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[2015] ZALCCT 60
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Boqwana v Education Labour Relations Council and Others (C583/12) [2015] ZALCCT 60 (8 October 2015)
THE
LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
JUDGMENT
Not Reportable
Case
Number: C583/12
In
the matter between:
SIZAKELE
BOQWANA
Applicant
And
EDUCATION
LABOUR RELATIONS COUNCIL
First
Respondent
COMMISSIONER
BELLA GOLDMAN NO
Second
Respondent
THE MINISTER OF
EDUCATON WESTERN CAPE
Third
Respondent
Date
heard: 7 May 2015
Delivered:
8 October 2015
JUDGMENT
RABKIN-NAICKER
J
[1]
This is an opposed application for review of an arbitration award
under case number PSES280-11/12WC in which the second respondent
(the
arbitrator) found that the applicant’s dismissal was
substantively and procedurally fair. The arbitration was heard
over
seven days and the award is some 123 paragraphs in length.
[2]
The applicant was employed by the Department as an educator. At the
time of his dismissal he was employed as Deputy Principal
at Ukhanyo
Primary School. At the time of the incidents for which he was
dismissed he was employed as Acting Departmental Head.
[3]
In about January 2011, the applicant was charged with misconduct
relating to the alleged assault of learners who were minors
at the
time of the incidents and at the arbitration hearing. They gave their
evidence behand a one way mirror at the arbitration.
[4]
The charges against applicant were as follows:
“
Charge
1
You
are guilty in terms of section 17(1)(b) of the Employment Educators
Act 76 of 1998 (hereinafter referred to as the Act) in that
on or
about 3 December 2010 whilst on duty you conducted yourself in an
improper disgraceful or unacceptable manner towards 1
st
Complainant by hugging and or kissing her.
Charge
2
You
are guilty of misconduct in terms of section 18(1)(q) of the ACT in
that you on or about 3 December 2010 whilst on duty you
conducted
yourself in an improper disgraceful or unacceptable manner towards
first Complainant by telling her you love her and
or giving her your
number for such purposes.
Charge
3
You
are guilty of misconduct in terms of section 17(1)(c) of the Act in
that on or about first term January to April 2009 you sexually
assaulted 2
nd
Complainant by hugging her and touching her thighs and /or forcing
her to kiss you.
Alternative
to Charge 3
You
are guilty of misconduct in terms of section 17(1)(c) of the Act in
that on or about first term January to April 2009 you sexually
assaulted 2
nd
complainant by hugging her and touching her thighs and/or forcing her
to kiss you.
Charge
4
You
are guilty of misconduct in terms of section 18 (1) (q) of the Act in
that you on or about in during the first and second term
of school
(February to March 2010 and April to June 2010) whilst on duty you
conducted yourself in an improper,disgraceful, disgraceful
or
unacceptable manner towards 2
nd
complainant by:
(a)
telling her you love her and/or
(b)
giving her your number for such purpose
Charge
5
You
are guilty of misconduct in terms of section 17(1)(c) of the ACT in
that during the period 2009 toward the end of 2010 you had
a sexual
relationship with a learner 2
nd
complainant of the school where you are employed in, that involved
hugging, kissing and caressing her private parts with your finger.”
[5]
The grounds for review of the Award as contained in the founding
affidavit are the following that the Arbitrator:
5.1
Misconstrued the evidence which resulted in her coming to an
incorrect finding;
5.2
Failed to conduct the arbitration proceedings in a fair and
consistent manner;
5.3
Issued an arbitration award that is not consistent with the evidence
that was led, and therefore failed to apply her mind to
the dispute.
[6]
The supplementary affidavit is a lengthy document which highlights
various parts of the record of the proceedings in order to
support
the above grounds of review and points out certain contradictions in
the evidence of the complainants and their witnesses,
as well as
makingd various references to the conduct of the arbitrator.
