Education Laws Amendment Act

22 N~vember 200(j ~ No. 1 IC)5, I DIE PRESIDENSIE —..— N(). 21783 ..- I

22 N(wnber’ ?000 . VOL. 425 —— No. 1195. It is hereby notified thi~t the President has assented to the ‘ fo!lowing Act which is hereby p u b l i s h e d for ymeral in forTLation:- I 1 Hierby word bekend gemaak &tt die Presi(lent sy gmxl- ht.uring yhe~ he[ Jan die ondersta:mde Wet tial hierby ter ~l[Sernene ill[ig[ing gepubliseer wor~i:-- —.—— ..-L--- ,, No. 21783 Act NO. 53, ~()()() . — . . — __ GC)VERNMENT GAZETTE. 22 NO”VEMBER 2000 .— EL) UCA-l i(JX L,4W’S AhlENr)MENI’ ACT, 2W0 GENERAL EXPLANATORY NOTE: [ 1 Words in bold type in square brackets indicate omissions from existing enactments. Words underlined with a solid line indicate insertions in existing enactments. (English text signed by the President.) (Assented to 17 November 2000.) ACT To amend the South African Qualifications Authority Act, 1995, so as to increase the representation of organised labour on the Authority; to amend the South African Schools Act, 1996, so as to make further provision for public schools on private property; to provide for the governance of a new public school until a governing body is constituted; and to provide for safety measures at public schools; to amend the Employment of Educators Act, 1998, so as to substitute certain definitions; to make provision for the appointment of educators to new public schools, public further education and training institutions and public adult learning centres; to amend the provisions dealing with incapacity, misconduct and appeals; to make provision for an incapacity code and procedure and a disciplinary code and procedure; to amend the Further Education and Training Act, 1998, so as to provide additional functions for the council of a public further education and training institution and to amend provisions relating to exemptions of existing private institutions; and to provide for matters connected therewith. B E IT ENACTED by the Parliament of the Republic of South Africa, as follows: Amendment of section 4 of Act 58 of 1995

1. Section 4 of the South African Qualifications Authority Act, 1995, is hereby amended by the substitution in subsection (3) for pardgraph (e) of the following 5 paragraph: “(e) [two] three members nominated by the national organisations representing organised labour; ”. Amendment of section 14 of Act 84 of 1996, as amended by section 5 of Act 100 of 1997 10

2. Section 14 of the South African Schools Act, 1996, is hereby amended by the substitution for subsection (1) of the following subsection: “(1 ) Subject to the Consrirurion and [this Act] an expropriation in terms of section 58 of land or a real right to use the property on which the pub[ic school is situated, a public SChOOl may be provided on private property only in terms of an 15 agreement between the Met?lber of the Executive Council and the owner of the p;ivate property.”. i ! I 4 x,) 21 7s.; Acl No. 53.2000 —. ~:]>~C,,~rI()~- L,L\4”S .\hl F;NDh4 EN T .4C”T. 2000” G()\’ERNMI;NT GAZETTE, z? NOVEhlBER ?000 —_ .Anlendnlent of section 16 of Act 84 of 1996. as amended by section 9 of Act 48 of 1999

3. Section 16 of the South African SCI1OO1S Act, 1996, is heleby amended by the addition of the follo~vins subsection: “(7 ) If a new pt{l)lic .YChOO1 is provided in terms of section 12. the governance of 5 that school vests in the Head of Deporrmenr until a ,qo)’eming both has been constituted in terms of t/7i.Y Act.’”. Amendment 01 Section L(J 01 Act 3401 1YY6, as amemlect by sectmn 001 Act lUU 01 1997

4. Section 20 of the South African Schools Act, 1996, is hereby amended by the 10 substitution for paragraph (k) of subsection ( 1 ) of the following paragraph: “(k) at the request of the Heud of Department, allow the reasonable use under fair conditions determined by the Head ~~Deparrment of the facilities of the SChOOl for educational programmed not conducted by the school;”. Amendment of section 61 of Act 84 of 1996 15

5. The South African Schools Act, 1996, is hereby amended by the substitution for section 61 of the following section: “Regulations

61. The A4ini.rfer may make regulations — (o) to provide for safety measures at publ~schoo[s; (bJ on any matter which must or may be prescribed by regulation under 20 this Act: and (c) on any ‘matter which may be necessary or expedient to prescribe in order to achieve the objects of rhis Act.”. Amendment of section 1 of Act 76 of 1998

6. Section 1 of the Employment of Educators Act, 1998, is hereby amended— (a) by the substitution for the definition of “further education and training institution” of the following definition: “ ‘further education and training institution’ means a further education and training institution as defined in section 1 of the Further Education and Training Act, 1998 (Act No. 98 of 1998), but does not include any private further education and training institution:”; and 30 (b) by the substitution for the definition of “this Act” of the following definition: “ ‘this Act’ includes a regulation and the Schedules to this Act:”. Amendment of section 6 of Act 76 of 1998, as amended by section 15 of Act 48 of 1999 35

