CASE NO.: PSES434-16/17 KZN

Case Number: 
PSES434-16/17 KZN
Province: 
KwaZulu-Natal
Applicant: 
D ZUNGU
Respondent: 
DEPARTMENT OF EDUCATION – KWAZULU NATAL
Issue: 
Unfair Dismissal - Misconduct
Venue: 
Department of Education, Regional Office, Vryheid.
Award Date: 
7 June 2018
Arbitrator: 
P. JAIRAJH

CASE NO.: PSES434-16/17 KZN
IN THE MATTER BETWEEN :-

D ZUNGU APPLICANT

AND

DEPARTMENT OF EDUCATION –KZN RESPONDENT

ARBITRATOR : P. JAIRAJH

DATE OF AWARD : 7 JUNE 2018

ATTENDANCE/S : APPLICANT
MR D. ZUNGU
MR S. MHLUNGU
RESPONDENT
MS J. DUMISA

Applicant’s representative : MR S. MHLUNGU (ATTORNEY)
Telephone : 011 039 5685
Fax : 086 219 7886
Email : sifiso.mhkungu@gmail.com

Respondent’s representative : MS J. DUMISA
Telephone : 073 549 1555
Fax :
Email : Jabu.Dumisa@kzndoe.gov.za

ARBITRATOR'S AWARD

DETAILS OF HEARING AND REPRESENTATION
[1] This matter was scheduled for arbitration on the 27 February 2017, 8 May 2017, 26 and 27 June 2017, 18 August 2017, 12 October 2017, 21 and 30 November 2017, 16 February 2018 and 23 April 2018 at the Department of Education, Regional Office, Vryheid.
[2] Mr S. Mhlungu, an attorney from Mhlungu Attorneys represented the applicant and Ms J. Dumisa represented the respondent.
[3] The parties, at the conclusion of proceedings, elected to submit written closing arguments on or before the 7 May 2018. Evidence was led in respect of the applicant’s earnings however no documents were provided, therefore I requested via the Council for the applicant’s last payslip which I accordingly received on the 6 June 2018.
[4] The parties submitted a Bundle of documents which was marked as Bundle “A” and used as a common bundle.
BACKGROUND TO THE DISPUTE
[5] The Applicant was employed as an educator and stationed at Gudu Secondary School. He was charged by the department in 2013 for having sexual relationship with a learner by the name of Nomfundo Mtshali. Subsequent to the charges he was found guilty by the presiding officer of having a sexual relationship with the learner. He later appealed the finding and the sanction. His appeal was dismissed by the appeals committee. The date of his dismissal is the 20th September 2016.
[6] As it was established that a dismissal had taken place (s 192 (1)), the respondent bore the onus to prove that the dismissal was substantively and procedurally fair (s 192 (2)).

PRELIMINARY ISSUES
[7] The applicant brought an application on the 27 February 2017 to be legally represented which the respondent opposed. After considering the parties written submission I accordingly ruled that the applicant was entitled to legal representation and the respondent was allowed an opportunity to consider the appointment of legal representation as well.

ISSUE TO BE DECIDED

[8] I am required to determine whether the dismissal of the Applicant was fair. In the event that I find the dismissal to be unfair, I must decide upon an appropriate relief.

