NAPTOSA on behalf of its member, T Mkhatshane “the Applicant

and

THE HEAD OF THE
DEPARTMENT OF EDUCATION – KWAZULU-NATAL “the Respondent”

ARBITRATION AWARD

Case Number: PSES1021-19/20KZN

Last date of arbitration: 7 November 2019

Date of award: 7 November 2019

J KIRBY
ELRC Arbitrator

Education Labour Relations Council
ELRC Building
261 West Avenue
Centurion
Tel: 012 663 0452
Fax: 012 643 1601
E-mail: gen.sec@elrc.co.za

DETAILS OF HEARING AND REPRESENTATION

1. The arbitration was held on 25 September and 7 November 2019 at the Harry Gwala District Office of the Respondent.
2. The Applicant, the National Professional Teachers Organisation of South Africa, referred this dispute on behalf of its member, Themba Witness Mkhatshane (Mkhatshane,) and was represented at this hearing by its official, Mr S Sihlezana. Mkhatshane was present throughout the proceedings.
3. The Respondent, the Head of the KwaZulu-Natal Department of Education, was represented by its employees, Ms N Magoso and Mr E Mpembe on 25 September and 7 November 2019 respectively.
4. The proceedings were digitally recorded.

TERMS OF REFERENCE AND ISSUES TO BE DECIDED

5. The arbitration is in respect of a referral by the Applicant of an alleged unfair dismissal as provided for in section 191(5)(a)(i) of the Labour Relations Act 66 of 1995 (LRA.)
6. The principal issue I am required to decide is whether the dismissal of Mkhatshane was unfair and, if so, what relief ought to be granted to him. The dismissal itself is not in dispute and the Applicant does not dispute the procedural fairness of the dismissal. I am accordingly required to determine whether the dismissal was substantively fair.
7. Before hearing evidence in respect of the principal issue, I was required to decide upon an application brought by the Respondent for the postponement of the arbitration.

BACKGROUND

8. Mkhatshane was employed by the Respondent as an educator at Shayamoya Secondary School. He was dismissed with effect from 1 March 2019 after his appeal against the sanction of dismissal imposed by the chairperson of his disciplinary enquiry had been rejected. It is common cause that Mkhatshane’s gross monthly remuneration at the date of his dismissal was R25 131.22.
9. The disciplinary enquiry had found Mkhatshane guilty of two counts of misconduct. Firstly, he was found to have contravened section 18(1)(q) of the Employment of Educators Act 76 of 1998 (EEA) in that he had conducted himself in an improper, disgraceful, or unacceptable manner by questioning a female learner about female circumcision. Secondly, he was found guilty of having contravened section 17(1)(b) of the EEA by attempting to kiss the said learner. The female learner (the complainant) was approximately fifteen years old at the date of the alleged misconduct.
10. Mkhatshane denies that he is guilty of the alleged acts of misconduct and sought to be retrospectively reinstated.
11. The arbitration had initially been set down to be heard on 18 July 2019, on which day the Respondent had applied for the hearing to be postponed. The reason advanced on that occasion for the postponement was that the complainant had changed schools and left the province. The Respondent’s representative had only learnt of this when she had begun preparing for the hearing and had thus had insufficient time to ensure the said learner’s attendance. Ms Magoso submitted that she had spoken to the mother of the complainant who stated that the learner remained committed to the case but that it was necessary for the arbitration to be held during the complainant’s school holidays. It was further confirmed that the complainant would be available to attend the hearing on 25 September 2019, which fell during her school holidays. The Applicant did not object to the postponement and in those circumstances the arbitration was postponed and the council rescheduled it to be heard on 25 September 2019.

THE APPLICATION FOR A POSTPONEMENT
The Respondent’s submission
12. At the commencement of the arbitration on 25 September 2019 Ms Magoso applied for it to be postponed as the complainant was not at the arbitration venue. She had not been subpoenaed to attend and no reasons for her non-attendance could be given. The hearing stood down to give Ms Magoso an opportunity to make enquiries as to her whereabouts and any reasons for her absence. When Ms Magoso returned she was still unable to advance any reasons for the absence of the witness. She submitted that she had attempted to contact the principal of the learner’s current school, who had acted as the learner’s liaison, but he had not taken her call. The complainant was the Respondent’s sole witness and a postponement was sought so that she could be subpoenaed to attend.

