In the matter between

Department of Education KZN Employer
And
Mbatha T.J.M. Employee

ARBITRATOR: R. Shanker

DELIVERED: 20 January 2021

AWARD

DETAILS OF HEARING AND REPRESENTATION
1. This matter was referred to the Education Labour Relations Council (ELRC) in terms of section 188A of the Labour Relations Act 66 of 1995 (LRA), as amended, and was set down for an Enquiry by Arbitrator process on 24 August 2020 and 16 November 2020 via Zoom.
2. The employee, Thembinkosi Jeffery Mbatha (“Mbatha”) was represented by T. Mkhize, an official of SADTU. The employer, Department of Education KZN, was represented by T. Mchunu.
3. The matter relates to allegations of sexual harassment of learners who are minors. In accordance with the protection of the rights of minors, the identity of the learners will not be disclosed. I will refer to the minors as Learners A, B and C in this award. They gave evidence via an intermediary and an interpreter.
4. The parties submitted written arguments which I considered in making this award.

ISSUES TO BE DECIDED
5. The issue to be determined is whether the employee committed the misconduct as per the charges contained in Bundle A and, if so, to recommend an appropriate disciplinary sanction.

BACKGROUND TO DISPUTE
6. Mbatha has been employed since 2008 as an educator in a secondary school in terms of the Employment of Educators Act 76 of 1998 (“EEA or “Act”). As an HOD, he is a senior educator. His employment was suspended on 21 September 2018 on full pay following allegations of misconduct of a sexual nature as detailed in the charges below:
Charge 1: On or about 2018 …, you committed an act of sexual harassment on a learner, Learner A, when you touched her buttocks. In doing so, you contravened section 17(1)(b) of the Act.
Charge 2: On or about 2018 …, you committed an act of sexual harassment on a learner, Learner B, when you uttered words with sexual undertone to her. In doing so, you contravened section 17(1)(b) of the Act.
Charge 3 On or about August 2018 …, you committed an act of sexual harassment on a learner, Learner C, when you uttered words with sexual undertone to her. In doing so, you contravened section 17(1)(b) of the Act.
7. Learner A and Learner B testified at this hearing. The employer could not secure the attendance of Learner C and there was no evidence led with regard to Charge 3. I will therefore only deal with the charges as it relates to Learner A and B in this award.
8. Mbatha testified at this arbitration hearing. It was not disputed that he received the charges timeously, that the charges were clear to him and that he understood the charges. He denied that he committed the misconduct mentioned in the charges.
9. It was not in dispute that there was a strike at the school following allegations of a sexual nature by learners against Mbatha. The strike occurred during 22, 23, 24 and 27 August 2020.