SURVEY OF EVIDENCE AND ARGUMENT
RESPONDENT’S CASE
EMMERENTIA NOKTHULA MTSHALI
The salient points of Emmerentia Mtshali’s evidence are as follows:-
[9] She was employed as an educator at Gudu Secondary School. The learner Nomfundo Mtshali was her brother’s child. During 2013 the learner was staying with her and she was the guardian of the child. She made a report to the Department regarding the alleged sexual relationship between the learner and the applicant.
[10] On the 30 September 2012 her son Siya was at the car wash when he met the applicant and asked him for money to buy beer. When the applicant called the learner he told her he was no longer going to buy her airtime because the money was given to her brother to buy beer.
[11] The learner used to come home with a lot of goods that they never bought such as teddy bear, earrings and cellphone and he also gave her his credit card to purchase goods. The learner had told her friend Winile about the goods.
[12] During the extra classes, the first thing she noticed was that the learner used to come home late. Another thing was when school was out the learner used to just come and tell her that she will remain behind at school, when questioned, told her she was going to study EGD drawing.
[13] One day when they arrived at school the learner was sick and started crying, she told her that she will take her to the doctor after school however the learner left with the applicant to town.
[14] The applicant sent a sms that he dreamt of them both in a good situation, no longer having any problems and when he dies he did not want his children to be left with hatred. This surprised her as they were not relatives.
[15] One day the learner came home at around 7pm, with the applicant and the applicant’s child, carrying a pizza. The learner had stayed behind that day saying she was going to study drawing so she was surprised when she came with the applicant and they continued their studying which made her to think what they were doing at school.
[16] They were having a braai at home when the applicant came and wanted to talk to her. She did not know what he was coming to talk about but it shocked her because the applicant knew he was wrong, they as a family had a problem with him as he had offended her family and she had opened a case against him. The applicant noticed that her brother was going to hit him and fled to his car but her brother hit the applicant through the open window. Thereafter the applicant sent a message that he now sees the reason to come and apologize.
[17] The learner was no longer staying with them but heard that she was staying in Newcastle. She believed that the sexual relationship between the applicant and the learner continued from 2012 up until now.
[18] The applicant is aware that she only had a problem with him when it came to the issue of the learner.

Under cross – examination she testified that:
[19] She denied that the allegation levelled against the applicant happened in 2013. The learner and the applicant had a relationship from the time she was in Grade 10 but she only realised this later. The learner’s friends, Phindile , Nogwanda and many others told her about the relationship. The applicant was once called by some teachers who told him to stop the relationship with this child because it was going to turn into a problem.
[20] The proof that the applicant was in a romantic relationship with the learner was when he gave her his credit card to buy clothes. She and other family members were together when they questioned the learner and she admitted that the items were bought for her by the applicant and he had given her his credit card.
[21] She and her family had never bought the learner a phone but learner had a phone that she had been hiding which was bought by the applicant. Her mother had found the phone in the learner’s bag before she laid the complaint to the principal.
[22] On Fridays after school the learner would go to her mother’s home. On one occasion they called the grandmother only to establish that she was not there and they were not aware where she was. When she returned she came crying saying that her grandmother had died.
[23] She heard that the applicant and the learner are staying together and also have a child that they are hiding. Her children who are teaching in Newcastle had seen the three of them walking in the malls. The applicant’s child who is schooling at Vryheid Junior said he knows the learner as his mother and their child called Lwazi Zungu who is about 5 to 7 months old.
[24] The Leaner’s aunt had told her that the child is applicant’s and the learner’s
because they go to the learner’s home and they have neighbors who are their relatives so they also saw and told them.
[25] The learner left her house when she finished Grade 12 in 2013. Apart from her coming to school to collect her certificate they did not have any discussion.
[26] She denied that the learner was raped by a member of her family and averred that she was raped by a member of the learner’s mother’s family.
[27] The applicant had asked her what she would do if a child said she was raped and she said she would refer the child to the social worker. She could not recall exactly when this discussion took place but averred that the applicant was still at school.
[28] She denied that she asked the applicant to take the learner to the doctor and averred that the learner came and told her that she was going with the applicant and she said okay. She remembered that the applicant called her and she told him to go to Doctor Mkhoza.
[29] She agreed that the majority of the learners that attend at Gudu Secondary School live in Emondlo and Gudu.
[30] The learner was studying at Morning Star to get extra lessons in Maths and science. She was the only one who got the CD’s and it was not true that they were circulated amongst the learners because she had asked the class and found out that only the learner had CD’s. If the applicant was that concerned he was supposed to give the CD’s to all the children in the classroom. She denied that she wrote anything in these CD’s. She bought the CD’s but remembered that it was copied by the applicant because she wanted the learner to be assisted.
[31] The learner had her phone on speaker when she answered the call from the applicant which was the day her son, Siya met the applicant at the car wash. She heard that the applicant will pay less Lobola because Siya and he were friends.
[32] The applicant bought her the wall picture as a gift and also offered her the use of his gym card to silence her on the issue of the learner.
[33] She stopped the learner from attending Morning Star because she realized that she was not improving and a girl called Vanessa had told her that the learner was not attending classes and that she was travelling in a red mini cooper. She wanted the learner to study and improve her life but the applicant saw it as a time for dating.

