Diholo v Gauteng Department of Education and Others (JR 1775/19) [2023] ZALCJHB 117 (2 May 2023)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not reportable

Case No: JR 1775/19

In the matter between:

DAVID OUPA DIHOLO

Applicant

and

GAUTENG DEPARTMENT OF EDUCATION

First Respondent

EDUCATION LABOUR RELATIONS COUNCIL

Second Respondent

MATHABO MAKWELA N.O.

Third Respondent

Delivered: This judgment was handed down electronically by circulation to the parties' legal representatives by email and publication on the

Labour Court’s website. The date and time for hand-down is deemed to be on 02 May 2023

JUDGMENT

TLHOTLHALEMAJE, J

Introduction:

[1] In this opposed application, the applicant seeks an order reviewing and setting aside the arbitration award issued by the third respondent (Arbitrator) acting under the auspices of the second respondent, the Education Labour Relations Council (ELRC). The arbitration proceedings were held in terms of section 188A of the Labour Relations Act[1] (LRA) in accordance with the parties’ request.

[2] In the award, the Arbitrator had concluded that the first respondent, (Gauteng Department of Education) (Department) had proven the allegations of misconduct preferred against the applicant and confirmed his dismissal. The review application was filed outside the timeframes contemplated in terms of section 145(1) of the LRA and the

applicant also sought condonation which the Department also opposed.

Background:

[3] The applicant was an employee of the Department, having commenced his employment with effect from 2016 in the position of Educator. Following a complaint of sexual harassment by the learner (Complainant), the applicant was on or about 8 February 2019, served with a Notice of an intention to place him on precautionary transfer pending investigations into the allegations. The applicant had refused to make representations as to why he ought not be placed

on precautionary transfer. On 14 February 2019, he was served with a Notice confirming his precautionary transfer to the Johannesburg Central District Office, pending the finalisation of the disciplinary process.

[4] On 20 February 2019, the applicant was served with a notice of allegations, the essence of which was that on or about

27 November 2018, the applicant had 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 were preferred in terms of Section 18(1)(q) of the Employment of Educators Act[2] (EE Act).

The arbitration proceedings:

[5] The parties had prior to the arbitration proceedings, concluded a pre-arbitration minute in which the applicant had denied the allegations against him. The evidence of the Complainant before the Arbitrator was as follows;

5.1 At the time of the incidents in November 2018, she was a 16-year-old Grade 9 learner. The applicant was her Natural Sciences teacher, and she considered him to be a very ‘nice’ teacher and had appreciated the way he conducted his lessons.

5.2 The Complainant testified that at the commencement of the 2018 academic year, the applicant had a habit of ‘high fiving’ the learners at the end of classes. Things however changed at the beginning of the third term when the applicant other than ‘high fiving’ her, would then insist on giving her a hug, which she innocently considered to be ‘fatherly’. This conduct continued throughout the third term of the year, and other learners noticed that she was being treated differently by the applicant and started insinuating that she had an inappropriate relationship him.

5.3 During the period leading to preparations for final examinations in October and November 2018, the applicant had developed a program which included practice exams and assignments. Since the Complainant was always slow in completing her tasks, her school friends usually waited for her until she was done, so that they would all leave at the same time. On occasion as they were leaving the class upon completing their tasks, the applicant would ‘high-five’ the friends ahead of her but however insist on giving her a hug and ‘squeezing’ her.

5.4 Just before the final examinations, the applicant started inviting the Complainant to come and see him during her free periods in his class or during sub-classes. In all instances she had agreed out of respect for an ‘elder’, but however failed to go and see him. This came to a point when she would hide from him when she had not honoured her promise on previous occasions.

5.5 The Complainant confirmed that over the school terms, she was comfortable with the applicant as her educator, and did not complain about his inappropriate conduct as she assumed that he was merely acting as a fatherly figure. She further testified that she did not complain since she did not want to be seen to be disrespectful towards an elder but had confided in her friend (‘KM’) about the applicant’s inappropriate conduct which made her uncomfortable.

5.6 The Complainant further testified that a day prior to the commencement of final examinations, the applicant had arranged the sitting in a class in an alphabetical order, which meant that she was seated at the back. When it was her turn to leave, the applicant had requested her to remain behind, and to follow him to his classroom. She testified that she was uncomfortable with being alone with him. On her way to his classroom, she met her friend ‘KM’, and asked her to accompany her.