7. Section 6 of the Employment of Educators Act, 1998, is hereby amended by the addition to subsection (3) of the following paragraph: ) I I 1 1 “(e) Until the relevant Rovernir?? body or council is established, the appoint- ment, promotion or transfer in a tenlporary capacity to any post on the educator establishment must be made bv the Head of Department where a— (i) new public school is established in terms of the South African Schools Act, 1996, and any applicable provincial law; new further education and training institution is established in terms of the Further Education and Training Act, 1998, and any applicable provincial law; or new public adult learning centre is established in terms of the Adult Basic Education and Training Act, 2000. and any applicable provincia~”. (ii) (iii) 40 45 I - I . _ (1 No. 21783 .Act No. 53, 2000” GtlVERNMENT G,4ZETTE, 22 NOVEMBER 2000 EDUCATION L,4W’S AMENDMEh’T ACT. 2000 Substitution of section 12 of Act 76 of 1998

8. The Employment of Educators Act. 1998, is hereby amended by the substitution for section 12 of the following section: “Discharge on account of ill-health

12. An educator may be discharged on accounl of ill-health in the 5 circumstances referred to in Schedule 1.“. Substitution of section 16 of Act 76 of 1998

9. The Employment of Educators Act. 1998, is hereby amended by the substitution for section 16 of the following section: “Incapable educators

16. If it is alleged that an educator is unfit for the duties attached to the educator’s post or incapable of carrying out those duties efficiently, the employer must assess the capacity of the educator and may take action against the educator in accordance with the incapacity code and procedures for poor work performance as provided in Schedule 1.”. Substitution of section 17 of Act 76 of 1998

10. The Employment of Educators Act, 1998, is hereby amended by the substitution for section 17 of the following section: “Serious misconduct 10 15 (a) (b) (c) (d) (e) (f) 17. (1) An educator must be dismissed if he or she is found guilty of— 20 theft, bribery, fraud or an act of corruption in regard to examinations or promotional reports; committing an act of sexual assault on a learner. student or other employee; having a sexual relationship with a learner of the school where he or she is employed; seriously assaulting, with the intention to cause grievous bodily harm to. a learner, student or other employee; illegal possession of an intoxicating, illegal or stupefying substance; or causing a learner or a student to perform any of the acts contemplated in paragraphs (a) to (e). /-. ~ z ) If it is alleged that an educator committed a serious misconduct I contemplated in subsection (1), the employer must institute disciplinary proceedings in accordance with the disciplinary code and procedures 35 provided for in Schedule 2.”. Substitution of sections 18 to 24 of Act 76 of 1998

11. The Employment of Educators Act. 1998, is hereby amended by the substitution for sections 18 to 24 of the following section: “Misconduct 40 18. (1) Misconduct refers to a breakdown in the em~~ment 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 employ- 1 ment relationship; 45 (b) wilfully or negligently mismanages the finances of the State, a school, a further education and training institution or an adult learning centre; I i I I x No. 217s3 GOVERNMENT GAZETTE, 22 NOVEMBER 2000 Ad N(). 53. 2(}00 EDLIC,ATIOX LAWS AMENDklENT ACT. 200() ( c) (d) (e) u) (g) (h) (i) (j) (k) (1) (m) (}1) (o) (P) (9) (l-) (s) (t) (u) (v) (M’) (x) ()’) (c) without permission possesses or wrongfully uses the property of’ the State. a school, afurther education and training institution. anxlull learning centre, another employee or a visitor; w,ilfully, intentionally or negligently damages or causes loss to the propel~y of the Sta(e. a school. a further education and training institution or an adult learning centre; in tl~ecourse ofdutyendangers thelives ofhilllself orherselfor others by disregarding set safety rules or regulations; unjustifiably prejudices the administration, discipline orefflciencyof the Department of Education. an office of the State or a school. further education and training institution or adult learning centre; misuses his or her position in the Department of Education or a school. further education and training institution or adult learning centre to promote or to prejudice the interests of any person; accepts any compensation in cash or otherwise from a member of the public or another employee for performing his or her duties without written approval from the employer; fails to carry out a lawful order or routine instruction without just or reasonable cause; absents himself or herself from work without a valid reason or permission; unfairly discriminates against other persons on the basis of race, gender, disability, sex, pregnancy, marital status, ethnic and social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language, birth, family responsibility, HIV status, political opinion or other grounds prohibited by the Constitution: performs poorly or inadequately for reasons other than incapacity; without the written approval of the employer, performs work for compensation for another person or organisation either during or outside working hours; without prior permission of the employer accepts or demands in respect of the carrying out of or the failure to carry out the educator’s duties, any commission, fee, pecuniary or other reward to which the educator is not entitled by virtue of the educator’s office, or fails to report to the employer the offer of any such commission, fee or reward; without authorisation, sleeps on duty; while on duty, is under the influence of an intoxicating, illegal, unauthorised or stupefying substance, including alcohol; while on duty, conducts himself or herself in an improper, disgraceful or unacceptable manner; assaults, or attempts to or threatens to assault. another employee or another person; incites other personnel to unprocedural and unlawful conduct: displays disrespect towards others in the workplace or demonstrates abusive or insolent behaviour; intimidates or victimises fellow employees. learners or students; prevents other employees from exercising their rights to free]Y associate with trade unions in terms of any labour legislation; operates any money-lending scheme for employees for his or her own benefit during working hours or from the premises of the educational institution or office where he or she is employed; carries or keeps firearms or other dangerous weapons on State premises, without the written authorisation of the employer; refuses to obey security regulations; gives false statements or evidence in the execution of his or her duties; 5 10 15 lo 25 30 35 40 $5 50 55 [0 N(). 2178.7 — . — . .. GOVERNivtENr GAZETTE. 22 NO\’EMBER 2000” — .4ct No. 53.2000” ED[!C,\TION LAW’S.4MENDMEN TACT ,2000 (au) fidlsifies records c)ranyother docu]?qentatioll: (bb) participates in unproceduml. unprotected or unlawful industrial action: fails or refuses to-- (i) follow a formal programme ofcounselling as contemplated in (cc) item 2(4) of Schedule 1; (ii) subject himself orherself toa medical examination ascontem- plated in item 3(3) of Schedule 1 and in accordance with section 7 of the Employment Equity Act. 1998 (Act No. 55 of 1998); or (iii) attend rehabilitation or follow a formal rehabilitation programme as contemplated in item 3(8) of Schedule 1: (old) (ee) (f) commits a common law or statutory offence; commits an act of dishonesty: or victimises an employee for, amongst others, his or her association with a trade union. (2) If it is alleged that an educator committed misconduct as contem- plated in subsection (1), the employer must institute disciplinary proceed- ings in accordance with the disciplinary code and procedures contained in Schedule 2. (3) If, after having followed the procedures contemplated in subsection (2), a finding is made that the educator committed misconduct as contemplated in subsection (1). the employer may, in accordance with the disciplinary code and procedures contained in Schedule 2, impose a sanction of— (a) counseling; (b) a verbal warning; (c) a written warning; (d) a final written warning; (e) a fine not exceeding one month’s salary; ~) suspension without pay for a period not exceeding three months; (g) demotion; (h) a combination of the sanctions referred to in paragraphs (a) to (j: or (i) dismissal, if the nature or extent of the misconduct warrants dismissal. (4) Any sanction contemplated in subsection (3)(e), (~) or (g) may be suspended for a specified period on conditions determined by the employer. (5) An educator maybe dismissed if he or she is found guilty of— (a) dishonesty, as contemplated in subsection (l)(ee): (b) victimizing an employee for, amongst others, his or her association with a trade union, as contemplated in subsection (1 )~); (c) unfair discrimination, as contemplated in subsection (1 )(k); (d) rape, as contemplated in subsection ( I)(dd); (e) murder, as contemplated in subsection (1 )(dd); (f) contravening section 10 of the South African Schools Act, 1996 (Act No. 84 of 1996), as contemplated in subsection (1 )(dd). Substitution of section 25 of Act 76 of 1998

