Sexual misconduct in schools, when can an educator’s habit of regularly giving his learners ‘high-fives,’ handshakes, and hugs be said to have crossed the boundaries of Educator and learner relationship?
The Labour Court was recently called to adjudicate on the in loco parentis principle in the case of David Oupa Diholo v/s Gauteng Department of Education and two others JR 1775/19. (not reportable).
1. The facts
Although in Diholo, the Applicant’s (David Oupa Diholo) matter concerned late filing of review in the Labour Court, the Presiding Judge (Tlhotlhalemaje, J) having dealt with an Application for Condonation of the late filing of the Applicant Review Application, he (the learned Judge) proceeded to deal with the merits of the case.
The facts of the case in Diholo were that the Applicant, who was an educator employed by Gauteng Department of Education notice of allegations, was found guilty and dismissed by the Department for allegations of sexual misconduct in that he conducted himself in an improper, disgraceful or unacceptable manner whilst on duty, by hugging and kissing a grade 9 learner (Complainant) on her forehead. He is alleged to have called the Complainant ‘baby’ and also told her that he ‘loved her.’
The charges against him were preferred in terms of Section 18(1)(q) of the Employment of Educators Act2 (EE Act).
The Applicant contestation was that there was nothing unusual with his habit of regularly giving his learners ‘high-fives,’ handshakes and hugs, as he considered them to be his children. He further contested that he did not limit his interaction with them (learners) to the prescribed curriculum, especially when counselling them on the ‘general evils of life.’
It was also evidence before the Arbitrator that at some point, the Applicant called the Complainant “to come and see him” into the Educator’s stuff room, uncomfortable about going alone, the Complainant took her friend with her. The Applicant was not pleased with the Complainant bringing the friend with, however, he proceeded to ask them (Complainant and friend as to whether they have boyfriends).
The Arbitration ruled against the Applicant on the basis that had committed misconduct in contravention of Section 17(1)(b)3 and of unbecoming conduct in the form of sexual harassment in terms of section 18(1)(q)4 of the EE Act. The Arbitrator considered the principles related to the offence of sexual harassment, and the fact that under Section 17(1)(b) of the EE Act, an Educator commits a misconduct where he sexually assaults a learner. Against these principles, the Arbitrator concluded inter alia that; It should be accepted that the Applicant had hugged and squeezed the Complainant in an unwelcomed manner, which conduct had morphed into sexual conduct. In this regard, the Applicant’s hugs were not innocent, and the Complainant’s version of events was collaborated by her friend ‘KM’ and was thus acceptable.
2. Legal question
The question that confronted the Labour Court was whether the Arbitrator’s award was reviewable. In other words, was Arbitrator correct in dismissing the applicant.
3. Labour Court
Not satisfied with the decision of the Arbitrator, albeit filing of the Review Application outside the six-period time as prescribed in Section 145 (1) (a) of the Labour Relations Act, the Applicant filed for Condonation and also to challenge his dismissal in the event that Condonation is granted.
As stated above, the Applicant’s Condonation Application was granted, and the Court proceeded to ventilate the matter on merits held as follows:
3.1 That it is apparent that there appeared to be a pattern of inappropriate conduct towards learners in his spell as an Educator;
3.2 That it was satisfied that the evidence against the Applicant demonstrated an individual who had committed misconduct against a learner;
3.3 That the Applicant is a person who totally failed to live to the principles of being a protector and guardian expected of a paterfamilias in his position vis-à-vis the Complainant;
3.4 The evidence points the Applicant as someone who sought to take advantage of the Complainant by prying into her private life and invading her personal space and bodily integrity, in the guise of being caring and fatherly;
The Court concluded by specifying that the Applicant betrayed the trust of the Complainant through his conduct and created an unhealthy, insecure and hostile environment for her.
The review was accordingly dismissed.
In Diholo the Court observed that in terms of the Common Law, Educators and Management of our schools have a legal duty to take care of the children entrusted to them. Learners being vulnerable and since the teachers are the closest adults to them during their school lives, teachers ordinarily have a positive duty to provide a safe educational environment to them, free from any form of fear, abuse, intimidation, coercion or physical and/or emotional harm. This is so in that in the education sector in particular, the in loco parentis principle ought to be supreme, as it is meant to protect learners, and accordingly, teachers are at all material times, in a position of diligens paterfamilias.
Considering prevalent nature of Gender Based Violence “GBV” crisis in our country, it is advisable for educators, to be sensible around learners that are placed in their care, especially considering the vertical Educator learner relationship. To cross the boundaries of such a relationship will not only destroy the educator’s career but will also be restrictive for learners as they will not be in a position to achieve their full potential because of the psychological effects that may be brought about by the conduct of their educators.