[7]
It is as well to repeat the trite principle that a review does not
concern the question as to whether an arbitrator came to
a correct
result. This court must ask the following questions:
“
(1)
In terms of his or her duty to deal with the matter with the minimum
of legal formalities, did the process employed by the commissioner
give the parties a full opportunity to have their say? (2) Did the
commissioner identify the dispute he or she was required to
arbitrate? (3) Did the commissioner understand the nature of the
dispute he or she was required to arbitrate? (4) Did the commissioner
deal with the substantial merits of the dispute? (5) Is the
commissioner's decision one that another decision maker could
reasonably
have arrived at based on the evidence? Where a
commissioner fails to have regard to the material facts it is likely
that he or
she will fail to arrive at a reasonable decision. Where he
or she fails to follow proper process, he or she may produce an
unreasonable
outcome, but this is to be considered on the totality of
the evidence and not on a fragmented, piecemeal analysis. Therefore,
the
argument that the failure to have regard to material facts 'may
potentially' result in a wrong decision has no place in review
applications — failure to have regard to material facts
actually defeats the constitutional imperative that an award must
be
rational and reasonable.”
[1]
[8]
I am also mindful that the LAC has stated in
Minister
of Safety & Security & another v Madikane & others:
[2]
“
[46]
The court a quo was at pains to point out that if it had been dealing
with an appeal it would have been more inclined to say
that the
arbitrator's conclusion on the probabilities was wrong
'when all the evidence is properly weighed'. The court
a quo seemed
thereby to suggest, or imply that, because of the test for reviews
(which is different to that of appeals) a failure
to weigh all the
evidence and probabilities, in deciding whether to draw inferences,
was reasonable. That approach cannot be correct.
The failure to weigh
all of the relevant evidence and the probabilities to draw inferences
and make findings cannot be said to
be reasonable. It is not only
wrong not to take into account all of the relevant evidence but it is
also unreasonable and clearly
what a reasonable decision maker would
not do.”
[9]
The applicant’s evidence is recorded by the Arbitrator in the
Award as follows:
“
71.
The Applicant became aware of the accusation of the 1
st
complainant on 7 December 2010 when he was called by the Principal
and told that the parent of the 1
st
complainant had visited the school the previous day re an incident
that took place on 3 December 2010 in Fishhoek in an open field
where
he was accused of kissing and hugging the 1
st
Complainant. The parent had no intention of taking the matter further
but just wanted to see the applicant. A meeting was arranged
for the
following day 8 December 2010. On that day he had two interviews, one
for the post of Head of Department, the post he was
acting in and the
Deputy Principal post, both of which he successfully obtained
following the interviews. The applicant asked the
Principal to
arrange the meeting with the parent either before or after the
interviews for that day. The parent could not meet
on that day so a
meeting was arranged the following day at 08h00.
72.
That meeting was attended by the applicant, the principal, the deputy
principal, Ms Linda, the 1
st
Complaint’s brother and the 1
st
Complainant. The Principal said he is not there to comment or mediate
but just to listen. After the 1
st
Complainant had recounted her story she left the meeting. The 1
st
Complainant said that on 3 December, the applicant had taken her to
an open field where he had hugged and kissed her and then dropped
her
at Food Zone, she did not mention Anelo or the 2
nd
Complainant. The applicant’s comment to the fact that 1
st
Complainant saw Sethu who was at Food Zone whilst he she (sic) was at
the pedestrian entrance of Site 5 was that it was not possible
as the
two are 3 to 4 kilometres apart. The applicant was then asked to give
his version.
73.
The applicant said that in October 2010 he received anonymous calls
about once or twice a week at lunch time from a female who
would tell
him she loves him and when he asked who she was, she would tell him
that she would tell him when the time was right
and when the
applicant ask how he could respond when he did not know who it was;
the phone would then be dropped or money would
run out. The applicant
told the meeting that the 1
st
Complainant may have had knowledge of that call and that he knew that
because he traced that call to the 2
nd
Complainant who told him when he confronted her that her phone is
with the 1
st
Complainant.
74.
The applicant at the meeting said to the parent “Thank you for
coming, I apologise for the inconvenience of you coming
here.”
The brother said “You must apologise to the 1
st
Complainant or are you saying that my sister is creating a story.”
The applicant said he was not in a position to say more,
but he was
sorry for the inconvenience caused to the mother as he knows she
should be at work. The 1
st
Complainant was then called in and the applicant asked her if she
knew of the SMS’s he used to receive and she said she was
aware
of one that was sent to the 2
nd
Complainant which was ‘don’t mess with me you are a
child”.
75.
The mother was then reluctant to carry on with the meeting and the
Principal told her to write down what was said at the meeting
and
give it to him, in case the Department wanted it and he went to his
interviews and obtained both posts and chose to accept
the Deputy
Principal Post.
