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[2015] ZALAC 50
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Grey v Education Labour Relations Council and Others (CA12/2014) [2015] ZALAC 50; [2015] 1 BLLR 50 (LAC); (2015) 36 ILJ 2802 (LAC) (23 October 2015)
IN THE LABOUR
APPEAL COURT OF SOUTH AFRICA, CAPE TOWN
Reportable/Not Reportable
Case no: CA 12/2014
In the matter between:
GEORGE ALEXANDER GREY
Appellant
and
EDUCATION LABOUR RELATIONS COUNCIL
First Respondent
P J WILLIAMS
N.O
Second Respondent
DEPARTMENT OF EDUCATION
(WESTERN
CAPE)
Third Respondent
Heard:
1 September 2015
Delivered:
23 October 2015
Summary:
Appellant, a high school educator for 28 years, was dismissed on
grounds of unprofessional conduct
for having had sexual relationship
with a 17-year old learner in contravention of s17(1)(c) of the
Employment of Educators Act.
Arbitrator found dismissal substantively
fair but awarded three months’ compensation for procedural
unfairness. Labour Court
upheld arbitration award on review. On
appeal held that arbitrator’s decision fell within the bounds
of reasonableness required.
Conduct constituted breach of s17(1)(c)
and sanction of dismissal appropriate. Appeal dismissed with costs.
Coram: Waglay JP, Coppin JA
et
Savage AJA
JUDGMENT
SAVAGE AJA
[1]
Our
Constitution provides that
‘
(e)
very
child has the right to …be protected from maltreatment,
neglect, abuse or degradation
’
.
[1]
In
Centre
for Child Law v Minister of Justice and Constitutional Development
and Others,
[2]
it was stated:
‘
The
Constitution draws this sharp distinction between children and adults
not out of sentimental considerations, but for practical
reasons
relating to children’s greater physical and psychological
vulnerability. Children’s bodies are generally frailer,
and
their ability to make choices generally more constricted, than those
of adults. They are less able to protect themselves, more
needful of
protection, and less resourceful in self-maintenance than adults.’
[3]
[2]
Section
17(1)(c) of the Employment of Educators Act 76 of 1998 (EEA) requires
that an educator found guilty of having had a sexual
relationship
with a learner of the school where he or she is employed “
must
be dismissed”
from his or her employment. With a high prevalence of
educator-on-learner sexual misconduct in South Africa,
[4]
our law reflects that sexual misconduct with a learner constitutes an
abuse, not only of the authority and responsibility vested
in an
educator, but of the rights of the child given that “…no
child has equal power to say 'no' to a parental figure
or to
anticipate the consequences of sexual involvement with a caretaker.
In such an unequal relationship the adult (educator)
bears sole
responsibility for…sexual activity with a minor”.
[5]
[3]
The
appellant, a high school educator employed by the Department of
Education (Western Cape) for 28 years, was summarily dismissed
from
his employment on 6 April 2011 for having engaged in a sexual
relationship with a female 17-year old grade 12 learner enrolled
at
the Cape Town school where he was employed. Aggrieved with his
dismissal, he referred an unfair dismissal dispute to the Education
Labour Relations Council. At the arbitration hearing, the learner,
who was during the course of her evidence subjected to lengthy
cross-examination by the appellant’s legal representative,
detailed the development of her relationship with the appellant
during grade 12 from the exchange of telephone calls, text messages,
e-mails and her receipt of gifts from the appellant, to him
kissing
her on school hiking club outings and at her home where he visited
her on two school days when she was absent from school.
She stated
that on four occasions she and the appellant had sexual intercourse
at his home from 23 March 2010 until 8 July 2010,
detailing the
circumstances of the intercourse and where in his house it occurred
on each occasion. In addition, on an evening
when she had told her
parents she was attending a school fashion show, she left the school
premises with the appellant who drove
to a secluded area where the
two kissed while she sat, at his request, on his lap in his vehicle
naked from the waist up in order
that her breasts could touch his
chest.
[4]
A
detailed account of the relationship, her infatuation with the
appellant and three of the instances of sexual intercourse were
detailed in the learner’s diary, with the relationship
unearthed when her mother found the diary and read its contents.
[5]
The
appellant denied the relationship with the learner, dismissing it as
a figment of her imagination and putting her evidence down
to teenage
fantasy. He made much of the fact that the learner had variously
admitted and then denied the relationship to her parents
and senior
school officials and suggested that her evidence as a result lacked
credibility and was unreliable. The learner admitted
having changed
her version in an attempt to protect the appellant, explaining that
she felt responsible for the situation in which
he found himself.
[6]
Having
had regard to the evidence before him, the arbitrator found no
plausible reason to doubt the truthfulness of the learner’s
evidence, no motive for her to lie and no evidence to support the
appellant’s contention that the sexual encounters she described
were fantasy or imaginary. The arbitrator rejected as unreliable,
either lacking in credibility or as constituting hearsay, the
evidence that the appellant's wife, his son and an employee who it
was claimed had variously been at his home on the dates he was
accused of having had sexual intercourse with the learner. The
learner’s familiarity with the layout of appellant's house
supported her version of events and the arbitrator rejected as
“peculiar” the appellant's explanation that she had,
in
spite of his indication that she should not, walked through the house
when at her request they had gone to his home to collect
movies.