5.7 Upon their arrival, the Complainant was the first to walk into the classroom. When the applicant saw ‘KM’ following her, he questioned the Complainant as to why she brought her friend. He nonetheless told them to sit down and then proceeded to ask them questions which they considered to be inappropriate. He asked them whether they were involved in romantic relationships, and whether they were sexually active. Inasmuch as the Complainant and ‘KM’ were uncomfortable with these questions, ‘KM’ answered in the negative. The Complainant’s response was that she was lesbian and was not interested in boys, but however that she was not sexually active.

5.8 It was at that point that ‘KM’ had requested that they should be excused as they would miss the school transport back home. ‘KM’ was the first to leave the classroom. As the Complainant was about to leave, the applicant approached her, gave her a hug, a squeeze, and a kiss on her forehead, and further told her that he ‘loved’ her. The Complainant testified that this all took place in full view of ‘KM’, who was standing beside the door at the time.

5.9 Under cross-examination, the Complainant testified that she had never seen the applicant hugging and kissing other learners other than giving them ‘high-fives’ at the end of his lessons. She denied that the applicant was in the habit of hugging or telling all the other learners that he loved them. She had conceded however that it was not unusual for female educators to hug learners at the school but maintained that none of them had ever kissed them on the forehead. According to her, the applicant was the only male teacher at the school that had hugged and kissed her.

5.10 She conceded that she was never under the impression that the applicant intended to initiate a sexual relationship with her. Her concern however was that the applicant made her feel uncomfortable with insisting on hugging, squeezing, and kissing her on her forehead. At some point, her mother had realised that there was something amiss with her behaviour and had requested her aunt to intervene. The Complainant had then revealed her concerns to her aunt, leading to her mother bringing a complaint to the attention of the School Principal, who then mandated the Deputy Principal to investigate the matter further.

[6] The Department further relied on the evidence of ‘KM’, which may be summarised as follows:

6.1. She confirmed that that she and the Complainant were classmates and took Natural Science which was taught by the applicant. She confirmed that the applicant was in the habit of giving learners ‘high fives’, and that he would in addition when it came to the Complainant, frequently hug, and squeeze her.

6.2. She confirmed the incident when the applicant had hugged and kissed the Complainant on the forehead and had overheard him telling her that he loved her. ‘KM’ however testified that this latter incident took place in a classroom where there were other four learners as     they

were all completing their tasks in preparation for the final examinations. She had however insisted that the incidents of hugging,

squeezing, and kissing the Complainant on the forehead happened frequently.

6.3. She further confirmed that the applicant had also asked them inappropriate questions related to their private lives. She testified that although the applicant had never conducted himself in that manner towards other learners and that there was nothing wrong with teachers telling learners that they loved them, it was the way it came across that made the Complainant uncomfortable. She further denied that the applicant had treated all the learners the same by hugging and telling them that he loved them. She testified that it was noticeable that the applicant’s conduct had adversely affected the Complainant .

[7] Ms Ndlovu, who was the school’s deputy-principal, also testified and confirmed that the Complainant’s mother had contacted her and complained that her daughter had been sexually harassed by a teacher. Ndlovu had as mandated by the School Principal, followed the matter up with the Complainant who had then revealed what the complaint against the applicant was. The applicant was subsequently summoned to the principal’s office, and he had denied the allegations against him.

[8] Ndlovu’s main contention was that it was not normal for educators to give learners hugs except when the occasion called for it, such as where awards were conferred in ceremonies, and when learners had done well in a particular area of school activities. She conceded that she had hugged female learners especially when they had done well in particular areas or when they were in distress and needed comforting. She nevertheless deemed it inappropriate for teachers to habitually hug learners to the point where they felt uncomfortable. Ndlovu confirmed that at no stage did she see the applicant behaving inappropriately towards the learners. She further testified that to the extent that the applicant had asked the learners personal and intimate questions, such questions did not fall within the curriculum, even if they related to lessons in reproductive health, which only took place in the first term of the year.

[9] The applicant relied on his sole evidence, which may be summarised as follows:

9.1. 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 did not limit his interaction with them to the prescribed curriculum, especially when counselling them on the ‘general evils of life’.

9.2. In November 2018 he had a conversation with the Complainant following an incident when he saw her at school in a company of a group of schoolboys. He testified that he had merely confronted the Complainant to advise her to be careful around boys at school, and her response was that there was no need for him to be concerned, as she only dated girls.

