Case Number: ELRC 589-25 26 GP
Commissioner: M.A. HAWYES
Date of Award: 04 June 2026
In the ARBITRATION between
Department of Education: Gauteng
(Employer)
and
Mr. Gawie Visagie
(Employee)
- DETAILS OF HEARING AND REPRESENTATION
1.1 The matter was scheduled for an inquiry by arbitrator on the 28th and 29th of April 2026 and finalised on the 18th of May 2026.
1.2 The initial hearing on the 28th of April 2026 was dealt with at the Gauteng Department of Education Head Office in central Johannesburg. However, due to internet issues and with the consent of the parties the arbitration was moved to and finalised at the South African Onderwys Unie (SAOU) premises in Garsfontein, Pretoria.
1.3 Mr. L. Odendaal, a union official from SAOU, represented the employee.
1.4 Ms. J. Lottering, a labour relations officer, represented the employer.
1.5 After the completion of evidence, the parties requested an opportunity to submit written closing arguments by the 25TH of May 2026. The said arguments were timeously received and my award now follows.
1.6 Each party each made use of a bundle of documents. The employers bundle was marked Bundle ‘A’ and the employees bundle was marked Bundle ‘B’.
1.7 Detailed notes and a digital recording was kept of the entire arbitration process.
1.8 The minor witnesses that testified at this hearing were assisted by an intermediary and interpreter.
1.9 The full names of all minor witnesses who testified at the hearing have been withheld and all references to the said witnesses in this award will be to their initials only. - ISSUE IN DISPUTE
2.1 Whether the employee is guilty of alleged sexual misconduct as contemplated in section 18 (1) (q) of the Employment of Educators Act no 76 of 1998 (as amended) (EEA).
2.2 Firstly, the employee was charged with sexually harassing MF, A Grade 11 girl learner on or around the 8TH of February 2025 at Kempton Park High School, by sending inappropriate messages which included a TikTok video from his phone. The content of the messages included the following: “You know what sounds really good right now?” “You and me together, together under the sheets where we’re cuddling each other so close because….how much I love you, because I really do”.
2.3 The second allegation also related to section 18 (1) (q) of the EEA. It is alleged that the employee also, on or around December 2025 whilst on duty at Kempton Park High School, conducted himself in an improper, disgraceful and unacceptable manner, in that he sent inappropriate WhatsApp messages to grade 11 girl learner MF and the content of the messages included the following: “Heart emojis, images such as drukkies vir jou, translated as ‘hugs for you’ tears, little drops, TikTok videos describing ‘ good night kisses as being the best kind’.
2.4 The third allegation also related to section 18 (1) (q) of the EEA. It is alleged that between September 2024 and November 2024 and at or near Kempton Park High School, the employee acted in an improper, disgraceful and unacceptable manner in that he sent inappropriate WhatsApp messages to MD, a grade 11 girl learner and the content of the messages included the following :’en jy het baie diep in my hart ingekruip…merkery, images such as “WhatsApp drukkie,,,dink aan jou, ek stuur vir jou..jy nodig het, translated as ‘you are close to my heart, hugs, thinking of you, I am sending you, you need’.
2.5 The fourth allegation also related to section 18 (1) (q) of the EEA. It is alleged that between September 2024 and November 2024 and at or near Kempton Park High School the employee acted in an improper, disgraceful and unacceptable manner in that he sexually harassed MD, a grade 11 learner by coming up from behind and putting his arms around her waist and touching her inappropriately. - BACKGROUND TO THE ISSUE
3.1 The employer employs the employee at Kempton Park High School as a PL 2 head of department educator teaching history.
3.2 The employee pleaded not guilty to both the charges preferred against him. - SURVEY OF PARTIES EVIDENCE AND ARGUMENT
EMPLOYERS EVIDENCE AND ARGUMENT
4.0.1 MF
4.0.1.1 Ms F testified remotely in the presence of an intermediary that she had a good relationship with the employee and that he created a welcoming, friendly and calm atmosphere in his classroom. She further testified that they shared a mutual interest in history.
