In the matter between

MKHONDWANE X Applicant

and

DEPARTMENT OF EDUCATION GP Respondent

ARBITRATION AWARD

The venue of Arbitration: Gauteng Tshwane South District
Date: 22 February 2021
Parties present: Arbitrator: Mr C Khazamula
Applicant: Mr Mkhondwane
Applicant’s Representative: Mr D Botha
Employer’s Representative: Ms G Zwane

DETAILS OF HEARING AND REPRESENTATION

1. The matter was an unfair labour practice dispute in terms of s186 (2) (b) of the Labour Relations Act,66 of 1995 related to a disciplinary action short of dismissal and it was set down for arbitration before me on the following dates; 29 January 2020 and 11 December 2020.
2. Parties relied on the bundle of documents as evidence. The Respondent bundle was marked “bundle R” and the Applicant bundle was marked “bundle A1 and A2”.
3. The proceedings were digitally recorded and the service of an intermediary was utilised during the testimony of minors.

ISSUE(S) TO BE DECIDED

4. I have to determine whether the Respondent committed an act of unfair labour practice when the Respondent issued a two (2) months’ salary suspension without pay against the Applicant or not. The relief sought by the Applicant is a re-payment of two months’ salary deducted by the Respondent. For me to determine the above-mentioned I have to decide the following;

4.1. Whether the learner was present when the alleged misconduct took place on 06 March 2018
4.2. Whether the Applicant conducted himself in an improper, disgraceful or unacceptable manner or not

BACKGROUND TO THE ISSUE

5. The Applicant was appointed by the Respondent as an educator at Pro Arte Alphen Park School. On 21 September 2018, the Applicant was charged with two allegations of misconduct. He was subsequently found guilty on all charges and he was issued with a sanction of two months’ salary suspension with pay which was confirmed during the appeal.
6. Following the appeal, the Applicant referred a dispute to the Council for conciliation which remained unresolved and thereafter the Applicant referred a dispute for arbitration which was set-down before me.

SURVEY OF EVIDENCE AND ARGUMENT

The Applicant’s Testimony and Evidence

7. The Applicant knew “KS” because in 2018 he became KS’s mathematics and a registered teacher. He denied the allegation against him and submitted that he did not touch KS buttocks and the breasts as alleged.
8. The Applicant recalls a scuffle before the first break at the classroom door between him and KS. On the day of the scuffle, he was waiting for the learners outside the classroom because they had five minutes to move from one class to another. He closed the door and it was known that when the door was closed learning had commenced and the learners who were late must not enter the classroom until an educator was done with what he was doing. KS was late for more than ten (10) minutes and she opened the door with a force which made a loud noise. This disrupted the class and KS entered the class walking slowly.
9. When the Applicant asked why she was late, she ignored him and continued to walk to where she sits displaying a negative attitude. He told the KS that she was late and cannot come to his class and she kept quiet. Dramatically KS said the following comment “I cannot believe this guy” and she turned her back towards the door as if she was would walk out of the door. At that stage, the class started rebelling stating that KS should not go out and she decided to listen to her class and stopped by the door. The Applicant nudged KS in the back and she turned around, pushed back. She further said she was not going out of the class. At that stage she was disrespectful and her behaviour was unacceptable. When she pushed the Applicant he decided to use his body to block her and he pushed her out of the class. His hand was above the breast almost close to the neck and closed the door. He intended to get rid of disrespectful behaviour and to restore order in the class. KS kicked the door shouting that she should be allowed in because it was her right to be in a class.
10. The Applicant calmed the class down and continued to teach. This incident led to learners talking and making fun of it out of the class. The Applicant again submitted that she saw KS as an attention-seeking child. She liked to instigate and provoking. She was misbehaving in other classes. After the incident, KS stood outside the class and after twenty (20) minutes. The Applicant opened the door and she was casual which led him to allow her to enter the class. He issued a lot of debits to KS for her bad behaviour however he cannot recall if he did that for this incident.
11. The Applicant submitted that Du Rand did not call him about the 1st incident when he wrote his report. On 28 May 2018, the day of the incident, he never met with Du Rand and only met him on 10 May 2018 before the incident during a joint meeting with the Deputy Principal. He confirmed that the meeting occurred between the Du Rand, the Deputy Principal and the Head of Department however the incident regarding the allegations that he touched the learner on the buttocks was not discussed. The issue of physical contact with the learners was about him pinching the learners and he was asked to stop doing that.
12. The Applicant was surprised by the first allegation and it was supported by Du Rand’s statement that he could not see the CCTV camera (“the camera”). The camera was inside the class and it was able to view almost everything in the class. He was not sure if the camera had a view at the door. The camera with a view to the door was in the corridor.
13. In cross-examination, the Applicant denied the allegation and submitted that the learners would normally lie however some do not do that. He denied that the witness number three (3) (“NS”) at the disciplinary hearing has testified that he touched a learner’s buttocks and submitted that it was what the Presiding Officer at the disciplinary hearing had noted. He again submitted that his witnesses would lie in that he touched KS’s breast because they were friends and had a lot of time putting the story together. He further submitted that the witness’s evidence was not recorded verbatim and he did not know the impartiality and objectivity of the presiding officer.
14. The Applicant confirmed that he wrote a report regarding the KS incident. He denied that he intended to touch KS breast but was responding to the charge which involved improper and disgraceful behaviour. He submitted that he touched KS in the process of blocking her and she has attitude problem. He did nothing with KS’s behaviour and submitted that when dealing with an adolescent you let go of some inappropriate comments from them. He denied KS version that he touched her breast the first (1st) time and she told him not to do so and he touched him the second (2nd) time. The Applicant stated accepted that it would be inappropriate to touch the learner’s buttocks and breast however he did not do so. He could not have touched KS breast when he was enforcing discipline which KS broke.