9.3. On the next occasion, the applicant had informed the Complainant that they should continue their earlier conversation and that she should come to his class. She indeed came and accompanied by her friend, ‘KM’. He had only directed his question to the Complainant and asked her whether if she was dating, she had a girlfriend, and how did she make choose partners.

9.4. The applicant testified that the Complainant appeared to be ‘sensitive, about her ‘preferences’ and he thus did not pursue the conversation. As they were walking out of the office, he confirmed that he had hugged the Complainant and thereafter her friend and told the former that he ‘loved her for being ‘open, brave, and honest’ about her private life.

9.5. He denied that he kissed the Complainant on the forehead as they walked out of the classroom. He first became aware of complaints against him at the internal processes but had denied that he had ever kissed or ‘squeezed’ learners when hugging them. He insisted that he had never kissed the Complainant nor any other learner. He conceded that he knew that such conduct constituted misconduct.

9.6. He criticised the inconsistencies in the versions of the Complainant and ‘KM’ regarding how often and when the incidents allegedly took place, and further how many other learners had witnessed them. He contended that had the Complainant raised any concerns about being hugged, he would have stopped doing so. He however considered her as a daughter and had no other intentions.

9.7. He conceded that he told the Complainant that he loved her. He however denied that he had ‘squeezed’ her and contended that she was not the only learner that he told he loved. He stated that as an Educator, part of his duties included being a parent and social worker. His use of the word ‘love’ became an incentive for rebellious learners, as many relied on him for various things, especially those that came from broken homes.

9.8. The applicant when asked the reason the Complainant would out of 1400 other learners seek to falsely implicate him, his response was that this was probably due to a ‘third force’ which coached her and her friend with the sole purpose of removing him from the school. The applicant when probed further could not say the reason why anyone at the school would want him removed, nor could he substantiate his contentions in that regard.

The Arbitrator’s findings:

[10] The Arbitrator found that the applicant 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;

10.1 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. This contrasted with the applicant’s version which was not collaborated.

10.2 Arising from the inconsistencies in the versions of the Complainant and ‘KM’ in respect of whether the former was kissed on the forehead by the applicant, the Arbitrator concluded that the Department had not discharged its onus to demonstrate that the offence in question took place.

10.3 The Arbitrator however rejected the applicant’s version that his questions to the complainant about her private life or telling her that he loved her were merely innocent. Such conduct was inappropriate and of a sexual nature and was equally serious within the school environment. The Arbitrator concluded that such conduct affected the well-being of the learner, and irretrievably destroyed the employment relationship. Accordingly, a dismissal was appropriate in the circumstances.

Evaluation:

Condonation:

[11] The review application was filed outside the time frames contemplated in section 145(1) of the LRA, and had sought condonation which the Department. This Court under the provisions of section 145(1A) of the LRA, may at its discretion, condone non-compliance with the stipulated timeframes.

[12] The principles applicable where condonation is sought and whether good cause was shown are fairly trite. In the exercise of its discretion, the Court will take into account a variety of interrelated factors including the degree of lateness, the explanation for the delay, the prospects of success, and the importance of the case[5]. Ultimately, and upon a consideration of all these factors, the principal enquiry is whether it would be in the interests of justice

to grant condonation[6]. Of further importance is that an applicant seeking an indulgence must proffer a full account for the delays, which covers the entire period of those delays, and moreover, that the explanation must be reasonable enough to excuse the default.[7]

[13] The arbitration award having been delivered to the parties on 13 May 2019 by the ELRC, the applicant’s contention

was that he only received a copy on 31 May 2019. The review application was served on 11 September 2019, which makes the delay about 8 weeks outside the stipulated time periods. The delay is indeed excessive as submitted on behalf of the Department. I am however of the view that the delay is not excessive in the extreme.

[14] The applicant attributed the delay to the fact that he is a member of Legal Wise. He had upon receipt of the award consulted with

his attorneys for the purposes of assessing his prospects of success in support of his application for his legal insurance claim. All the relevant documents for the claim were dispatched to Legal Wise for processing on 5 June 2019. It was only after several follow-up inquiries were made with the insurer that the latter had on 23 July 2019 confirmed that it would cover his legal expenses in respect of the current proceedings.