[7]
The
arbitrator accepted that although the learner had felt under pressure
to testify against the appellant, who she had at first
naïvely
resolved to protect, her evidence was nevertheless credible and
reliable. Conversely, an adverse inference was drawn
against the
appellant who the arbitrator found to have failed to disclose the
messages he had sent to the learner in an attempt
to seek to
influence a retraction from her or to “
contaminate
her evidence
”
in order that it should lack credibility. The arbitrator rejected the
appellant's contention that the learner’s intermittent
changes
in her version regarding the alleged relationship were lies, finding
that they were most probably occasioned by the appellant’s
own
attempts to unduly influence her to protect himself or cause
sufficient doubt to render her evidence unreliable. The arbitrator
concluded thus:
‘
Even
if my analysis in respect of a specific incident or sexual encounter
is wrong, the totality of the Learner’s evidence
has enabled
the Respondent to discharge its burden of proving, on a balance of
probabilities, that the Applicant had a sexual relationship
with the
learner at the school where he is employed. In this regard, the
applicant's own perception of the learner regarding his
claim that
the diary entries was her fantasies and imagination is indeed
relevant because he had no such perception of that before
the
allegations emerged. Accordingly, he cannot escape taking
responsibility for his own actions when his denial of being involved
in a sexual relationship with the learner is based on vilifying her
evidence (and credibility) which he himself had contaminated.
Therefore, the applicant's submission that the learner's evidence is
totally unreliable and untruthful fails
.’
[8]
The
arbitrator concluded that a sexual relationship with the learner has
been shown to exist and that in spite of the appellant’s
years
of service and clean disciplinary record, his dismissal was
substantively fair. His dismissal was nevertheless found to have
been
procedurally unfair in that the chairperson of the disciplinary
hearing had demonstrated bias towards the appellant during
the
hearing as a result of which he was awarded three months’
compensation.
[9]
The
appellant, dissatisfied with the outcome of the arbitration, took the
matter on review to the Labour Court (Visagie AJ) claiming
that the
arbitrator had committed a number of reviewable irregularities which
justified the setting aside of the award. The Court
a
quo
found no reviewable irregularity to have been committed by the
arbitrator, who had not misconceived the nature of the enquiry before
him. The arbitrator’s assessment of the evidence was not
faulted and although the learner’s diary was found less
relevant,
the Court
a
quo
found that the conclusion of the arbitrator that a sexual
relationship existed was one that a reasonable decision-maker could
reach on the material before him. It followed that the review
application was therefore dismissed with no order made as to costs.
[10]
The
appellant now appeals against the judgment of the Labour Court, with
leave of that Court. At the outset of the appeal hearing
and with no
opposition raised by the third respondent, the appeal was reinstated.
This followed the appeal having been deemed to
have been withdrawn
given that the record had not been filed within the time period
provided in Rule 5(17)
[6]
with no extension of the period within which to do so had been
granted by the Judge President.
[11]
The
appellant on appeal contends that the Court
a
quo
erred in finding that: the arbitrator had not misconceived the nature
of the enquiry before him; that the arbitrator had properly
analysed
the evidence which showed that a sexual relationship with the learner
was proved; and that the decision of the arbitrator
was one which a
reasonable decision-maker could have reached on the material before
him. In doing so, the appellant attacks the
arbitrator’s
finding that the entries in the learner’s diary were not
indicative of fantasies but rather recorded actual
events on the
basis that this was not supported by the evidence; and with the
learner’s apparent inability to explain what
had happened to
the appellant’s semen after the instances of alleged sexual
intercourse.
[12]
In
Herholdt
v Nedbank
Ltd
[7]
the Supreme Court of Appeal made clear that the review of an
arbitration award is permissible if the defect in the proceedings
falls within one of the grounds in section 145(2)(a) of the LRA,
being misconduct committed by the arbitrator, a gross irregularity
committed in the arbitration proceedings; or in circumstances in
which the arbitrator exceeded his or her powers:
[8]
‘
For
a defect in the conduct of the proceedings to have amounted to a
gross irregularity as contemplated by Section 145 (2)(ii),
the
arbitrator must have misconceived the nature of the enquiry or
arrived at an unreasonable result. A result will only be unreasonable
if it is one that a reasonable arbitrator could not reach on all the
material that was before the arbitrator. Material errors of
fact, as
well as the weight and relevance to be attached to particular facts,
are not in and of themselves sufficient for an award
to be set aside,
but are only of any consequence if their effect is to render the
outcome unreasonable.
’
[9]
[13]
Having
had regard to the record, there is no basis on which to support a
finding that the arbitrator misconducted himself or exceeded
his
powers, nor can it be said that the arbitrator misconceived the
nature of the enquiry before him. The arbitration award contained
a
careful assessment of the extensive evidence before the arbitrator,
including the two distinct versions placed before him. The
arbitrator
approached the irreconcilable versions before him in the manner set
out in
SFW
Group Ltd and Another v Martell et Cie and Others.