The Respondent’s Testimony and Evidence

15. The Respondent’s first witness Jacques Andre Du Rand (“Du Rand”), testified that he was a principal at the school and the Applicant was a maths educator. Du Rand confirmed the informal meeting with the Applicant on 10 May 2018 where minutes were taken. In that meeting, they spoke about moderation which was not handed in and the Applicant left the classroom unattended with learners. He heard that one of the learners was touched by the Applicant. He verbally warned the Applicant that it was not a great idea to touch the learners as they were not allowed to do so. Someone working at the school came to him alleging that the Applicant touched the learner’s breast while at the front of the door in the classroom because the learner was late. He called the district office and Molefe requested him to write a report which he did.
16. Du Rand submitted that there was no definite evidence on the camera footage. On 24 May 2018, the learner reported the Applicant to the principal’s office. He told the Applicant again not to touch any learner in any manner. On 28 May 2018, he had a meeting with the learner’s mother. The camera footage does not show anything on the 1st incident and in the 2nd incident it shows a commotion at the door from the leg down on the door. The footage does not show people touching each other.
17. In cross-examination, Du Rand stated that the minutes of the 1st meeting was not signed by the Applicant and as far as he was aware everyone was issued with the minutes. The 1st incident was reported to him by the tutor Ms Coetzer and on the 2nd incident KS visited the office with the tutor however he was not sure. Concerning the 1st charger, Du Rand conceded that the camera with 90 degrees angle could view the entire class and submitted that there were a lot of people around the applicant and he could not see any evidence of the Applicant touching the learner. He was able to identify the Applicant on the camera because it was his class however he was not able to identify the learners. Du Rand submitted that the learners were rowdy and the Applicant’s class was a difficult class to manage.
18. The Respondent’s second witness KS testified through an intermediary. KS submitted that she knew the Applicant and he was her grade, 8 mathematics teacher. On the day of the 1st incident, the school bell rang which meant that it was time for them to change the class which was for two periods. She and other leaners stood by the window in the class. The Applicant patted their shoulders and he patted her on her buttocks and told them to sit down. Other learners could see what was happening. She told the Applicant that she did not like what he did and he sat down. KS did not tell anyone but the Applicant only.
19. On the 2nd incident, KS testified that she had a class after the break where she arrived late because she was in the bathroom. When she approached the door of the class there were other learners at the door. The Applicant allowed other learners to enter the class and she was about to enter the class, the Applicant pushed her back and touched her breasts. She told him not to touch her breast and the Applicant did it again and he grabbed them. KS submitted that she felt harassed by the Applicant because of the mutual respect between a learner and the teacher. After that, she decided to go back to report the Applicant to the principal and her mother was called and the matter was taken further.
20. The following day, KS had a class with the Applicant and she did not go into the class. The Applicant came outside the class and told her that she reported him to the principal and she will be dealt with. She went to the principal office and told him what happened. KS reported the Applicant because what he did was wrong and if she did not report him, he would not have stopped. KS disputed that there was a commotion at the door and that the Applicant nudged her back because she was facing him. She was not disrespectful however she can’t stop talking even if they say she must stop talking.
21. In cross-examination, KS submitted that she was standing on the side of the door and there was enough space for learners to pass. She stood for almost two minutes and after that, she attempted to enter. When she was about to go in another leaner “LF” came outside the class and stood to see what was happing outside. She submitted that it was during the break when the bell rang and she quickly went to the bathroom that’s why she was late. The bell rang while she was in the bathroom after coming from the office to fetch medicine. She conceded that she was late and she did not obtain permission however when she came back she got other learners on the queue. She did not apologies because of what was happening at the time.
22. KS further submitted that during the 1st incident, the Applicant pushed her on the breast and she did not take it badly. That is why she told the Applicant that he must not touch her breast. KS conceded that the Applicant told her she was not allowed in class because she was late however she did not force her way in. She was at the door when the Applicant told her not to go in. She only reported the 2nd incident to the principal.
23. The Respondent’s 2nd witness LF testified that he knew KS and the Applicant who was his grade 8 teacher. He submitted that in terms of the 1st incident, their class was loud and everyone was walking around. He, KS and other friends went to the window greet their friends who were standing outside. The Applicant said to them they must sit down and while standing there the Applicant poked him and other people their shoulders. When it came to KS he patted her on the buttocks.
24. With regards to the 2nd allegations, LF submitted KS was late in the class and the door was closed. LF asked the Applicant to go to the bathroom and he was permitted to do so. On his way out, KS opened the door of the class and the Applicant told her that he did not want her in the class because she was late. The Applicant pushed KS by her breast for the 1st time. KS remarked as said “Ahh Sir why do you touch my breast”, then the Applicant touched KS’s breast again to prove a point. KS told the Applicant that she was going to report him. In clarity, LF submitted that the Applicant touched the KS’s breast the 2nd time outside the door.

