciplinary code and policies.

51. The Constitutional Court in Sidumo & another v/s Rustenburg Platinum Mines Ltd and other (2007) 12 BLLR 1097 held that in deciding whether dismissal is an appropriate sanction for an act of serious misconduct, the test is whether the misconduct renders the continued employment relationship intolerable.

52. The acts of misconduct committed by the employee in the context of his employment renders the employment relationship between the parties intolerable. This type of misconduct is also expressly prohibited by the employer in their disciplinary code and the employer is expected to apply discipline in a consistent manner.

53. On the appropriateness of the sanction the LAC court in its decision in Nampak Corrugated Wadesville v/s Khoza (1999) 20 ILJ 585 (LAC) Ngcobo J.A. held that the determination of the appropriate sanction is a matter which is largely within the discretion of the employer, however that discretion must be exercised fairly. It would be fair and reasonable to impose a sanction of a dismissal for these transgressions.

54. In De Beers Consolidated Mines Ltd v/s CCMA & others (2000) 21 ILJ 1051 (LAC) the court accepted that the ultimate justification for the employer’s powers to impose discipline flows from the right to manage their business effectively. The court held further that “dismissal is not an expression of moral outrage, much less it is an act of vengeance. It is or should be a sensible operational response to risk management in the particular enterprise”.

55. In Standard Bank of South Africa Ltd v/s CCMA and others (1998) LC 7 the court stated that it is trite principle that breach by the employee of the duty of good faith to the employer is destructive to the employment relationship. The employee has breached this duty of good faith to the employer.

56. I am satisfied that the rationale that I have used in coming to this conclusion is one that qualifies when we talk about reasonableness and weighing the interests of both parties as directed in the Constitutional Court in its decision in NEHAWU v/s University of Cape Town (2003) (CC) where the Constitutional Court held that the arbitrator is expected to have regard to the interest of both parties in coming to a conclusion whether the conduct of the employer to dismiss the employee was fair or not.

57. In this matter the interests of the employer far outweigh those of the employee. The employee did not come forward and admit his wrongdoing instead throughout the processes he denied having committed any transgression and this can only be regarded as an aggravating factor. All the charges summarized above constitute a serious act of misconduct and even though discipline has to be applied in a corrective and progressive manner, this is so serious that when proved, as has happened, this calls for a sanction of a dismissal.

58. The applicant’s representative has argued further that the employee and the learner alike should be subjected to counseling as a remedy to this situation. I do not agree with the employee’s representative. From his transgression that has been proved he cannot be trusted with working with the minor children and as such that counselling as a remedy as suggested will not be appropriate.

59. The employer and learners will suffer severe consequences if this wrong doing can be condoned and that discipline has to be applied consistently. The employer’s version in so far as it relates to the reason for dismissal of the employee is accepted. This means that the employer has managed to discharge its onus in terms of section 192 (2) of the Act.

60. I have found the employee guilty of Section 17(1) (b) of the Employment of Educators Act 76 of 1998 transgression and in terms of the subsection an educator must be dismissed if he or she is found guilty of such a transgression.

61. Section 120 (2) of the Children’s Act no 38 of 2005 provides that a finding that a person is unsuitable to work with children may be made by such forum on its own volition or on application by an organ of state or any other person having sufficient interest in the protection of children. The representative who acts for the Department of Education (employer) would accordingly have the right to make such an application. The arbitrator may however also make the finding on his own accord.

62. In the circumstances I hereby make the following award.

AWARD

63. The employee Mr. Sive Ndobeni is guilty as charged.

64. The employee Mr. Sive Ndobenis employment is terminated with immediate effect, without notice. The Provincial Department of the Eastern Cape must inform Mr. Sive Ndobeni of his dismissal.

65. I find that the employee Mr. Sive Ndobeni is unsuitable to work with children in terms of section 120 (2) of the Children’s Act no 38 of 2005.

66. The General Secretary of the Education Labour Relations Council must:

– As the administrator of this Section 188A enquiry, 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 that the employee Mr. Sive Ndobeni ID 8702105619087 no is unsuitable to work with children, for the Director General to enter his name as contemplated in section 120 Part B of the National Child Protection Register.

– Send a copy of this arbitration award to the South African Council of Educators (SACE) for the revoking of Mr. Sive Ndobenis SACE certificate.

67. The employee has the right to take this award on review to the Labour Court.

Signature:

ELRC Arbitrator / Commissioner: Malusi Mbuli