4.0.1.2 She testified that she communicated with the employee by message when she required assistance or advice in preparing for tests and in relation to her marks.
4.0.1.3 Ms F stated that, when she responded with heart emojis, she did not intend them in a romantic sense. She further testified that she regarded it as inappropriate for a teacher to send heart emojis to a learner and that, when the employee responded or sent emojis, it made her feel uncomfortable because, in her view, it did not reflect a healthy teacher-learner relationship.
4.0.1.4 She testified that the employee sent her an image referring to tears in response to one of her status updates.
4.0.1.5 A substantial portion of her testimony concerned the employee’s alteration of her marks, which she stated she did not understand.
4.0.1.6 Ms F further testified that the employee sent her an inappropriate video on TikTok. She stated that she showed the video to her mother and that the matter was then reported to Ms Carla Booysen.
4.0.1.7 She also testified that the employee held her from behind, which made her feel uncomfortable.
4.0.1.8 Under cross-examination, when asked why she continued to engage in WhatsApp conversations with the employee if the exchanges made her uncomfortable, she replied that she feared losing his assistance or that her marks might be affected if she did not respond.
4.0.1.9 During cross-examination she was referred to page 20 of Bundle B, being a WhatsApp message dated 3 February 2025, in which she wrote:
4.0.1.10 “Skies ek pla. Ek wou by mnr gehoor het, het mnr dalk more deur die dag af? Of is mnr pouse in mnr se klas. Ek wou net graag met mnr kom praat het. En ek dink ek het ook maar net ’n drukkie van iemand af nodig. En ek weet ek en mnr is baie close. En ek vertrou mnr die meeste. Weereens skies ek pla mnr.”
4.0.1.11 She further testified under cross-examination that the incident in which the employee allegedly held her from behind occurred on 10 February 2025 after school, and that school ended at 14h15.
4.0.1.12 Ms F also testified that the employee gave her cake, but she said that she did not eat it and instead gave it to boys in her class.
4.0.1.13 She admitted that, on 10 February 2025 at 14:26, she sent the employee a WhatsApp message stating:
4.0.1.14 “Baie, baie dankie mnr M. Ek sal vir mnr more die kosblik bring.”
4.0.2 MD
4.0.2.1 Ms D testified that she had a good relationship with the employee and that he maintained a warm and welcoming classroom environment.
4.0.2.2 She testified that she did not appreciate the messages sent by the employee, but felt obliged to respond because she did not want her marks to be adversely affected.
4.0.2.3 She testified that, after the tour, she tried to brush off what had happened. In that context, she suggested that she did not mean the messages she sent thereafter, including the message at page 23 of Bundle B, which she initiated and which, according to her, was sent in response to what the employee had said earlier that day.
4.0.2.4 A substantial portion of her testimony related to her chat history with the employee.
4.0.2.5 She testified that the employee made time for her and assisted her to prepare for examinations.
4.0.2.6 She testified that she was grateful for the employee’s assistance and that she sent him messages when he was ill because she was concerned about him.
4.0.2.7 She testified that the school went on a history field trip to KwaZulu-Natal in September 2024.
4.0.2.8 She testified that, during a cold night on the field trip, the group was required to sleep on a stage with the employee, which made her feel uncomfortable.
4.0.2.9 She testified that, during the swimming portion of the field trip, the employee swam up to her while she was sitting with her friends and touched her on her inner thigh.
4.0.2.10 She further testified that, during a group photograph, the employee touched her inappropriately, which made her feel uncomfortable.
4.0.2.11 Referring to the photograph at page 11A of Bundle A, she testified that she did not regard anything as wrong with the photograph at the time, but only later came to feel uncomfortable, stating that it did not reflect a healthy teacher-learner relationship.
4.0.2.12 She testified that she had enquired about Valentine’s Day tickets and that the employee jokingly asked whether she wanted to take him. According to her, she replied that she already had a date, to which the employee answered that the date was a lucky man.