The Applicant’s submission
13. The application for postponement was opposed by the Applicant. It was submitted that the Applicant had previously agreed to a postponement in order for the learner to attend the hearing and it was prejudicial to Mkhatshane for the arbitration to again be postponed for the same reason.

Analysis of the submissions
14. As already indicated this case had already previously been postponed as the Respondent’s witness, the complainant was not available. The case had been specifically adjourned to 25 September 2019 as this was the date on which her mother had confirmed that she would be available to testify. These facts are common cause.
15. Despite the case standing down so as to provide the Respondent with an opportunity to ascertain the reasons for the female learner not being present, when the hearing re-convened no reasons for the witness’s absence could be advanced. It is evident that witness had made no attempt to contact the Respondent prior to the hearing to indicate that she was no longer available. No reasons for her absence could be provided by the Respondent.
16. It is settled law that a postponement of a case set down for arbitration cannot be claimed as a right. In National Police Service Union & Others v Minister of Safety and Security & Others 200(4) SA 1110 (CC) at 1112F the court held, inter alia, that the applicant for postponement must show good cause for the postponement and that in order to satisfy the court that good cause does exist, it would be necessary to furnish a full and satisfactory explanation of the circumstances that gave rise to the application. Despite the matter standing down in order to allow the Respondent’s representative to make further enquiries, no reasons whatsoever could be advanced for the absence of the witness.
17. Having regard to the failure of the Respondent to advance any reasons for the absence of its witness, the fact that the date of the arbitration had been pre-arranged with the witness to suit her timetable, the fact that the Applicant had already previously consented to an earlier postponement and the obvious prejudice the Applicant would suffer in not having this matter finalized expeditiously, I refused the application for postponement and ordered that the arbitration was to proceed.

SUMMARY OF EVIDENCE AND ARGUMENTS

The Respondent’s case

18. The Respondent did not call any witnesses in support of its case.

The Applicant’s case

19. Themba Witness Mkhatshane (Mkhatshane) testified that he had been employed as an educator at Shayamoya Secondary School for approximately seven years prior to his dismissal. He taught English and History and was also the educator responsible for boys’ and girls’ athletics and cricket.
20. Mkhatshane was in the habit of not sitting in the staff room as, in his words, it was “over crowded with females.” He and other male educators had thus taken to sitting in a storeroom adjacent to the office of the Head of Human and Social Sciences.
21. On 24 April 2018 he was in the said storeroom. It was not a normal school day in that teaching was not taking place as the educators were busy preparing learners’ papers for moderation. Mkhatshane was in the storeroom doing so. Naledi, a leaner, came to the storeroom to leave biscuits that she sold to learners, for safekeeping. Naledi later returned with four other female learners. They all left their school bags in the storeroom as they were about to go and sell biscuits. They did not go, however, and Mkhatshane soon heard the learners teasing the complainant. He asked them why they were teasing her and Naledi said it was because the complainant had accused the other learners of not being virgins. The conversation continued in a similar vein. Over time all the girls other than the complainant left. The complainant remained behind with Mkhatshane and they continued to converse.
22. Sometime later some of the other girls returned to collect their school bags. They told the complainant to leave with them but she refused as she said that she was still talking to Mkhatshane. She subsequently did leave, only to return about one minute later. She said that she had not yet finished her story. After a further ten-fifteen minutes Mkhatshane indicated that he had had enough and he pushed the complainant out the storeroom by pushing her on her back/shoulder area.
23. Under cross-examination it emerged that Mkatshane and the complainant had spoken about female circumcision. It is evident that the complainant had volunteered that she had undergone the procedure and that Mkhatshane had questioned her in this regard as it was unknown to him. She had explained the procedure to him. It further emerged during cross-examination that Mkatshane and the complainant had discussed the topic of the complainant having previously been a lesbian. Apparently when the complainant’s parents had discovered that the complainant was a lesbian, they had taken her to see a pastor. The complainant had thereafter become heterosexual.
24. The Mkhatshane denied having assaulted the complainant in anyway.
25. The day after the incident Mkatshane was summoned by the school principal. In the presence of two deputy principals he was informed that the complainant had laid a complaint against him. He denied that he had done anything wrong. He stated that he thought that the complainant had falsely implicated him in wrongdoing as she was embarrassed that he had pushed her out the storeroom. Under cross examination he, however, stated that he thought that the complainant was embarrassed as she had remained behind with him after her fellow learners had called her.
26. He had learnt that the complainant had attempted to commit suicide but denied that it was linked to this incident as he was aware of many issues affecting the complainant.

