In the INQUIRY BY ARBITRATOR between:

Western Cape Education Department
(Employer)

and

Faldie Daniels

(Employee)

PARTICULARS OF PROCEEDINGS AND REPRESENTATION

1. This is an inquiry by arbitrator convened in terms of section 188A of the Labour Relations Act 66 of 1995, as amended (the LRA). The employee, Mr. F Daniels was charged with the misconduct related to alleged sexual offences of a learner (learner A) of the J G Meiring High School.

2. The inquiry was heard before Commissioner Reza Slamang on 9 September 2021. The matter was previously postponed. Ms. Debora Mathshaya, labour relations official, represented the employer, the Western Education Department. In this ruling I shall refer to Mr. Daniels as “the Employee” and to the Western Education Department as “the Employer”. The award is being issued by myself Commissioner Retief Olivier.

3. On the day the Employee was not in attendance. He had legal representation, an attorney, Mr. Fahrien Meyer, who was also not in attendance. An application for postponement was made prior to the hearing, which was opposed by the Employer, and was not granted. On the morning of the inquiry the Employee sent in a medical certificate which the arbitrating Commissioner Slamang rejected as a delaying tactic. I note that it was not accompanied with an affidavit, nor with a new application for postponement. The arbitrator Commissioner Slamang then decided to proceed with the inquiry, and then continued in the absence of the Employee

4. The proceedings were recorded and since transcribed. At the conclusion of the inquiry Commissioner Slamang, for reasons that have not been stated, refused to issue and submit an award. The ELRC then requested myself, Commissioner Olivier, to issue an award on the basis of the transcripts of the inquiry hearing. On 1 June 2022 a hearing was held with the Employer to verify the transcript and to clarify any enquiries related to the transcript.

THE CHARGE AGAINST THE EMPLOYEE

5. The Employee was charged with two offences relating to sexual misconduct of learner, who at that time was 16 years old and in grade 11, and in respect of both charges there were alternative charges framing the alternative charges as a statutory and criminal misconduct;

5.1 Charge 1 is also described in the alternative. In Charge 1,” it is alleged that you are guilty of misconduct in terms of Section 17(1)(b) of the Employment of Educators Act, under 76 of 1998, hereinafter referred to as the Act, in that during the third term of 2019, you committed an act of sexual assault on Learner A, a grade 11 learner at JG Meiring High School in that you rubbed her upper thigh with your hand.”

5.2 Then alternative to Charge 1, reads as follows. “It is alleged that you are guilty of misconduct in terms of Section 18(1)(q) of the Act in that during the third term of 2019, while on duty, you conducted yourself in an improper, disgraceful, or unacceptable manner in that you rubbed the upper thigh of Learner A, a grade 11 learner at JG Meiring High School with your hand.”

5.3 Charge 2 for the record reads as follows. “It is alleged that you are guilty of misconduct in terms of Section 18(1)(q) of the Act in that during the third term of 2019, while on duty, you conducted yourself in an improper, disgraceful, or unacceptable manner in that you uttered words of more or less the following meaning to Learner A: a) why are your lips so dry? Come let me kiss it for you; and/or b) you know I love you.

6. Considering that the Employee Mr. Daniels was not in attendance these charges were not put to the Employee. The arbitrating commissioner proceeded and heard the evidence and also questioned the employer witnesses, as related to the charges.

SUMMARY OF EVIDENCE (On transcript)

EMPLOYER EVIDENCE

7. The arbitrating commissioner led the questioning of the first witness learner A. She stated her name. and that she was 18 years old and that she was in matric the previous year at JG Meiring High School and in grade 11 in 2019 when the offences occurred, and was currently as first-year student at UWC. At the time of the incidents, she was sixteen years old. Regarding the allegations she stated Mr. Daniels is still an educator, a teacher at JG Meiring, and that she only knew him from school. She stated he was not her class teacher, but that he was teaching mathematics.

8. She was then questioned about the two charges, and the first charge was read to her. She explained on that day they were having extra classes and explained it was on a Saturday, and it was a class full of people, approximately 25 learners. She was not alone with him, but asked him for help with one of the problems they we’re solving. Mr. Daniels then he came to stand next to her to explain the specific math problem, and then while he was explaining he rubbed her thigh under the desk. She was sitting in a single desk, at the front of the class, and she was not wearing a school uniform, but was dressed in jeans. She stated he rubbed her upper thigh and it was multiple rubs, slowly. He did not say anything while doing it, he was still explaining the work at the same time. She didn’t say anything to him or do anything, as at that moment in that moment, she thought he was not aware of what he was doing and that it was unintentional. He stood there for about 2 or 3 minutes and he was rubbing and touching her the entire time. Although he was explaining the math’s problem, she could not pay attention to it, because he was rubbing her leg and was distracted by that.