4.0.2.13 She testified that she began to feel uncomfortable during 2025 and again stated that the messages did not reflect a normal teacher-learner relationship. She testified that she reported the matter to Ms Carla Booysen.
4.0.2.14 She testified that she was bullied by other learners because of her closeness to the employee and that she blamed the employee for that situation.
4.0.2.15 It was also noted that the witness did not address the allegations referred to at page 12B, paragraph 3, of Bundle A.
4.1 The employer contended that it had proved all four allegations against Mr G. Visagie on a balance of probabilities through credible, corroborated and reliable evidence presented by the two complainants, MF and MD, supported by the testimony of Ms Karla Booysen.
4.0.3 Ms Karla Booysen
4.0.3.1 Ms Booysen testified that MF and MD reported the employee’s conduct to the principal.
4.2 Evidence of the Complainants
4.2.1 The employer submitted that MF and MD gave materially consistent accounts of Employee’s conduct. Although their initial communications with him related to academic matters, those interactions allegedly became personal and inappropriate over time. The communications included heart emojis, affectionate messages, “hugs” images, TikTok videos, compliments, nicknames and personal discussions, which, according to the employer, exceeded the bounds of a professional educator-learner relationship. The employer further submitted that, although both learners initially trusted the employee and responded to his messages, they later became uncomfortable with his conduct.
4.2.2 The employer further relied on evidence that Employee allegedly:
4.2.2.1 Sent inappropriate WhatsApp messages and TikTok videos to both learners.
4.2.2.2 Shared personal information and aspects of his private life with learners.
4.2.2.3 Gave special attention to the learners through gifts, food, hugs and compliments.
4.2.2.4 Changed the academic marks of MF and MD.
4.2.2.5 Developed relationships that resulted in learners confiding deeply personal and emotional matters to him.
4.2.2.6 Engaged in physical contact during a school tour, including allegedly placing his arms around MD’s waist and holding MF around her hips, which caused discomfort.
4.2.3 The employer submitted that the complainants’ evidence demonstrated a pattern of boundary violations that caused emotional distress and discomfort to both learners.
4.3 Evidence of Ms Carla Booysen
4.3.1 The employer submitted that Ms Booysen’s evidence corroborated the complainants’ accounts. According to the employer, she testified that both learners reported the incidents to her independently and later confided additional details to her. The employer further relied on her evidence that the learners had no apparent reason to fabricate the allegations and that she observed emotional distress on their part, including an incident in which MD was found almost unconscious in the bathroom.
4.4 Criticism of Employee’s Evidence
4.4.1 The employer submitted that Employee’s version was characterised by contradictions, improbabilities and material inconsistencies. Particular emphasis was placed on the following:
4.4.1.1 His contradictory explanations regarding the TikTok videos sent to MF.
4.4.1.2 His admission that he shared a detailed video of his private flat with MD.
4.4.1.3 His acknowledgment that he sent the messages, images and emojis, while attempting to explain them as “professional faults”.
4.4.1.4 His extensive knowledge of learners’ personal and emotional circumstances.
4.4.1.5 Inconsistencies regarding the extent of his communication with learners.
4.4.1.6 His inability to recognise the inappropriate nature of the photographs and physical interactions with learners.
4.4.1.7 His acceptance of gifts from learners and social interactions outside ordinary educator-learner boundaries.
4.4.2 The employer argued that Employee’s evidence demonstrated a failure to appreciate the distinction between caring for learners and crossing professional boundaries.
4.5 Criticism of the Employee’s Witnesses
4.5.1 The employer submitted that the evidence of ZR and ZF was of limited probative value because it focused primarily on the pool incident (Allegation 4). The employer argued that, by their own admission, they were preoccupied with each other and could therefore not reliably dispute what occurred between Employee and MD. It was further submitted that their evidence contained contradictions and reflected selective memory, which reduced its reliability.