ANALYSIS OF EVIDENCE AND ARGUMENTS

25. I deem it fit to start with the 1st incident where it was alleged that the Applicant touched KS buttocks. The Applicant submitted that he had no recollection of this allegation where it came from. He was not made aware before of the allegations. It was a common cause that KS did not report the allegation but it was reported by the tutor Ms Coetzer. Du Rand testified that the camera footage did not show anything however there was a meeting held with the Applicant where he was advised not to touch the learners. I don’t understand why this allegation was not treated in the same manner as the 2nd allegations because both of the allegations in my view are serious. It did not matter who reported the allegation but what was important was that it was an internal official who reported the allegations to Du Rand. What, I mean is that there should have been an investigation so that these allegations are tested. The 1st allegation only resurfaced when a complaint of the 2nd allegations was made.
26. The evidence of KS and LF in this regard did not persuade me to find against the Applicant in this regard mainly because of their conduct in these proceedings which I will later deal with in this award and that they were both involved as direct witnesses on both incidents. KS submitted that the Applicant patted other learners on the back and only touch her on the buttocks whereas LF submitted that the Applicant poked them on the back and when it came to the Applicant he patted her on the buttocks. What is consistent in their version was that the Applicant patted KS on her buttocks. I, therefore, find that there was insufficient evidence on the balance of probabilities to find the Applicant guilty on this allegation.
27. With regards to the 2nd allegation, The Applicant version does not deny that he touched KS but disputes how he did so. The Applicant admitted that he pushed KS by nudging her on the back which was disputed by the Respondent’s witness except for Du Rand whose version of camera evidence could only confirm that there was a scuffle only between KS and the Applicant.
28. The version of KS about how the incident started was not satisfactory as it had a lot of inconsistencies and it was contradicted by LF. KS submitted that when she arrived at the class there were leaners who were on the queue and the incident occurred when she was about to go in. During cross-examination, she testified that the bell rang while she was in the bathroom. This supports the version of LF when he said KS found the door closed because she was late but this version contradicts KS’s version of her finding learners on the queue.
29. It appears that both KS and LF are somewhat close because of LF’s testimony that KS’s reason for being late was because she went to fetch medicine. It was not clear how he knew the reason for KS’s late arrival at the class and also that LF was part of the 1st allegation.
30. With regards to the details of what occurred during the 2nd incident the evidence of KS and LF was less convincing. Both were direct witnesses to the alleged incidences however they gave different accounts on what and how the incident transpired. Their consistent version in that the Applicant touched KS’s breast similar to the 1st allegation where he touched KS buttocks. They contradicted themselves about how the Applicant touched KS’s breast or buttocks. I find their evidence unreliable and it was aimed at amplifying the seriousness of the allegations such as LF’s version that the Applicant wanted to prove a point when he touched KS’s breast the 2nd time.
31. KS admitted that people consider her disrespectful because she can’t stop talking even when she is told to stop. This admittance cannot be taken lightly given the allegations. It may support the Applicant’s version that KS was disrupted the class after she entered the class while she was well aware that she was breaching the rule. She was not supposed to enter the class because she was late until the Applicant opened the door for her to enter. I, therefore, find that that the Respondent was unable to rebut the Applicant version that he did not touch KS’s buttocks and breast. I, however, do not think the Applicant was appropriate in the manner in which when he pushed KS but this was not what he was charged for and therefore I cannot make a finding in that regard.

AWARD

32. I, therefore, issue the following award;
32.1. The Respondent committed an act of unfair labour practice as alleged.
32.2. The Respondent is ordered to pay the Applicant compensation of two (2) months salary for the loss of income suffered by the Applicant as a result of the Respondent’s disciplinary sanction.
32.3. The Respondent is ordered to pay this above compensation on or before 01 March 2021.

Chance Khazamula
ELRC Panelist
Date: 22 February 2021