12. The Employment of Educators Act, 1998, is hereby amended by the substitution for section 25 of the following section: “Appeals 25. ( 1 ) An educator may appeal to the Minister or the Member of the Executive Council, as the case may be, against a decision to demote, ~ 50 transfer or terminate the services of the educator on the grounds of incapacity contemplated in section 16. (2) An educator has a right to appeal to the Minister or the Member of the Executive Council. as the case may be, against the finding by the presiding officer of a disciplinary hearing that the educator has committed miscon- duct, as contemplated in section 17 or 18, and against the sanction imposed in terms of section 18(3)(e) to (i). (3) In lodging an appeal. the educator must comply with the procedure 55 laid down in-Schedule ‘2.”. 1 --$ Ad N(). 53, ?()()() ED L’C,\T lOti 1, .4\\’S 4tvl EN DMENT ACT. 2000 Amendment of section 36 of Act 76 of 1998

13. Section 360ftlle Elllpl(~\n~e[lto fEduc:]torsA ct. 1998, is hereby a m e n d e d- (<j) bY the substitution ;II subsection (1) fcx parayuph (a) of tile fo]lowing paragraph: “(a)delegateto[he Director-Gener~ loranyother person in the service 5 of the Department of Education any power conferred upon the Ministerby orunder this Act, othel- than the power referred to in section [16(10 ),] 25[(3)] or 35, on such conditions as the Minister may determine; or”: and (h) by the subs~itution in subsection (3) for paragraph (a) of the following 10 paragraph: “(a)delegate to the Head of Department or any other person in the ser!ice of the provincial department of education any power conferred upon the Member of the Executive Council by or under this Act. other than the power referred to in section [16(10) or] 15 ~5[(3)], on such conditions as the Member of the Executi\e Council may determine: or”. Insertion of section 38A in Act 76 of 1998

14. The Employment of Educators Act, 1998, is hereby amended by the insertion after section 38 of the following section: “ Transitional arrangements in respect of disciplinary proceedings

38A. Any disciplirmry p roceedings instituted against an educator for an alleged misconduct prior to the commencement of the Education Laws Amendment Act, 2000, must be continued and concluded in terms of Chapter 5 of the Employment of Educators Act, 1998.”, Addition of Schedules to Act 76 of 1998