SUMMARY OF ARGUMENTS
The Applicant
27. The Applicant submitted that there was no evidence of misconduct by Mkhatshane.
28. It requested that Mkhatshane be reinstated retrospectively from the date of his dismissal, 1 March 2019.

The Respondent
29. The Respondent submitted that Mkhatshane was guilty of misconduct. He had tried to kiss and had touched the complainant’s private parts. As an adult he should have put an end to the conversation with the complainant at the very beginning. He should not have allowed the conversation to proceed to cover issues such as female circumcision. He ought to have ended the conversation and reprimanded her at the outset.
30. Mkhatshane, as an educator, was expected to take care of learners yet he had abused his position to take advantage of the complainant.
31. If he were to be found not guilty, it was submitted that his post at the school had already been filled and he should thus be reinstated at a different school. Further, as he had already claimed his pension, he should not be reinstated with retrospective effect.

ANALYSIS OF EVIDENCE AND ARGUMENT

32. The dismissal and its procedural fairness were not in dispute. In terms of section 192 of the LRA the onus is on the Respondent to establish that the dismissal was substantively fair.
33. The Respondent did not call any witnesses. As already indicated above, I do not know the reason for the failure of the complainant to attend the arbitration. Likewise, I do not know the reason for the Respondent’s failure to call other potential witnesses such as the learners who had been with the complainant and Mkhatshane on the day in question, the school principal to whom the complainant had complained about the conduct of Mkhatshane, the two school deputy principals who had been present when Mkhatshane had been notified of the complaint or the chairperson of the disciplinary hearing. My findings are accordingly based upon the evidence of Mkhatshane.
34. Section 17(1)(b) of the EEA provides that an educator must be dismissed if found guilty of “committing an act of sexual assault on a learner…”
35. Mkhatshane denied having assaulted the complainant in any manner. The only physical contact to which he admitted, was pushing her on her back when telling her to leave the room. There is accordingly no evidence that Mkhatshane committed “an act of sexual assault” as provided for in section 17(1)(b) of the EEA.
36. Section 18(1)(q) of the EEA provides that an educator is guilty of misconduct if “while on duty, conducts himself or herself in an improper, disgraceful or unacceptable manner.”
37. Section 18(3) of the EEA provides that if an educator is found guilty of having contravened section 18(1)(q) of the EEA the following sanctions may be imposed:
37.1. Counseling;
37.2. A verbal warning;
37.3. A written warning;
37.4. A final written warning;
37.5. A fine not exceeding one month’s salary. This sanction may be suspended for a specified period on specified conditions;
37.6. Suspension without pay for a period not exceeding three months. This sanction may be suspended for a specified period on specified conditions;
37.7. A combination of any of the above;
37.8. Demotion. This sanction may be suspended for a specified period on specified conditions;
37.9. Dismissal, if the nature and extent warrants it.
38. The evidence of Mkhatshane establishes that:
38.1. Whilst he was in a storeroom, away from the staffroom, the complainant and other female learners, in his presence, engaged in a conversation and banter of a sexual nature; namely whether they were virgins;
38.2. He did not put an end to the conversation or reprimand the learners in anyway. He instead joined in the conversation;
38.3. The conversation moved to the topics of female circumcision and the complainant’s personal experience thereof and her sexuality; namely that she had been a lesbian. When these topics were discussed Mkhatshane and the complainant were alone or at least were for the majority of the time;
38.4. Mkhatshane was interested in the topic of female circumcision as it had previously been unknown to him;
38.5. He made no attempt to end this conversation with the complainant until he eventually pushed her out the door. He did not explain what finally led him to take this action;
38.6. The females who had been in the company of the complainant left the storeroom asking her to leave with them. She did not and Mkhatshane did not instruct her to leave;
