IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD AT MOUNT AYLIFF
IN THE INQUIRY BY THE ARBITRATOR
BETWEEN
DEPARTMENT OF EDUCATION EC APPLICANT
AND
SADTU OBO MTHI X RESPONDENT
ARBITRATION AWARD
CASE NO ELRC179-24/25 EC
DATE/S OF HEARING 19 JUNE 2024 & 24 JULY 2024
DATE AWARD SUBMITTED 19 AUGUST 2024
NAME OF PANELIST SIZIWE GCAYI
DETAILS OF THE HEARING AND REPRESENTATION
1. The inquiry by arbitrator was held under the auspices of the ELRC in terms of section 188 (A) of the Labour Relations Act 66 of 1995 (LRA) as amended read together with ELRC Resolution 3 of 2018. The matter held on 19 June 2024 and 24 July 2024 at Lubalasi Primary school at 09h00. Mr L Mashoai an official represented the Applicant (Dept of Education EC). Ms T Mthiya an official from SADTU, represented the Respondent (Ms X Mthi).
2. The proceedings were electronically and manually recorded.
3. The proceedings were conducted in English and there was Sotho interpreter, and also an intermediary. Both witnesses of the Applicant were minors and for purposes of this award their names will not be revealed. We will refer to them as OM and AM. Sotho speaking interpreter was utilized for the witnesses.
ISSUES TO BE DECIDED
4. I am required to determine following:
[a] whether the employee is guilty of the three charges proffered against her by the employer. If I find her guilty on all or any of the charges, I should decide the appropriate sanction. The employee pleaded guilty on all charges on 19 June 2024. On the plea explanation statement, the employee raised a defence, and did not admit the elements of the offence. A plea of guilty was then changed to a plea of not guilty.
BACKGROUND OF THE DISPUTE
5. The employee is employed as an educator at Pharamakhulo Senior Primary School, Alfred Nzo West District.
6. The employee is charged with the charges mentioned:
Charge 1
You contravened section 18 (1)(f) of the Employment of Educators Act, 76 of 1998, you unjustifiable prejudiced the administration, discipline of the Department of Education and the school of Pharamakhulo Senior Primary School, in that on or about 14 September 2023 you committed an act of sexual harassment by attempting to kiss a learner by the name of ——-.
Charge 2
You contravened section 18(1)(g) of Employment of Educators Act 76 of 1998, you misused your position in the Department of Education in Pharamakhulo Senior Primary School to prejudice the interests of the learner, in that you prejudice the right of learner to learn in a peaceful manner at Pharamakhulo Senior Primary School.
Charge 3
You contravened section 18 (1)( q ) of the Employment of Educators Act 78 of 1998, while on duty you conducted yourself in improper and disgraceful manner, in that while on duty on or about 14 September 2024 you attempted to kiss a child by the name of —————.
SURVEY OF SUBMISSIONS AND ARGUMENTS
Employer’s case
7. The Employer led evidence of two witnesses. Their evidence is summarised below. OM testified as follows: He was 13 years old doing grade 8 at Ralebitso Secondary School. In relation to charge 1, he mentioned that it was during break time, he was about to leave the classroom, Mthi requested him to remain behind and instructed Abokwe to stand by the door and not allow anyone inside the classroom. Mthi requested him to come closer, he adhered to the request. He mentioned that Mthi tourched his hands and tried to kiss him and he refused. Mthi kept on requesting him to kiss her. The bell rang and Mthi ran to her car.
8. He also mentioned that it was in 2023, the same day of charge 1, when the bell rang, Mthi went out of classroom. Mthi went to her car and called him. Mthi instructed him to bring his workbook. He adhered to the request. Mthi took out R50-00, from her car and placed it in his workbook. He refused to take it. Mthi begged him and warned him not to tell anyone about the R50-00. He then left for class. He told his friends that Mthi gave him R50-00.
9. In relation to charge 2, he mentioned that it was in 2023, Mthi called him to the storeroom. When he arrived at the storeroom, Mthi closed the door. Mthi tried to kiss him and he refused. Mthi warned him not to disclose to other students about their discussion. The other time he was from home with lunch box. Mthi was standing behind the water tanks. She called him and questioned him about the bicycle. She also questioned him about his mother’s love. Mthi told him that she also loved him, and she loved him more than his mother. Mthi continued to tell him that she loved him. There was no other person she loved except him. In June 2024, He visited the school. Mthi called him and requested him to fetch water for her. He got water, upon handing it over to Mthi, she placed it down and attempted to hug him, he refused. Mthi asked him about his business at the school, he informed him, he was there to fetch his friends.
