05 November 2026 – ELRC455-26-27GP

Case Number: ELRC455-26-27GP
Commissioner: E Maree
Date of Award: 05 November 2026

In the ARBITRATION between

Martin Pheaha Dudja

(Applicant)

And

Department of Education Gauteng

( Respondent)

Applicant’s representative: In Person

Respondent’s representative: Mr. A. Maseko

Details of hearing and representation

The arbitration regarding an alleged unfair dismissal, referred in terms of section 191 of the Labour Relations Act 66 of 1995 [as amended], ‘’the LRA’’ was heard via TEAMS on 23 October 2026.
The applicant was initially represented by Ms. Langa an attorney, while the respondent was represented by Mr. A. Maseko, a Senior Labour Relations Officer. The dismissal related to alleged misconduct and Mr Maseko objected to the applicant’s legal representative. Both parties were given an opportunity to submit oral arguments and following such, it was ruled that legal representation would not be allowed. The arguments of the parties as well as the reasons for the ruling are captured electronically and the award will not be burdened with such. It is regarded as part of this award.
The arbitration was electronically recorded, and handwritten notes were taken. Ms. C. Kgatle rendered assistance as Sepedi interpreter.

Issues to be decided
4. I must determine if the dismissal of the applicant was substantively fair.

Appropriate relief must be determined in the event of a finding of unfairness,

Background to the dispute
6. The applicant had been employed as PL2 Lecturer at Western TVT College since 2019 and earned R38,763.25 per month.

The applicant was dismissed on 12 February 2026 on a charge of sexual harassment subsequent to a disciplinary hearing. The applicant submitted a written guilty plea with the assistance of his union Nehawu. The plea is signed by the applicant and Musawenkosi Justice Nhlapo, whose capacity is indicated on the plea as NEHAWU Chairperson.
The applicant seeks reinstatement.
The parties provided a signed pre-arbitration agreement detailing amongst others the common cause and disputed issues.
The issue in dispute (paragraph 4) was set out as ‘’whether or not the sanction of dismissal was appropriate’’.
Paragraph 5 deals with the issue that needs to be determined and it is stated ‘’whether the dismissal of the applicant was substantively fair particularly whether the sanction of dismissal was appropriate’’.
The applicant submitted bundle A and the respondent bundle B.

Survey of evidence and argument

The LRA requires that brief reasons be given in an award, therefore the following is a summary of the relevant evidence given under oath and submissions made in argument all of which is not reflected in this award but has nevertheless been taken into account.

Respondent’s evidence

The respondent called one (1) witness in order to prove, on a preponderance of probabilities that the dismissal of the applicant was substantively fair in that the sanction of dismissal was appropriate.
Mr. Sibusiso Mashinini testified that he is a senior Legal Admin Officer, acted as the chairperson at the applicant’s disciplinary hearing and issued the sanction report (Bundle B pages 11-17). The applicant was charged with the sexual harassment of a female colleague (his subordinate) based on an incident in the staffroom in full view of all colleagues. Such is a dismissible offence due to the seriousness thereof, even for a first offence and even if there is a clean disciplinary record. He considered such as well as the applicant’s personal circumstances such as the fact that he was a breadwinner and supported family. The applicant pleaded guilty to the charge. It was aggravating that sexual harassment is a serious offence, that the complainant was the applicant’s subordinate and subjected to his daily instructions. He also considered that the complainant had amongst others, the right to dignity.
Mr. Mashinini submitted that he also considered case law and the relevant legislative framework that includes the code of conduct (pages 12-16). He took into account that the guilty plea might indicate remorse, but the misconduct was serious and having considered the mitigation, aggravation and all other relevant legal aspects (case law, Constitution and Code of Conduct) it was his view that the sanction of dismissal was appropriate.
In conclusion Mr Mashinini submitted that there was no alternative such as suspension without pay as the applicant would have to return to the workplace creating an intolerable situation for the complainant. The applicant could also not be transferred as the misconduct could occur at another campus.

Applicant’s evidence

The applicant Mr. Martin Pheaha Dudja testified that he ‘’would give the case truthfully’’. He had a clean record and worked hard and is thus ‘’not happy’ with the decision. He ‘’feels’’ that the decision of dismissal is harsh and he and the complainant ‘’had forgiven each other and are on good terms’’.
Mr. Dudja submitted that he is ‘’very humble and a good person and humbly asks forgiveness’’. The chairperson could have suspended him for 3 months without salary, gave him a final written warning, demoted him or transferred him. He realised his ‘mistake’ and asks for mercy. He had learned from his mistake.

Analysis of Evidence and Arguments

Section 192(1] of the Labour Relations Act 66 of 1995 as amended (LRA) places the onus on an applicant to establish the existence of the dismissal, which in this matter was common cause as was the procedural fairness thereof.
Section 192(2) requires that the respondent must prove that the dismissal was substantively fair.
In order to determine if dismissal was for a fair reason and effected in accordance with a fair procedure regard must be had to The Code of Good Practice: Part D: Misconduct. It is inter alia stated that:

“Any person who is determining whether a dismissal for misconduct is unfair should consider –

(a) Whether or not the employee contravened a rule or standard regulating conduct in, or of relevance to, the workplace; and

(b) if a rule or standard was contravened whether or not-

(i) the rule was a valid or reasonable rule or standard;

(ii) the employee was aware, or could reasonably be expected to have been aware of the rule or standard;

(iii)] the rule or standard has been consistently applied by the employer and;

(iv) dismissal was an appropriate sanction for the contravention of the rule or standard. “