15. The Employment of Educators Act, 1998. is hereby amended by the addition after section 39 of the following Schedules: “SCHEDULE 1 INCAPACITY CODE AND PROCEDURES FOR POOR WORK PERFORMANCE Z(J 15 30 Codes, rules and standards 1. ( 1 ) The Code of Good Practice contained in Schedule 8 to the Labour Relations Act, 1995 (Act No. 66 of 1995), insofar as it relates to incapacity, constitutes part of this Code and Procedures, in respect of poor work 35 performance. (2) In applying this Code and Procedures, the relevant employer must assess the incapacity of an educator by considering— (a) the extent to which the incapacity impacts on the work of the Department of Education or provincial department of education, or the 40 public school, public further education and training institution or public adult learning centre; (b) the extent to which the educator fails to meet the required performance standards as contemplated in item 2(2); (c) the extent to which the educator lacks the necessary skills to perform 45 in accordance with the educator’s job description; (d) the nature of the educator’s work and responsibilities; and (e) the circumstances of the educator. 14 No. 21 7s3 .Act N(). 53, 2000 CIOV’ERNN4FNT’ G A Z E T T E 2? N[)VEN4BER ?.000 EDLICAT1ON L.A\VS AMENDMENT ACT. 2000” Procedure in respect of poor performance 2. (1) If the employer is of the view that an educmtor, whether on probation or a permanent staff member. is not performing in ticcordance with the job that the educator has been employed to do. the employer must- (u) give \~rittenr easonst otheeducatorw rhyitisn ecessaryt oiIlitiatethe procedure in respect of poor performance; and (b) after serving the written reasons referred to in paragraph (a). meet witll— (i) theeducator; or (ii) the educator and theeducator’s trade union representative ora fellow employee, if the educator so chooses. (2) The performance of educators must be evaluated according to performance standards agreed upon by the parties to the Educators Labour Relations Council. (a) (h) (c) (d) (3) In the meeting referred to in item 2(1 )(b), the employer must— explain the requirements, grade, skills and nature of the job; evaluate the educators performance in relation to the job: indicate the perceived poor performance; and hear the educator or, if the educator agrees. the educator’s trade union representative or a fellow employee on— (i) whether or not the educator has performed in accordance with the requirements of the job; or (ii) reasons why the educator has not performed in accordance with the requirements of the job. (4) After hearing the educator. his or her trade union representative or the educator’s fellow employee. the employer must, if necessary. develop and initiate a formal programme of counseling and training to enable the educator to reach the required standard of performance, which must include— (a) assessing the time that it would take for the educator to overcome the poor work performance; (b) on the basis of the assessment referred to in paragraph (a), the establishment of realistic time frames within which the employer will expect the educator to meet the required performance standards; and (c) the identification and provision of appropriate training. (5) (a) If the educator fails or refuses to follow a formal programme of counseling and training as contemplated in subitem (4), the employer may initiate disciplinary proceedings against the educator for misconduct as contemplated in section 18. (b) If the educator, after being subjected to a formal pro.gramme of counseling and training as contemplated in subitem (4), fails to meet the required performance standard for the post, the employer. after consulting the educator, may— (i) provide further training to the educator; (ii) provide counseling to the educator; (iii) transfer the educator; (iv) demote the educator; or (v) terminate the employment of the educator. (6) (a) Before transferring or demoting an educator or terminating his or her services for poor performance, the employer must convene an inquiry in order to give the educator the opportunity to make representations in response to the allegations against him or her, which shall include the right to– (i) (ii) (iii) (iv) call. examine and cross-examine witnesses; bring all relevant documentation to the attention of the person presiding over the inquiry, and have access to documents produced in evidence by the employer; be represented at the proceedings by a co-employee or trade union representative; have an interpreter present if the educator so requires: 5 I(J 15 Z() 25 30 35 40 45 50 55 60 ————— —. ““ ‘“”-~ I(i h’,). 21783 ~C)V}:RNhl ENT G,\?,l;TrE. ~~ NOVEMB13R 2000 ,\c[ No. 53, 2000 EDUC.ATJON LA\i’S .Ahf ENDhl ENT ACT. ?(KK) (1’) Ietid all rele\ant evidence. including CI idence in mitigation of’ the sanction, if necessary. (b) The provisions of items 5. 