Panelist: Sally-Jean Pabst
Case No.: ELRC469-25/26GP
Date of Award: 01 December 2025
In the ARBITRATION between:
SADTU obo Mr John Kubasa Vike
(Union / Applicant)
and
Gauteng Department of Higher Education and Training
(Respondent)
DETAILS OF HEARING AND REPRESENTATION
- This matter was arbitrated virtually via Teams on 17 September 2025 and concluded on 6 November 2025. The subject matter of the arbitration – the Applicant having referred an unfair dismissal dispute to the ELRC in terms of section 191(5)(a) of the Labour Relations Act 66 of 1995 (the LRA).
- The Applicant, Mr John Vike, was present and represented by his South African Democratic Teachers Union (SADTU) union official Mr Thando Hlatshwayo. The Respondent, the Gauteng Department of Higher Education and Training, was represented by Mr Thokozani Nkambule.
- The Respondent submitted into evidence a bundle of documents, to which the Applicant party agreed to the contents being what it purports to be. During the arbitration an ELRC appointed language interpreter assisted the parties during the arbitration.
- A digital recording was made of the arbitration proceedings, and after the hearing had been concluded the parties in terms of their agreement submitted written closing arguments by 17 November 2025.
BACKGROUND
- The Applicant was employed in the service of the Respondent from 1 January 2012.
- Around 21 May 2024 the Respondent subjected the Applicant to a disciplinary hearing on the following charge:
“It is alleged that on or around 07 April 2023 or any other date or period incidental thereto, at Langlaagte Campus, you conducted yourself in an improper and unprofessional manner, in that you made unwelcome suggestions of a sexual nature to a student, Ms Z Mkhize when you told her that you were available for a long weekend and wanted her to confirm if she was still using the same contact number that is registered on her file.” - Subsequent to this disciplinary hearing the Applicant was found guilty of the charge and the sanction of dismissal was imposed. Following the Applicant’s appeal, on 15 July 2025 the sanction of dismissal was upheld.
- At the time of the Applicant’s dismissal he served as a Senior Lecturer at the Respondent’s Central Johannesburg TVET College Langlaagte Campus, earning R435,000.00 per annum.
- The Respondent did not rely on any written warnings in its decision to dismiss the Applicant.
ISSUE TO BE DECIDED
- I must decide whether the dismissal of the Applicant was fair. The Applicant challenges only the substantive fairness of his dismissal in that he believes the chairperson at his disciplinary hearing was biased, he feels the sanction of dismissal was excessively harsh in the circumstances, and he disputes that he is guilty of the charge of improper and unprofessional conduct levelled against him. There is no challenge to the procedural fairness of the Applicant’s dismissal.
- If the dismissal of the Applicant is found to be substantively unfair, then I must award the appropriate relief as provided for in section 193 of the LRA. In relief the Applicant wishes for retrospective reinstatement.
SURVEY OF EVIDENCE AND ARGUMENT
Respondent’s Evidence
- Ms Zinhle Mkhize testified under oath that she was in class first period with Mr Vike from 8am to 8h50am on the morning of the incident – she cannot recall the exact date of the incident – she is not sure of the date. During the lecture that morning she did not get her test script like the rest of the students. Vike explained that he may be forgot it at his house. After the lecture Vike asked her to help him by carrying papers to his office. On their way to his office they spoke. Vike asked her whether she was available that coming long weekend. Before she could respond, Vike asked her whether the cellphone number on her (student) file is the right number to contact her. She asked why he asks this, to which Vike became annoyed and he forcefully took the papers she carried for him from her, and went to his office.
- After that she was “not okay”. She took her bag and went to the hall where she met up with a lecturer who was teaching online (virtual platform). She explained to the lecturer what had happened, and cried. The lecturer told her that she cannot help or assist her – that she must not tell her these things. Mr Vike came and stood in the doorway of the hall and then asked to speak to her (Ms Mkhize). She accompanied Vike outside, but she felt annoyed and upset. Vike pleaded with her not to report him, and he came into her personal space while speaking to her. He insisted there is no reason for her to report the incident, because he was only making a joke. Because he entered into her personal space while speaking to her, she pushed him away, and then she went into the hall again.
