ELRC 409-20/21 GP
Award  Date:
  28  February 2022
Case Number: ELRC 409-20/21 GP
Commissioner: M.A. HAWYES
Date of Award: 28TH February 2022

In the ARBITRATION between

Gauteng Department of Higher Education



S. Nyembe


Union/Applicant’s representative:
Union/Applicant’s address:


Respondent’s representative:
Respondent’s address:



1. The case was scheduled for an inquiry by arbitrator at the Sebokeng College in Sebokeng on the 26th October 2021, the 22nd and 23rd November 2021, the 7th December 2021 and the leading of evidence on the merits was eventually finalized on the 3rd February 2022.
2. After completion of the inquiry the parties requested the opportunity to submit written closing arguments by the 10th February 2022. The closing arguments were timeously received. I in turn approached the ELRC for an extension on the time period to submit my decision and such was granted until the 27th February 2022.
3. Mr. M. Mokgeti, from SADTU, for the most part represented the employee at the inquiry by arbitrator proceedings. Due to Mokgeti being indisposed on the 3rd February 2022 Mr J. Khumalo, also from SADTU represented the employee.
4. Ms. T. Morewane, a labour relations official, represented the employer.

5. The employee pleaded not guilty to two counts of alleged misconduct.
6. It is common cause that the employer employs the employee as a PL1 educator at Vaal High School.
7. It was firstly alleged that during 2020, at or near Vaal High School, you conducted yourself in an improper, disgraceful and unacceptable manner in that you sexually harassed CPM, a grade 12 learner from the same school by making inappropriate comments, in that you said her body is hairy. It is alleged that the employee breached the provisions of section 18 (1) (q) of the Employment of Educators Act, 76 of 1998 (as amended) (EEA).
8. It was secondly alleged that during 2020, at or near Vaal High School you conducted yourself in an improper, disgraceful and unacceptable manner in that you sexually harassed SB, a former girl learner from the school, by making sexual advances and/or proceeded to post rude and inappropriate comments on her Facebook account by saying “Ngwana” meaning Vagina and also said the same at her mother. It is also contended that the employee breached the provisions of section 18 (1) (q) of the EEA in this instance.
9. The parties made use of a large number of small bundles that were marked from Bundle ‘A’ to ‘J’.


10. The Respondent led the evidence of two witnesses specifically in respect of allegation 1. CPM testified, inter alia, that she is a former learner at Vaal High School. In January 2020 she shared a post on Facebook saying that hairy people are sexually enjoyable and the employee made a comment. A short while thereafter she was passing the employee at school he called her and held her hand, looked at her and commented that she is indeed hairy as she had posted on Facebook. CPM testified that she felt uncomfortable and was also shocked by the employee’s comments.
11. CPM reported the matter to her class teacher and was advised to report the incident to her parents which she did. Her parents came to the school and met the principal. She testified that with the intervention of the principal and her parents she was forced to withdraw the allegation against the employee but she was not happy to do so. She was badly affected after the incident and her mother arranged for her to see a psychologist.
12. CPM also testified that after the incident went viral she received threats from someone who created a fake account on Facebook and she suspected that it was the employee.
13. The employer also led the evidence of Ms. Patricia Diatshwana, a psychologist who testified that she consulted with Masooa for a period of six months. CPM had spoken of sexual harassment by a teacher at Vaal High School and Diatshwana testified how CPM had struggled to come to grips with the incident and find peace with the fact that she had been forced by her parents to withdraw the complaint.
14. In respect of allegation 2 the employer led the evidence of two witnesses. The first witness was SB who testified, inter alia, that the employee started as student teacher when she was in grade 8 and he later became a permanent educator. The second witness was Ms. Cylia Zengele, a PL1 educator at Vaal High School. Zengele also gave testimony relevant to allegation 1.
15. In early 2020 the employee asked another learner of Vaal High to give him SB’s number and the learner later told SB that she had done so. Later that evening she got a text from the employee. The first text from the employee was ‘hi’ and she replied ‘hi Mr Nyembe’ and he told her not to call him Mr Nyembe but Sihle.
16. She noticed on his status that it was the employee’s birthday and she wished him a happy birthday. The employee replied that they had not bought him cake and she must buy him real cake. SB was offended and understood this to mean that he was insinuating that they should have sex.
17. SB then sent a screenshot of the conversation to another learner and said look what our teachers are getting up to.
18. The employee got to know of the allegation when someone posted about the Vaal High teachers on twitter. The comments were also raised on Facebook by a well-known DJ Lulo Café. SB testified that she also posted comments on her Facebook page and the alleged educators’ pages and a cyber-fight started between her and the employee.
19. The employee and other educators from Vaal High sought protection orders against SB and Zengele based on the things they wrote on social media. They alleged that what SB and Zengele had said threatened their marriages and what was said was also a lie.
20. Someone made the employee aware that SB had written something on twitter implicating him and he started cursing SB and later SB’s mother. He wrote that she is illiterate saying that people of her age are at Varsity and she is being a puppet of certain educators. SB responded by saying she calls him a puppet but it was clear that the employee wanted to get into her pants. The employee responded that he did not want to get into the pants of a prostitute.
21. The employee also called her a vagina and said she can’t wipe her own ass. The employee mentioned that she is talking ‘vagina’ about him and referred to her as a bitch. The employee also insulted SB’s mother by using the word ‘vagina’ during the course of discussions on social media.
22. The final witness for the employer was Zengele who indicated that she had a very good working and personal relationship with the employee until the various incidents happened.
23. She had taught learner CPM in the past but at the time of the incidents she was no longer her teacher. She remembered CPM as being a quiet learner and they were not particularly close.
24. In August 2020 CPM sent her a private message on Facebook and asked if they could talk. They then exchanged numbers and CPM sent her a voice note telling her about the educators who were making sexual advances to learners.
25. She also mentioned about the employee that saw her post on Facebook where she had said that hairy people are sexually enjoyable and the incident of the employee stopping her at school to check if she was indeed hairy. Zengele commented that what she had heard was totally unacceptable and that educators were expected to act as fathers to learners. She encouraged CPM to speak to her parents.
26. At the time CPM had reported to her the incident of the employee, another learner LM also reported a case of sexual harassment. She spoke to the principal, Mr Nhlapo, and he suggested that they hold an induction on ethics because many young teachers were joining the school.
27. When she met with the employee at a carwash the employee knew about the incident involving CPM and he admitted to asking about her body hair.
28. In respect of allegation 2 Zengele testified that SB made an allegation on Facebook about the employee and other educators at Vaal High. Zengele testified that at the time made SB these allegations on Facebook she and SB were not friends on Facebook.
29. She only learned of allegation 2 when the employee tagged her on Facebook and associated her with SB’s claims. She could not understand why the employee had done this. She enquired from SB where she got these allegations from because her name was now being dragged in. The employee was busy swearing SB openly in his posts on Facebook.
30. A short while later the employee tagged her in a second post and messaged her saying ‘damn Cylia you are good’ and he alleged further that she was the one that had hired SB.
31. The same week the police called her and wanted to know if she was organizing a march to Vaal High. Zengele told the police that she knew nothing about this and when asked where the information had come from the police mentioned that it had come from the principal of Vaal High, Mr Nhlapo.
32. She was later summoned to the police station to collect protection orders from the employee and other educators. When she returned to the school after working at home she found that she did not have a classroom. She was allocated a classroom close to the principal’s office so that they could see who was coming in and going out.
33. Zengele testified that she had started a small NGO to protect the interests of women impacted by sexual harassment and other gender based violence.
34. Zengele reiterated that before the incidents she and the employee were like brother and sister and they talked about almost everything. She would trust him with her issues and he would trust her with his issues. Her children looked up to the employee; he would bring her kids gifts and even babysit them on occasion.
35. After the incidents were reported to her the employee made a point of raising her private issues on a public platform of Facebook by sharing confidential information that her husband had molested her and her husband had put her through a lot. He posted on Facebook, inter alia, that new colleagues should be careful of older colleagues and he particularly warned people to stay away from a colleague that drives a certain car which car matched her cars description.


36. The Applicant testified under oath and led the evidence of one witness namely the current principal of Vaal High, Mr Nhlapo.
37. On allegation 1 the Applicant testified that he became aware of PCM’s allegations in August 2020. When he saw PCM’s post in February 2020 he contacted her the next day about the post and said that he found it disturbing. She said that she did not find the post offensive because she is also hairy. He asked her to remove the post and PCM replied that she does not understand why people judge her on what she writes on Facebook. He also told her the post is inappropriate because she is a leader at school. The post was later removed.
38. The employee testified further that he later called a meeting of all leaders at the school telling them how they should conduct themselves on social media.
39. In respect of allegation 2 the employee testified and it was argued on his behalf that the incident between SB and the employee happened outside the premises of the school and whilst the employee was not on duty. It was also mentioned that SB was above the age of 18 years at the time of the respective incidents and was no longer a student at Vaal High.
40. It was also argued that allegation 2 fell outside the jurisdiction of the employer and that the Applicant could not be found guilty of this charge.
41. In respect of Zengele’s testimony specifically it was argued that she gave her testimony in the way she did based upon her hatred for men and previous gender based violence that she was confronted with in her own home. She then used the allegations leveled by PCM as a pretext to get to the employee who became a victim of circumstance.
42. The current principal of Vaal High, Mt. T. Nhlapo testified in support of the employee’s case. In respect of allegation 1 he testified that the parents of PCM came to the school to report another teacher Mr Maseko about the messages he sent to PCM. They also indicated that they needed clarity about the matter allegedly involving the employee that they did not have evidence about. PCM was asked to relate what had happened involving the employee and she did so. PCM’s parents felt there needed to be an apology to the employee. The employee also apologized.
43. On allegation 2 Nhlapo testified that SB was not a learner of Vaal High at the time the incidents happened. She completed her matric in 2019 and was not part of the school rules. As such she had no relation to the school.


44. The onus rests on the Respondent to prove both allegations of misconduct against the employee on a balance of probabilities.
45. The first aspect requiring attention is the credibility findings in respect of the various witnesses. I was impressed with all the witnesses for the employer. PCM testified with clarity on what had happened between her and the employee. It is common cause that PCM and her parents apologized to the employee in the presence of Nhlapo. It is clear that the apology was not initiated by PCM and forced upon PCM by her parents and not because no such incident had occurred. PCM’s parents were clearly not present when the incident happened. PCM detailed how she was affected by the incident and the testimony of psychologist Diatshwana corroborated the details of PCM’s version concerning the incident and the fact that she required six months counseling to address the trauma she had experienced. It is clear that the employee and his principal are friends and it is probable that they tailored their versions concerning SB and PCM. Nhlapo admitted that he was just 37 years old which is not much older than the employee. I agree with the Respondent’s assertions and find that Nhlapo was part of the crew that victimized Zengele and that he was there to cover and protect the employee. It is regrettable that I have to find that Nhlapo does not take sexual harassment cases seriously when they relate to a friend.
46. The version of the employee that he reprimanded her for her reference to hair and sexual performance on Facebook was never put to PCM in cross-examination and I find that it is improbable under the circumstances and indicative of a recent fabrication on his part. I reject the employee’s version that he reprimanded PCM for her post and the further assertion that he is the victim of a fabricated version by PCM.
47. The employee never disputed the version of SB instead relying upon the assertion that the employer did not have competency to raise a complaint because SB no longer fell under the jurisdiction of the school. I will return to the validity of this assertion later.
48. The employee worked hard to discredit the version of Zengele. Zengele had provided corroboration for both PCM and SB’s versions.
49. It is noteworthy that the employee never disputed Zengele’s version that the two of them had been good friends besides being colleagues, prior to the incidents coming to light. It also not disputed that the two had discussed confidential matters between themselves (including Zengele’s marital difficulties) and Zengele’s children evidently trusted the employee.
50. Zengele had a clear duty to report incidences of alleged sexual harassment to her principal and I find that she did what was expected of her with no ulterior motives.
51. It is common cause that the employee unjustifiably included Zengele in his cyber fight with PCM, disclosed confidential information about Zengele’s marital affairs in a public forum and made defamatory remarks about Zengele through thinly veiled insinuations.
52. I find that these tactics were designed to discredit Zengele’s reputation and credibility because the employee knew and realized that Zengele’s allegations were a blow to the veracity of his own case.
53. Zengele was a credible witness who gave a detailed and probable account of what had transpired and I find further that there were no embellishments in her version. The employee’s attempts to portray Zengele as a bitter, man hater are unfounded and rejected.
54. The final aspect relates to the question of whether the Council has jurisdiction to adjudicate over allegation 2 based upon the common cause fact that SB was no longer a grade 12 learner at Vaal High in 2020.
55. The version of the employee in this regard erroneously focuses on Bam when the focus must and should remain on his actions. It is trite law that employees’ are held accountable for their actions even if they are off duty and regardless of who they deal with, if their actions adversely affect the workplace. The employee does not dispute his actions in dealing with SB probably because they were splashed on Facebook for all to see and form part of the documentary evidence in this case.
56. I find that the employee acted in a disgraceful, improper and unacceptable manner in dealing with both SB and PCM as an educator and thus he falls foul of the provisions of section 18 (1) (q) of the EEA on both scores.
57. The employee is found guilty of both counts of misconduct.
64. The parties are directed to submit submissions in mitigation and aggravation of sanction within 48 hours of receiving the decision on the merits. No late submissions will be entertained.

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