4.6 Grooming Allegations
4.6.1 A central theme of the employer’s argument was that Employee’s conduct constituted grooming behaviour. In this regard, the employer submitted that he:
4.6.1.1 Built trust relationships with vulnerable learners.
4.6.1.2 Shared personal information with them.
4.6.1.3 Exploited their emotional vulnerabilities.
4.6.1.4 Provided special attention, compliments, gifts, food and physical affection.
4.6.1.5 Encouraged emotional dependence and personal disclosure.
4.6.1.6 Maintained extensive personal communication outside educational purposes.
4.6.2 The employer submitted that these factors, taken together, demonstrated grooming behaviour even in the absence of overt sexual conduct.
4.7 Breakdown of Trust and Suitability to Remain an Educator
4.7.1 The employer argued that Employee failed in his duty of care towards learners and breached the trust inherent in the educator-learner relationship. It submitted that his conduct was inconsistent with the standards required by the SACE Code of Professional Ethics and the principle of in loco parentis. The employer further submitted that Employee showed no remorse, continued to justify his conduct and failed to appreciate the seriousness of his actions.
4.8 Legal Argument
4.8.1 Relying on authorities such as Masilela v Leonard Dingler (Pty) Ltd, Motsamai v Everite Building Products (Pty) Ltd, Ncakeni Arbitration, Sogoni v Western Cape Education Department and Diholo v Gauteng Department of Education, the employer submitted as follows:
4.8.1.1 The applicable standard is proof on a balance of probabilities.
4.8.1.2 The employer’s version is more probable, dependable and corroborated.
4.8.1.3 Sexual harassment and grooming-related misconduct are serious offences warranting dismissal.
4.8.1.4 Educators who exploit professional boundaries and foster inappropriate emotional relationships with learners commit serious misconduct, even where physical sexual acts are absent.
4.8.1.5 Learners are constitutionally entitled to protection from exploitation and grooming conduct.
4.9 Relief Sought
4.9.1 The employer requested a finding that Employee is guilty on all four allegations. It submitted that the trust relationship had been irretrievably damaged, that he posed a risk to learners and that dismissal was the appropriate sanction in the circumstances.
EMPLOYEE’S EVIDENCE AND ARGUMENT
4.10.7.3 Gawie Visagie
4.10.7.3.1 Employee testified that he has close to 35 years of teaching experience.
4.10.7.3.2 He testified that he enjoys helping learners who are interested in the subjects he teaches and that he derives satisfaction from mentoring and supporting learners who show a willingness to go the extra mile.
4.10.7.3.3 He testified that MF and MD showed a strong interest in his class and were particularly concerned about their marks.
4.10.7.3.4 He testified that he became friendly with the two learners, grew close to them and enjoyed their conversations.
4.10.7.3.5 He admitted that, in hindsight, the sending of WhatsApp messages may have been unprofessional.
4.10.7.3.6 He testified that he had no ulterior motive in sending the WhatsApp messages, and that he was merely being friendly and responding in kind.
4.10.7.3.7 He denied grooming either of the two learners, denied touching them inappropriately and denied the allegations made against him.
4.10.7.3.8 He further denied sending the inappropriate TikTok video that was played during the arbitration.
4.10.7.3.9 He admitted sending MD a video of his new apartment, which he said he had made for his family, after she showed an interest in where he was moving.
4.10.7.3.10 He testified that he felt sorry for the learners and wanted to be available to them as a mentor or guardian figure whom they could trust.
4.10.7.4 ZR
4.10.7.4.1 ZR testified that he went swimming with the employee during the school trip.
4.10.7.4.2 He testified that there were many people in the pool, including persons other than learners from the school.
4.10.7.4.3 He testified that he spent most of the time swimming with the other boys, including the employee.
4.10.7.4.4 He testified that he moved to sit with ZR approximately ten minutes before he left the pool with the other learners.
4.10.7.4.5 He testified that MD was sitting with other girls on the opposite side of the pool.
4.10.7.4.6 He further testified that two female teachers and other adults, in addition to the employee, were present at the pool.