[15] In opposing the condonation application, the Department correctly pointed out that the explanation was lacking in detail, and does not cover the entire period of the delay. It was correctly pointed out that other than the gaps in the explanation for the delays between 31 May 2019 and 23 July 2019, nothing further was said in respect of what caused the delays thereafter, until this application was served on the Department on 11 September 2019, and filed with the Registrar of the Court on 17 September 2019.

[16] Even if there is some explanation for the delay, the issue remains that it is not sufficient for the applicant to simply attribute blame to Legal-Wise for taking long to approve his claim, or to the fact that his attorneys could not reach him for consultations. The latter explanation was not even pleaded in the founding affidavit and was raised from the bar. From his averments he only mentioned one instance in June/July 2019 when he made follow ups with Legal Wise. Clearly the applicant was supine in pursuing his matter. The Court is therefore not satisfied that the applicant has proffered a full and acceptable explanation for the delay.

[17] Ordinarily in view of the applicant’s failure to proffer a full and reasonable explanation for the delay, the application for condonation should be dismissed and that ought to be the end of the matter to the extent that the prospects of success would be immaterial[8]. However, it has already been stated that the delay was not excessive in the extreme. Furthermore, in the light of the importance of this matter and the significance of the issues arising from the facts of this case, I am of the view that the interests of justice dictate that condonation be granted and for the issues to be disposed of on the merits.

The merits:

[18] The principles applicable in respect of review applications are fairly settled. The consideration is whether or not the arbitrator’s

ultimate outcome falls within the bands of reasonableness.[9] In Head of the Department of Education v Mofokeng and Others[10] it was held that the failure by the arbitrator to apply her mind to the issue which are relevant would ordinarily constitute an

irregularity but for an award to be susceptible to being set aside, it must in addition to the irregularity, result in the misconception

of the real inquiry to be determined or the ultimate outcome must be unreasonable.

[19] In applying the above principles, as a starting point, the Court needs to point out that even if the applicant was charged in terms of section 18(1)(q) of the EE, taking into account that a child was central to this dispute, section 28(1)(d) of the Constitution of the Republic of South Africa[11], provides that; ‘(e)very child has the right to …be protected from maltreatment, neglect, abuse or degradation’.

[20] 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. (Of course the gender of the educator is not an issue, as the position of protector and care-giver equally applies to female educators)). It is against this basic premise together with the review test that the Court must now determine whether the Arbitrator’s award is susceptible to a review.

[21] The primary grounds upon which a review of the award was sought were inter alia that the Arbitrator’s focus was on charges that were not specifically put to the applicant to answer to, i.e., whether there was an offence of sexual harassment, when the issue was whether the applicant had behaved in a disgraceful and inappropriate manner.

[22] It is correct as per the notice of allegations, that central to these was that on or about 27 November 2018, the applicant had conducted himself in an ‘improper, disgraceful or unacceptable manner whilst on duty’, within the contemplation

of section 18(1)(q) of the EE Act. Section 17(1)(b) and (c) on the other hand relates to misconduct pertaining to sexual assault or having sexual relations with a learner.

[23] Of course the above provisions are not mutually exclusive, albeit section 17(1)(b) and (c) is specifically directed at sexual conduct by the offender. At the core of these provisions regardless, is whether the impugned conduct by the teacher is regarded as improper, disgraceful and unacceptable vis-à-vis a learner. In the end however, it has long been held in EOH Abantu (Pty) Ltd v CCMA & Others[12] that charges must be precisely formulated and specific enough for the employee to answer them. The LAC cautioned that the approach adopted by courts and arbitrators must not be formalistic or technical. This is because lay persons often craft the charges too narrowly or incorrectly, and that the categorisation of misconduct in the charge sheet is of less importance[13].

[24] From the above principles, it follows that the fact that the Arbitrator concluded that the conduct in question amounted to sexual harassment as defined, does not in my view detract from the fact that on the evidence as a whole, such conduct nonetheless fell within the confines of section 18(1(q) of the EE Act . Even if it can be said that there might be some misconception of the enquiry by the Arbitrator as contemplated in Mofokeng[14], such misconception is not of a nature as to render the entire award reviewable. This is so in that unwelcomed hugging with a squeeze,

accompanied by words such as ‘I love you’ cannot be sugar-coated to amount to anything other than sexual innuendo or unacceptable conduct contemplated either within the

meaning of section 17(1)(b) and (c) or of section 18(1)(q).

