Part Time Senior Panelist: M.A. HAWYES
Date of Award: 24th of July 2024

In the ARBITRATION between

PSA obo S.M.S Masombuka

(Union/Applicant)

And

Gauteng Department of Education
(Respondent)

DETAILS OF HEARING AND REPRESENTATION

1. The case was scheduled for arbitration initially online via Microsoft Teams on the 10th of June 2024. The evidence of the first complainant was completed on the 10th of June 2024. Later the parties requested that the matter be heard in person and the case was re-scheduled for and completed at the Department of Education Head Office on the 4th and 5th of July 2024.After completion of the arbitration the parties requested the opportunity to submit written closing arguments by the 12th of July 2023. The Applicant’s (S.M.S Masombuka ) union representative requested and was granted an extension to the 16th of July 2024 due to personal problems. The Respondent’s representative submitted his heads of argument within the initial time limit but later submitted a second draft after the initial deadline after it became clear that he too had more time.

2. The Applicant’s heads of argument were only received on the 18th of July 2024.
3. I too was later granted an extension for the submission of my award to the 29th of July 2023.
4. Ms. R.R Ralawe, a union representative from the Public Service Association (PSA) represented the Applicant.
5. Mr. M. Mafuya, a labour relations official, represented the Respondent.

ISSUE IN DISPUTE

6. Whether the Applicant’s dismissal was substantively and procedurally fair or not.

BACKGROUND TO THE ISSUE IN DISPUTE

7. The Respondent employed the Applicant as a PL 3 educator (Deputy-Principal) at Kenneth Masekela Secondary School at the time of the alleged incidents that led to his dismissal.
8. It is common cause that after an internal disciplinary hearing the Applicant was dismissed and referred an alleged unfair dismissal dispute to the Council.
9. The parties utilized three bundles during the course of the arbitration. The Respondent utilized two small bundles marked ‘A’ and ‘AA’ respectively.
10. The Applicant utilized a bundle marked ‘B’.
11. The proceedings were digitally recorded and detailed long hand notes were also kept.
12. The Respondent leveled two charges against the Applicant i.t.o various subsections of section 18 (1) (q) of the Employment of Educators Act, no 76 of 1998 (as amended) (EEA).
13. Allegation 1 alleged that on or around the schools first term of 2022, the Applicant sexually harassed his educator colleague, Ms. L.A Nkambule, in that he said to her, if he would have an opportunity to have sex with her, he would have a sleepless night, because she is “a slender” and that “slenders” do not get tired.
14. Allegation 2 alleged that on or around the school’s second term of 2022, the Applicant sexually harassed his colleague Ms. N. Monama, in that he told her that she is the school’s black beauty whilst brushing her chin.

SURVEY OF THE PARTIES EVIDENCE AND ARGUMENT
15. The Respondent led the evidence of the five witnesses namely Ms. L.A Khambule, Ms. N. Monama, Ms. P. Ntlengethwa, Ms. K.P Tshiovhe, Ms. L. Mohale and the mother of complainant Khambule. The evidence may not necessarily be surveyed in the order in which the witnesses testified.
16. The first complainant, Ms. L.A Khambule a post level 1 Geography educator at Kenneth Masekela Secondary School testified, inter alia that on the 24th of February 2022, whilst making copies at the photocopy room which is adjoining the Applicant’s office. She was wearing an orange dress on the day in question.
17. The Applicant came out of his office and told her that if he had the opportunity to have sex with her, she would have sleepless nights because of her body structure (she is a slender) and stated that slenders do not get tired.
18. Khambule testified that the two of them were alone in the office at the time the Applicant uttered the words.
19. Khambule described feeling shocked, scared and uncomfortable after the incident,
20. She did not initially report the incident due to fear and the perceived influence that the Applicant had within the school and broader educational community.