76.
The witness stated that after he received these anonymous calls in
October where the caller would not identify herself. He decided
in
November to go to the Vodacom containers to phone the caller, as when
he returned her call from his phone she would not answer.
He was
accompanied by two of his colleagues Mr Nkuko and Mr Giliana. They
did not go into the booth with him. He phoned the number
and
discovered the caller was the 2
nd
Complainant. The other educator who knew about the calls was Ms
Joyce, he did not tell his wife, Ms Duba as he did not believe
she
could understand. He only told her of the incident on 7 December 2010
when he realised the matter was serious.
77.
One day whilst the learners including 1
st
and 2
nd
Complaints were writing exams he received a please call me from the
2
nd
Complainant. He sent her and SMS to the effect “I know who you
are, I am not on friendly terms with kids in that fashion”
The
calls stopped thereafter.
78.
A short while after the applicant bumped into the 2
nd
Complainant at the man gate as she was returning from writing exams.
He confronted her and asked her if it was her who had been
calling
him. She said it was not her it was the 1
st
Complainant who has her phone. It was put to the witness that this
version was never put to the 1
st
Complainant, her mother, or the Principal.
79.
On 14 January 2011 the applicant was suspended, despite the 1
st
Complainant’s mother saying she forgave him and him seeing a
letter to that effect.
80.
The applicant stated he believed that these allegations were
fabricated as part of a conspiracy with respect to him not being
promoted and he referred to a letter dated 28 January 2010 in terms
of which complaints were made against him being appointed Acting
Deputy Principal without interviews being conducted. The letter went
on to state what happened to a Principal who had been murdered
at
another school would be small compared with what would happen here.
The letter was addressed to the Department of Education
Labour
Relations and was signed by two people who wished to remain
anonymous. It was put to the Applicant that the letter was a
threat
against the Principal and not him.
81.The
applicant stated that on 30 November 2010 as HOD he was at the
District Office discussing Progressions and Promotions as
a result of
the exam results. He was told that he had to make certain corrections
and that was what he was busy with the grade
6 teachers doing those
corrections on the morning 2 December 2010 in the computer lab room
08h30 to 12h00.
82.
He further stated that on 2 December 2010 between 08h00 and 09h00 he
received a phone call from the District Office that he
had to go and
deliver a signed document which was emailed to him relating to his
interviews the following week. He went to deliver
those documents
after school with his wife, Ms Duba and Ms Joyce. It was put to him
in cross-examination that he went with 1
st
Complainant to deliver the letter in the morning, he denied this….”
[10]
The Department called 6 witnesses to the arbitration which included
the First and Second Complainants, the mother of the First
Complainant (Mrs Matwa) and Mr Tyali, the principal, Mr Gobozi, an
educator at the school and a learner at the school, Sethu Botha.
Four
witnesses testified on behalf of the Applicant, three of them fellow
educators and the fourth his wife.
[11]
Various inconsistencies in the evidence given for the Department have
been emphasised on behalf of the applicant in submitting
that the
Arbitrator did not appropriately weigh these. However, a reading of
the record and Award, does reflect that the Arbitrator
was alive to
some inconsistencies in the evidence given by the witnesses for the
department and considered these not to be material.
These are dealt
with in detail in paragraph 115 of the Award:
“
115.
The applicant made much of the following:
·
The fact that in the case of the 1
st
Complainant the charge sheet referred to on or about 3 December 2010
but the complainant stated that the incident took place on
2 December
2010. The charge sheet stated, on or about and in itself is self
explanatory.
·
The fact that the Ist Complainants mother
recalled that the incident took place on 3 December 2010, at the
Disciplinary hearing.
He evidence was hearsay ad again it is not
material as various discrepancies between her and her
daughter’s evidence
are also not material, such as that she
could not recall that her daughter told her that the applicant was
going for interview
the following week.
·
The fact that the 1
st
and 2
nd
Complainant stated that the 2
nd
Complainant stored the applicant’s phone number as ‘friend
whilst Anathi stated that ot was stored as ‘Mister’
It
may have been stored under two names but most likely under ‘friend’
but in any event this dos not discredit the
entire evidence of 1
st
and 2
nd
Complainant.
