Commissioner: Zoliswa Taba
Date of Award: 26 May 2023

In the Inquiry by Arbitrator between:

FREE STATE PROVINCIAL DEPARTMENT OF EDUCATION
(Employer)

And

SADTU OBO NKGWEDI M.M
(Employee / union)

Details of hearing and representation
1. An inquiry by Arbitrator was set down in terms of section 188A of the LRA in Bloemfontein on 11 and 12 May 2023. In all matters in which an employer wants to take disciplinary action against an educator for alleged sexual misconduct towards any learner, an inquiry by an arbitrator, as intended by section 188A of the LRA, and clause 32 of the Dispute Resolution Procedures of the ELRC shall be mandatory. In this regard, I have noted section 3.3.1 of Collective Agreement 3 of 2018 of the ELRC.

2. The Employer in this matter is the Free State Provincial Education Department and the Employee is Mr M.M Nkgwedi. The Employee attended the proceedings and he was represented by Mr Frans, an official from the trade union, SADTU. The Employer was represented by Ms L. Cweba from the employee relations section.

Issue to be determined
3. In terms of the pre-arbitration minute of the parties, I am required to decide whether the Employee committed misconduct as per the allegations levelled against him. If I find that he did commit the misconduct, I have to decide on an appropriate sanction in line with Section 18 of the EEA .

4. On the other hand, if the guilt is not proven, then the matter would be dismissed.

Background to the dispute
5. The parties signed a pre-arbitration minute in which it was recorded that the employee was currently employed as a Deputy Principal at Lekhulong Secondary School. There are four (4) allegations levelled against the employee of which he pleaded not guilty. The allegations related to section 18 (1) of the EEA in that it was alleged that he conducted himself in an improper, disgraceful or unacceptable manner when he sent inappropriate messages on Facebook to a grade 12 learner and therefore unjustifiably prejudiced the administration and discipline of the school by sending such messages.

6. When the alleged conduct occurred, the learner was 20 years at the time. The name of the learner would not be recorded in this award but it is captured in the record of the proceedings.

7. The matter was first set down before me on 28 February 2022 where the Employer made an application for audio and Facebook chats to be admitted to the proceedings in the absence of the learner testifying. A ruling to that effect allowing such evidence to be admitted was issued on 20 March 2022, after parties submitted final written submissions on 11 March 2023. On 23 June 2022, the matter was postponed. On 23 September 2022, the Employee party raised an issue of contempt and a written ruling was issued on 27 September 2022 finding no contempt on the part of the Employer. The matter was then set down on 11 and 12 March 2023.

8. The written closing arguments were received on 19 & 22 May 2023. It must be noted that the employee’s arguments were sent on 22 May 2023 with an apology as technical challenges arose on 19 May when sending the arguments. The parties used common bundles submitted by the employer. The employer called two witnesses and the employee was the only one who testified for his case.

9. The proceedings were digitally and manually recorded. The proceedings were interpreted by Mr Mpitsi. All the testimonies of the parties are well captured in the recording and the award only captures evidence relevant to the allegations/ charges brought against the Employee.

The survey of evidence and arguments
The Employer’s case
1st witness: Mr M. Mawasha
10. He was the Principal at the Employee’s school when the allegations were brought against the Employee. He was reprimanding some learners, Kgosana and Ramatisa at the camp on their conduct when he was informed of the improper relationship between the learner and the Employee. Kgosana had said that the principal had to also reprimand his teachers and he told him that he was aware that the learner and the Employee had a relationship. He informed Kgosana that without proof he could not entertain such allegations hence Kgosana told him that he had Facebook chats as proof.
11. Kgosana sent Facebook messages from his phone to the principal’s phone and said the Facebook messages were between the learner and the Employee. He did not know how the Facebook messages ended up in Kgosana’s phone but knew that Kgosana was close to the learner as they shared the same room at the school camp. When he asked the Employee about the issue, he denied it.

12. After obtaining the information from Kgosana, he called the learner for an interview in the presence of Ms Seheri and Kgosana. As per the Facebook chats, the Employee had said that he wanted to sleep with the learner without a condom and give her a child; that the learner was already his wife, that he wanted to sleep with her. The learner had during the interview process initially denied and said she had lost her phone when asked about the relationship between herself and the Employee but she later admitted to having a relationship with him but did not explain what type of relationship it was and confirmed that there had been no sexual activities which took place. The learner had confirmed communicating with the employee as per page 18 of the transcripts. He believed that the Facebook profile belonged to the Employee as his face and the name appeared on the profile but could not confirm nor deny that the other person on the chat could have been Kgosana.

