Panelists: Malusi Mbuli
Date of Award: 05-07-2024

In the ARBITRATION between

SADTU OBO AYANDA FANI
(Respondent / Employee)

And

DEPARTMENT OF EDUCATION – EASTERN CAPE
(Applicant / Employer)

DETAILS OF HEARING AND REPRESENTATION

1. The enquiry by arbitrator was held under the auspices of the ELRC in terms of section 188 (A) of the Labour Relations Act 66 of 1995 as amended in 2015 read together with ELRC Resolution 3 of 2018. The hearing took place on the 27th of June 2024 at 09:00 at the Mandla Makhupula Institute of Education at Stirling in East London.

2. The employee Mr. Ayanda Fani attended the hearing and was represented by Mr. Luyanda Makumise a site steward of the employee trade union SADTU. The employer also attended the hearing and was represented by Ms. Nokulunga Sikithi an official of the employer.

3. The enquiry by arbitrator proceeded on the date as indicated above in the presence of both parties. The parties further requested to file closing arguments together with mitigating and aggravating circumstances in writing on this matter not later than the 04th of July 2024. Both the employer representative and the employee representative filed their arguments with the ELRC by the 04th of July 2024.

4. The notice to attend the enquiry by the arbitrator was properly drafted and served on the employee, signed for it on the 16th of May 2024 and the employee attended the hearing as indicated above. Employee confirmed that the notice was properly served on him and is in order.

ISSUE TO BE DECIDED
5. I am required to determine whether or not the employee Mr. Ayanda Fani is guilty of the sexual misconduct charges levelled against him by the employer and if so, whether a sanction of a dismissal is appropriate to be imposed on him in the circumstances where he is guilty.

BACKGROUND TO THE ISSUE
6. The employee Mr. Ayanda Fani is employed by the employer Department of Education – Eastern Cape as an educator at Zweliyandila High School and is now charged by the employer in respect of the incident of sexual misconduct appearing here under and outlined in the charges.

7. The parties agreed that the matter should instead of being set for a disciplinary hearing be enrolled straight at the ELRC as an enquiry by arbitrator in terms of section 188 (A) of the Act and in accordance with the ELRC Collective Agreement 3 of 2018.

8. This therefore means that the status of the outcome of this process will be an award that is final and binding on the employer and employee. The charge against the employee is as follows. It is alleged that the employee Mr. Ayanda Fani committed acts of misconduct as contemplated in 17 (1) (b) of the Employment of Educators Act 76 of 1998 (as amended), which inter alia reads as follows, “committing an act of sexual assault on a learner, student or other employee”

– In that, on or about the period of April 2024 the employee committed an act of sexual assault to a grade 12 learner by asking her to go to the toilet, kissing her and forcing her to touch his private parts.

PLEA
9. The employee Mr. Ayanda Fani admitted to these allegations and pleaded guilty to the said allegations hence the matter was finalized on the same day the 27th of June 2024.

SURVEY OF EVIDENCE

10. As indicated above the employee pleaded guilty and as a consequence of the employee’s plea of quilt there was no evidence led as the facts were already established and what remained to be submitted was mitigating / aggravating circumstances and argument.

FINDINGS ON THE CHARGES, ANALYSIS OF EVIDENCE & ARGUMENT
11. In respect of this charge a plea of guilt was entered and confirmed several times with the employee and his representative and as a result the employee is found guilty as charged. It is noted and appreciated that the employee did not waste the time of the Council and the employee must be commended for that.

12. The only conclusion to be drawn from what happened is that the employee is guilty of the sexual misconduct as charged as discussed above. It must be emphasized again here that the test for a guilty finding in labour matters is one of balance of probabilities and not beyond reasonable doubt.

SANCTION
13. Section 185 (a) of the Labour Relations Act 66 of 1995 as amended provides that:
– Every employee has a right not to be unfairly dismissed.

14. The Act recognizes 3 reasons for the termination of the employee’s services by the employer and these are the conduct of the employee, incapacity of the employee and the employer’s operational requirements. In this matter the employee is charged because of his conduct and the employer has to prove that the employee has committed misconduct on a balance of probabilities.

15. In terms of section 192 (2) of the Labour Relations Act the employer has the onus to prove the existence of any one of these grounds as a reason to dismiss the employee and that the dismissal of the employee is fair.

16. The employer’s allegations were not challenged by the employee as can be seen in the survey of evidence and plea above. I do not have any reason to doubt and reject the employer’s version in relation to the charge for which the employee has been found guilty. I must also say at this stage that the employer made attempt and brought relevant witnesses but these witnesses could not testify because the employee entered a plea of guilt. In the circumstances I accept the employer’s version and the employee’s plea of guilty.

17. The other question that I have to answer in this award is whether the conduct of the employee constitutes a serious act of misconduct and whether the sanction of a dismissal is appropriate in the circumstances. In this regard I have considered the mitigating and aggravating circumstances as presented by both parties and I do not intend to recite all what has been submitted.

18. I have also considered the seriousness of the charge levelled against the employee and found that the charge of sexual misconduct by an educator against a learner is serious because when proved it undermines and compromise the co business of the employer which is teaching and learning and also interferes with the Constitutional rights of learners to education.

19. The Constitutional Court in Sidumo & another v/s Rustenburg Platinum Mines Ltd and other (2007) 12 BLLR 1097 held that in deciding whether dismissal is an appropriate sanction for an act of serious misconduct, the test is whether the misconduct renders the continued employment relationship intolerable.