GABISILE PORTIA DLAMINI
The salient points of Ms Dlamini’s evidence are as follows:-
[34] She lives in Newcastle but during the period 2012 to 2013 she was living in Gambushe Street, Vryheid. She and the learner were close neighbours and they used to chat to each other. At first the learner used to call her boyfriend Manzini, a clan name for Zungu and then DJ and Mr Waterson so that her aunt would not know who they were talking about.
[35] The learner told her that she had a new boyfriend who was a teacher at Gudu, teaching her drawing at her school, lives at Emondlo and driving a red mini cooper with registration number NP. The reason she told her about the registration number was that if she did come across a red mini cooper she must look at the person if she wanted to see him. She had asked the learner why she left Nhlakanpho and was told that her new boyfriend was treating and even kissing her well.
[36] While she was working at Love Life the learner asked her for the Morning After Pill. She asked if they were sleeping without a condom and the learner said he does not like the condom.
[37] The learner told her that that DJ gave her a card, said she was now dating people with money and Nhlakanpho does not have money.
Under cross – examination she testified that:
[38] She was living in Newcastle when the learner invited her on Facebook, she saw on the profile that the learner was a financial advisor for Inelo Construction however when she enquired about this, the learner blocked her.
[39] When the learner used to come to her granny’s house, they used to do ladies stuff and she used to do the learner’s makeup as she was not allowed to go out of her aunt’s house with makeup. The learner used to tell her that she was going with her boyfriend but she had never seen her in the car. Before the learner met DJ she was in a relationship with Nhlakanpho and shortly after she met DJ she said Nhlakanpho does not have money and DJ is matured.
[40] She admitted that she was seeing the applicant for the first time and had never spoken to him before.
[41] It was very easy for her to see that the learner was in love with this person. She did not like her new relationship and wanted her to date boys of her age and also because of the things she told her about the new boyfriend.
[42] She admitted that she had never seen any of the gifts but was annoyed when the learner asked for the morning after pill. The learner told her that she had slept with Mr Waterson. She was aware of a sexual relationship between them in 2013 because the learner had asked for the morning after pill.
[43] The learner told her about her two boyfriends Nhlakanpho and DJ and she discovered that she had two other boyfriends, Phila and Mvelo. When she asked about the other two boyfriends the learner laughed and said that she had a boyfriend who was working and could not continue with those who are not working.

MONICA THABI MTSHALI
The salient points of Ms Mtshali’s evidence are as follows:-
[44] The learner is her brother’s daughter. Emmerentia Mtshali had accused the learner of having a relationship with the applicant.
[45] The learner had told her that the applicant purchased the sunglasses and gave her his credit card to buy things from Mr Price because he likes her. She was surprised because Nomfundo was not from a poor family and wondered why the applicant would buy her clothes.
[46] On one occasion when she was in Durban with her grandson, they saw a red mini cooper and her grandson said that is the learner’s car. When she asked the learner if she has a car she looked away which confirmed what her sister said was happening between the applicant and the learner.
[47] She saw on the learner’s Facebook profile that she is an advisor at Inelo Construction and Aluminium which is the applicant’s company.
[48] The learner had a matric and as a family they had great aspirations for her. To date she does not know what happened to the learner and where she is.
Under cross – examination she testified that:
[49] She was convinced that the learner was having a sexual relationship with the applicant because he bought her clothes, shoes, earrings, sunglasses and gave her his credit card to use. It was in December 2012 when they had a discussion about this in her car which lasted quite a while.
[50] She had spoken to people who told her that the learner was in a relationship with the applicant and they have a child and was seen with the child in Newcastle.
[51] The learner used to be a good child but then her character changed. At one stage she went missing and when she returned she told lies that her grandmother had died. At the time of the disciplinary hearing the learner was still staying with the family but did not testify. She could not answer why the learner did not testify. If it was her responsibility she would have made sure it happened.
[52] She was aware of the sexual abuse on the learner by a relative on her maternal side which matter was referred to the school social worker.
[53] She had no reason to target the applicant and get him fired.