13. He conceded during cross examination that he could not rule out that Kgosana could have been the one responding to the chats on Facebook. He conceded that Kgosana had been a problematic learner who had been using marijuana. He did not recall the learner during the interview informing him that she had shared her phone with Kgosana. He maintained that he did not know how Kgosana got the Facebook chats in his phone but said Kgosana said the learner gave her such information.

14. He was aware that there Facebook accounts could be faked and conceded that he could not confirm that the Facebook chats and the account were from the Employee. He was not in a position to prove that the Facebook chats were from the Employee and had alerted the investigator that he was not sure whether the Facebook account was that of the Employee. He conceded that he never confirmed or double checked whether the profiles were indeed that of the Employee. He confirmed that based on the Facebook chats, he could not confirm that the other person was indeed the learner. He did not interview Kgosana as he had indicated that he was afraid of the learner. He confirmed that he was not in a position to interpret the learner’s responses appearing on the transcripts. He confirmed that permission was not sought from the learner’s parents prior to her being recorded as she was already 20 years at the time.

15. He said the Facebook chats were extracted from Kgosana’s phone to the school computer. Confirms that the person alleged to be the Employee told the other one that “his dick is becoming stiff” but could not confirm if the learner who is alleged to be the one chatting to the Employee had a dick, which could have been Kgosana, who was a male and was gay. He confirmed that he did not interview Makena although the learner during the interview had said that she had used her Facebook account in Makena’s phone. The learner had submitted extra Facebook messages from her phone.

2nd Witness: Ms N.K Seheri
16. She was the Deputy Principal who was present during the learner’s interview. She was called by the principal to be a witness during the learner’s interview. The learner had denied that there was a relationship between herself and the Employee. The learner’s phone had been confiscated at the school camp and was kept at the strong room. Before the interview, the principal collected the phone and charged it and gave it to the learner to open it. The learner opened it and screenshot information and gave it to the Principal. The principal informed the learner that she would be recorded and she said she had no issues with it. She denied having a relationship with the employee but that she indicated that the employee had requested to be her friend on Facebook. The learner had disputed that the employee had said he wanted to have a child with her. She was not present when the principal interviewed Kgosana. Kgosana used to frequent the principal’s office. Kgosana was gay and was close to the learner and used to share rooms with girls. The learner’s responses at the interview were short and were simply yes or no answers without providing more explanation. She could not recall if Kgosana was also present at the interview. It was known that learners could hack others’ accounts.

17. During cross examination she confirmed that the Facebook chats submitted were of two different Facebook accounts and only became aware of that at the arbitration hearing. The principal read the Facebook chats from his phone during the learner’s interview. She did not see the messages the learner gave to the principal and could not tell whether they were the ones printed and submitted at the arbitration hearing. The learner admitted to speaking to the Employee on Facebook. Facebook messages from page 18 to page 28 were the ones which the principal had before the interview with the learner and from page 1 to page 17 were from the learner’s phone.

The employee’s case
1st witness: M.M Nkgwedi
18. He was the Employee in the matter and he was the Deputy Principal at the learner’s school. He had been a Deputy Principal since 2010. He had been working for the employer since January 1995 at school with boys and girls and had never been accused of similar allegations before.

19. Although the Facebook chats indicated his names and face, he distanced himself from the two Facebook profiles submitted. He was Tswana speaking and conversations in that chat were done in Sesotho which he does not use when communicating. Even at school, if a letter had to be written in Sesotho, he would ask assistance from other officials to write such letter. He had a Facebook profile he used but it was not one of the two submitted. He once had a Facebook profile with the name Lebogang Nkgwedi but long ago and it was possible that his account had been hacked. He never had a cell phone number starting with (061). It was possible that those who created the fake Facebook accounts obtained his pictures from his real Facebook account as he had pictures uploaded in his profile. He denied that he was ever involved with any school learner and would not have done such in the position he held.