9. Afterwards she changed her mind about what had happened when after the class she spoke to one of her friends, (learner B) who was sitting close by her. They were walking out of the school and she asked her friend if she saw anything and said she said no, she did not. Then when she told her what happened, her friend told her that she should speak to someone about that, because that is not unintentional. At that time however she did not tell anyone. She only spoke and told someone else about what had happed after the second incident.

10. The second charge was then read to her, and she testified about the second incident. She stated they were in math’s class again, and the class was about half full, and it was a normal school day.

11. Mr. Daniels was sitting at his desk and he called her up to his desk at the front. He was in charge of the music or something for the matric dance, and then he called her and asked if she did not have any music that he can use. She did not know why he asked her because she was not really into music. She then then told him she is not a music person and suggested that he could ask one of her friends who does know a lot of new music. That is when he asked her why are her lips so dry. He then said wants to kiss it. She tried to change the subject saying she was sick, she had the flu that time, and that’s when he told her that he loves her. She said he was speaking softly so that no one else could hear.

12. She then walked back and again told her friend, learner B, what had happened, and she was in disbelief. She didn’t believe her that he would say something like that. She was shocked at first, and she told her again she really needed to speak to somebody about it because the matter was getting more serious. That same day walked back together after school, and she asked her friend to go with her to her home to tell her family about the situation, but her friend didn’t go home with her. Her friend was too scared for her part to go home with her, but that evening she then spoke to her auntie and her granny, she was living with them, and her auntie told her she will email the school about the situation to take it further. Her auntie then sent the email, to the SGB of the school and then they got back to them and arranged a meeting with the principal, and all three of us, herself, her auntie and her granny met with the principal, Mr. Lindeds, who unfortunately who has since passed on.

13. The next thing that happened was that Ms. Matshaya from the Department came to the school to speak to her about what happened, it was either at end of 2019 or the beginning of 2020. She was worried and scared after it was reported, and about what would happen. Her fear was if she brought it up and got nowhere, she will see the teacher at school every day and for the rest of the year. She changed math classes for the reasons so that she did not need to see him, but it was still difficult because she would be walking and he would come down the passage and she would turn around and walk all the way around the school just to avoid him because, at that time, he was aware that there was a case against him.

14. The arbitrating commissioner put it to her that if Mr. Daniels was there and that he would say to her that she was lying and that she was making up everything, how would she respond. She stated that she would be upset, and would tell him, it is that’s how it was, that’s what happened to her and that’s how his behavior came across to me. Even if maybe for him, he felt that was not his intention to bring it across like that, but to her it was, and that she did not expect it from him. She stated he would know what she said was true.

15. The second learner, Learner B, testified that she was aware of the allegations contained in the charge sheet, and that she was aware because learner A had told her about it and wanted to take it further. She however first was planning on speaking to someone about it. When she told her, she encouraged her to speak to someone first, to get advice from them. This was about the first charge, but she did not do so immediately, only a while later. Besides telling her about, she did not see anything physically herself. She was sitting in the desk next to her, and the teacher was on that side of her. She could not see him doing anything, she could only see the top of his body because he was standing on that side of her. When they walked out of the class, learner A told her wat had happened, that the teacher had touched her, that he rubbed her thigh. She herself was shocked, and at a loss for words.

16. Regarding the second charge she said her friend learner A told her straight after the incident as they left the class after it happened, that the teacher told her why her lips are so dry, and wanted to kiss her. Learner A was sitting at her desk, and the teacher called her up to his desk at the front of the class and then they spoke to each other. She heard him calling her, but did not hear the conversation between the two of them. She was again shocked, at a loss for words, and told her it is not okay. She told her again she must speak to someone, and at that time they spoke to someone that advised then what to do. It was a teacher, but she did not want to be involved and she then told her to speak to her grandparent and her aunt at home, which she did.

17. Questioned about who the teacher was, she stated it was a female teacher at school, who did not want her name mentioned. When it was also put to her that if Mr. Daniels was present and he would say they are lying, she responded that she would tell him that he is not telling the truth. She would say because she was telling the truth, and he would be saying that she is lying if he is saying that. She also reiterated that the teacher only advised then what to do, and asked not be involved. (She did then disclose the name of the teacher, Ms. Moodley)

18. The grandmother, Ms. Gaironessa Lee and Ms. Zainonessa Lee, the aunt, was briefly questioned and indicated that Ms. Zainonessa Lee then reported the matter and also sent an email to the SGB.