7.8 and 9 of Schedule ~ ~PPIY to these inquiries. read with the changes required by the context. (7) (u) The person appointed by the employer to conduct procedures 5 referred to in subitems (1 ) to (4), must be an employee on a higher post level than the educator concerned, and must as far as practically possible be his or her direct supervisor or the immediate superior of such supervisor, (b) If the direct supervisor or the immediate superior of such supervisor of the educator is the cause for the procedures referred to in sLlbitems (1) to 10 (4), the employer must appoint a person within the Department of Education or the provincial department of education, as the case may be, who is on the same level as the supervisor or the immediate superior of such supervisor. INCAPACITY CODE AND PROCEDURES IN RESPECT OF ILL HEALTH OR INJURY 15 Procedures in respect of ill health or injury 3. (1) If the employer is of the view that an educator is not performing in accordance with the post requirements that the educator has been employed to perform, as a result of poor health or injury, or an educator applies for a discharge from service on account of continuous ill health or injury. the employer must investigate the extent of the ill health or injury. (2) In conducting the investigation the employer must give the educator, or the trade union representative of the educator or fellow employee, the opportunity to state the case of the educator and to be heard on all the issues that the employer is investigating. (3) (a) Subject to section 7 of the Employment Equity Act, 1998 (Act No. 55 of 1998), the employer must appoint at least one registered medical practitioner to examine the educator at the State’s expense and to report on the educator’s state of health. (b) An educator is entitled to nominate any other registered medical practitioner of his or her choice at the educator’s own expense to report on the educator’s state of health. (c) The record of any medical examination performed in terms of this Act must be kept confidential and may be made available only— (i) in accordance with the ethics of medical practice; (ii) if required by law or court order; or (iii) if required by the employer to determine the extent to which the educator is able to perform in accordance with the job requirements. (d) (i) The medical practitioner contemplated in paragraph (a) must, on completion of the medical examination, provide the employer with a report on the nature and extent of the educator’s ill health or injury and whether it is temporary or permanent, and the expected period of the educators incapacity. (ii) The medical practitioner contemplated in paragraph (b) may also submit a report if the educator is dissatisfied with a report contemplated in paragraph (u). (4) Based on the medical reports the employer must determine whether or not the nature of the educator’s ill health or injury is of a temporary or permanent nature and the period of time that the educator is likely to be absent from work. (5) After the investigation of the extent of the educator’s ill health or injury, the employer must provide the educator with a written report setting out the results or findings of the investigation. (6) If the educator’s ill health or injury is of a permanent nature the employer must investigate the possibility of— (a) securing alternative employment for the educator: 20 25 30 35 40 45 50 55 (c) consider the terrnlnatlon ot the educ~tor’s sern’lce With ettect trom a date determined by the employer. (7) If an educator refuses or fails to be subjected to an examination 5 contemplated in subitem (3) when requested to do so by the employer. the employer may initiate disciplinary proceedings against the educator for misconduct as contemplated in section 18. (8) (a) Before acting in accordance with subitem (6), the employer must convene an inquiry in order to give the educator the opportunity to make 10 representations in response (o the allegations against him or her, which shall include the right to- (i) (ii) call, examine and cross-examine witnesses; bring all relevant documentation to the attention of the person presiding over the inquiry. and have access to documents produced in 15 evidence by the employer: be represented at the proceedings by a co-employee or trade union representative: have an interpreter present if the educator so requires; lead all relevant evidence. including evidence in mitigation of 20 sanction, if necessary. (iii) (iv) (v) (b) The provisions of items 5, 7, 8 and 9 of Schedule 2 apply to these inquiries. read with the changes required by the context. (9) If the educator’s ill health is as a result of alcohol or drug abuse. the employer may— (a) counsel the educator; (b) encourage the educator to attend rehabilitation; (c) recommend a formal rehabilitation programme which the educator will be expected to follow at the cost of the employee; or 25 (d) terminate the employment of the educator, if the behavior is repetitive. 30 (1 O) The employer must give the educator or the educator’s representa- tive a written report and consult again with the educator if the educator fails to— (a) follow the formal rehabilitation programme: (b) attend rehabilitation; or (c) address the problem of alcohol or drug abuse. (11) After consulting with the educator as contemplated in subitem (10) the employer may initiate disciplinary proceedings against the educator for misconduct as contemplated in section 18. SCHEDULE 2 35 40 DISCIPLINARY CODE 44ND PROCEDURES FOR EDUCATORS Purpose and scope 1 (a) (b) (c) (d) (e) (f) (g) The purpose and scope of this Code and Procedures is to— support constructive labour relations in education; promote mutual respect among educators and between educators and 45 the employer; ensure that employers and educators share a common understanding of misconduct and discipline; promote acceptable conduct; provide educators and the employer with a quick and easy reference 50 for the application of disciplinary measures; avert and correct unacceptable conduct; and prevent arbitrary or discriminatory actions by employers towards educators. . ..—. -.— 2(I No. 21783 G()\ERNMENT Ci,AZETTli. 22 NOVEMBER 2000 Act No. 53.2000” EDUCATION 1. AN’S}\MENDhfENT /4 CT,200(l” Principles