20. The principal had called him and informed him about what he alleged he heard about him and the learner and he had denied such. The investigator, Ms Cweba only asked him if he was involved with the learner which he denied and no further issues were discussed with him.

21. He suspected that the principal may have been part of creating the allegations against him as he had found out that the principal was a friend of his ex-wife’s boyfriend but the principal had not informed him of that although he had confided on him about his marital issues he had. There were also some financial issues at school which were not going well and he used to speak to the principal on these issues so it was probable that the principal wanted to get rid of him so that he could not later testify against him on his short comings.

22. As to Kgosana, he was a problematic learner who used marijuana and was known for proposing male educators as he was gay. The principal never took steps to discipline him even though he was made aware of his problematic nature. The employer did not bring him to testify as it was aware of the type of person he was. The employer also failed to ensure the learner was available to testify.

23. In terms of the recording, the learner had denied the relationship and only after some prolonged interrogation she said she communicated with him which was not true, and clearly that was said after the learner was threatened when she was told that the whole issue may have dire implications on her. He believed that the Principal and Kgosana may have been the ones behind the fake Facebook profiles, more so Ms Sehiri had testified that Kgosana had been frequenting the principal’s office. The principal deliberately omitted evidence that he kept the learner’s phone at the strong room as he wanted to build a strong case.

24. He maintained during cross examination that his birth name was Masaka not Lebogang but that he had used Lebogang until 2016. He maintained that those who created the fake Facebook profiles with his names knew him from the school hence they knew information about the school. Kgosana was in the same class with the learner and would have known about the learner’s performance hence he could talk about such on the Facebook chats. The principal was also in charge of all marks especially grade 12’s so it was possible that he was also the one chatting in those chats. He disputed communicating with the learner on Facebook and maintained that the Facebook profiles submitted did not belong to him and if there were friend requests from those profiles to the learner, it was not him. he maintained that just because his name and pictures were used, such did not prove that it was him in those conversations.

Parties’ arguments
25. It was the Employer’s argument that Facebook was an American company and was the only entity which could authenticate the messages in the admission by the account holder, the learner and it was not easy to obtain information from that company. The Facebook printout had the employee’s name and his photo. To access his account a person would have needed the employee’s password and he had not given it to anyone therefore it was him who wrote the messages. The employee’s action brought the teaching profession into disrepute and the sanction appropriate for him was a one-month suspension without pay.

26. On the other hand, it was argued on behalf of the employee that he was not guilty of the allegations and the Facebook accounts used by the employer did not belong to him. The Employer failed to prove the allegations made and relied on hearsay evidence which was not corroborated by its witnesses who contradicted each other. It was not fair for the employee to be found guilty of an offence he did not commit which the employer failed to properly investigate. The prayer was for the employee not to be found guilty.

Analysis of evidence and argument
27. In this matter, the employee is charged with four charges under section 18 of the EEA. The case of the employer is mainly based on the Facebook chats submitted as evidence. A ruling had been issued on 20 March 20222 to admit the Facebook chats with the purpose of establishing the author as the employee disputed that he was the author. The transcripts of the recording of the learner’s interview were also admitted in the same ruling in which the employer was also advised to subpoena the learner, who was an adult to speak to the transcripts and also authenticate the Facebook chats, this was not done.

28. The onus is on the Employer to prove on balance of probabilities that the Employee indeed committed the misconduct he is accused of. Since the reliance on the alleged misconduct is mainly based on the facebook chats, what needs to be proven firstly is that the facebook profiles submitted to prove employee’s guilt indeed belong to the employee. Secondly, it has to be proven that it was indeed the employee who was communicating in those Facebook communication and that he was communicating to the learner in question. If such is proven, then based on the contents of the communication, the employer would have proven that the employee committed a misconduct in that he sent inappropriate messages to the learner. On the other hand, if the employer fails to prove that the employee was the author and had been the one communicating and that communication was with the learner, then the allegations would be dismissed.

Do the Facebook profiles submitted belong to the employee?
29. The employer submitted two different Facebook profiles which it alleged belonged to the employee. The employee denied that they were his profiles. In an attempt to prove that the Facebook profiles were that of the employee, the employer relied on the transcripts of the learner’s interview. The employer called two witnesses who testified that they were present when the learner was being interviewed. Their testimony was basically to speak to the transcripts submitted. It must be noted that the transcripts are hearsay evidence which was provisionally admitted so witnesses may speak to it. This is hearsay evidence which was not tested under cross examination when the learner was being interviewed therefore its weight will be weighed against the testimonies of the two witnesses called.