4.10.7.4.7 He testified that he did not see the employee near MD while they were swimming.
4.10.7.4.8 He testified that he and ZF played putt-putt with the employee and that they played only one game.
4.10.7.5 ZF
4.10.7.5.1 ZF testified that she sat next to the pool on the day the group went swimming during the school trip.
4.10.7.5.2 She testified that she sat on the side of the pool taking photographs and watching everyone swim.
4.10.7.5.3 She testified that she remembered the employee swimming with a group of boys.
4.10.7.5.4 She also testified that she remembered MD sitting with her friends on the opposite side of the pool.
4.10.7.5.5 She testified that she and ZR played putt-putt with the employee and that they played only one game.
4.10.7.5.6 She further testified that she assisted the employee with a history exhibit after school and helped him in his classroom.
4.10.7.5.7 She testified that she had never felt unsafe or uncomfortable in the employee’s presence.
4.10 Employee’s Evidence and Argument
4.10.1 The employee submitted that the employer failed to discharge the onus of proving the four allegations on a balance of probabilities and contended that the complainants’ evidence was unreliable, contradictory, exaggerated and unsupported by objective evidence. On that basis, the employee sought a finding of not guilty on all charges.
4.10.2 General Challenge to the Employer’s Case
4.10.2.1 The employee argued that the employer’s case focused more on portraying the employee’s character negatively than on proving the specific allegations in the charge sheet. It was submitted that Ms Carla Booysen’s evidence was hearsay, speculative and unrelated to the actual charges, and therefore carried limited evidentiary value. The employee further contended that the evidence of MF and MD was unusually similar, suggesting that it may have been influenced, rehearsed or coached.
4.10.2.2 The employee further submitted that the employer relied heavily on inference and speculation and that the contradictions and improbabilities in the complainants’ evidence undermined the reliability of their allegations.
4.10.3 Allegation 1: TikTok Video Sent to MF
4.10.3.1 The employee submitted that the employer failed to prove that Employee sent the allegedly inappropriate TikTok video to MF. Although the video formed the basis of a serious allegation, it was argued that no corroborating evidence linked the video to Employee and that he denied sending it. The employee therefore contended that the allegation remained unsubstantiated.
4.10.4 Allegation 2: WhatsApp Messages to MF
4.10.4.1 Regarding the WhatsApp messages exchanged with MF, the employee argued that the messages, images and emojis had to be considered in context. In this regard, the employee submitted that:
4.10.4.1.1 MF initiated many of the conversations with Employee and sought his assistance and guidance.
4.10.4.1.2 The messages reflected, according to the employee, a supportive teacher-learner relationship rather than an inappropriate one.
4.10.4.1.3 The use of heart emojis has, it was argued, become commonplace in modern communication and cannot without more be interpreted as evidence of romantic or sexual intent.
4.10.4.1.4 The communications did not, on the employee’s version, contain improper, disgraceful or sexually suggestive content.
4.10.4.2 The employee further relied on evidence that MF thanked Employee for his assistance, requested hugs and expressed trust in him, which was said to be inconsistent with her later claim that she felt uncomfortable throughout the relationship.
4.10.5 Allegation 3: WhatsApp Messages to MD
4.10.5.1 The employee argued that the WhatsApp communications with MD were likewise taken out of context. Particular reliance was placed on messages in which MD expressed appreciation and affection towards employee, including statements that he had quickly found a place in her heart. The employee submitted that employee’s responses were reciprocal and courteous rather than inappropriate.
4.10.5.2 In support of this contention, the employee submitted that:
4.10.5.2.1 MD initiated several personal conversations.
4.10.5.2.2 The exchanges reflected gratitude, mentorship and mutual trust.
4.10.5.2.3 When the full conversations are considered, they do not support the employer’s allegations.
4.10.5.2.4 The employer selectively relied on isolated messages to create an impression of misconduct.
4.10.6 Allegation 4: Alleged Sexual Harassment of MD
4.10.6.1 The employee argued that the allegation of inappropriate physical contact was vague and unsupported by independent evidence. In this regard, the employee submitted that:
4.10.6.1.1 The pool incident allegedly occurred in the presence of numerous learners, teachers and members of the public.