2. The principles underlying the Code and Procedures and any decision to discipline an educator are that— ((7) (b) di~cipline is a corrective and not a punitive measure: discipline must be applied in a prompt, fair. consistent and just 5 manner: discipline is the responsibility of an employer; a disciplinary code is necessary for the efficient delivery of service and the fair treatment of educators, and ensures that educators— (i) ha~e a fair hearing in a formal or informal setting; (ii) are timeously informed of allegations of misconduct made 10 against them; (iii) receive written reasons for any decision taken; and (iv) have the right to appeal against any decision: as far as possible, disciplinary procedures are held at the place of work 15 and are understandable to all educators; if an educator commits misconduct that is also a criminal offence, the climinal procedure and the disciplinary procedure will continue as separate and different proceedings; and disciplinary proceedings must be concluded in the shortest possible 20 time frame. (c) (d) (e) M (g) Code of Good Practice 3. (1) The Code of Good Practice contained in Schedule 8 of the Labour Relations Act, 1995 (Act No. 66 of 1995), insofar as it relates to discipline, constitutes part of this Code and Procedure. (2) (a) The conduct of an educator that may warrant a disciplinary action 25 is listed in sections 17 and 18. (b) After consultation with the trade unions, the Minister may prescribe other conduct which constitutes misconduct. (3) In dealing with misconduct contemplated in section 18, the employer 30 must assess the seriousness of the alleged misconduct by considering-— (a) the extent to which the misconduct impacts on the work of the Department of Education or provincial department of education. or the public school, public further education and training institution or public adult learning centre; 35 (b) the nature of the educator’s work and responsibilities: and (c) the circumstances in which the alleged misconduct took place. (4) The form of disciplinary procedure to be followed in any case must be determined by the employer. Sanctions and disciplinary procedures pertaining to less serious 40 misconduct cases 4. (1)(a) The employer must delegate the function to deal with misconduct referred to in subitems (2) to (6). to- (i) the head of the institution or office where the educator is employed; or (ii) the immediate superior of the educator where the educator concerned 45 is the head of the institution or office; (b) The employer must determine in writing the specific acts of misconduct to be dealt with under the delegation referred to in paragraph (a). (2) In cases where the seriousness of the misconduct warrants counsel- 50 Iing, the employer of the educator must— (a) bring the misconduct to the educator’s attention; (b) determine the nature of the misconduct and give the educator an opportunity to respond to the allegations; ~) No 21783 GO\ ’ERNMENT GAZETTE. 22 NOVEMBER 2000 .4ct No. 53, 2000 EDUCATION LAWS Amendment ACT. 2000 (c) after consultation with the educator decide on a method to remedy the conduct; and (d) take steps to implement the decision as contemplated in subitems (3), (4) or (5). (3) (a) In cases where the seriousness of the misconduct warrants it, the 5 employer of the educator may give the educator a verbal warning. (b) The employer must inform the educator that further misconduct may result in more serious disciplinary action. (c) The employer must record the warning contemplated in paragraph (b). 10 (4) In cases where the seriousness of the misconduct warrants it, the employer may give the educator a written warning. The following provisions apply to written warnings: ia) 15 The written warning must be in accordance with Form A attached to this Schedule. The employer must give a copy of the written warning to the educator. who must acknowledge receipt on the copy. If the educator refuses to sign the copy for acknowledgement of receipt, the employer must hand the warning to the educator in the presence of another educator. who shall sign in confirmation that the 20 written warning was conveyed to the educator. The written warning must be filed in the educator’s personal file. A written warning remains valid for six months. If, during the six-month period, the educator is subject to disciplinary action. the written warning may be taken into account in deciding on 25 an appropriate sanction. (i) if the educator disagrees with the written warning or wishes to add any information, he or she may lodge such additional information or written objection against the sanction. (ii) The additional information and the objection referred to in 30 paragraph (a) must be filed with the written warning. (5) In cases where the seriousness or extent of the misconduct warrants it, the employer must give the educator a final written warning. The following provisions apply to a final written warning: (a) A final written w=ing must be in accordance with Form B attached to 35 this Schedule. The employer must give a copy of the final written warning to the educator, who must sign a copy to acknowledge receipt. If the educator refuses to sign a copy to acknowledge the receipt of the final written warning, the employer must hand the warning to the 40 educator in the presence of another educator, who must sign in confirmation that the written warning was conveyed to the educator. The final written warning must be filed in the educator’s personal file. A finaI written warning remains valid for six months. If during the six-month period, the educator is subject to disciplinary 45 action, the final written warning may be taken into account in deciding on an appropriate sanction. (i) If the educator disagrees with the final written warning or wishes to add any information, he or she may lodge such additional information or written objection against the sanction. The additional information and the objection referred to in subparagraph (i) must be filed with the final written warning. (ii) 50 (b) (c) (d) (e’) (f) (<q) (b) (c) (d) (e) (“f) (g) 24 No. 21783 Act N(J. 53, 2000 —— C,O\rER\’MENl- (;/\ ZF.Trl.22N0VF\l BER 2000” . — .. EDUC.!TION L/\\VS AhfFNDkIFNT AC-T, 200(1 I (6) (u) If the seriousness or extent of the misconduct does not warrant a formal enquiry the procedures in para~raphs (h), (c) and (d) must be followed. (b) The employer must convene a meeting where— (i) (ii) (iii) the educator and, if he or she so chooses, the educator’s trade union representative or other employee who is based at the institution, are present; reasons are given to the educator as to why it is necessary to initiate this procedure: and the educator or the educator’s representative is heard on the misconduct and reasons therefor. (c) After hearing the educator or his or her representative, the employer must— (i) counsel the educator: (ii] issue a verbal warning; (iii) issue a written warning: (iv) issue a final written warning: (v) impose a combination of any of the above; or (vi) take no further action. (d) (i) An educator may not appeal against any of the above sanctions but may lodge an objection in writing, against the sanction imposed. or provide additional written information. (ii) The objection or additional information must be filed together with a record of the sanction in the educator’s personal file. (7) For the purpose of determining appropriate disciplinary actions, valid warnings for similar offences by the educator must be taken into account. Notice of enquiry for misconduct cases other than those contemplated in item 4 5. (1) The educator must be given written notice at least five working days before the date of the hearing. (2) The written notice of the disciplinary hearing must be gi~>en in accordance with Form C attached to this Schedule and must contain— (a) a description of the allegations of misconduct and the main evidence on which the employer will rely; details of the time, place and venue of the hearing: when delivered by registered post, the date on which the letter was received by the educator as indicated by the post office: information on the rights of the educator to representation by a fellow) educator or a trade union representative: information on the rights of the educator to representation by a legal representative, if the employer so directs; and information on the rights of the educator to call witnesses at the hearing. (b) (c) (d) (e) (f) (3) (a) The educator must acknowledge receipt of the notice by signing a copy of the notice. (b) If the educator refuses to sign for the receipt of the notice. it tnust be given to the educator in the presence of a fellow educator. who must sign in confirmation that the notice was conveyed to the educator. Suspension 6. (1) In the case of serious misconduct in terms of section 17, the employer may suspend the educator on fLlll pay for a maximum period of three months. (2) In the case of misconduct in terms of section 18, the employer may suspend an educator in accordance with the procedure contemplated in subitem (1), or transfer the educator to another post if the employer believes 5 10 15 20 25 30 35 40 45 y.) 55 26 NO. 21783 .Act No. 53,2000 GOVERNMENT G.4ZFTTE.