30. The principal and Ms Sehiri’s contradicted each other on issues they both testified they directly experienced while they were together during the learner’s interview. The principal testified that the first batch of Facebook chats ( page 1 to 19) were those given to him by Kgosana and the second bunch ( page 20 to 25 ) were from the learner. On the other hand, Ms Sehiri’s testimony was that the chats from Kgosana were from page 18 to 28 while from page 1 to 27 were those from the learner. When one looks at the Facebook chats themselves, pages 1 to 19 are from one account and page 20 to 25 appears to be from a different account. The one account is recorded as Macdonald Nkgwedi and the other is recorded as Lebogang Nkgwedi. The challenge about these Facebook profiles is that they only show names and photos of the employee but the employer did not submit the whole profiles, so it can properly be determined from which Facebook account these messages were from.

31. The principal testified that the learner had admitted during the interview that there was a relationship between herself and the employee. On the other hand, Ms Sehiri’s testimony contradicted the principal’s one in that she said the learner never admitted to having a relationship with the employee during her interview. Furthermore, Ms Sehiri’s testimony was that the learner did not explain much during the interview, all she said was either “yes” or “no” but did not explain much in detail. This is contrary to the transcripts submitted as when one looks at the transcripts, it appears that the person alleged to be the learner said a lot. There are responses which are lengthy paragraphs.

32. With regard to how the fakebook chats were obtained, the principal’s testimony was not consistent. During examination in chief he said that one Kgosana sent the chats to his phone but during cross examination he changed his version and said the chats were downloaded from Kgosana’s phone to the school’s computer. When asked why his version changed, he offered no explanation and said that he was simply correcting his earlier statement. If the chats were stored in the school computer, which is used by officials, one cannot rule out the probability of anyone accessing the information and tempering with such. No evidence was rendered that such information downloaded in the school computer could not be tempered with.

33. The principal failed in his testimony to indicate that the learner’s phone had been in the possession of the school for some time. Ms Sehiri testified that the learner’s phone was kept at the strong room and on the day of the interview the principal brought out the phone and gave it to the learner who then opened her phone and gave it to the principal. Why would the principal omit this important information? The fact that the phone had not been at all times in the possession of the learner in itself may suggest that it was probable that any other person may have had access to it and did as they please with it.

34. Furthermore, in terms of the transcripts, the learner had in the interview explained that one Makena had used her cell phone in which she, the learner, had left her account open in that phone. In the same transcripts, the employer seeks to rely on, the learner had mentioned that her account was also used by someone else and clearly indicated that one Majuba can be called to confirm that. The transcripts further records that the learner at times used to access her Facebook account in Makena’s phone and that Makena and herself were not in good terms and their quarrels had ended up at the police station. Although the learner explained this during the interview, no attempts were made to get Makena and Majuba to confirm this issue of who could have been the creator of these Facebook chats.

35. Furthermore, the principal testified that Kgosana was also at the interview but Ms Sehiri could not confirm that although she was in the same interview. In terms of the principal’s testimony, Kgosana was the one who brought the complaint to the attention to his attention, but no statement was taken from him to confirm the testimony of the principal on how he obtained the chats. All those who testified at the arbitration hearing testified that Kgosana was a problematic learner who used marijuana. While it is well known that he was such a person, his allegation and the proof he brought was not properly tested and should have been properly investigated before a conclusion is drawn that it was a true reflection of what he had said. Furthermore, the principal failed to ask Kgosana how he had obtained the chats alleged to be from the employee’s account to authenticate the claims made by Kgosana. He simply just accepted such information.

36. In terms of schedule 2 of the EEA: disciplinary code and procedures for educators, clause 3, the Code of Good Practice contained in schedule 8 of the LRA ( “the Code”) constitutes part of the EEA Code and Procedure. In terms of item 4 of the Code, employers are required to conduct an investigation when there are complaints brought to their attention to ensure a fair procedure is followed.