CABISILE PEARL DLAMINI
The salient points of Ms Dlaimini’s evidence are as follows:-
[54] She was the mother of Siya’s child. At first the learner used to confuse the name of the applicant but in the end she found out it was the applicant. On one occasion learner had her phone on speaker and she asked her “baby” where is the airtime and the applicant responded by saying that he can’t buy her airtime as he had bought beer for her brother. Then she said he won’t pay much Lobola because he bought beer. When she enquired from Siya if Ratu had bought him beer, he denied it and said that the applicant had bought him beer. That is when it became clear that they were in a relationship.
[55] She personally saw the applicant’s red mini cooper bringing the pizza. She asked the learner who was driving the car and she said Ratu’s friend. There was only one red mini cooper in the township with NP registration number and that belonged to the applicant.
[56] She recalled on one occasion before the applicant came to their home the learner had answered a call and had asked. “Baby, are you coming?” Then she had a bath and dressed up then later saw her wearing high heels walking towards the applicant and his colleague. She took the learner’s aunt’s phone, dialled that applicant’s number that was not picked up which led her to believe it was on silent. The reason she phoned the applicant’s phone was because the learner was on a call and the person who came was the applicant. The learner did not leave the house which led her to believe that the applicant was “baby”.
[57] She met the applicant’s son who is in Vryheid Junior and he told her that the
applicant and learner have a child and he mentioned that Lwazi is now crawling.
Under cross – examination she testified that:
[58] She was in the bedroom when the learner answered the call.
[59] She denied that her evidence was a fabrication. She insisted that they were in a love relationship because the learner admitted it to her but was afraid that the applicant will lose his job.
[60] She used to confuse the names intentionally calling him DJ and Ratu. The learner had a child when she moved to Newcastle. The day the applicant brought the pizza she asked the learner about the red mini cooper and she said it was Ratu’s car.