22 NOVEMBER 2000 EDUC.AT1[?N LAW’S.AL4ENDMENT .4 CT. 2(1()() that the presence of the educator may jeopardise any investigation into the alleged misconduct. or endanger the well-being or safety of any person at the workplace. (3) (a) lf an educator is suspended or transferred, the employer must do everything possible to conclude a disciplinary h6aring within one tmonth of 5 the suspension or transfer: (b) The presiding officer may decide on any further postponement. Such a postpouernent must not exceed 90 days from the date of suspension. (c) If the proceedings are not concIuded within 90 days, the employer must enquire from the presiding officer what the reasons for the delay are 10 and give directions for the speedy conclusion of the proceedings. (d) At the time of the enquiry contemplated in paragraph (c) the employer may, after giving the educator an opportunity to make representations, direct that the further suspension will be without pay. Conducting disciplinary hearing 7. (1) The disciplinary hearing must be held within ten working days after the notice referred to in item 5 is delivered to the educator. (2) The presiding officer must be appointed by the employer. (3) If the educator so chooses, he or she maybe represented at the hearing by a fellow educator or a representative of a trade union. (4) If the presiding officer deems it necessaly, an interpreter must assist at the hearing. (5) Subject to section 3(3) of the Promotion of Administrative Justice Act, 2000 (Act No. 3 of 2000), if the presiding ofhcer so directs, the employer or educator may be represented by a legal representative. (6) If the educator fails to attend the hearing and the presiding officer concludes that the educator does not have a valid reason, the hearing may continue in the absence of the educator. (7) The presiding officer must keep a record of the notice of the disciplinary hearing and of the proceedings. (8) The presiding officer must read the notice for the record before the start of the hearing. 15 20 25 30 (9) (a) The representative of the employer must lead evidence on the conduct giving rise to the hearing. (b) The educator or the educator’s representative may question any 35 witness called by the representative of the employer. (10) For the purposes of the investigation and hearing, the representative of the employe~ may summon any person who- (a) may be able to give information of material importance concerning the subject of the investigation or hearing; or (b) has in his or her possession, custody or control, any book, document or object which may have a bearing on the matter. (11 ) Where the educator has requested that a person be present at a hearing as his or her witness, the employer must provide the educator with the ass~stance to ensure that such witnesses attend. (12) The summons to appear at a disciplinary hearing, must be in accordance with Form D attached to this Schedule and served on the person by way of delivery by— (a) h a n d; (b) telefax; or (c) registered post. (13) The date on which the summons is served will be when delivering by— (u) hand, the date of delivery: (b) telefax, the date reflected on the telefax; or 40 45 50 55 2b’ N{). 21783 Act No. 53.2000 GO\ ’ERNNIENTG.4ZFTTE.