20. The acts of misconduct committed by the employee in the context of his employment renders the employment relationship involving learners intolerable. This type of misconduct is also expressly prohibited by the employer and organized labour in the ELRC Collective Agreement Resolution 3 of 2018 and the employer and employees are bound by this Collective Agreement in terms of section 23 of the Labour Relations Act and the employer is expected to apply discipline in a consistent manner.

21. On the appropriateness of the sanction the LAC court in its decision in Nampak Corrugated Wadesville v/s Khoza (1999) 20 ILJ 585 (LAC) Ngcobo J.A. held that the determination of the appropriate sanction is a matter which is largely within the discretion of the employer, however that discretion must be exercised fairly. It would be fair and reasonable to impose a sanction of a dismissal for these transgressions.

22. In De Beers Consolidated Mines Ltd v/s CCMA & others (2000) 21 ILJ 1051 (LAC) the court accepted that the ultimate justification for the employer’s powers to impose discipline flows from the right to manage their business effectively. The court held further that “dismissal is not an expression of moral outrage, much less it is an act of vengeance. It is or should be sensible operational response to risk management in the particular enterprise”. In Standard Bank of South Africa Ltd v/s CCMA and others (1998) LC 7 the court stated that it is trite principle that breach by the employee of the duty of good faith to the employer is destructive to the employment relationship. The employee has breached this duty of good faith to the employer and learners.

23. I am satisfied that the rationale that I have used in coming to this conclusion is one that qualifies when we talk about reasonableness and weighing the interests of both parties as directed in the Constitutional Court in its decision in NEHAWU v/s University of Cape Town (2003) (CC) where the Constitutional Court held that the arbitrator is expected to have regard to the interest of both parties in coming to a conclusion whether the conduct of the employer to dismiss the employee was fair or not.

24. In Council for Scientific & Industrial Research v/s Fijen 1996 (2) SA 1 (A) at page 26 the court held that it is a natural term of the employment contract that there is a reciprocal duty not to conduct oneself in a manner which is calculated to destroy the relationship of trust and confidence essential to the continuation of the employment relationship.

25. In this matter the interests of the employer and learners far outweigh those of the employee. The employee representative has argued that the employee by pleading guilty was remorse and took responsibility of what happened. He also dealt with the personal circumstances of the employee and recommended that the employee be warned, subjected to an ongoing counselling and be removed from the school he is working on and be placed at another school.

26. All the charges for which the employee has been found guilty and summarized above constitute a serious acts of misconduct and even though discipline has to be applied in a corrective and progressive manner in terms of the Code of Hood Practice in the Labour Relations Act 66 of 1995 as amended, these acts of misconduct are so serious that when proved as has happened calls for a sanction of a dismissal for the first offence.

27. Further these transgressions are not only acts of misconduct but they also go against the spirit of the Constitution of the Republic of South Africa which is the supreme law of the country provides in section 28 (2) that in any decision that has to be taken involving children, the interests of children (learners) enjoy paramount importance. I found that it is not in the interest of children / learners to keep the employee in an environment where he has to interact with learners.

28. From his transgressions that have been proved the employee cannot be trusted to work in the school environment where there are learners. The employer and learners will suffer severe prejudice if this wrong doing can be condoned and that discipline has to be applied consistently.

29. The employer’s version in so far as it relates to the reason why the employee must be dismissed is accepted. This means that the employer has managed to discharge its onus in terms of section 192 (2) of the Act. I have found the employee guilty of Section 17(1) (c) of the Employment of Educators Act 76 of 1998 transgression and in terms of this subsection an educator must be dismissed if he or she is found guilty of such a transgression.

30. Section 120 (2) of the Children’s Act no 38 of 2005 provides that a finding that a person is unsuitable to work with children may be made by such forum on its own volition or on application by an organ of state or any other person having sufficient interest in the protection of children.

31. The representative who acts for the Department of Education (employer) would accordingly have the right to make such an application. The arbitrator may however also make the finding on his own accord.

32. In the circumstances I hereby make the following award.

AWARD
33. The employee Mr. Ayanda Fani is found guilty of the allegations against him in respect of this charge as appearing in the Notice of Disciplinary Hearing.

34. The employee Mr. Ayanda Fani is dismissed with immediate effect, without notice. The Provincial Department of Education of the Eastern Cape must inform Mr. Ayanda Fani of his dismissal.

35. I further find that the employee Mr. Ayanda Fani is unsuitable to work with children in terms of section 120 (2) of the Children’s Act no 38 of 2005.

36. The General Secretary of the Education Labour Relations Council must:

– As the administrator of this Section 188A enquiry, in terms of section 122 (1) of the Children’s Act 38 of 2005, notify the Director General: Department of Social Development in writing of the findings of this forum that the employee Mr. Ayanda Fani ID no 7412055977086 & Persal No 53724453 is unsuitable to work with children, for the Director General to enter his name as contemplated in section 120 Part B of the National Child Protection Register.

– Send a copy of this arbitration award to the South African Council of Educators (SACE) for the revoking of Mr. Ayanda Fanis SACE certificate.

37. The employee has the right to take this award on review to the Labour Court.

Signature:

ELRC Arbitrator / Commissioner: Malusi Mbuli