·
The fact that the 1
st
Complainant could not possibly have seen Sethu who was in the street
in the area of Food Zone when she was in the car by the pedestrian
entrance of site 5. The distance is 150 metres away, an inspection in
loco showed that she could see and hear although she may
not have
heard whether Sethu said Sir B or Ta Sezu. In this case the applicant
tried to mislead the hearing by saying that the
distance was three to
four kilometres, whilst it was about 150 metres.”
[12]
In addition, she found the evidence of the complainants to be
credible and the primary defence of the applicant that the
accusations
were as a result of a conspiracy to be unproven. She
records in paragraph 114 of her award:
“
114.
I found both 1
st
and 2
nd
Complainant to be extremely credible witnesses who stood their ground
despite vigorous and arduous cross examination as did all
the
respondent’s witnesses. There was no reason for the
Complainants or the respondent’s witnesses to fabricate their
evidence. The applicant was not able to substantiate his conspiracy
theory. The letter he referred to dated January 2010 which
he stated
pointed to a conspiracy theory was in fact a threat to the principal
not to the applicant. If there was unhappiness
about him being
appointed to either of the posts he was appointed to there is a far
less arduous and traumatic process that can
be used rather than
inventing a sexual harassment process and getting so many learners to
fabricate evidence and to fabricate tears
and emotions in two long
and traumatic processes”.
[13]
As for the applicant’s witnesses, the Arbitrator supported her
finding that their versions were improbable:
“
116.
The applicant had the alibis of educators to cover for him for the
morning of 2 December; I find it highly improbable
that they all
remembered what time they saw him on 2
nd
December 2010, if they did. Ms Linda at the disciplinary hearing said
she saw him at 11h00. At the arbitration she said she saw
him at
09h00. Ms Duba, the applicant’s wife stated that she went to
see the applicant after 12h00 about the corrections and
then she sent
someone to fetch the car keys, thus accounting for the whole day. The
applicant never mentioned this in his evidence.
I find it more likely
that the Educator’s who stated that they met with the applicant
to have their progressions and promotions
corrected on the morning 2
December were more likely to fabricate evidence or part thereof than
respondent’s witnesses, given
that fabrication must have taken
place on one side.”
[14]
The arbitrator also drew a negative inference from the fact that the
applicant did not call any witnesses “regarding
the schedules
when they were collected from the District Office and whether
corrections were required and when (morning or afternoon
of 2
December) the applicant took the signed letter to the District Office
regarding his interviews the following week were crucial
to the
applicant’s case and were worth requesting a postponement if
one or both witnesses were not available on 3/4 April.
Even though
the applicant stated he would call these witnesses he did not.”
[15]
In view of the above, I find that the arbitrator acted as a
reasonable decision-maker in the way that she weighed up the
probabilities
and drew inferences from the evidence. It is not this
court’s role to determine whether she came to the correct
conclusion.
Her conduct of the proceedings while robust was fair and
met all the requirements set out in the LAC Goldfields judgment
referred
to above. There is no basis to find that the arbitrator came
to an unreasonable result based on her assessment of the evidence
more especially considering that the ‘conspiracy’ theory
advanced on behalf of the applicant was submitted to include
even the
mother of the 1
st
Complainant, who the evidence showed was
new to the area. Further that the applicant did not ever report the
alleged SMS messages
he was receiving to his Principal, although as
the Arbitrator noted, it was well known that sexual harassment
allegations were
rife at the school.
[16]
I therefore find that the Award is not susceptible to review. The
Award had serious consequences for the applicant’s
career. I do
not intend to award costs in the matter given that the applicant is
an individual and in line with the jurisprudence
as set out in NUM v
East Rand Gold & Uranium Co Ltd
[3]
.
I therefore make the following order:
Order
1.
The application is dismissed.
_________________
H.
Rabkin-Naicker
Judge
of the Labour Court
Appearances:
Applicant: Adv. S Mbobo
instructed by Pinini Attorneys
Third Respondent: Adv A
De Wet instructed by the State Attorney
___________________________
H.
Rabkin-Naicker
Judge
of the Labour Court
Appearances
:
For
the Applicant:
[1]
Gold
Fields Mining SA (Pty) Ltd (Kloof Gold Mine) v Commission for
Conciliation, Mediation & Arbitration & others (2014)
35 ILJ
943 (LAC) at para 20
[2]
(2015)
36 ILJ 1224 (LAC)
[3]
[1991] ZASCA 168
;
1992
(1) SA 700
(A)