SURVEY OF EVIDENCE AND ARGUMENT
10. The evidence and arguments hereunder are not verbatim accounts of the proceedings but a summary of the evidence presented at this hearing. All evidence and arguments were considered prior to drafting this award.
11. In this matter, it was not in dispute that the learners and Mbatha knew each other as he had taught them technology in class.
12. Learner A alleges that Mbatha hit her on her buttocks in front of other learners in class and also grabbed her buttocks whilst she was alone with him in his office. She testified that she was 16 years old and in grade 9 at the time when the incident took place in 2018. Her version is that she and other learners in her class had failed to complete a project that they were supposed to do as part of their homework. Mbatha had punished her by hitting her on her buttocks in front of other learners. He instructed the class to continue with their project and he asked her and another learner to come to his office to do a presentation on the project. They both went to his office.
13. After finishing their presentation, Mbatha sent the other learner to the Admin office to make some copies of a document. She sat alone in his office waiting for the other learner to return. Whilst waiting, Mbatha asked her how it feels where he hit her. She told him it was paining and he offered to rub her there. She refused and told him that it was not a place that he could do that. Mbatha then grabbed her buttocks. She was shocked and moved away to show that she was unhappy. He grabbed her by her hand and pulled her close to him but she refused to go close to him.
14. Whilst he was holding her, a female teacher entered and he acted like he was pinching her on her back for not doing her work. After the female teacher left, he tried to apologise to her but she didn’t say anything. At that point, the other learner came back and he sent her to get a colour copy of the document. Whilst the other learner was away, he continued to apologise to her and said that she must not tell anyone about the incident. She was feeling uncomfortable and said okay just to get away from him. When the other learner came back they both left. Whilst exiting the larger door, Mbatha called her back. He reminded her not to say a word to anyone. She agreed and they went back to the classroom. She later told her friends what happened. She did not report the incident at home because she was afraid.
15. Under cross-examination she agreed that she was 15 and not 16 when the incident occurred in 2018 and maintained that she had failed to count correctly. When Mbatha touched her buttocks, she felt that he was a pervert. She used to see it on TV but didn’t think it would happen to her. She denied that this was a storyline of someone else to make Mbatha look bad. She agreed that she did not report it to the TLO or the principal or to her class teacher. She denied that she made this up to suit those people that were on strike.
16. Learner B (in respect of Charge 2) testified that she was 17 years old when the incidents occurred in 2018. Her version is that she went to deliver books to Ms Maseko’s office. As she was leaving the office, she met Mbatha in the foyer – an open waiting area outside Admin. He asked her to sit on the sofa because he just wanted to look at her. After she sat down, he told her that she will not be completing school because she will fall pregnant. She told him that that was not true – she would finish school and she may be the one who pays his pension as she was studying accounting and one day she would work in a bank. He then asked her (in isiZulu) “if I were to offer you my balls, would you accept?” She did not respond as she was shocked. The bell rang and she left. She met another learner on her way out. He asked her what happen and she told him everything. She also told 3 other friends about what happened.
17. The next day she was going to the staff room to make soup as requested by Maseko. She met Mbatha in the passage approaching the staffroom. He hit her on her buttocks with his knee, looked at her and smiled. She continued to the staffroom to make the soup. Maseko asked her to give one soup to the admin clerk for the principal and the other one to Mbatha. When she got to Mbatha’s office and gave him the soup, he asked her to sit down and admire him. She told him she was going to miss her class and she left. She reported the incidents to her grandmother. She did not report it to the principal.
18. Under cross-examination, she agreed that she was the class representative and knew how to represent learners. With regard to the first incident, she maintained that Mbatha was coming out of Maseko’s office. Mbatha’s and Maseko’s offices faced each other and Mbatha asked her to sit on the sofa in the admin waiting area/room. She understood “balls” to mean his private parts and she understood his offer to mean he was offering her sex. She denied that she was making up this story. She agreed that she was aware of the strike but maintained that she was not part of the strike. At the time of the strike, she had already reported the matter at home and to her friends. She did not report it to the principal or NSO. With regard to the second incident, she did not report it to Maseko because she was afraid that they would cover it up because they were colleagues.
19. Mbatha denied that he had touched Learner A’s buttocks at any stage or that he had apologised to her for that. He maintained that he always conducted himself professionally and did not use corporal punishment. He punished learners by instructing them to clean toilets, the school premises or by calling in their parents and punished them in no other way. He calls learners to his office because classes were for teaching and learning. He does not call learners individually to his class and there was not a single day when a learner was alone with him in his class. He denied that he apologised to Learner A because he could not apologise for something that was not true. He maintained that his office was also used by other educators, e.g. by the exam committee. Mbatha argued that Learner A’s evidence should not be accepted as she was confused and could not remember whether she was 15 or 16 years old at the time of the incident. He argued that Learner A portrayed a stage play seen on television and is trying to write a storyline at the expense of his career.
20. With regard to the incidents involving Learner B, Mbatha denied that he told Learner B that she was not going to finish school without getting pregnant and denied that he told Learner B “if I were to offer you my balls, would you accept?” He maintained that he would not have such a conversation in a public area. He did not respond when it was put to him that learner B did not shout it out. He could not remember whether soup was brought to his office. He argued that Learner B was a class rep and ought to have known better to have reported the matter to different stakeholders if she felt uncomfortable. He denied that he hit her with his knee in her buttocks. He argued that this could not be true as the passage is a public area and someone could have seen them from the staff room.
21. He maintained that the versions of Learner A and B were fabricated. These allegations against him started following another matter that was being investigated involving a student teacher and a female learner. In that matter, he suggested that they go to the student teacher’s house to check if they were there. The next day, everything turned against him and it was alleged that he was involved with learners and that he must also leave the school. He was part of the investigation team and they knew that if he gets involved, everything will come out. He maintains that the allegations against him are a tool and a counter action to silence him not to pursue that matter. He regretted why he intervened to give parental support. After the allegations, he was arrested and spent 9 days in prison. Further, the learners opened a case in court but could not attend on the grounds that they told them that if it is found that they were lying, they would be incarcerated. Knowing the plot they did not attend court. As the learners never appeared in court the case against him was withdrawn.
22. Under cross-examination, he maintained that he did not have any problems with the learners except when they did not do their work properly and he didn’t know why the learners put themselves in this situation. The learners did not have any vendetta against him and was therefore surprised by the allegations. When it was put to him that the learners were always ready to testify, he responded by saying “I don’t know”. He could not say why learners were so persistent in addressing their cases. They knew he was a disciplinarian and he was surprised because they normally worked well. He could not say why they chose to go against him out of 32-49 educators of which 7 or 8 were males.
23. The principal of the school, S.A. Mnqayi, testified with regard to the strike and the complaint received in respect of four learners. He played no part in the investigation and there was no discussion between him and Mbatha regarding this matter. Professionally, he considered Mbatha to be a good educator with good results. He was shocked when he heard of the complaint because he considered Mbatha to be professional and ethical. He could not say that there was jealousy because of Mbatha’s performance. Mbatha argued that Mnqayi, testified to his professionalism.