The applicant was charged in terms of the applicable disciplinary code (Bundle B) and the existence of the rule/s as contained therein were not disputed. The only substantive issue to be dealt with is that contained in item (iv). The remainder of the substantive issues (a), (b) (i – iii) were not placed in dispute.
The respondent thus had to prove, on a preponderance of probabilities that the sanction of dismissal was appropriate.
It was submitted on behalf of the respondent that the applicant pleaded guilty to a serious charge of misconduct that warranted dismissal despite the applicant having a clean record and long service. Mr. Mashinini submitted that the took into account aggravating and mitigating arguments, as well as relevant case law and the legislative framework such as amongst others, the Constitution and the disciplinary code. He also had regard to the complainant’s constitutional right to dignity.
Mr Mashinini explained why he did not consider an alternative sanction (paragraph 16 supra).
The applicant submitted that he had a clean record and worked hard and ’feels’’ that the decision of dismissal is harsh especially as he and the complainant ‘’had forgiven each other and are on good terms’’.
The applicant further stated that he is ‘’a very humble and a good person and humbly asks forgiveness’’. He stated that the chairperson could have suspended him for 3 months without salary, gave him a final written warning, demoted him or transferred him. He realised his ‘mistake’ and asks for mercy. He claimed that he had learned from his mistake.
In Sidumo v Rustenburg Platinum Mines Ltd & Others (2007) 28 ILJ 2405 (CC) the court stated as follows in paragraphs 78 & 79:

(78) In approaching the dismissal dispute impartially, a commissioner will take into account the totality of circumstances. He or she will necessarily take into account the importance of the rule that had been breached. The commissioner must of course consider the reason the employer imposed the sanction of dismissal, as he or she must take into account the basis of the employee’s challenge to the dismissal. There are other factors that will require consideration. For example, the harm caused by the employee’s conduct, whether additional training and instruction may result in the employee not repeating the misconduct, the effect of dismissal on the employee and his or her long service record. This is not an exhaustive list.

(79) To sum up. ’In terms of the LRA a commissioner has to determine whether a dismissal is fair or not. A commissioner is not given the power to consider afresh what he or she would do, but simply to decide whether what the employer did was fair. In arriving at a decision, a commissioner is not required to defer to the decision of the employer. What is required is that he or she must consider all relevant circumstances’’.

In Department of Home Affairs and another v Ndlovu and others (2014) ILJ 3340 (LAC) it was held that in order to prove that the sanction of dismissal was appropriate the employer must present evidence to prove the breakdown in the employment relationship. Such evidence is not necessary where the breakdown is apparent from the nature of the offence and or the circumstances.
The applicant was charged with and pleaded guilty to a charge of sexual harassment. The written plea, signed by the applicant and his representative, the chairperson of NEHAWU Musawenkosi Justice Nhlapo.
The guilty plea is recorded as follows: ‘’……..do hereby plead guilty to the charge of sexual harassment as contained in the charge sheet’’ and ‘’I do hereby acknowledge that on the 6th of June 2025 in the NCV staffroom, I inappropriately touched Ms Vuyolethu Mazwi without consent and pulled down her skirt, resulting in me touching her thighs thus breaching the code of conduct’’.
It is also confirmed by the applicant that he understands the implications of the plea statement and declared that he had not been coerced to write the plea statement.
Mr Mashinini submitted that in view of the seriousness of the misconduct and the lack of viable alternatives, he imposed the sanction of dismissal. It was also stated that the complainant was a subordinate of the applicant and thus subjected to his instructions on a daily basis.
The rule/s breached relate to serious misconduct in that the applicant admitted that by his actions as explained in his written plea, he was guilty of sexual harassment.
The importance of the rule revolves around the protection of respondent, its educators and leaners. It was testified by Mr. Mashinini that acts of sexual harassment could also result in civil action been taken against the respondent, with resultant damage to the reputation of the respondent and might lead to damages to be paid. The rule protects employees/learners against the trauma and indignity of having to suffer sexual harassment. Such acts cause trauma that could last for a long time.
The misconduct of the applicant infringed on the rights of the complainant and was a clear violation of policy. South Africa is rife with sexual harassment, sexual assault and other forms of violence against woman. This needs to stop.
The applicant was a PL2 Lecturer had been in this position since 2019. He was placed in a position where a high premium of trust was placed on him to execute his duties in a competent manner and to act in the best interest of the protect the respondent, its learners and other lectures. He had failed to comply with all rules applicable to ensure this. One core duty is to treat others with respect and to not infringe on their dignity. The act of sexual harassment clearly informed on this.
The applicant did not dispute the existence of the rules, the contravention thereof, nor its importance, validity/reasonableness or the consistent application of discipline.
The applicant attempted to show remorse by claiming he is a good person, did his work and realised his ‘mistake’ and asks for mercy. He claimed that he had learned from his mistake.
The mere fact that the applicant terms his despicable conduct as set out in this plea as a ‘mistake’ shows that he has no understanding of the gravity of the misconduct, nor of its impact on the complainant. The failure to understand the impact and gravity of one’s actions, points to the possibility that such conduct can be repeated.
The applicant possibly only claims that he realised his mistake in an attempt to invoke sympathy for his plight and does not show real remorse.
Based on the position of trust that the applicant occupied, the seriousness of the offence, the failure to accept this and to show true remorse, I am not convinced that a lesser sanction would have rectified the errant behaviour.
It is also clear from the actions of the applicant and the evidence on behalf of the respondent that the misconduct that led to the applicant’s dismissal fairly attracted the sanction of dismissal as such destroyed the trust relationship beyond repair.
In considering the totality of circumstance and the quoted cases it is my view that the applicant, who was in a position of trust by virtue of the nature of the misconduct, destroyed the relationship of trust beyond repair.
The sanction of dismissal was therefore appropriate.