- In the hall there were many other people. Because she was crying, she rather went to the classroom of another lecturer, who invited her into the classroom to speak. This lecturer attempted to calm her crying because students were coming out of classrooms to see what she was crying about. That was when the Campus Manager, Mr Popela, joined them in the classroom. Mr Popela told her that it is not necessary to report this incident with Vike. The SRC (Student Representative Council) person joined, and advised her to write a statement, but she did not do so right away because Mr Popela discouraged her. She only wrote her statement sometime after the incident.
- She called her uncle and informed him of what happened, when Mr Popela discouraged her to report Vike. Her uncle came to the school, and she met her uncle at the campus security office, after which they were ushered into the boardroom with two other people, a lecturer and Mr Popela. Her uncle asked what had happened, and who the culprit was. After the uncle had been given an explanation, Mr Popela stated that he has no issue with Vike joining them in the boardroom, but that Vike would not come in to speak to them. To this, Mr Popela went to fetch Vike, but security told him that Vike had left the campus in his car, so her uncle also left because he only came to find out what had happened and who the culprit was.
- Ms Mkhize stated that she never spoke to Vike about anything other than schoolwork. She reiterated that Vike only asked her two things during their conversation on the way to his office that morning. Her availability, and her phone number. “He was asking me what was not related to schoolwork, and also asking about my availability during the weekend. There’s no schoolwork that is done or completed during the weekend.“ This made her feel very upset.
- She disputes the Applicant’s contention that he was merely joking – she is adamant that he was not playing or joking. She takes it as sexual harassment, not a joke at all, because of the way he responded with anger when she questioned why he asks her these things.
- Ms Mkhize stated that the charge sheet in evidence is correct in terms of her written statement and accurately in accordance with what transpired during the incident where Vike acted improperly to her. Before this incident she regarded Vike as just another lecturer, whereas since this incident Vike avoided speaking to her. Vike started making fun of this case during lectures, and he also made nasty and unsavoury comments during lectures to make her feel uncomfortable to the extent that she had to step out of the classroom. Vike told some of the other students to offer her money to drop the case against him. Another lecturer also tried to discourage her by telling her that if she pursues this case she might fail because Vike is the one who marks the scripts (exam papers).
- The witness stated that she was not comfortable being asked about her availability and contact details by a lecturer who is a man. If the questions had come from a woman lecturer, she would have been able to sit down with the lecturer and question why she asked this, without being uncomfortable. But it having come from a male lecturer made her very uncomfortable. This is because she has things in common with women that she does not have in common with men. Vike sexually harassed her and acted unprofessionally in making this sexual advance on her.
- During cross examination the witness Ms Mkhize explained that she is 31 years old and studying business management at the Respondent’s Langlaagte Campus. She wrote a formal statement of the incident that took place between herself and the Applicant, and read this into the record. She wrote it in English.
- The reason why she called her uncle to campus that day was because the campus manager Mr Popela strongly discouraged her in reporting Vike’s conduct. That is why she did not feel safe any longer, and called her uncle to come. Mr Popela, who was in her view supposed to protect her, had taken sides against her that is why she did not write her statement at the time of the incident. The SRC advised her to write a statement.
- The witness explained that, when she pushed Vike away when he spoke to her outside the hall that day, she had done so because he “kept on coming closer to me while he was begging me not to proceed with this issue because he was joking” – she protected her personal space. She disputes that she assaulted Vike by pushing him away. When he pleaded, he did not apologise, although he wrote in his statement that he “went to apologise and it was then that she started screaming at me”. He never apologised, he only pleaded and said that there is “no need” for her to report this.
- Although she accompanied the Applicant to carry his papers, and he did not touch her – “No, he did not touch me while he was asking me those questions”, she nevertheless felt she was sexually harassed because she knows what he said had nothing to do with school things when he asked her if she was available over the weekend, it was sexual.
- Mr Zitha Mkateko testified under oath that he is the Assistant Human Resources on campus. He manages discipline, disputes, grievances, investigations and advises on labour relations matters in the college. He was also the chairperson in the Applicant’s disciplinary hearing. He assessed the evidence and subsequently found the Applicant guilty. He considered relevant applicable legislation, and mitigating and aggravating factors submitted. He considered the seriousness of the allegations which was emphasized, and the sanction of dismissal sought by the Respondent.
- A student, Ms Mkhize, had complained that Mr Vike had asked her if she would be available during the long weekend of 27 April 2023. On the charge sheet the Respondent wrote 7 April, whereas Vike’s testimony was that it was Freedom Day’s 27 April long -weekend. Vike asked Mkhize to accompany him to carry files, and outside the class he essentially suggested to her, or invited, they meet on the long weekend. Mkhize considered this as unwanted and sexual because this was for not related to teaching or the college, therefore she alleged it was inappropriate, or harassment, of a sexual nature. Mkhize apparently asked Vike why he asked her about her availability, and he did not respond that it was anything to do with school-related things – this had to be assessed for seriousness, and it was decided to be serious.
- In mitigation, Vike had submitted in this disciplinary hearing that his wife was pregnant, but this was not considered to be a mitigating factor because students are their ‘core business’ and this was inappropriate because the college has a duty to protect its workplace and the college is vicariously liable for conduct in contravention with legislation and the SACE Code of Ethics specifically.
- The witness testified that Vike in his disciplinary hearing did not deny that he asked her the things as stated in the charge sheet, and Vike also never rectified the impression that it was an invitation, nor did he explain his intentions when he asked her availability and contact details to be confirmed for the weekend.
- Further, the Applicant’s written statement was precisely what supported him in coming to his outcome. That the Applicant, acknowledged the good relationship, admitted jokes were shared and confirmed that on that day he did invite her to accompany him. The class had been dismissed and she had walked with him on his request. The Applicant’s defence was that what he said, as stated in the charge sheet, had been a joke only. The Applicant had said that he was not aware that what he had said was offensive until she reacted. It might have been a very bad joke, but it was serious.
- The witness explained the SACE Code of Ethics and read into evidence the sections in the Code which pertains to the prohibition of lecturers ‘courting’ students, and why this is inappropriate. The witness added that, in deciding on dismissal as the appropriate sanction, he considered the fact that when the Applicant realised the inappropriateness of his conduct, he did not say he was sorry. This impressed upon him that Mr Vike may repeat this type of conduct in future. He did not apologise – rather, he just begged her to not pursue the complaint.
- Mr Mkateko added, in conclusion, that learners at school level and students at college level alike must study and learn without having these types of tensions – sexual or romantic advances made by teachers or lecturers. Also, the disciplinary hearing took place a year after the incident, but even after an entire year, the Applicant still trivialised the incident by calling it ‘a joke’. The Applicant’s primary defence in the disciplinary hearing had been the wrong date of the incident that had been stated in the charge sheet. That the Applicant as a post level 2 – a senior lecturer – lacked the required introspection. Finally, that if Mr Vike could not after a year see his conduct as wrong, then he could not be rehabilitated.
Applicant’s Evidence
- The Applicant testified under oath that, on 26 April 2023, on the day of the incident, he asked Ms Mkhize to accompany him and help him carry things to his office after the class. While they walked, she first asked him whether he was going home to Limpopo, to which he replied that he is not going home because of the heavy traffic. He in turn just asked her whether she is going for the long weekend, to which she replied she is also not going home, also because of the heavy traffic.
- The Applicant stated that he never used the word “available” – that ‘available’ was something that came only from Mkhize, not from him. She saw many students had their weekend-bags with them at class, so she initiated the conversation about going home for the long weekend. Mkhize told him he must buy a smartphone to be added on the group (WhatsApp group) because he is difficult to get hold of. To this, he replied that the numbers of the students are on their files, and if he needs to contact students, he can get their numbers on their student-files. She replied “Okay”, and gave him the files she had carried for him, and she went to the hall. Before February when he started teaching her, he only knew her from sight – as being just a student of the college.
- He disputes Mkhize’s version that he ‘forcefully’ took the files from her. He did not take them from her, she gave the files to him and went to the hall, and when he heard the Applicant was upset with him, he went to the hall to hear why she was upset. He first apologised to Ms Mkhize, but that made her scream at him.
- The Applicant was asked why Mkhize then got angry with him, to the extent she push him. Vike replied that she was angry because she wanted to have extra marks and extra mathematics help – that the day before she had helped him with filing, and she came to him for help with her mathematics. However, he was not in the habit of “dishing out marks”.
- The Applicant explained that Ms Mkhize’s statement in evidence does not state the whole story, nor that he also alerted her that her certified ID copy and email is not on her file, as it should be – that she left this part of the conversation out of her testimony.
- The Applicant added that he wanted to point out that the chairperson of his disciplinary hearing who is a witness in the arbitration was not impartial, as he had left out a lot of information about the testimony lead. The chairperson has an inappropriate relationship with the initiator of the disciplinary hearing, seeing as they discussed cases and mandates without keeping the information private.
- During cross examination the Applicant was asked why, in his statement, he wrote “Along the way I say I am not going to Limpopo and I am available.” Yet, in his evidence in chief he stated that the word ‘available’ came only from Mkhize, not from him. The Applicant replied that he had written that in response to a question coming from Mkhize about whether he was going to go home to Limpopo for the long weekend. He explained that he had forgotten, at the time he wrote this statement, to also write why he had told her that he is not going to Limpopo and is available. The logic of this was questioned by the Respondent party, who argued that logically one would write the whole story when things are still fresh in one’s mind, whereas a year later one might forget details, and not the other way around. The Applicant disputed this logic, retorting that over time he remembered details that he had forgotten initially, as things went through his mind over time.
- The Respondent further questioned the probability of the Applicant’s account that Mkhize asked him first, and that he just responded, in light of the common cause fact that Mkhize’s script was the only script he did not return in the classroom, together with the fact that he initiated further interaction by asking her to walk with him to help him carry. The Applicant responded that other students’ scripts were also not returned, to which the Respondent asked why the Applicant never put this version to Mkhize during her cross examination. He responded that it was not his turn – that he thought he must wait for his turn – to testify.
- The Applicant stated that he did not apologise to Mkhize – that she did not give him a chance to apologise before she started screaming and pushing him – when all he did was to go and get the story from her. The Applicant reiterated that he did not apologise, that he does not know what mistake he made, so he did not apologise.
- It was put to the Applicant that talking about availability on a weekend was inappropriate, and that he asked about her number, to which the Applicant responded that Mkhize harassed him by suggesting he get a smartphone so he can be more accessible. That if this was sexual harassment, then the bar was lowered, because he simply answered the lady’s questions.
- Mr Prince Silindeni Zulu testified under oath that he is a SADTU shop steward and also a lecturer, and he believes the interaction between Vike and Mkhize was misinterpreted in these allegations.
- The witness testified that, in 2024 during the disciplinary hearing of the Applicant, there were a few notable and questionable points in Mkhize’s witness testimony. That Mkhize was not attending class very often, and for this reason she feared Vike regarding her marks, because Vike would not give students marks if they did not do the work properly. Further, that there had during the disciplinary hearing been a few credibility affecting discrepancies between the testimonies of Mkhize and her close friends about whether Mkhize attended classes regularly, and whether the ‘uncle’ who came to the college to confront Vike had been Mkhize’s boyfriend or brother or another family member and not her uncle.
- The Respondent in turn questioned the relevance of whether Mkhize attended classes, and objected to the hearsay evidence lead by Mr Zulu on the testimony lead by Mkhize’s close friend during the disciplinary hearing. The Applicant’s representative elected not to call Mkhize’s close friend to come to corroborate Mr Zulu’s testimony, and this concluded the Applicant party’s evidence.
ANALYSIS OF EVIDENCE AND ARGUMENT
- It is trite that an arbitration is a hearing de novo. The Applicant’s dismissal is not in dispute and the onus is therefore in terms of Section 192 of the LRA on the Respondent to prove that the dismissal of the Applicant was fair. Section 188 of the LRA further states that a dismissal that is not automatically unfair is unfair if the employer fails to prove that the reason for dismissal was for a fair reason relating to the employee’s conduct and was affected in accordance with a fair procedure. This must be decided on a balance of probabilities.
- The Applicant challenged the substantive fairness of his dismissal. He claims that he is not guilty of the charge for which he was dismissed, the disciplinary hearing chairperson was biased, and the sanction was not appropriate because he did not conduct himself improperly or unprofessionally.
- Dealing with the dispute to the substantive fairness of the Applicant’s dismissal, it is clear from the evidence that the versions of the parties are materially different. It is therefore incumbent on me to decide which version must be preferred. The matter will therefore essentially turn on this finding with relation to the finding of guilty.
- In Stellenbosch Farmers’ Winery Group Ltd and Another v Martell & Kie SA and Others 2003 SA 11 (SCA) the Court held that, where a commissioner is faced with two conflicting versions before him the commissioner must make a finding on the credibility of witnesses and on the probabilities of the two versions, to determine where the truth lies. The question that should be answered is whether the probabilities favor the party that bears the onus of proof. The Court further held that the credibility of a witness is in an extricable manner bound to the consideration of the probabilities of the case, the arbitrator should therefore resort to credibility where the probabilities fail to point which version embraces the truth more.
- In my view, the witnesses of the Respondent were more persuasive and their demeanour more compelling than that of the Applicant, and the Applicant’s witness Mr Zulu’s evidence primarily related to credibility findings he personally made against Ms Mkhiza and Ms Mkhiza’s close friend’s accounts during the disciplinary hearing as and where they are contrary to the credibility findings of the disciplinary hearing chairperson. These credibility finding could however not be substantiated or corroborated in the arbitration hearing de novo because the majority of these findings and accounts remained hearsay evidence – this pertaining to Ms Mkhiza’s close friend’s testimony – and was not put to the witness during cross examination – this pertaining to the testimony of Ms Mkhiza herself.
- The Applicant explained an entirely new version of the conversation that took place between himself and Mkhize – a version never put to the Respondent’s witnesses Ms Mkhize or Mr Nkateko at all to be tested. This version was clearly a new and fresh approach taken by the Applicant.
- During the Applicant’s testimony this alternative ‘interpretation’ was offered – that Ms Mkhize initiated their ‘weekend-plans discussion’ by asking about his going-home plans, and suggesting he make himself more ‘contactable’ accessible telephonically by joining a WhatsApp group with the students, and then somehow becoming very angry directly thereafter.
- The Applicant’s explanation when asked why he never put his account of their conversation to Ms Mkhize to be tested when she testified– that it was not ‘his turn’ to speak (during the Respondent witnesses’ testimonies) hold no water because at the start of the arbitration it was explained as usual to all parties that the testimony of witnesses must be challenged during cross examination. Foremost, the Applicant – as represented by his SADTU union official, who extensively questioned Ms Mkhize on her version – cannot claim that he was ignorant.
- The Applicant’s version, during his testimony, did not make logical sense to me. What I noticed specifically in terms of the credibility of the Applicant’s testimony was that the Applicant did not testify chronologically during his account of the morning of the incident. During his evidence in chief he spoke about their conversation during their walk to his office, and then when he was asked why Nkhize got so angry – notably after what he had up to then described as a very amicable conversation – then he proceeded to explain that Nkhize had helped him the previous day with filing and had hoped to get ‘extra marks’ for mathematics. Yet, this had according to his own testimony not been part of the conversation whilst they had been walking. The fact that the Applicant admittedly had been the one who had asked Mkhize to help him carry papers suggests to me that it had been the Applicant who initiated their contact after class, hence if there had been no conflict during their walk, it makes no sense at all that he would allocate her mathematics marks to her anger.
- Particularly, this version of the Applicant’s came after all the Respondent’s witnesses had come and gone, and during cross examination of the Applicant it was put to him that this ‘new version’ was not provided at the disciplinary hearing nor in his written statement dated shortly after the incident.
- During the Applicant’s cross examination he was asked why he did not write his full version of their conversation – that Mkhize initiated the discussion about the weekend plans and the telephone details – in his written statement. His response was that he ‘forgot’ to ad these details, and only remembered these details later. This does not ring true. I am particularly here cognisant of the undisputed evidence by Mkhize that Mr Popela, the Campus Manager, strongly sided with the Applicant from the very day of the incident. I then noted that Mkhize wrote her statement on 26 April, and the Applicant wrote his statement weeks later, it is dated 15 May. There was no evidence lead whether the Applicant laid eyes on Mkhize’s statement prior to formulating his own response statement – possibly in terms of Popela’s clear allegiance with him, I cannot say because no evidence was lead in this regard. But I find it very informative that the Applicant 3 weeks after Mkhize used in his statement in May the very same word – “available” – which Mkhize had used in April – yet the Applicant wishes me to believe him saying in his testimony that he never used the word ‘available’ – that this word came only from Mkhize. That was his testimony – that the word ‘available’ was never initiated in their conversation while walking to his office, yet he repeated it in his written statement 3 weeks after Mkhize had also used that word in her statement. Clearly the Applicant was not truthful during his testimony about how the conversation actually went.