ANALYSIS OF EVIDENCE AND ARGUMENTS
24. In this matter, the Department of Education KZN has led evidence from two learners in an attempt to show that Mbatha had committed misconduct as set out in Charge 1 and 2. Mbatha has denied the allegations made by the learners. The learners were alone with Mbatha when the incidents took place and there is no corroborating evidence to support their versions. I am therefore faced with irreconcilable versions.
25. The Courts have held that the duty of an arbitrator when confronted by irreconcilable versions, is essentially the same as that of a judge in a trial court. To come to a conclusion on the disputed issues, I am obliged to makes findings on (a) the credibility of the various factual witnesses; (b) their reliability; and (c) the probabilities. As regards (a) any finding on the credibility of a particular witness will depend on the impression about the veracity of the witness. As to (b), a witness’ reliability depends, inter alia, the credibility of the witness and on the opportunities he/she had to experience or observe the event in question and on the quality, integrity and independence of his recall thereof. As to (c), this necessitates an analysis and evaluation of the probabilities and improbabilities of each party’s version on each of the disputed issues. The credibility of the witnesses and the improbability of what they said is not to be regarded as a separate enquiry to be considered piecemeal. They are part of a single investigation into the acceptability or otherwise of the versions.
26. I considered both Learner A and B to be credible and reliable witnesses. I believe that they gave their evidence honestly and truthfully. Mbatha’s version amounted to a mere denial of the incidents. He failed to show any serious inconsistences or contradictions in their versions. I accept that Learner A had made a mistake with regard to the calculation of her age when she testified. I am of the view that this sometimes happens with minors and it certainly did not diminish her credibility as a witness.
27. In considering the probability of whether these incidents did take place, I have taken into account that the learners were able to clearly recall the incidents with sufficient detail to convince me that these incidents did take place. I am of the view that the probability of these incidents taking place is not affected by the fact that some of the incidents occurred in a public space. Whilst it was in a public space, there is no allegation that it occurred when people were around. Mbatha could have well uttered the words he did to Learner B in a soft voice so that no one hears it and he could have well hit her on her buttocks with his knees when there was no one watching. Mbatha’s argument that Learner A portrayed a stage play from Television show to discredit him is baseless. The principal’s evidence with regard to the professional character of Mbatha does not negate the possibility that that Mbatha could have committed the misconduct.
28. I accept that Learner A was a class representative. I am of the view that whilst it would have been easy for Learner A to report ordinary misconduct as a class representative, conduct of a sexual nature often places the victim in a precarious situation for obvious reasons and makes the reporting of the incident to authorities rather more difficult. In any event, I am of the view that the non-reporting of this incident to authorities does not in this instance diminish the probability that the incident may have taken place.
29. I am not convinced that the learners had fabricated their versions or had any reason to lie as Mbatha suggests. Mbatha conceded during his cross-examination that he had good relations with the learners and that he was surprised and shocked that the learners had lodged these complaints against him as they had no vendetta against him. Mbatha’s version that learners did not testify in the criminal case because they were warned that they would incriminate themselves if they lied in court, was not put to any of the learners to dispute and therefore remained untested. Mbatha’s version, that he was involved in another investigation involving a student teacher and they turned against him, was not supported by any credible evidence for me to make a finding that “they” had a vendetta against him and that this was the reason why the learners were called to falsely implicate him. I therefore reject Mbatha’s version that there was a reason for the learners to fabricate their versions.
30. Considering the evidence holistically, I find, as the more probable version, that Mbatha had committed the misconduct set out in charges 1 and 2 and as described by Learner A and Learner B above.
31. In committing the misconduct Mbatha contravened section 17(1)(b) of the EEA. The misconduct is of a sexual nature and is regarded as serious misconduct in terms of section 17 of the EEA for which dismissal is a mandatory sanction, irrespective of any mitigating factors. Having regard to the gravity of the misconduct, the rights of learners to be treated with dignity, respect and without emotional and/or physical abuse and being mindful of the fact that Mbatha is a senior educator who works closely with learners, I am satisfied that the employment relationship has irretrievably broken down. I therefore find that dismissal is an appropriate sanction.

Award
32. In the circumstances I make the following award:
32.1. The employee, Thembinkosi Jeffery Mbatha, contravened section 17(1)(b) of the Employment of Educators Act, 76 of 1998.
32.2. The employer, Department of Education KZN, must with immediate effect impose the sanction of dismissal on Thembinkosi Jeffery Mbatha.

Raj Shanker
Senior ELRC Arbitrator
Kwazulu Natal