21. Khambule testified further that she did not report the incident to the Principal of the school because she knew that the Applicant and the Principal (Mr. Fakude) were good friends and she recounted previous similar inappropriate incidents involving the Applicant that had been reported to the Principal but had gone no further. This contributed to her initial hesitation to report the incident.
22. Eventually a staff meeting was scheduled on the 3rd of November 2022 attended by the District office (ISDO) and SADTU (BEC) where all staff were given the opportunity to express whatever concerns they may have with the Principal and the Applicant as Deputy Principal. It was at this meeting that she detailed the incident involving the Applicant and her on the 24th of February 2022.
23. On the following day being the 4th of November 2022, the Applicant began to follow her around school and called her cell phone and asked her to accompany him to submit examination papers at the Nodal office which she found suspicious and intimidating, given that there were other more senior male colleagues that he could have asked. This made her feel even more unsafe.
24. She eventually went to another educator, Ms. P. Ntlengethwa’s class and explained what the Applicant had said to her and expressed her fear of the Applicant and that he was trying to get her alone. Ntlengethwa was called as a witness later during the course of the Respondent’s evidence and confirmed Khambule’s testimony in this regard.
25. Khambule testified that prior to the incident, her interactions with the Applicant were strictly professional and limited to necessary communications.

26. Khambule maintained that after the incident she tried to avoid the Applicant and found his attempts to interact with her to be inappropriate and distressing.
27. Khambule expressed that working in the same environment as the Applicant made her feel unsafe and uncomfortable.
28. During cross-examination Khambule was questioned about her delay in reporting the incident and the interactions that she had with the Applicant before and after the alleged harassment.
29. It was inter alia suggested that Khambule’s claims were inconsistent and the Applicant’s union representative questioned her reasons for not reporting the incident immediately.
30. The second witness to testify was PL 1 educator Ms. Natalie Monama who taught Sesotho and Tourism at Kenneth Masekela Secondary School and had 3 years teaching experience.
31. Monama testified about an incident that occurred during the first term on a Saturday on a date that she cannot specifically recall. She bumped into the Applicant at school who brushed her chin and described her as being the “black beauty” of the school.

32. Monama immediately expressed her discomfort and informed the Applicant that she did not date men and that she had a girlfriend thereby indicating disinterest in his actions.
33. The Applicant responded by saying that he had always wanted to date someone like her (a lesbian- my emphasis).
34. Monama testified that after the incident she reported the matter to the schools administrator, Mrs. Mzama. Despite the report no formal action was taken against the Applicant by school management.
35. Monama also testified that on the same day the Applicant gave her and another educator R100 without explaining why he was giving them money.
36. Monama testified that she had heard of other instances where the Applicant had made similar comments and advances to other female staff members.
37. She reported another incident where a pupil brought a knife to school and the Applicant tested the knife but did nothing substantial to address the breach of school rules.
38. Monama also described a subsequent incident where the Applicant embarrassed her by incorrectly stating on a WhatsApp group that she was absent from class when he knew that she was actually with a facilitator for a pre-arranged meeting.
39. Monama testified further that the Applicant’s actions made her feel uncomfortable and disrespected.
40. Monama stated that that she knew that the Applicant had a close relationship with the Principal of the school, Mr Fakude who did not take sexual complaints against the Applicant seriously.

41. The matter was eventually raised in a staff meeting on the 3rd of November 2022 where various staff raised issues, including herself, relating to the Applicant and the Principal of the school.
42. During cross examination Monama was questioned about the exact dates and times of the incidents and she confirmed that she could not recall the specific dates on which events had occurred as described.
43. Ms K.P Tshiovhe testified on the aspect of procedural fairness that the Applicant had raised.
44. She deposed that she is a Deputy Director heading the unit that deals with precautionary transfers/suspensions. She testified further that the Applicant was on a precautionary transfer based on the seriousness of the allegations against him.
45. Tshiovhe testified that the precautionary transfer was effected with full pay and compensations that were due to the Applicant therefore he did not suffer any financial prejudice.