[25] A further ground of review raised was that the Arbitrator committed an irregularity in attaching undue weight on the Complainant’s evidence, which in turn resulted in her ignoring the entire evidence including his own. In this regard, the complaint was that the Arbitrator ignored the evidence of Ndlovu that the Complainant did not in their conversation, mention that the applicant had frequently hugged and kissed her. It was further submitted that the Arbitrator ignored the inconsistencies between the evidence of Complainant and ‘KM’.

[26] In addressing the above ground, it is my view that what the Complainant said to Ms Ndlovu is not determinative of the probabilities of her evidence, and it is irrelevant whether she had revealed all the specifics of the incidents to Ndlovu. What was of more relevance was the Complainant’s version before the Arbitrator, and how that evidence was analysed.

[27] It is however significant to note that the Arbitrator had concluded that the allegations that the applicant had kissed the Complainant on the forehead were not proven, and thus no more need be added on the issue. It is therefore not correct that the Arbitrator failed to deal with any inconsistencies between the versions of the Complainant and that of ‘KM’

[28] The review application however ought to be disposed of in the light of the applicant’s own version. He had conceded that he

had indeed hugged the Complainant and told her that he loved her. Of course he downplayed the significance and impact of his conduct,

contending that he had merely extended fatherly care to his ‘children’ when clearly this was not the case.

[29] The Arbitrator concluded that the conduct of hugging and ‘squeezing’ the Complainant was not innocent and/or casual. Other than this unwelcomed physical contact, the applicant despite his denials, clearly asked the Complainant inappropriate personal questions about her private life, thus invading her personal space and privacy.

[30] There is a fine line between hugging and telling learners as a term of endearment that they are loved, and saying exactly the same thing with nefarious intentions, which in this case caused the Complainant unease and discomfort, resulting with her hiding from the applicant as a teacher because he was pestering her to come and see him privately in his classroom when the other learners were not present. The Applicant crossed that line, especially after even on his own version, the Complainant told him that she had no interest in boys beyond being friends with them at school. For reasons that are not clear, the applicant nevertheless chose to follow up this line of questioning with the Complainant even when he became aware that these

made her uncomfortable and ‘sensitive’ to use his own words. Such enquiries about the Complainant’s private life

definitely created a hostile learning environment for her, and the applicant’s conduct towards her was improper, disgraceful, and unacceptable as contemplated in terms of section 18(1)(q) of the EE Act.

[31] A material issue that was placed before the Arbitrator, and which for reasons that are not clear was ignored in the award, pertained to the applicant’s background leading to her employment by the Department. Documentation was discovered by the Department during the pre-arbitration meeting and placed before the Arbitrator. This revealed that there were previous allegations of sexual harassment made against the applicant by another learner at Senaoane Secondary School where he was employed as an educator until

his resignation in July 2014. Following the complaint, the applicant was placed on precautionary transfer. Before the complaint

was fully investigated and before he called be called to a hearing, the applicant chose to hand in immediate resignation. The Department

had nevertheless on 31 August 2014 issued a notice of discharge to the applicant in terms of section 14(1)(d) of the EE Act, and the matter was then reported to the South African Council of Educators (SACE) for investigations.

[32] In the light of the above circumstances, it is a mystery as to why and how the applicant again found himself in the employ of the

Department at a different school in 2016. It was readily conceded on behalf of the Department that these monumental lapses on its part were as a result of lack of due diligence in its recruitment processes, especially within an education environment. Be that as it may, and to the extent that the applicant did not avail himself to fully answer to the allegations against him in 2014, it is apparent that there appeared to be a pattern of inappropriate conduct towards learners in his spell as an educator.

[33] Other than the above, and coming back to the facts of this case and the grounds of review sought to be relied upon, I am on the whole, satisfied that the evidence against the applicant demonstrated an individual who had committed misconduct against a learner, and 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. The evidence points the applicant as someone who sought to take advantage of the Complaint by prying into her private life and invading her personal space and bodily integrity, in the guise of being caring and fatherly. He betrayed the trust of the Complainant through his conduct and created an unhealthy, insecure and hostile environment for her.

[34] Clearly on the facts, the applicant has no reason to be anywhere near learners after the incident in 2014. Equally so, the fact that the applicant throughout had persisted with his denials of the allegations, only to try and justify his actions, is indicative

of his refusal to show any contrition. He instead chose to point fingers for the position he found himself in on unknown ‘third

forces’ with no evidence to back up his conspiracy theories. Clearly the ultimate sanction of a dismissal was appropriate in the circumstances.

[35] It is against all the above factors that it ought to be concluded that in accordance with the approach in Goldfields[15], the Court is satisfied that the Arbitrator dealt with the matter with the minimum of legal formalities; afforded the parties a full opportunity to have their say in respect of the dispute; identified the dispute she was required to arbitrate and understood its nature of that dispute. The Arbitrator further dealt with the substantial merits of that dispute and most importantly, arrived at a decision that falls within a band of reasonableness based on the evidence before her. This therefore means that the review application ought to fail. I have further had regard to the requirements of law and fairness, and it is deemed appropriate that no order as to costs be made.

[36] In the premises, the following order is made:

Order:

1. The late filing of the review application is condoned.

2. The applicant’s application to review and set aside the

arbitration award dated 9 May 2019 issued by the third respondent under case number PSES 933-18/19 is dismissed.

3. There is no order as to costs.

Edwin Tlhotlhalemaje

Judge of the Labour Court of South Africa

APPEARANCES:

For the Applicant: Adv. T.M. Sadike, instructed by Oosthuizen Du Toit Berg & Boon Attorneys For the First Respondent: Adv. S. Mahlangu, instructed by State Attorney: Johannesburg.

[1] Act 66 of 1995, as amended.

[2] Act 76 of 1998, as amended.

[3] Section 17 reads as follows: Serious misconduct (1) An educator must be dismissed if he or she is found guilty of- (a) … (b) committing an act of sexual assault on a learner, student or other employee; (c) having a sexual relationship with a learner of the school where he or she is employed; (d) … (2) If it is alleged that an educator committed a serious misconduct contemplated in subsection (1), the employer must institute disciplinary proceedings in accordance with the disciplinary code and procedures provided for in Schedule 2.

[3] Section 17 reads as follows:

Serious misconduct

(1) An educator must be dismissed if he or she is found guilty of-

(a) …

(b) committing an act of sexual assault on a learner, student or other employee;

(c) having a sexual relationship with a learner of the school where he or she is employed;

(d) …

(2) If it is alleged that an educator committed a serious misconduct contemplated in subsection (1), the employer must institute disciplinary proceedings in accordance with the disciplinary code and procedures provided for in Schedule 2.

[4] Section 18 reads as follows: Misconduct (1) Misconduct refers to a breakdown in the employment relationship and an educator commits misconduct if he or she- (a) fails to comply with or contravenes this Act or any other statute, regulation or legal obligation relating to education and the employment relationship; (b) … (q) while on duty, conducts himself or herself in an improper, disgraceful or unacceptable manner; (r) …

[4] Section 18 reads as follows:

Misconduct

(1) Misconduct refers to a breakdown in the employment relationship and an educator commits misconduct if he or she-

(a) fails to comply with or contravenes this Act or any other statute, regulation or legal obligation relating to education and the employment relationship;

(b) …

(q) while on duty, conducts himself or herself in an improper, disgraceful or unacceptable manner;

(r) …

[5]Melane v Santam Insurance Co. Ltd 1962 (4) SA 531 (A) at 532B – E.

[6] Grootboom v National Prosecuting Authority and Another (2014) 35 ILJ 121 (CC) at paras 22 – 23.

[7] Van Wyk v Unitas Hospital and Another [2007] ZACC 24; 2008 (2) SA 472 (CC) at para 22.

[8] NUM v Council for Mineral Technology 1999 3 BLLR 209 (LAC) at 211G – H.

[9] See Sidumo and Another v Rustenburg Platinum Mines Ltd and Others (2007) 28 ILJ 2405 (CC) at para 110.

[10] (2015) 36 ILJ 2802 (LAC) at para 30 - 33.

[11] The Constitution of the Republic of South Africa, 1996 (Act No 108 of 1996).

[12] [2019] ZALAC 57; (2019) 40 ILJ 2477 (LAC); [2019] 12 BLLR 1304 (LAC).

[13] At paras 15 – 17.

[14] Supra.

[15] Gold Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v Commission for Conciliation Mediation and Arbitration and Others [2013] ZALAC 28; [2014] 1 BLLR 20 (LAC); (2014) 35 ILJ 943 (LAC) at para 20.