Award  Date:

30 March 2021

Text

Case No ELRC575-19/20 KZN

In the matter between

Department of Education KZN Employer
And
Khayelihle Redman Malloy Employee

ARBITRATOR: R. Shanker

DELIVERED: 30 March 2021
AWAR

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. The process was finalised on 02 March 2021.
2. The employee, Khayelihle Redman Malloy (“Malloy”) was represented by B. Msomi, an official of SADTU. The employer, Department of Education KZN, was represented by M. Mthetwa.
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. 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 set out below and, if so, to recommend an appropriate disciplinary sanction.
Charge 1: On or around July 2019 and at the school, you allegedly committed an act of sexual harassment on Learner A, Learner B, Learner C, Learner D all grade 6CN learners and Learner E grade 6NM learner, by slapping their butts with your open hand and pulling up the school uniform. In doing so, you contravened section 17(1)(b) of the Act.
Charge 2: In that during the 2nd school term 2019, you allegedly whilst on duty contravened section 10 of the South African Schools Act 84 of 1996, as amended, in that you administered corporal punishment on Learner F and G grade 6CN learners by hitting their backs with your hand ‘stamping’. You thereby contravened section 18(1)(a of the Act.
6. Both parties agreed that Charge 2 be dealt with during this process.

BACKGROUND TO DISPUTE
7. Malloy is an educator at the school and was responsible for teaching the learners mentioned in the charges. He is currently on suspension (with full pay) as a result of the serious nature of the allegations. He denied having committed any of the misconduct referred to in the charges.
8. The respondent produced a set of documents marked Bundle A and called two (2) witness to testify, Learner F and the principal, Koniwe Doris Mbatha (“Mbatha”). The employer was unable to secure the attendance of the other learners mentioned in the charges to testify as they had moved to other schools/areas.
9. Malloy 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.
10. Malloy produced three (3) short videos that he took using his cell phone and made an application to admit it into evidence. I ruled during the hearing that the evidence was not admissible because of the manner in which it was taken and, more importantly, because the content of the videos were not relevant in this matter. The videos were of a general nature showing some learners misbehaving. None of the learners in the charges were pictured in those videos. The videos were not taken on a day that any of the incidents mentioned in the charges had taken place.