APPLICANT’S CASE
DUMISANI JOEL ZUNGU
The salient points of Mr Zungu’s evidence are as follows:-
[61] He was teaching the learner EGD in 2012 and out of 35 boys she was one of the 3 girls he was teaching.
[62] The allegation against him was not true and was framed against him by people who were jealous of his HOD position. The people who did the investigation were from the Mtshali family.
[63] What surprised him was that who had given them permission to ask his children at Vryheid Junior. This shows they were against him and wanted him to end up nowhere.
[64] The technical drawing exam incident occurred when he was teaching Grade 11. Because they were going to write the test next day the learner spoke to her aunt, Emmerentia Mtshali, who came to him and asked him to postpone the test. When he told her he did not have authority to postpone the test she told him that she was going to leave the learner and he must drop her off at home as she had no alternative transport. After the revision class, on the way home they bought a pizza which they ate at Emmerentia Mtshali’s home.
[65] In respect of the incident relating to the CD’s containing study material, all the learners were from around the school except the learner. They organised CD’s which were circulating amongst the learners and Nomfundo could not get access to this study material as the learners from the area would form study groups. He took the study material and gave it to Emmerentia Mtshali because she wanted to copy the CD’s in the lab at the school and then she returned it the following day. He didn’t give them to the learner because she was his girlfriend; he was doing it for all the learners.
[66] On the 21/9/2012 he was leaving school early to service his car when Emmerentia Mtshali asked him to take the learner to the doctor. They went to the doctor and then found that the doctor was not included in the Medical Aid card. He called Emmerentia Mtshali who gave him instructions to go to another doctor and thereafter he told her that she owes him lunch. On the 23/9/2012 he called and told her that she must respect the agreement to give him lunch. They then had lunch and he took out his alcohol bottle and they drank.
[67] The day they ate pizza at Emmerentia Mtshali’s house he found that she had bought new cupboards. Upon congratulating her he gave her a painting to hang in her dining room and he contended that it was a gift to her and not for the learner.
[68] In respect of the ATM incident he testified that the learners were writing exams and were released early. As Emmerentia Mtshali was invigilating she allowed the learner to travel with him, the clerk and Mr Tladi. On the way to Emondlo they stopped at one of the shops. It was very hot so he sent the learner to withdraw money; he wrote the pin number on her hand and gave her the card to withdraw money for him.
[69] He denied that he bought things for the learner and stated that one of the learner’s boyfriends, parents or her mother’s family could have bought clothes for her.
[70] On the 19/9/2012 he received a voicemail from Emmerentia Mtshali and he thought that she had forgot to switch off her phone because she was shouting at the learner to admit that she was dating him or she had to go to her home.
[71] He denied that he met Siya at the carwash. The first time he met Siya was on the 23/09/2012 when he came over to eat lunch.
[72] He admitted buying the learner sunglasses to replace the sunglasses she took.
[73] He sent Emmerentia Mtshali a sms and visited her home in 2015 because he wanted to ask her what is happening with his case, why was it taking so long because he had appealed and his family was suffering. He was assaulted by the learner’s father and was forced to leave. Thereafter he sent a sms saying he could see when she said the whole family is angry.
[74] He denied that he slept with the learner. At the disciplinary hearing Emmerentia Mtshali apologised to him because she thought he had infected her child with HIV but after the test found that he did not infect the child so she apologised.
[75] He did not have any employees working for him in his company. He stated that the Mtshali family might have created the Facebook page to try and link him to the learner and put him in prison.
[76] When the learner disclosed that she was sexually abused at home he tried to speak to Emmerentia Mtshali about it and since that day the relationship between them has never been okay. They took the decision to say that the learner and he are in a relationship to move attention away that the learner was abused so that no one knows about it.
Under cross – examination he testified that:
[77] He used a red mini cooper during the period 2012 with registration number NP but it was recently written off. His clan name was Manzini. People could call him Waterson however he was a traditional Zulu.
[78] Due to the recommendations he got at work Emmerentia Mtshali asked him to inspire her son Siya as she had seen he was living a successful lifestyle. She explained that she tried everything to make Siya’s life good but he was on drugs and that’s how he ended up knowing Siya. Emmerentia and he were very close and she discussed all her personal problems in her family with him.
[79] When questioned why it was now a problem he stated that he thought the person abusing the learner was a family member so he would not disclose who it was. He admitted that the learner did not tell him who the person was. When he started to talk to Emmerentia he contended that she made sure that he did not go further.
[80] When questioned as to why he did not report it to the police that a child was molested and the criminal was a family member, he stated that when this case finishes he is going to see the attorneys to advise him what to do about this situation.
[81] Emmerentia used all the witnesses to come and lie against him. When questioned who would stand to benefit, he contended that they are the ones who know what they are going to get and wish to see him behind bars. They want to shut him down to hide the predator.
[82] He denied that the learner called him DJ or Manzini but admitted his colleagues called him DJ. The Facebook profile where the learner appeared as an advisor was a fake account created by the Mtshali family.
[83] He denied that he continued teaching the learner the day he bought the pizza.
[84] Emmerentia heard from the clerk that he was leaving early and told him that the learner was sick and to take her to the doctor. He did not know who the doctor was as he was only the transporter.
[85] Emmerentia made an issue of the CD’s because it was her plan to shift him from the school.
[86] The learners were around his table when his sunglasses was stolen and on enquiring the learners told him that Nomfundo took it. He did not take any action against learner nor did he tell Emmerentia about it. He stated that the learner is the one that bought the sunglasses. When it was put to him that this version was never put to the witnesses and even at the disciplinary hearing he did not deny that he bought the learner the sunglasses, he stated that he asked the learner for the sunglasses as it was special to him. The day he dropped off Mr Tladi and the clerk was the day she bought the sunglasses with money he gave her.

ANALYSIS OF EVIDENCE AND ARGUMENT
I have considered all the evidence and arguments of the parties as well as the documentary evidence submitted.
[87] The applicant contends that he was unfairly dismissed by the respondent and seeks the relief of re-instatement without any loss of benefits.
[88] The respondent opposed the application and prays for the dismissal of the application and for the confirmation of the sanction by the presiding officer.
[89] During or about the 11th April 2013 the Respondent served a notice of disciplinary hearing on the Applicant. The charge/s in the notice referred to the following allegations:-
Charge 1:
In that on or about the period 2013 at or near Gudu Secondary School, Zululand District, you committed an act of misconduct in that you had a sexual relationship with a learner by the name of Nomfundo Mtshali. You thereby contravened Section 17 (1) (c) of the Act.
[90] At the conclusion of the disciplinary hearing the applicant was dismissed by the respondent. The Presiding Officer at the Disciplinary Hearing found the applicant guilty as charged.
[91] This matter was cited as an unfair dismissal dispute in terms of Section 191 of the LRA.
[92] There was no dispute about the existence of a dismissal. According to Section 192 read with Section 188 of the Labour Relations Act (the Act), the onus was, therefore, on the Employer to justify the dismissal on both substantive and procedural grounds.