46. The Applicant also contended that his dismissal was procedurally unfair because the appeal hearing was delayed. Tshiovhe testified that this was incorrect. The Applicant received his hearing outcome on the 9th of November 2023 and then lodged an appeal to the Member of the Executive Committee (MEC) on the 15th of November 2024. The appeal outcome was rendered on the 22nd of February 2024.
47. Tshiovhe pointed out that there was no delay in processing the Applicant’s appeal considering that it was the festive season, and the schools were closed.
48. Ms. L.M Mohale, the chairperson of the Applicant’s disciplinary enquiry testified, inter alia, on the procedure she followed in attending to the matter before her and the reasons for finding the Applicant guilty of the allegations of misconduct against him.
49. Mohale testified that most of the delays during the course of the disciplinary enquiry were occasioned by the Applicant and not the Respondent.
50. In her evidence, Mthembu testified that she is the mother of complainant Khambule.’

51. Mthembu denied categorically that she had ever been romantically involved with the Applicant. The Applicant had once dropped her off at her place after they had attended a funeral because at that time she did not have a car.
52. The Applicant testified under oath and additionally led the evidence of three witnesses namely Ms. Makhosana Mabena (former Personal Assistant to the Applicant), Mr. Mduduzi Innocent Makhanya, currently unemployed and former employee of the Respondent. Makhanya was also the Acting SADTU Branch Secretary and Deputy Secretary when the Respondent still employed him. Makhanya, at the commencement of his testimony, whilst looking troubled, pointed out that I had been the Commissioner that had conducted his arbitration and ultimately dismissed him. Makhanya also stated that SADTU had taken my decision to confirm his dismissal on review to the Labour Court.
53. The Applicant also led the evidence of (Dr) J.P Fakude, the current Principal of Kenneth Masekela Secondary School.
54. The Applicant deposed that he had always worked very peacefully with Nkambule.
55. The Applicant referred to other hearsay allegations on a community WhatsApp group that alleged that he had impregnated a learner and wanted her to have an abortion. The Applicant testified that he felt humiliated by this false allegation.

56. The Applicant deposed that Nkambule, Monama and others were part of a cabal that wanted to destroy the Principal and him.
57. The Applicant testified further that on a day he complimented Nkambule as she looked beautiful in her pink dress. He remembered the address to be pink and not orange.
58. Nkambule then responded and said to him that if he could get her he would have sleepless nights. The Applicant quickly corrected Nkambule and said that he did not mean it that way as she was out of his league. The Applicant deposed further that his league was her mother whom he had dated for two years whilst he was still SADTU Secretary. Nkambule denied that the Applicant had ever dated her mother.
59. After he had complimented Nkambule their relationship was professional, they worked well together, and they would laugh and assist each other.
60. After Nkambule lodged the complaint against him on the 3rd of November 2022 the Applicant admitted to requesting her on the following day to accompany him to the Nodal office to pick up examination papers. His car was not working, and he had phoned Nkambule if they could drive to the Nodal office in her car. She did not come. He called Nkambule a second time and later went looking for her around the school and found her in Ms. Ntlengethwa’s class. Nkambule told him he must get someone else to accompany him. He does not know why Ntlengethwa told him to stop bothering Nkambule.
61. In respect of the second allegation the Applicant testified that he met Monama on a Saturday at school. She had come to school with a bucket and mop and found it motivating that Monama would come to school on a Saturday to clean her class.

62. The Applicant stated that he told her that he was impressed that she had given up her Saturday to come to school because most other female educators of her age would be out having fun with their boyfriends.
63. Monama had then told him that she preferred women and not men and he told her that he had never met someone like her.
64. Later during the day, the Principal and other educators arrived at school. One of the educators, a Ms Ngobeni said they had finished doing what they were doing and wanted to buy food and something to drink.
65. The Principal did not have money and he offered to give Ngobeni and Monama R100 for food and beverages.
66. The Applicant stated that his relationship with Monama was professional even after the incident.
67. The Applicant insisted that Mthembu (Monama’s mother) was his girlfriend and that they had had a fling which had lasted a month.
68. Fakude (Principal) testified that he had just been reinstated back at Masekela Secondary School after being on precautionary suspension for alleged misconduct.
69. He knew the Applicant as the FET Deputy Principal. He knew the Applicant as had previously been a union secretary for years but he had never worked with him.
70. Fakude stated that he had never been informed verbally, in writing, formal or informal about sexual harassment allegations against any of the staff at school.

71. Later he was informed of these allegations by the HOD, and a special investigation team was appointed. SACE also came to the school to check what he had done in respect of the sexual allegations by staff, and he informed them that he was not aware of any such allegations.
72. He only heard of the allegations at a staff meeting on the 27th of October 2022 and when another meeting was convened on the 3rd of November at the behest of SADTU.
73. Fakude denied that he and the Applicant were friends simply because they had worked together and reported at the District office at the same time.
74. They were close because of work ethics and the positions they are holding at the school.
75. In respect of Allegation 2 Fakude repeated the version given by the Applicant in respect of Monama.
76. Mr. Bafana Zikalala gave mostly hearsay evidence, and his evidence does not exculpate the Applicant from either of the two allegations against him.
77. Mabena’s testimony that she was the Applicant’s PA was evidence of a character nature and during her short temporary tenure she described the Applicant as having a bubbly personality and was supportive of staff. He frequently bought lunch for staff and engaged in light-hearted jokes, creating a friendly atmosphere.
78. Mabena testified that she and the Applicant maintained a professional relationship and she stated that although she was aware of the sexual harassment charges against the Applicant she personally had not witnessed or experienced any inappropriate behaviour from the Applicant firsthand.
79. The final witness for the Applicant was Mr. Innocent Makhanya, a former Acting Secretary for SADTU until his dismissal.
80. Makhanya testified about the meeting that was held on the 3rd of November 2022 where staff members were given the opportunity to air their concerns and grievances.
81. He described the 
meeting as an informal platform for staff to express their issues, rather than a formal session for reporting or charging individuals with misconduct.
82. Makhanya suggested that an earlier meeting held on the 26th of October 2022, convened by SADTU, served as a precursor to the allegations presented on the 3rd of November 2022.

83. Makhanya expressed concern that key figures such as the Principal and the Applicant were excluded from the 26h of October 2022 meeting, hinting at a possible orchestrated effort or conspiracy against certain individuals.
84. Makhanya argued that that the proper procedures for reporting serious allegations were not followed during both meetings suggesting that the session lacked formality and appropriate structure.
85. Makhanya referred to a letter that he had forwarded to SADTU at the time in which he expressed concerns about the handling of the meetings and the subsequent allegations.
86. The letter pointed out perceived procedural irregularities and unfair treatment, urging SADTU to reconsider the manner in which the complaints were addressed.

 ANALYSIS OF EVIDENCE AND ARGUMENT
87. In evaluating the evidence presented, the primary task is to determine the substantive and procedural fairness of the Applicant’s dismissal. The evidence from both parties has been thoroughly reviewed, and the credibility of the witnesses has been assessed.
Substantive Fairness:
88. The charges against the Applicant pertain to allegations of sexual harassment against two of his junior subordinate colleagues, Ms. L.A. Khambule and Ms. N. Monama. The key evidence to consider involves the testimonies of the complainants and the Applicant’s response to these allegations.
1. Testimony of Ms. L.A. Khambule:
o Ms. Khambule testified that the Applicant made inappropriate comments about her body, specifically stating that he would have sleepless nights if he had sex with her because “slenders” do not get tired. This incident allegedly occurred in the photocopy room when they were alone.
o She expressed feelings of shock, fear, and discomfort, and initially hesitated to report the incident due to the Applicant’s perceived influence within the school and close friendship with the Principal.
o Her delay in reporting the incident does not inherently undermine her credibility, given the context of fear and previous incidents that went unaddressed by the school administration.
o I find that the Applicant’s attempts to engage with Khambule on the day after she reported the incident to the meeting of the 3rd of November 2022 were probably attempts to get her alone so that he could persuade/threaten her to not lay a charge of sexual harrassment against him.
2. Testimony of Ms. N. Monama:
o Ms. Monama’s testimony involved an incident where the Applicant brushed her chin and called her the “black beauty” of the school, despite her expressing discomfort and disinterest.
o She also mentioned that after the incident with the Applicant he gave her and another educator R100 without explanation, which I find can be interpreted as an inappropriate attempt to gain favor and “bribe” her silence. The Applicant’s explanation that he was buying them food is rejected along with his general explanation of events.
o Although Ms. Monama could not recall specific dates, her consistent recounting of the incidents and the broader context of the Applicant’s behavior towards female colleagues (i.e. Nelly) supports her credibility.
89. Given that the evidence of the complainants is found to be honest and trustworthy, the allegations of sexual harassment are substantiated. The Applicant’s denial and alternative explanations appear dishonest and improbable, particularly given his attempt to shift the blame to a supposed and improbable imaginary cabal conspiracy and his focus on character evidence, which is largely irrelevant in this context.
90. It is also important to note that the Applicant did not put large swathes of his version to the witnesses, despite his representative being frequently encouraged by myself to do so. I find that the Applicant failed to insist that his representative put his version to the Respondent’s witnesses at the time they testified because he feared that his version would not withstand the rigors of cross-examination. Evidence untested by cross-examination is prone to be rejected as unreliable. That is my finding with regard to the Applicant’s version in this case.
91. Additionally, documentary evidence contradicted Principal Dr. Fakude’s evidence that he had no knowledge of any sexual harassment allegations against the Applicant. At Bundle B 22, Fakude prepared a report dated the 29th of November 2022 on the allegations after the meeting of the 3rd of November 2022, which involved alleged sexual harassment against an intern named Nelly. Charges against the Applicant for alleged sexual harrassment against Nelly were probably not included in the disciplinary charges against the Applicant since I was advised that Nelly no longer worked at the school at the time the complainants came forward with their charges.