10. Ms Deopelo an educator at the school, reported the matter to his mother.
11. AM testified as follows: He was 13 years old, schooling at Ralibitso Senior Secondary School doing grade 8. In 2023 he was schooling at Pharamakhulo Senior Primary School doing grade 7. He also testified about his educators at Pharamakhulo Senior Primary School. In relation to the charges against Mthi, he mentioned that, he was requested by Mthi to stand outside the door and ensure that no one had access to the classroom. The people that were in the class was Mthi and OM. It was his evidence that he did not know what happened in the classroom as he was outside the classroom. He was instructed by Mthi to wait outside next to the door. OM told him that Mthi attempted to kiss him.
12. The employers case was closed after the testimony of AM.
Employee’s Case
13. Ms Mthi testified herself and called no other witness in support of her case. She testified as follows: She was an educator at Pharamakhulo SPS for a period of a year and four [4] months. She knew OM, she taught him mathematics and natural science. In relation to the allegations against her, on count 1, she mentioned that it was during break time, OM was making noise, disturbing other learners, copying their work. She requested him to approach her for purposes of disciplining him. Other students requested to go out for break, she released them. The student who was the last one to go out was AM. She requested him to close the door, it was very windy on that day. She remained in classroom with OM. She mentioned that she did not attempt to kiss him but asked him to be closer to her.
14. In relation to the R50-00 money given to OM, she mentioned that she gave OM the money. When she was in class she noticed that OM was not in class. She enquired from other students, they informed her that he was sent home because he did not cut his hair. He only arrived towards the end of the period. She questioned him about his hair that was not cut. OM told him that there was no money at home. She summoned him to his car. She gave him R50-00 for purposes of haircut. It was her evidence that there were other students that she gave R20-00 including girls. Best performing students were given chocolates.
15. In relation to the incident of storeroom, she mentioned that she used the storeroom as her office. She told him to behave in classroom and stop copying other students work. No signs of discomfort were presented by OM whilst they were in the storeroom. June 2024, she mentioned that it was during June exams. She was having revision on a Saturday.OM came and disturbed the classroom. He was playing with the stick inside the classroom. She was afraid.
ANALYSIS OF SUBMISSIONS AND ARGUMENTS
16. Section 18 (f) EEA misconduct: unjustifiable prejudices the administration, discipline or efficiency of the department of Basic Education, an office of the state or a school or adult learning centre.
17. Section 18 (g) EEA misuses his/her position in the department of Basic Education or a school or adult learning centre to promote or to prejudice the interests of any person.
18. In MUDAU v MEIBC & OTHERS [2013] 13 ILJ 663 [ LC] the Court held that “the arbitrators mandate in terms of section 188A is to determine on a balance of probabilities whether an employee has committed an offence for which he / she has been charged and if so, whether there is a basis in fairness to terminate the employment relationship between the parties”.
19. It is common cause in these proceedings that the Employer led evidence of two witnesses. Their evidence is on record it will not be repeated however reference will be made where relevant. It must also be noted that the 2nd witness was only relevant as far as charge one is concerned. On Charge 2 and 3, he did not implicate Mthi. On charge one 1 both witnesses implicated Mthi however the key witness was OM. I say it was OM because all these charges revolve around him, he is the learner alleged to have been sexual harassed by Mthi.
20. In these proceedings the evidence of OM will be treated with caution as it appears that he is the only witness for the Employer in relation to other charges.