37. The purpose of an investigation is to test allegations or suspicions and to find out what really happened and to establish whether there are grounds for disciplinary action and assess allegations to establish whether they were brought in good faith or whether the accuser has a hidden agenda. If the investigation shows that there probably was wrongdoing, the evidence gathered will be used to prepare and present the case against an employee at a disciplinary hearing. In doing this investigation, it is crucial for an investigator to identify relevant witnesses, documents and other evidence; engage with witnesses so far as to elicit the true and complete facts, recognise a new lead when it arises and put all facts gathered into a clear and comprehensive report and question the accused person reasonably.

38. The principal testified that he had informed the investigator about Kgosana but no reasonable attempts were made by the investigator to interview Kgosana to validate the claims. Furthermore, although the employer was well aware that the employee disputed being the author of the Facebook chats and the owner of the Facebook profiles submitted, it failed to call Kgosana to testify on how he obtained the Facebook chats. The name of Kgosana came out for the first time at the arbitration hearing and the employer was given an option of calling him as a witness and warned of the inference that may be drawn in the absence of him testifying, yet the employer’s representative said it was not her intention to call him.

39. The employer also failed to call the learner who was the key witness although it was advised of the possibility of using a subpoena. It must be noted that both Kgosana and the learner were not minors and no reasonable explanation was provided as to why they could not be subpoenaed. The explanation that Kgosana said that he was scared of the learner is not reasonable. He was the one who was not scared at the time of submitting the chats to the principal and knew very well that by doing so, there would be steps taken to confirm the information submitted. As to the learner, the explanation that she said she did not want to be part of the hearing is not reason enough not to subpoena her. It is further not reasonable that the employer alleges that it did not have the leamer’s address to subpoena her as schools do keep records of learner’s addresses or the learner’s parents’ details. Such information would have been easily obtained from the school. No evidence was led that the two learners, who are majors by age were faced threats or external pressures that played a role for them to not being called to testify.

40. Furthermore, few names of individuals who could have been interviewed during the investigation and called to testify at the arbitration were recorded in the transcripts. These people, Makena and Majuba were alleged to know more about the issue of the Facebook account yet they were not contacted so that the issue of who may have created the Facebook profiles or who may have been behind the chats could be properly assessed.

41. It must be noted that the crucial thing expected from the employer is to link the Facebook profiles and their contents to the employee. An exercise was done during the arbitration hearing where it became clear that there were various Facebook profiles created with the employee’s different names. The employee pointed one profile as his which is different from the ones submitted. I am awake to the fact that accounts can be changed from time to time but in this case, the onus is on the employer to prove that the profiles submitted were those of the employee. The Facebook account provided by the employee at the arbitration hearing was not disputed and no questions were asked to the employee to disprove his account as a valid account. On the other hand, the employer failed to explain why there were two different Facebook profiles pinned on one person and failed to explain the discrepancies in the testimony of the principal and Ms Sehiri on the two Facebook profiles submitted more so on where they were obtained from and on how they were obtained. Furthermore, both the principal and Ms Sehiri testified that they could not prove that the Facebook accounts submitted were indeed that of the employee.

42. The evidence of the employer is found wanting as there are still a number of active Facebook accounts with the same details as that of the employee. How then does the employer pick and choose which account belongs to the employee and leave others. Why were all those accounts not brought forth and assessed to ascertain the authenticity of all the accounts?

43. The failure of the employer to call relevant witnesses after being advised to do so left its case with more questions than answers. Furthermore, if indeed the employer had faith in its case and considered the alleged conduct of the employee as serious misconduct which brought the name of the teaching profession in dispute as argued, it would not have recommended a sanction of one month suspension but would have recommended a sanction which sends a serious message to educators deterring educators from conducting themselves in a similar manner.

44. Having considered all the evidence before me as a whole, the evidence presented at this arbitration hearing is insufficient to justify a guilty finding. It is my finding that the Employer failed to prove on balance of probabilities that the Facebook profiles submitted belonged to the employee; that he was the one communicating in those chats and that he was communicating to the learner in question. For these reasons, the employer failed to prove that the employee committed a misconduct he is charged with. Therefore, the allegations against him are dismissed.

Award
45. The Employee, N.N Nkgwedi is found not to be guilty of the allegations levelled against him.

46. The allegations against the Employee, N.N Nkgwedi made by the Employer, Free State Provincial Department of Education are dismissed.

ELRC PANELIST: ZOLISWA TABA