4.10.6.1.2 Neither ZR nor ZF observed any inappropriate conduct by the employee.
4.10.6.1.3 Both witnesses testified that MD was situated separately from the employee during the swimming activities.
4.10.6.1.4 No independent witness was called to corroborate MD’s version despite the presence of numerous potential witnesses.
4.10.6.2 The employee argued that the absence of corroboration justified a negative inference against the employer and relied on Tshishonga v Minister of Justice and Constitutional Development in support of that proposition.
4.10.6.3 The employee further relied on messages sent by MD after the tour in which she thanked the employee, described him as a fantastic teacher and expressed appreciation for his support. It was argued that these communications were inconsistent with the allegation that she had been intimidated, harassed or victimized.
4.10.7 Defence Evidence
4.10.7.1 The employee relied heavily on the employee’s testimony that:
4.10.7.1.1 He had approximately 35 years of teaching experience.
4.10.7.1.2 He had no ulterior motive in communicating with the learners.
4.10.7.1.3 He accepted that some WhatsApp interactions may, in hindsight, have been professionally unwise, but denied that they constituted grooming behaviour.
4.10.7.1.4 He denied touching either complainant inappropriately.
4.10.7.1.5 He denied sending the alleged inappropriate TikTok video.
4.10.7.1.6 His interactions with the learners stemmed from a genuine desire to mentor and support learners who sought his guidance.
4.10.7.2 The employee also relied on the evidence of ZR and ZF, who described the employee’s interactions with learners as appropriate and denied witnessing any inappropriate conduct during the school tour. Both witnesses testified that they had never felt uncomfortable or unsafe in his presence.
4.10.8 Conclusion on Guilt
4.10.8.1 In conclusion, the employee submitted that:
4.10.8.1.1 The employer had failed to prove any of the allegations on a balance of probabilities.
4.10.8.1.2 The evidence relied upon by the employer was speculative and contradictory.
4.10.8.1.3 The WhatsApp messages, when viewed in their entirety, supported the employee’s version rather than the employer’s.
4.10.8.1.4 The allegations of sexual harassment and grooming were not corroborated by objective evidence.
4.10.8.1.5 The employee’s version was the more probable version and should be preferred.
4.10.8.2 The employee therefore requested that all charges be dismissed and that Employee be found not guilty.
4.10.9 Alternative Mitigation (If Found Guilty)
4.10.9.1 Without conceding guilt, the employee submitted the following mitigating factors for consideration should any allegation be upheld:
4.10.9.1.1 He had 34 to 35 years of teaching experience.
4.10.9.1.2 He had seven years’ service at Hoerskool Kempton Park.
4.10.9.1.3 He had a clean disciplinary record.
4.10.9.1.4 He served as Head of Department.
4.10.9.1.5 He had family responsibilities, including caring for his 78-year-old mother who suffers from ovarian cancer.
4.10.9.1.6 He alleged an absence of malicious intent.
4.10.9.1.7 He had already suffered significant reputational damage as a result of the allegations and the prolonged precautionary transfer.
4.10.9.1.8 He had recently accepted a position at Hoerskool Oosterlig.
4.10.9.1.9 Any misconduct, if found, arose from poor professional judgment rather than improper motives.
4.10.10 Core Themes of the Employee’s Case
4.10.10.1 The employee’s closing argument was that the communications were inappropriate in hindsight but not improper, sexual, disgraceful or constitutive of grooming; that the complainants’ evidence was unreliable because it was contradicted by their own messages and lacked independent corroboration; and that the employer failed to prove the allegations on a balance of probabilities, particularly the allegations of sexual harassment.