PROCEDURAL FAIRNESS
[93] In terms of the Code of Good Practice in respect of Fair Procedure, normally the employer should conduct an investigation to determine whether there are grounds for dismissal. This does not need to be a formal enquiry. The employer should notify the employee of the allegations using a form and language that the employee can reasonably understand. The employee should be allowed the opportunity to state a case in response to the allegations. The employee should be entitled to a reasonable time to prepare the response and to the assistance of a trade union representative or fellow employee. After the enquiry, the employer should communicate the decision taken, and preferably furnish the employee with written notification of that decision. If the employee is dismissed, the employee should be given the reason for the dismissal and reminded of any rights to refer the matter to a council with jurisdiction.
[94] In the matter before me no evidence was led regarding any procedural irregularity by the parties. As a consequence of the aforementioned I am of the view that there was no procedural irregularity by the respondent.

SUBSTANTIAL FAIRNESS
[95] Item 7 of Schedule 8 in the Code of Good Practice: Dismissal sets out guidelines for Employers to follow when dismissing Employees for misconduct.
[96] The Code provides that in determining whether a dismissal for misconduct is fair or not, the following should be considered:
(a) whether or not the employee contravened a rule or standard regulating conduct in, or of relevance to the work-place; and
(b) if a rule or standard was contravened, whether or not-
(i) the rule was a valid or reasonable rule or standard
(ii) the employee was aware, or could reasonably be expected to have been aware of the rule or standard
(iii) the rule or standard has been consistently applied by the employer
(iv) dismissal was an appropriate sanction for the contravention of the rule or standard.
[97] In Sweeney v Transcash [2000] 6 BALR 712 (CCMA) it was held that arbitration hearings constitutes a rehearing de novo on the merits. The award must accordingly be based on evidence led at the arbitration, not on the record of the disciplinary hearing. The decision to dismiss the applicant was taken after the disciplinary hearing.
[98] The applicant appealed the sanction and finding but the Appeals Committee found him guilty and handed down a sanction of dismissal.
[99] Section 3 of the Law of Evidence Amendment Act 45 of 1988 provides that:
(1) Hearsay evidence is subject to the provisions of any other law, hearsay
evidence shall not be admitted as evidence at criminal or civil proceedings, unless –
(a) each party against whom the evidence is to be adduced agrees to the admission thereof as evidence at such proceedings;
(b) the person upon whose credibility the probative value of such evidence depends, himself testifies at such proceedings; or
(c) the court, having regard to –
(i) the nature of the proceedings;
(ii) the nature of the evidence;
(iii) the purpose for which the evidence is tendered;
(iv) the probative value of the evidence;
(v) the reason why the evidence is not given by the person upon whose credibility the probative value of such evidence depends;
(vi) any prejudice to a party which the admission of such evidence might entail; and
(vii) any other factor which should in the opinion of the court be taken into account, is of the opinion that such evidence should be admitted in the interests of justice.
(2) The provisions of subsection (1) shall not render admissible any evidence which is inadmissible on any ground other than that such evidence is hearsay evidence.
(3) Hearsay evidence may be provisionally admitted in terms of subsection (1)(b) if the court is informed that the person upon whose credibility the probative value of such evidence depends, will himself testify in such proceedings: Provided that if such person does not later testify in such proceedings, the hearsay evidence shall be left out of account unless the hearsay evidence is admitted in terms of paragraph (a) of subsection (1) or is admitted by the court in terms of paragraph (e) of that subsection.
[100] In terms of Section 4 of the said Act “hearsay evidence means evidence, whether oral or in writing, the probative value of which depends upon the credibility of any person other than the person giving such evidence”.
[101] In De Beers Consolidated Mines v Commission for Conciliation Mediation and Arbitration and Others (JA68/99) [2000] ZALAC 10 (3 March 2000) the court held at para “[48] It is important to remember that once the facts are established , it is , ultimately, a matter of opinion whether a dismissal is fair or not.” [50] The onus is thus on the employer to prove the facts upon which it relies for the dismissal. If the facts upon which the employer relies are not proven at the end of the arbitration proceedings, then cadit quaestio, the employer has failed to prove the fairness of the dismissal. On the other hand, if the employer does prove the facts upon which it relies, then the arbitrator must make a determination as to whether or not the dismissal is unfair.”
[102] I have noted that throughout much of the applicant’s testimony, he failed to put the various versions of his testimony to the witness Emmerentia Mtshali while she was on the stand.
[103] In ABSA Brokers (Pty) Ltd v Moshoana NO & others (2005) 10 BLLR 939 (LAC) the Labour Appeal Court noted that “A failure to cross-examine may, in general, imply an acceptance of the witness’s testimony.” By failing to cross-examine the witness on this specific aspect implies that the Applicant cannot rely on this point.
[104] In Sidumo and Another v Rustenburg Platinum Mines Ltd and Others 2008 (2) SA 24 (CC), the court at held at para [78] “In approaching the dismissal dispute impartially a commissioner will take into account the totality of circumstances. He or she will necessarily take into account the importance of the rule that had been breached. The commissioner must of course consider the reason the employer imposed the sanction of dismissal, as he or she must take into account the basis of the employee’s challenge to the dismissal.”