38.7. The complainant left the storeroom for a short period of time and then returned to continue the conversation as she had not yet “finished her story.” Mkhatshane did not instruct her to leave but continued to engage with the complainant;
38.8. Throughout this period Mkhatshane ought to have been moderating learners’ examination papers as this was the reason why he had gone to the storeroom;
38.9. Mkhatshane was on duty; and
38.10. There is no connection between the alleged attempted suicide of the complainant and the actions of Mkhatshane.
39. Mkhatshane tried to create the impression that he was left with little or no option but to listen to the complainant’s so called story. There is, however, no reason why could not have brought the conversation to an end. He admits that he was interested in the subject of female circumcision. The complainant would not have continued to discuss this and her sexuality if she did not feel encouraged to do so by Mkhatshane. The discussion of the topics of a personal and sexual nature and the encouragement thereof in the circumstances described above is totally inappropriate. I am accordingly satisfied that Mkhatshane is guilty of having contravened section 18(1)(q) of the EEA in that his participation in and encouragement of the conversations detailed above amounts to conduct of an improper, disgraceful and unacceptable manner.
40. No prior acts of misconduct were proven against Mkhatshane. The finding against him is based on his own evidence. The honesty in this regard would normally be regarded as a mitigating factor but I am not convinced that his candour is rather not caused by his lack of appreciation of the wrongfulness of his behaviour. The complainant initiated and was a willing participant in the interaction and I regard this as a mitigating factor.
41. On the other hand, Mkhatshane had a number of opportunities to put a stop to the interaction with the complainant. He could have reprimanded her when he first heard the nature of her conversation with the other learners. He could have instructed her to leave when the other learners left. He could have instructed her to leave once she returned to the storeroom. He could have brought the interaction to an end at anytime had he chosen to do so. His failure to act in this regard is an aggravating factor.
42. Section 18(3) of the EEA allows for the sanction of dismissal in the event of an educator having been found guilty of having contravened section 18(1)(q) of the EEA. In light of the mitigating factors listed above and the imperative to apply progressive discipline, I do not intend to uphold the dismissal of Mkhatshane.
43. I shall reinstate him in his former or similar position, at the same school or if his position at that school is not available, then to any other school at which the Respondent is entitled to deploy him to work in. The reinstatement is not with retrospective effect. The Applicant is largely responsible for the position in which he now finds himself. In my view, Applicant, on his own version, committed a very serious offence, and I believe that it would be manifestly unfair that he should benefit to the extent of retrospective back pay of something in the order of 6 months salary. He can consider himself extremely fortunate that I do not uphold his dismissal. His reinstatement is accordingly effective from the date of this award i.e. he is not entitled to be paid any arrear salary. It must be stressed that the discretion of the Commissioner to impose a sanction is guided by section 193 of the LRA, and not by section 8 of the Employment of Educators’ Act. Reinstatement without back pay, or limited back pay, is a commonly imposed sanction by arbitrators. Similarly, an arbitrator is entitled to impose a warning or a final written warning, in his/her discretion.

AWARD

• The dismissal of Applicant was substantively unfair.
• The Respondent is ordered to reinstate Applicant, such reinstatement to be effective from the date of this award. Applicant is not entitled to any arrear salary.
• He is reinstated in his former position, or into a similar position, at the same school or if his position at that school is not available, then to any other school at which the Respondent is entitled to deploy him to work in.
• His reinstatement is subject to a final written warning, effective for a period of 6 months from the date of this award, such warning to relate to improper, disgraceful or unacceptable behaviour.

J Kirby
Arbitrator
27 November 2019