22 NO\’EMBER 200() EDUC’ ATION LAWS ,4hlEND!vtENT ACT. 2000 (c) registered post. the date on which the letter was recei~ed by the educator as indicated by the post office. (14) (u) The educator or his or her representative must be given an opportunity to lead evidence. (b) The representative of (he employer may question the witnesses of the 5 educator. ( 15) The presiding officer may ask any witness questions for clarifica- tion. (16) The presiding officer must give a finding whether or not the educator has committed the misconduct, and must inform the educator of the finding 10 and the reasons therefor. (17) (a) Before deciding on a sanction, the presiding officer must give the educator an opportunity to present evidence in mitigation. (b) The representative of the employer may present evidence regarding aggravating circumstances. (18) The presiding officer must communicate the final outcome of the hearing to the employer and the educator within five working days after the conclusion of the disciplinary enqui~, and the outcome must be recorded on the personal file of the educator. Steps after disciplinary hearing 8. (1) If the presiding officer finds that an educator has committed misconduct, the presiding officer must, on behalf of the employer, impose a sanction, as contemplated in section 18(3) of the Act. taking into account— (a) the nature of the case; (b) the seriousness of the matter; (c) the educator’s previous record; and (d) any mitigating or aggravating circumstances. (2) With the agreement of the educator, the presiding officer may impose the sanction of suspension without pay or demotion as an alternative to dismissal. (3) If an educator is demoted, he or she may apply for promotion after a year without prejudice. (4) The empIoyer may not implement the sanction during an appeal by the educator. Appeals 15 20 25 30 35 9. (1) An educator may appeal against a finding or sanction by making an application in accordance with Form E attached to this Schedule. (2) The educator must, within five working days of receiving notice of the final outcome of a disciplinary hearing, submit the appeal form to the Member of the Executive Council or the Minister, as the case may be. 40 (3) On receipt of the application referred to in subitem (1), the Member of the Executive Council or the Minister, as the case may be, must request the employer to provide him or her with a copy of the record of the proceedings and any other relevant documentation. (4) If the Member of the Executive Council or the Minister, as the case 45 may be, chooses to allow further representations by the educator or his or her representative. he or she must notify the educator of the date, time and place where such representation must be made. (5) The Member of the Executive Council or the Minister, as the case may be, must consider the appeal, and may— (a) uphold the appeal; (b) in cases of misconduct contemplated in section 18, amend the 50 sanction; or (c) dismiss the appeal. (6) The employer must immediately implement the decision of the 55 Member of the Executive Council or the Minister, as the case may be. 30 No. 21783 Act NO. 53,2000 G O V E R N M E N T G A Z E T T E 22 NOVEMBER 2000” EDLICATION LAW’S AMENDMENT ACT. 2000 FORM A WRITTEN WARNING [DATE] [NAME OF EMPLOYEE] [PERSAL NO.] [PERSONAL DETAILS OF THE EMPLOYEE] 5 This is a written warning in terms of the disciplinary procedure. Should YOU engage in further misconduct, this written warning may be taken into account in determining a more serious sanction. The written warning will be placed in your personal file and will remain 10 valid for a period of six months from the date of the written warning. If you object to the warning or wish to furnish additional information, you may lodge a written objection or additional information which will be filed together with this warning. The nature of the misconduct is: SIGNATURE OF EMPLOYER DATE SIGNATURE OF EMPLOYEE DATE SIGNATURE OF WITNESS (if applicable) DATE FORM B FINAL WRITTEN WARNING [DATE] [NAME OF EMPLOYEE] [PERSAL NO.] [PERSONAL DETAILS OF THE EMPLOYEE] This is a final written warning in terms of the disciplinary procedure. Should you engage in further transgressions, it could lead to formal misconduct proceedings being instituted against you. The final written warning will be placed in your personal file and will remain valid for a period of six months from the date of the written warning. Should you wish to do so, you may lodge a written objection to this final warning, or provide additional information which will be filed together with this final warning. The nature of the misconduct is: SIGNATURE OF EMPLOYER DATE SIGNATURE OF EMPLOYEE DATE SIGNATURE OF WITNESS (if applicable) DATE FORM C NOTICE OF DISCIPLINARY MEETING [DATE] [NAME OF EMPLOYEE] [PERSAL NO.] [PERSONAL DETAILS OF THE EMPLOYEE] 15 20 25 30 35 40 45 Your are hereby given notice to attend a disciplinary hearing in terms of item 6 of the Dlsclplinary Code. 50 3-J NO 21783 Act No. 53,2000 GO\ ’ERNMENT GAZE7”rE. 22 NOVEMBER 2000” EDUC.4Ti~)N L.4\VS,\MENl>\fENT, \CT. 2000 The alleged misconduct and the available evidence is based on the following e!idencc: [A DETAILED DESCRIPTION OF MISCONDUCT MAY BE AT- TACHED]. 5 The hearing will held at —. [PLACE] on [ DATE] [TIME]. If you do not attend and cannot gi~a~ 10 reasonable grounds for failing to attend, the hearing will be held in your absence. A fellow employee or a representative of a recognised union may represent you at the hearing. You may give evidence at the hearing and adduce evidence in the form of 15 documents or through witnesses. You are entitled to question any witness called by the employer. If the presiding officer finds that you are guilty of misconduct, you may present any relevant circumstances which you wish to be taken into account by the presiding officer in determining the sanction. SIGNATURE OF EMPLOYER DATE ACKNOWLEDGEMENT OF RECEIPT BY EMPLOYEE DATE SIGNATURE OF WITNESS (if applicable) DATE FORM D SUMMONS TO APPEAR AT DISCIPLINARY HEARING DATE: TO: 20 25 30 I I (Name and residential address of person summoned) Y o u a r e h e r e b y s u m m o n e d t o a p p e a r p e r s o n a l l y o n t he — 20 day of at (time) at 35 (place) before the presiding officer of a disciplinary hearing in terms of Schedule 2 to the Employment of Educators Act, -1998 (Act N-o. 76 of 1998), for the purpose of giving evidence regarding the following misconduct: - 40 and to submit the following book, document or object in your possession, custody or control, which may have a bearing on (he matter: 45 (specify the book, document or ob~ct) SIGNATURE OF REPRESENTATIVE OR EMPLOYER 50 ~b No. ?17s3 CJOVERXMENT G.AZETI’E, 22 NO\/EMBER 2!300 Act No. 53.2000 EDL~CATIOX LAWS AMENDMENr ACT, 2000 FORM E NOTICE OF APPEAL [DATE] [NAME OF APPEAL AUTHORITY] 1. appeal against the FINDINGS and/or SANCTION that have been imposed in terms of the Disciplinary Code and Procedure on [DATE] at , [NAME OF EMPLOYEE] hereby 5 [PLACE]. I attach a copy of the final outcome of the disciplinary enquiry. [THE APPEAL REQUEST IS NOT VALID UNLESS THIS DOCUMENT IS 10 ATTACHED] My reasons for appeal are: The desired outcome of the appeal is: I wish/do not wish [CHOOSE ONE] to provide additional evidence not 15 available at the time of the disciplinary proceedings. SIGNATURE OF EMPLOYEE DATE [PERSAL NO] PERSONAL DETAILS OF THE EMPLOYEE] 20 NB: Educators may only appeal against the finding and resultant sanction 25 of— 1. suspension without pay for a period not exceeding three months: 2. demotion; 3. a fine; 4. a combination of the above sanctions together with warnings; or 5. dismissal.”. 30 Amendment of section 9 of Act 98 of 1998

18. Section 9 of the Further Education and Training Act, 1998, is hereby amended by the substitution for subsection (1) of the following subsection: “(l) The council of a public further education and training institution must 35 perform all the functions, including the provision of public adult learning centres, which are necessary to govern the public further education and training institution, [subject to this Act and any applicable provincial law] subject to this Act and any applicable national or provincial law.”. Substitution of section 51 of Act 98 of 1998 40

19. The following section is hereby substituted for section51 of the Further Education and Training Act, 1998: “Exemption of existing private institutions

51. Sections 24 and 44(3) and (4) do not apply to a person who [was] ~ providing further education and training programmed at a private institution 45 immediately prior to the date [of commencement of this Act, until a date] determined by the Minister by notice in the Gazette.”. Short title

20. This Act is the Education Laws Amendment Act, 2000