21. On 19 June 2024 Mthi pleaded guilty on the charges however a plea of not guilty was entered on her behalf when she did not admit the elements of the offence. I mention this on purpose, during cross-examination of OM and AM the evidence of these two witnesses was not disputed. They maintained their version. They were not cracked by Ms Mthiya. That did not come as a surprise because initial Mthi pleaded guilty. Mthi when she testified did not distance herself from the charges 1 & 2 except to say she did not admit to attempting to kiss the learner. The incident of being with OM in the classroom during break time and requesting him to come closer to her, she did not deny it. She also did not deny giving OM R50-00. She also did not deny having a conversation with OM behind the water tanks. The incident of the storeroom was also confirmed by Mthi except that she did not admit the sexual harassment. The evidence of OM was not challenged by Ms Mthiya representative of Mthi. When Mthi testified and denied acts of sexual harassment, that was new to me. Both witnesses of the Employer were present and the version of Mthi was not tested to them. When they have left and not in a position to answer for themselves there is new evidence. Why was this evidence not tested to the witnesses? It is the duty of the cross-examiner to put as much of his or her case to the witness. There is a big danger in not cross-examining the witness on relevant and important aspects: generally, it suggests that the evidence and testimony of that witness should be accepted. The Courts have commented on this issue, in ABSA BROKERS (PTY) LTD V MOSHOANA AND OTHERS (2005) 10 BLLR 939(LAC) the court stated that it was an essential part of the administration of justice that a cross- examiner must put as much of his case to a witness as concerns that witness. He has not only a right to cross-examination but, indeed also a responsibility to cross- examine a witness if it is intended to argue later that the evidence of the witness should be rejected. A failure to cross-examine may in general imply an acceptance of the witness testimony”.
22. In relation to the evidence placed before the Council I have no reason to reject the evidence of the two witnesses. Having considered all the evidence holistically from the Employer and Employee [ Mthi] it follows therefore that Mthi has prejudiced the learner OM’s interest and thus making her guilty of charge 1 & 2. In relation to charge 3 there was no evidence presented by the Employer implicating her to that charge and therefore she is found not guilty.
SANCTION
23. In arriving at an appropriate sanction I have considered the submissions made by both parties, the aggravating factors as well as mitigating factors.
24. Section 188 of the LRA provides that (1) a dismissal that is not automatically unfair, is unfair if the employer fails to prove(a) that the reason for a dismissal is a fair reason [i] related to the employees conduct or capacity or [ii] based on the employer’s operational requirements and [b] that the dismissal was effected in accordance with a fair procedure.”
25. In the present matter Mthi was charged for misconduct in terms of section 18 of the EEA.
26. In NEHAWU v UNIVERSITY OF CAPE TOWN [2003] (CC) the Court held “ the Arbitrator is expected to have rehard to the interests of both parties in coming to a conclusion whether the conduct of the Employer to dismiss the Employee was fair or not”.
27. In MIYAMBO v CCMA & OTHERS [2010] 10 BLLR 1017 (LAC) the Court held “ in deciding on an appropriate sanction, a Commissioner must consider all relevant circumstances. However the role of trust relationship remains predominant.”
28. The question that needs to be answered, is can Mthi be trusted with learners? How did she prove herself amongst learners? This incident did not occur once only. It has been on going. I say so based on the evidence presented before the Council, it first occurred in the classroom, in the storeroom and behind water tanks. It occurred on separate days. She was hardly a year in that school but she was able to prove that she cannot be trusted with learners. The Employer had argued that the sexual harassment committed by Mthi had led to the trust relationship being broken. Mthi cannot be trusted with learners. Her conduct towards OM has left scars that cannot be mended. The department has no space for employees like Mthi.
29. Section 28 [2] of the Constitution Act 108 of 1996 provides that in any decision that has to be taken involving children,” the interests of the children enjoy paramount importance.”
30. In arriving at the decision I have considered the mitigating factors of the Employee, she had a clean record, she had 10 dependants. In her mitigation, she prayed for a warning or counselling as an appropriate sanction.
31. I am satisfied that I have weighed up the interests of both parties.
32. Section 120 [2] of the Children’s Act 38 of 2005 provides that “a finding that a person is unsuitable to work with children may be made by such a forum on its own volition or on application by an organ of the state or any other person having sufficient interest in the protection of children.” In the current matter I make the finding on my own accord.
33. In the circumstances I hereby make the following award:
AWARD
34. The Employee [ Mthi X ] is found guilty of charge 1 & 2 proffered against her. She is found not guilty on charge 3.
35. The Employee [Mthi X] is dismissed with immediate effect. The Employer [ Dept of Education- EC] must inform Mthi of her dismissal.
36. Ms Mthi X is found unsuitable to work with children in terms of section 120 [4] of the Children’s Act 38 of 2005. The General Secretary of the ELRC, must in terms of section 122(1) of the Act notify the Director General: Department of Social Development in writing of the findings of this forum made in terms of section 120 (4) of the Children’s Act 38 of 2005, that Ms Mthi X is unsuitable to work with children, for the Director General to enter her name as contemplated in in section 120 in part B of the register.
Signature:
Commissioner: Siziwe Gcayi
Sector: Basic Education