[105] The respondent did not call Nomfundo Mtshali, the learner who the applicant allegedly had a sexual relationship with. The respondent presented its case with evidence of three of the learner’s relatives and a former neighbour, which evidence constitutes hearsay evidence.
[106] There is no proof whatsoever that the applicant purchased all the gifts except the sunglasses which he admitted to buying and neither did anyone witness the learner using the applicant’s credit card. Significantly no one saw the learner and the applicant in any compromising position.
[107]It is not in dispute that the learner was available to testify at the disciplinary hearing yet the respondent did not call her to testify. I have noted that the respondent has not rendered any explanation as to why the learner did not testify at the disciplinary hearing. It is significant and a concern as to why the respondent chose not to call the learner to testify especially since she was still living with her family.
[108] The allegation involves a learner and an educator having a sexual relationship. There is no factual evidence before me that there was indeed a sexual relationship between the applicant and the learner.
[109] As a consequence of the above I am not satisfied that the respondent’s version is more probable than that of the applicant.
REMEDY
[110] The applicant sought reinstatement without any loss of benefits. In terms of Section 193, a commissioner may order compensation; re-employment or reinstatement should the dismissal of an employee be found to have been unfair.
[111] Section 194 limits the remedy in respect of compensation and reinstatement if the commissioner finds that the employment relationship had broken down irretrievably. There is no evidence or argument to suggest that the employment relationship had become intolerable.
[112] The applicant indicated that the outcome of the appeal is dated the 20 September 2016 and he provided his last payslip which pay date is indicated as 14 October 2016.
[113] Back pay is calculated from the 15 October 2016 to the date of award which is 7 June 2018. The monthly salary of the applicant at the time of his dismissal was R24 470, 50. Monthly salary is R24 470, 50; weekly R5 647, 47 (R27 470, 50 / 4.333) and daily R1 303, 36 (R5 647, 47 / 4.333). Therefore back pay due to the applicant is R24 470, 50 x 19 months = R464 939, 50 plus R5647, 47 x 3 weeks = R16942, 41 plus R1 303, 36 x 2 days = R2606, 72 which is a total of R484 488, 63, subject to statutory deductions.
AWARD
[114] The dismissal of the applicant was procedurally fair but substantively unfair;
[115] The respondent is ordered to reinstate the applicant retrospectively without any loss of benefits to his previous position as educator at Gudu Secondary School on conditions no less favourable than those he enjoyed prior to his dismissal;
[116] The applicant must return to work on the working day following the date on which this award is served on his representative;
[117] The respondent is further ordered to pay the applicant backpay in the amount of R484 488, 63, subject to statutory deductions.
[118] Interest on the amount of R R484 488, 63 will accrue at the prescribed legal rate of interest from 1 July 2018 to date of payment.
[119] There is no order as to costs.

ELRC Commissioner : P. Jairajh
DATED: 7 June 2018

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