92. In this report, Fakude demonstrated his partiality in favor of the Applicant by describing him as a person of “noble character” after Nelly’s charges came to light. In his report Fakude then obtained a version from the Applicant, who not surprisingly denied the allegations, without making the effort to call Nelly or attempt to hear her side of the story. I find that Fakude was not interested in the slightest to hear both sides with a view to taking the matter forward and made it evident that he was shielding the Applicant from accountability.
93. Fakude’s behavior supports the assertions of both complainants that they could not trust the Principal to take their complaints of sexual harassment against the Applicant seriously. I find that this further explains why they did not report the incidents to him at all but decided to wait for an opportune time (i.e., the meeting of the 3rd of November 2022) to air their complaints. I find that these facts provide an adequate explanation for why Khambule and Monama took so long to report the conduct of the Applicant.

Procedural Fairness:
94. The procedural aspects of the case include the precautionary transfer, the handling of the initial disciplinary hearing, and the appeal process.
1. Precautionary Transfer:
o The precautionary transfer was implemented with full pay, indicating no financial prejudice against the Applicant.
o The seriousness of the allegations justified the precautionary measure.
2. Disciplinary Hearing and Appeal:
o The disciplinary hearing was conducted by Ms. L.M. Mohale, who provided detailed reasoning for her findings, which finding I accept.
o I find that delays in commencing the disciplinary process were primarily caused by the Applicant and the Principal by their untrustworthy conduct, not the Respondent.
o The appeal was processed within a reasonable timeframe considering the school holidays and festive season.
95. The procedural conduct adhered to the principles of fairness. The Applicant was given ample opportunity to present his case and appeal the decision. The argument regarding procedural irregularities in the informal staff meetings of the 26th of October 2022 and the 3rd of November 2022 must be considered in the context that the meetings gave the complainants the opportunity to come forward with their complaints and did not undermine the formal disciplinary process that followed which afforded the Applicant with every opportunity to be heard.
96. Based on the evaluation of the evidence and the arguments presented, the dismissal of the Applicant is found to be both substantively and procedurally fair. The honest and credible testimonies of the complainants, corroborated by other witnesses, sufficiently prove the allegations of sexual harassment. The procedural handling of the case by the Respondent was appropriate and fair, providing the Applicant with due process at each stage.

AWARD

97. The, dismissal of the Applicant, Mr S.M.S Masombuka was both as substantively and procedurally fair.
98. The Applicant’s dispute referral is dismissed.