SURVEY OF EVIDENCE AND ARGUMENT
11. 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.
12. It is not in dispute that in 2019, Malloy was responsible for teaching the learners Natural Science. The learners were in grade 6NC, apart from Learner E who was in grade 6NM.
13. Learner F testified at this hearing. He was in the same class as learner A, C and D. He sat at the front right hand side near the door whilst they sat on the left hand side toward the back of the classroom. He initially could not remember what subject Malloy had taught him in 2019 but agreed that it was Natural Science.
14. He testified, with regard to Charge 2, that he was seated at his desk in class and was busy writing when Malloy came to him. He could not remember what he said at that time but Malloy came to his desk and said “Is this your home”. Malloy then asked him to bow his head and then hit him on his back with his hand. Under cross-examination, He denied that he was standing at the time or that Malloy had merely touched on his back in order to get him to sit down. He could not remember Malloy telling him that he was unruly and to sit down. He maintained that Malloy had asked him to bow his head and then hit him on his back. He agreed that he said something but could not remember whether what he said had angered Malloy.
15. He further testified that this was the first time that Malloy had hit him but stated that Malloy had hit other learners too. He specifically referred to Learner G with whom he shared a desk in class. He could not remember what Learner G had said. Mallow also asked Learner G to bow his head before he hit him. When it was put to him that Learner G was being unruly, he stated that he could not remember what Learner G had said.
16. Malloy, in relation to Charge 2, testified that he could not remember where Learner F sits as he is always walking around in class and walking out of class. On this day, the class was quiet and he was teaching. Learner F was just walking around the class. He merely grabbed Learner F from the back, pulled him and ask him to sit down at his desk. He did not hit Learner F.
17. With regard to Learner G, Malloy testified that he did not recall the specific event but may have grabbed and pulled Learner G to sit down at his desk as Learner G was always moving around the class.
18. Learner F, in relation to Charge 1, testified with regard to what he witnessed had happen to learner A, C and D in class. He saw Malloy hit all three learners on their buttocks with an open hand and in the process, pulled up their uniforms. He was seated at the door which is at the front of the class and the learners were at the front of the class near the door at the time when Malloy hit each of them. He agreed, under cross-examination that Malloy did not pull up their uniforms but whilst hitting them, their school uniforms got pulled up. Malloy sent them out of the class after hitting them. Under cross-examination, he agreed that Learner E was in a different class to him but disputed that he had testified about what happened to Learner E.
19. The incidents involving Learner A and C had taken place on the same day but not at the same time. Learner C’s incident took place first after she was laughing with her friends in class. Malloy went from the front of the class to the back and shouted at them. Malloy took Learner C to the front of the class. Malloy hit her near the door before taking her out of the class. Under cross-examination, he agreed that Learner C was at the back of the class and he was at the front but maintained that he witnessed it as they were talking and laughing loudly. He maintained that Malloy did not call Learner C but went to fetch her from the back.
20. Learner A’s incident took place soon thereafter. She was writing and writing and yawning in class. As Malloy approached her, she stood up and ran. Malloy caught her at the door and hit her. Under cross-examination, he agreed that he was seated at the front of the class and that Learner A sat at the second row from the back.
21. Learner D’s incident had taken place on a different day after she was shouting and calling her friends in class. Malloy walked towards her and asked her “is this your mother’s house”. Learner D went herself to the front of the class. Malloy hit her at the door and sent her out of the class.
22. Malloy testified, with regard to Learner C, that she was playing in class – spinning tops. He told her to go to her place. She was putting her leg on the chair and miming like she was singing (not aloud). He asked her to behave and to stop it. She went out of the class on her own accord. He continued with the lesson. He never touched her at all. He agreed that his version regarding Learner spinning tops in class was not put to Learner F to dispute. He however denied that he was making up this version.
23. He testified, with regard to Learner A, that she was also misbehaving in class and she stormed out of the classroom on her own. She was generally very rude, disrespectful and had an attitude. On that day, she was asking questions as if to suggest that what he was teaching was wrong. She was loud, rude and disrespectful and, in a way, she was challenging him. One of the learners even explained to Learner A that what the teacher was saying was correct. He carried on with the lesson but a few minutes later, Learner A started to yawn. She yawned about 4 to 5 times. It was deliberate yawning and she made a loud yawning noise each time she yawned. Other learners started to look at her and not focus on him teaching. He told her to stop it. This incident happened soon after Learner C had left the class and, from the corridor, Learner C was talking to her in class. As he approached her to tell her to stop it, Learner A stood up and ran out of the classroom. He did not make any physical contact with her or hit her. Under cross-examination, he agreed that Learner A as allowed to ask questions but he maintained that it was her tone and the way in which she asked the questions that was an issue. He denied that he caught Learner A at the door and hit her on her buttocks.
24. He testified, with regard to Learner D, that she was quiet in class and not rude. He knows that she stays in a social welfare home near the school and he always spoke to her to make her feel part of the class. She did not leave the class and he did not touch her or hit her.
25. Mbatha, the school Principle, testified that the Deputy Principal received a complaint from one of the learner’s parent that the applicant was touching his daughter in an inappropriate way. She was not at school on that day but spoke to the parent on the Monday together with his daughter. The daughter informed them of other learners that had experienced the same thing. She called in the other learners to a meeting in her office. She did not request statements. On the same day, after the parent had left, she wrote a letter to the Circuit Manager as per page 1 of Bundle A listing amongst other complaints that the applicant hit learners on their buttocks, lifted their uniforms as if hitting them and peeping through. She did not receive a reply until the Circuit Manager came to school.
26. She received many enquiries and complaints from parents regarding the same issues. She did not want to take complaints over the phone and told them that she will arrange a meeting. She later arranged a meeting for grade 6 learners and parents which was held in the afternoon after learners and educators had left. The purpose of the meeting was to guide and calm parents. The School Governing Body was also present in the meeting. The Circuit Manager came to school and interviewed learners. She was present in that meeting. The applicant was thereafter suspended. Under cross-examination, she could not recall that one SGB member was inciting parent to attack the applicant.
27. She did not dispute that the applicant may have reported the unruly behaviour of children to the HOD and Deputy Principal. She remembered that soon after the first disciplinary enquiry, whilst she was doing her rounds, she noticed that the applicant’s class was very chaotic. She went in and spoke to the learners. The learners advised her that they had nothing to do and they confirmed that there were some unruly learners in class. Normally the applicant would respond rudely but as it was just after he had received a written warning, the applicant was very calm. Everything changed the following week when the applicant again started acting rudely with her.
28. It is common cause that Malloy was charged for insubordination and insolence in February 2019. Malloy pleaded guilty and received a written warning valid for 6 months together with a three months suspension without pay which part was suspended for three years. Malloy and Mbatha agreed that the current misconduct and the misconduct for which the final written warning was issued, were two different types of misconduct.
29. Malloy also testified that he had been teaching for 25 years and never hit a child once. When questioned about why the charges would be brought against him, he said “I guess they were unruly and I corrected them. It was a revenge to get back at me”. This was his second year at this school. Most children were unruly and disrespectful in the school, not only in his class. He reported this at least once during his first month of employment and it was a subject that always came up in staff meetings. He also reported it to the Deputy Principal. The Principal was aware as she had come to his class once when learners were being unruly. Nothing was done about the unruly behaviour of learners. Under cross-examination, he denied that learners were not kept occupied in class and maintained that they were unruly even when he was busy teaching. He did not report the unruly behaviour to parents or the form teacher because this behaviour had always been there. He agreed that it was his responsibility to maintain discipline and he always did his best. He agreed that he was not the only male educator at the school and that no other male educator was charged with this misconduct.
30. He testified that he was not informed of the parent’s complaint (received on Friday) either on the Monday or Tuesday. On the Wednesday one of the parents informed him of the meeting where allegations of sexual harassment were made. Nothing was mentioned to him by the principal until the Friday. He maintained that the calling of a parents meeting was not part of the legal procedure. He was informed that at the parents’ meeting, one member of the SGB, Qwabe, asked parents to beat him up. Qwabe had asked parents to lie about him. He had a toxic relationship with the principal and Qwabe.