- I must agree with the Respondent’s representative that this new version more than a year later, and after it was never put to Ms Mkhize or Mr Nkateko lacks credibility. Neither do I believe that he truly thought that it was not ‘his turn’ to speak during the Respondent witnesses’ cross examinations.
- The Applicant in this matter clearly made an advance / courted Ms Zinhle Mkhize, whereas this is specifically prohibited in the SACE code of ethics.
- The SACE Code of Ethics specifically prohibits this in chapter “Conduct: The Educator and the Learner” at 3.8 “An educator: 3.8 “refrains from courting learners from any school”.
- Even in light of the Applicant not having touched Mkhize, nor had he made a second attempt after being turned down, and he did not state any outright offensive suggestion or use any profanity in suggesting they meet over the weekend, and even though Ms Mkhize is not a child and could reasonably have been in a relationship with the Applicant seeing as she may even be around the same age as the Applicant – regardless of all the aforementioned, the power relationship between any learner/student and lecturer/teacher is what informs the SACE Code of Ethics on conduct prohibited between students and teachers.
- Evidence was lead, and not challenged, that the Applicant as a senior lecturer particularly has considerable influence over the marks/grades of students in the College where he has discretionary powers. Ms Mkhize testified – although this was not corroborated – that she had been told that the Applicant might have her fail if she pursues this case against him. The Applicant’s own witness Mr Zulu testified that Ms Mkhize called a witness who testified at the disciplinary hearing that the students feared the marks – and that Vike handles their marks.
- Whether she may fail or pass her studies due to not only rejecting his advances, but also reporting the advances, is a typical question which would have informed the SACE Code of Ethics to prohibit any romantic or sexual contact between teachers and students. That is why ‘courting’ a student in any manner is prohibited explicitly. After an advance or romantic suggestion by a teacher to a student is rejected by that student, logically such a student may always wonder about the reason for the grade allocated in terms of the understandable discretion possessed by the teacher who made the advance. More so if a developed romantic relationship between a student and lecturer ends for whatever reason. Although they may be mature and even consenting adults, SACE supports the contention that there is no place for romance in a power imbalance such as the one between a teacher and a student.
- Therefore, I can only concluded it much more probable than not that the Applicant conducted himself inappropriately to the student. The version of Ms Mkhiza was also much more probable, particularly in light of the Applicant’s own written statement predominantly corroborating Mkhiza written statement as it relates to the events.
- Moving to the appropriateness of the sanction of dismissal which the Respondent imposed. In terms of Sidumo and another v Rustenburg Platinum Mines Ltd and others (CCT 85/06) [2007] ZACC 22; [2007] 12 BLLR 1097 (CC); 2008 (2) SA 24 (CC); (2007) 28 ILJ 2405 (CC); 2008 (2) BCLR 158 (CC), although I am as commissioner duty-bound in terms of the LRA to determining whether the dismissal was fair, I am not given the power to consider afresh what I would do. Rather, I must simply decide whether what the Respondent did was fair – this while considering all of the relevant factors and circumstances. Relevant factors that impact fairness are:
a) the general vulnerability of Employees to unfair decision making;
b) the importance of security of employment;
c) the importance of the rule that was breached;
d) the reasons for establishing the rule including its reasonableness;
e) the harm caused by the Employee’s conduct;
f) the impact that it had on the trust relationship;
g) the effect of setting a precedent;
h) the reason why the Employer imposed the sanction of dismissal;
i) the basis of the Employee’s challenge to the dismissal;
j) whether additional training and instruction may result in the Employee not repeating the misconduct;
k) the effect of dismissal on the Employee;
l) the Employee’s service record. - In considering the above, and without having to deal with each of the above factors respectively, I can only find that the sanction of dismissal was appropriate under the circumstances.
AWARD
- The dismissal of the Applicant, Mr John Kubasa Vike, by the Respondent, the Gauteng Department of Higher Education and Training, was both substantively and procedurally fair.
- The Applicant’s claim to an unfair dismissal is hereby dismissed.

Commissioner Sally-Jean Pabst
ELRC Arbitrator