[10]
He made findings as to the credibility of the various factual
witnesses, their reliability and the probabilities. In doing so,
he
cannot be faulted for the manner in which he approached the evidence
in the matter. His finding that a sexual relationship existed
is
supported by the learner’s evidence and by the contents of her
diary which provided a contemporaneous account of her relationship
with the appellant.
[14]
Mr
De
Kock
submitted for the appellant that the learner’s inability to
explain what happened to the appellant’s semen following
intercourse should properly have led to her version having been
viewed with suspicion. However, having had due regard to the naivety
and inexperience of the learner, who on her own version had not
engaged before in sexual intercourse, the arbitrator committed
no
reviewable irregularity in accepting the credibility and reliability
of her evidence and the truthfulness of her account. In
addition, the
arbitrator’s finding that the appellant had sought to influence
the learner not to testify and to contaminate
her evidence was a
reasonable conclusion given that it was supported by the evidence
before him which illustrated the extent to
which the appellant had,
in an attempt to further his own cause, abused his authority at the
expense of an inexperienced young
woman who is more than 30 years his
junior.
[15]
Furthermore,
in placing reliance on the contents of the learner’s diary,
which amounted to a contemporaneous account which
supported her
version of events, the arbitrator did not misconduct himself in the
manner contemplated in s145(2)(a) of the LRA.
The arbitration award
was justifiable in relation to the reasons given for it and fell
within the range of decisions which a reasonable
decision-maker could
have made on the material before him. It follows that the Labour
Court correctly dismissed the review application
and there is no
plausible basis for this Court to find differently and uphold the
appeal.
[16]
The
appellant did not dispute that in the event of his having been found
to have had a sexual relationship with a learner, s17(1)(c)
of the
EEA requires that the sanction of dismissal must be imposed. The
arbitrator had regard to the mitigating factors which favoured
the
appellant, including the appellant’s length of service and his
clean disciplinary record, and concluded that the nature
of the
misconduct nevertheless warranted dismissal. Where an educator has
abused the position of trust in which he is employed,
and given that
continued employment would require further and ongoing interaction
with and exposure to children, dismissal is “
a
sensible operational response to risk management”.
[11]
Section 17(1)(c) provides as much and the arbitrator’s finding
that dismissal was fair is beyond reproach.
[17]
On
the issue of costs, Mr
De
Kock
conceded that there is no reason in law or fairness as to why costs
should not follow the result. There is in my mind no reason
to find
differently. It follows that the appeal falls to be dismissed with
costs.
Order
[18]
In
the result, the following order is made:
1.
The
appeal is dismissed with costs.
______________
Savage AJA
I
agree
________________
Waglay
JP
I
agree
________________
Coppin
JA
APPEARANCES
:
FOR THE APPELLANT:
C
de Kock instructed by Bagraims Attorneys
FOR THE THIRD
RESPONDENT:
J van der Schyff instructed by
the state Attorneys
[1]
Section 28(1)(d) of the Constitution
of the Republic of South Africa, 1996.
[2]
2009 (6) SA 632 (CC);
2009 (11) BCLR 1105 (CC).
[3]
At para 26.
[4]
De
Wet A and Oosthuizen I "Opvoeder-tot-leerder seksuele
teistering in sekondêre skole" 2007
TG
Supp
7(4) 86-102 at 87
;
SA Coetzee “Law and Policy Regulating Educator-on-Learner
Sexual Misconduct” 2012
Stell
LR
76-87 at 76.
[5]
McGrath 2000
www.mcgrathinc.com 1-2 quoted in D Smit & V Du Plessis “
Sexual
Harassment in the Education Sector” PER / PELJ 2011(14)6 173 /
217-217/217.
[6]
Rule 5(8) states: ‘
The
record must be delivered within 60 days of the date of the order
granting leave to appeal, unless the appeal is noted after
a
successful petition for leave to appeal, in which case the record
must be delivered within the period fixed by the court under
rule
4(9)
.’
[7]
2013 (6) SA 224
(SCA);
[2013] 11 BLLR
1074
(SCA); (2013) 34 ILJ 2795 (SCA).
[8]
S 145(2) provides that:
“
A
defect referred to in subsection (1), means-
(a)
that the commissioner-
(i)
committed misconduct in relation to the duties of the
commissioner as an arbitrator;
(ii)
committed a gross irregularity in the conduct of the
arbitration proceedings; or
(iii)
exceeded the commissioner's powers; or
(b)
that an award has been improperly obtained.”
[9]
At para 25. See too
Gold
Fields Mining SA (Pty) Ltd (Kloof Gold Mine) v CCMA and Others
(2014)
35 ILJ 943 (LAC) at para 14 with reference to
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
2008
(2) SA 24 (CC).
[10]
2003 (1) SA 11
(SCA) at para 5.
[11]
De Beers Consolidated Mines Ltd v
CCMA and Others
[2000] 9
BLLR 995
(LAC) at para 22.