ANALYSIS OF EVIDENCE AND ARGUMENTS
31. The key issues to be determined in this matter are whether:
31.1. Malloy had hit the Learners A, C and D on their buttocks with his hand and lifted their uniforms whilst doing so.
31.2. Malloy had hit Learner F and G on their backs with his hand and,
32. On these key issues, the Department of Education KZN has led the evidence from one learner, Learner F, and Malloy has denied the allegations. There is no corroborating evidence on either side to support their versions. I am therefore faced with irreconcilable versions.
33. 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 make 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.
34. I considered Learner F to be a credible and reliable witness. I believe that he gave his evidence honestly and truthfully and maintained a consistent version even under some robust cross-examination. I am not convinced that there was any reason for Learner F to fabricate his version or to lie about what he had experienced and also about what he had witnessed in respect of the other learners. I do not accept Malloy’s explanation in this regard that Learner F would have lied because he tried to correct Learner F’s unruly behaviour.
35. From where he sat, I am satisfied that Learner F was able to clearly see and hear what happened to the other learners about whom he testified. Learner G sat right next to him. Although the other learners were seated at the back, they were diagonally opposite him and it was not impossible for him to have seen or heard them especially because they were loud and misbehaving. On the key aspect of whether Malloy had hit the learners on their buttocks, Learner F could not have been better positioned seated at the front row near the door where, he maintains, Malloy hit the learners. I accept that Learner F could not recall certain aspects eg, what subject Malloy had taught him and what he and Learner G had said to Malloy before Malloy had hit them. I am of the view that this sometimes happens with minors especially given that these incidents had taken place a long time ago. I am satisfied that learner F did not testify about Learner E (who was in a different class) during this arbitration and if her name was indeed mentioned, it was by pure accident. I am satisfied that this did not diminish Learner F’s credibility as a witness and that his recall of the actual incidents, especially with regard to the key issues, was clear and with sufficient details.
36. I did not consider Malloy to be a credible witness. His version on the key issues mentioned above, amounted to a mere denial. He had the opportunity to put certain aspects of his version to Learner F and Mbatha but failed to do so. He could have put his version to Learner F regarding the extent to which Learners A and C’s had misbehaved. He could have put his version to Mbatha regarding Learner G being quiet and staying in a social welfare home. Further, his demeanour and behaviour at the arbitration did not assist in making me believe that he was a credible witness. On the whole, I had the impression that he was making up his version as he went along. Malloy failed to provide me with any reasonable explanation as to why these chargers were brought against him. He only mentioned that he had a toxic relationship with the Mbatha at the conclusion of his evidence-in-chief and this was not put to Mbatha when she testified. Malloy’s version that he had a toxic relationship with Qwabe (SGB member) was unsubstantiated.
37. In considering the probability of their versions being true, I am of the view that there is nothing inherently improbable in Learner F’s version. Malloy’s allegation that the learners were unruly does not negate the possibility but rather strengthens the probability of Learner F’s version being true as it would have given Malloy a reason to discipline the learners. Learner F’s version that Learner A was yawning and Learner C laughing loudly with her friends was supported by Malloy, albeit with a bit more detail. Mbatha’s evidence regarding the complaint being received and the meetings she attended to deal with the issues were not disputed by Malloy and it further supports the probability of Learner F’s version being true as it shows that there were real issues at the school.
38. For reasons mentioned above, I find, as the more probable version, that Malloy committed the misconduct as set out in Charge 1 and Charge 2 to the extent that he hit Learners A, C and D on their buttocks with his hand and, whilst doing so, he lifted their school uniforms and that he hit Learner F and G on their backs with his hand whilst asking them to bow their heads.
39. The misconduct that Malloy had committed in relation to Charge 1 is of a sexual nature and is dealt with in section 17(1)(b) of the Employment of Educators Act, 76 of 1998 (“EEA”). Section 10 of the South African Schools Act, 1996, prohibits the use of corporal punishment at schools. The misconduct that Malloy committed in terms of Charge 2 is dealt with in section 17(1)(d) of the EEA. In terms of Section 17 of the EEA, both forms of misconduct are regarded as serious misconduct 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 Malloy is an educator who works closely with learners, I am satisfied that the employment relationship has irretrievably broken down.
40. I therefore find that a sanction of dismissal is appropriate in the circumstances.

Award
41. In the circumstances I make the following award:
41.1. The employee, Khayelihle Redman Malloy, contravened section 17(1)(b) and 17(1)d of the Employment of Educators Act, 76 of 1998.
41.2. The employer, Department of Education KZN, must with immediate effect impose the sanction of dismissal on Khayelihle Redman Malloy in terms of section 17 of the said Act

Raj Shanker
Senior ELRC Arbitrator
Kwazulu Natal