19. Ms. Debora Mathshaya, the respondent representative, indicated that they would also have called the principal, because he dealt twith the complaint, but he has since passed away, and the new principal did not have any involvement in the matter.

20. At the conclusion of the evidence the arbitrating commissioner asked the respondent about the expected outcome or sanction, and Ms. Mathshaya indicated that it the Employee is found guilty of the charges, the sanction recommended and mandate is immediate dismissal. It was then also indicated that further closing arguments are not necessary and that the arbitrating commissioner would issue his award accordingly.

EMPLOYEE EVIDENCE

21. As noted, the Employee had submitted an application for postponement, which was subsequently denied. On the day of the enquiry he did not appear, and the arbitrating commissioner decided to proceed and indicated that the medical certificate was not sufficient and was just a delaying tactic. I noted that there was no further application for postponement, and neither was there an affidavit in support of the medical certificate. The employee thus did not rebut any of the allegations and evidence and did not present the case.

ANALYSIS OF THE EVIDENCE AND ARGUMENT

22. The disciplinary charges levelled at the Employee Mr. Daniels, as noted, is of alleged misconduct, being the sexual assault of a learner. It should also be noted that at the time of the incidents the learner was a minor. It is for the Employer to prove his guilt on the charges on a balance of probabilities. If he is found to be guilty, an appropriate sanction must be imposed. Considering that these offences relate to the sexual assault of a learner in terms of Section 17(b) of the Employment of Educators Act 76 of 1998, there are very specific considerations for an arbitrator. Where an educator is guilty of misconduct in terms of section 17 the sanction of dismissal is mandatory and an arbitrator has no discretion to impose any other sanction, irrespective of mitigating circumstances.

23. A further consideration, which is also acknowledged in Collective Agreement 2 of 2018 in the ELRC is that in dealing with matters of this kind of matter, according to Section 2 28(2) of the Constitution of South Africa, the best interests of the child should be paramount. In the practice note 1 of 2018 issued by the ELRC, it is noted that the Constitutional Court has held that Section 28(2) of the Constitution imposes an obligation on all of those who make decisions concerning a child to ensure that the best interests of the child enjoy paramount importance in their decisions. Statutes must be interpreted and the common law developed in a manner that favours protecting and advancing the interests of children. Courts and arbitrators are bound to give consideration to the effect their decisions will have on the lives of children; not only the life of the child who is a victim of sexual misconduct, but also the lives of learners in general who have right to be protected against sexual abuse from educators.

24. The Employee Mr. Daniels has not submitted a case and therefore has also not pleaded, and as such has not denied the allegations and that he was guilty of the charges. Considering the uncontroverted evidence of the witnesses, which I find probable and corroborated, I find the Employee guilty of the main charges.

25. As noted in the ELRC practice note the elements of sexual assault are, a) conduct of a sexual nature, b) which results in the victim’s sexual integrity being impaired, or inspiring a belief that it will be impaired, c) unlawfulness, meaning that there must not be a justification ground for the action, such as for example the consent of the victim and d) intention to commit the misconduct, in other words accidental unintentional bodily contact is excluded from the definition.

26. The test to be applied In determining whether conduct has a requisite sexual nature is an objective one, viewed in light of all the circumstances the part of the body touched, the nature of the contact, the situation in which it occurred, words and gestures accompanying the act and all other circumstances surrounding the conduct will be relevant, given the wide meaning of sexual assault it involves not only rape, sodomy, or other forms of sexual activity without the consent of the victim, but also includes other forms of intentional conduct of a sexual nature such as kissing on the lips and touching or caressing of buttocks or breasts of a victim.

27. I do find that there is sufficient evidence to determine that the employee Mr. Daniels touched and rubbed the upper thigh of Learner A and made sexually inappropriate comments to learner A, both which constitutes misconduct in terms of Section 17(1)(b) of the Employment of Educators Act, Act 76 of 1998.

RULING

28. The Employee Mr. F Daniels is guilty of sexual assault.

29. Considering that I have found the Employee Mr F Daniels guilty of Section 17(b) offences of the Employment of Educators Act 76 of 1998, dismissal is the mandatory sanction. Mr. F Daniels is dismissed with immediate effect.

30. In terms of section 120 of the Children’s Act, Act 38 of 2005, I find that the Employee Mr. Daniels is unsuitable to work with children. The ELRC as the administrators of this Sec 188A enquiry is there for entitled to provide for a further hearing or process for the parties to make submissions as to whether the Director General: Department of Social Development should be informed of these findings in terms of section 120 and 122 of the Children’s Act, Act 38 of 2005.

ELRC SENIOR COMMISSIONER: Retief Olivier