4.10.10.2 These themes, according to the employee, formed the core of the defence case.
- ANALYSIS OF EVIDENCE AND ARGUMENT
5.1 The employer bears the onus of proving the allegations against the employee on a balance of probabilities.
5.2 In analyzing the evidence, the wording of the charges is of particular importance. Allegation 1 expressly alleges sexual harassment. Allegation 4 likewise expressly alleges sexual harassment arising from alleged physical contact. Although Allegations 2 and 3 refer to inappropriate messages, the employer’s case, written argument and reliance on authorities such as Ncakeni, Sogoni and Diholo were advanced on the basis that the conduct constituted grooming leading to sexual misconduct.
5.3 The employer repeatedly contended that the messages were sexual in nature, that the conduct amounted to grooming, that the learners were being prepared for a sexual relationship and that the conduct constituted sexual harassment. If that is the case advanced by the employer, the question that arises is whether the evidence establishes sexual intent, or conduct of a sexual character, on a balance of probabilities.
5.4 When the WhatsApp messages are examined, there is no direct evidence of sexual propositions, requests for sexual favours, sexually explicit content, romantic declarations by the employee, attempts to arrange secret meetings for sexual purposes, or physical intimacy beyond the allegations themselves. The messages may well demonstrate poor boundaries, emotional over-involvement, over-familiarity and unprofessional conduct. However, such conduct is not necessarily equivalent to sexual harassment or grooming. An educator may be guilty of boundary violations without being guilty of sexual misconduct.
5.5 The employer’s difficulty is that it seeks to draw an inference of sexual intent from conduct that is also consistent with poor professional judgment. The authorities relied upon by the employer concern circumstances in which there was evidence from which a sexual or romantic objective could be inferred. In the present matter, there were no love letters, no requests for sexual contact, no requests for secrecy, no evidence of a romantic relationship and no evidence of sexual discussions. The inference of sexual intent is therefore not the only reasonable inference arising from the circumstantial evidence before me.
5.6 Allegation 4 presents an additional difficulty. Even if one were to accept that the employee touched MD around the waist in the pool, the charge is not merely one of inappropriate touching. The charge is one of sexual harassment. To sustain such a finding, there must be evidence from which a sexual purpose or sexual character can be inferred. The evidence establishes that the complainant felt uncomfortable, and that is significant. However, discomfort alone does not necessarily establish sexual harassment. A finding of sexual harassment requires more than proof that physical contact occurred.
5.7 A commissioner cannot find an employee guilty of misconduct that was not charged. If the charge is sexual harassment, but the evidence establishes only inappropriate professional boundaries or unprofessional conduct, care must be taken not to amend the charge through the award itself. It is trite that an employee must know the case that he is required to meet.
5.8 On the evidence before me, there is a proper basis for finding that the WhatsApp communications were inappropriate and unprofessional and that the employee crossed professional boundaries. However, that does not, without more, establish that the communications were motivated by sexual intent, nor does it establish grooming as contemplated in the authorities relied upon by the employer. For the same reason, the employer failed to prove sexual harassment on a balance of probabilities.
5.9 If sexual intent or conduct of a sexual character is an essential component of the misconduct actually charged, the charges cannot succeed merely because the conduct was inappropriate, ill-advised or professionally unacceptable.
5.10 While the evidence demonstrates that the employee exercised poor professional judgment and engaged in communications that were overly familiar and inconsistent with the standards expected of an educator, the charges before me are not charges of poor judgment, boundary violations or unprofessional conduct. They are framed as sexual harassment and misconduct of a sexual nature. Having considered the totality of the evidence, I am not persuaded on a balance of probabilities that the employer established the requisite sexual intent or sexual character necessary to sustain the charges. Although the employee’s conduct was inappropriate and ill-advised, inappropriate conduct alone does not constitute proof of sexual harassment. Accordingly, the employer has failed to discharge the onus resting upon it to prove the four allegations made on a balance of probabilities. - SANCTION
The employee is found not guilty on all four charges levelled against him.
Signature:
Date: 04 June 2026
Commissioner: M.A. Hawyes
Sector: