ARBITRATION
AWARD

Case Number: ELRC1129 – 25/26EC
Commissioner: MBULELO SAFA
Date of Award 05 May 2026

In the ARBITRATION between: –

EASTERN CAPE DEPARTMENT OF EDUCATION
Applicant/EMPLOYER

And

MTHEMBENI TAFENI
Respondent/EMPLOYEE

   DETAILS OF THE HEARING AND REPRESENTATION

1. The matter was set down for an inquiry by the arbitrator on 16 April 2026 at the offices of the employer at the KD Matanzima Building in Mthatha.
2. The employer was represented by Mr Khwezi Dalasile who is their Chief Education Specialist for Labour Relations and the employee was represented by Mr Welcome Ngcobo from the union, PSA.
3. Mr Siyamthemba Duma was the interpreter and Ms Nolulamo Nxala was the intermediary and both were appointed by the ELRC.
4. The proceedings were recorded in an audio recorder.

ISSUES TO BE DECIDED

5. Whether or not the employee is guilty of the charges proffered against him, and if he is guilty impose an appropriate sanction in terms of the Employment of Educators Act 76 of 1998.

BACKGROUND TO THE ISSUE

6. The employee is employed by the Eastern Cape Department of Education in terms of the Employment of Educators Act 76 of 1998 as an educator at St Patrick Senior Secondary School (the school) in OR Tambo Coastal District of the employer.
7. He was charged in terms of section 17(1)(b) of the Employment of Educators Act 76 of 1998 in that he is alleged to have had a sexual relationship with a learner of the school.
8. The proceedings were conducted in terms of ELRC Collective Agreement 3 of 2018 which provides that it is mandatory that in misconduct cases where the allegations against the educator relate to alleged sexual misconduct against a learner the matter must be dealt with as an inquiry by arbitrator in terms of section 188A of the Labour Relations Act 66 of 1995.
   SURVEY OF EVIDENCE AND ARGUMENT
9. The employer led oral evidence through one witness and the employee elected not to lead evidence.
10. At the conclusion of the hearing the parties proposed to submit written arguments by the 24 April 2026. Such arguments have been incorporated into the award. EMPLOYER ’S EVIDENCE
11. The only witness of the employer was the former learner of the school who is currently nineteen years old and at the time when the incident started, she was seventeen years old. Because of her age she testified virtually, and her name will not be divulged in the award. She will only be referred to as the complainant.
12. She testified that she knew the employee who was her Economics educator and that they started dating in 2024 when she was doing grade 11. She said the relationship started after he sent her a message proposing love to her. She said she agreed to the proposal and they started the relationship.
13. She said the employee would send her a text message requesting that they meet near the shop or at the place of the employee where they would chat and engage in sex.
14. She testified that she did not complete grade 12 in 2025 because she was admitted in hospital after a rape incident where she was raped by a gentleman who she first met when he was together with the employee but later came back to her and raped her.
15. After the incident she was admitted in hospital and her family did not allow her to go back to the school.

ANALYSIS OF EVIDENCE AND ARGUMENT

16. Since this was the disciplinary enquiry, the onus was on the employer to prove the allegations on a balance of probabilities.
17. When the charges were read to the employee and he be called upon to plead he pleaded that he was guilty.
18. Not only did the employee plead guilty but he also did not cross-examine the complainant and also did not lead any evidence.
19. As the employee has pleaded guilty, I can confirm also that he is found guilty of having a sexual relationship with the complainant.
20. In the closing arguments the employee submitted that by pleading guilty he demonstrated genuine remorse and accountability. He also argued that he had a service of about ten years and had a clean disciplinary record. He also submitted that at his young age of thirty-four years he can still be rehabilitated and six children whose livelihood is dependent on him. He then concluded by praying for a lengthy suspension coupled with a final written warning.
21. The employer submitted that the employee must be dismissed because his conduct shows that he was not fit to work amongst learners as an educator and was a danger to the vulnerable girl children.
22. As someone who has the role of acting in loco parentis the conduct of the employee was a disgrace to the profession of educators. Such a conduct needs to be dealt decisively so as to send a strong message even to other educators and to the public in large that it cannot be tolerated.
23. Section 17(1)(c) of the Employment of Educators Act 76 of 1998 it is mandatory that an educator who is found guilty of having a sexual relationship with a learner where he or she is teaching, must be dismissed.
24. It therefore follows that following the finding of guilt the sanction that must be imposed is dismissal.
25. Section 120(1) of the Children’s Act provides that a children’s court, any court in civil or criminal proceedings or any platform recognized by law in disciplinary proceedings may make a finding that the person is not suitable to work with children. The finding may be made by the court or platform on its own volition or on application by the relevant official of the state involved in the protection of children .
26. In this arbitration no evidence was led by parties on the suitability or not of the employee to work with children. I have therefore decided that I am making the finding that the employee is, in terms of the Children’s Act, not suitable to work with children.

In the circumstances I make the following award.
AWARD

27. The employee, Mthembeni Tafeni, is found guilty of contravening section 17(1)(b) of the Employment of Educators Act 76 of 1998 in that he had a sexual relationship with the learner in the school where he was teaching.
28. The appropriate sanction being imposed is summary DISMISSAL. .
29. The employee, Mthembeni Tafeni, is hereby found unsuitable to work with children in terms of section 120(4) of the Children’s Act . The General Secretary of the ELRC is, in terms of section 122(1) of the Children’s Act is hereby directed to notify the Director-General: Department of Social Development of the findings of this forum so that the Director-General can, in terms of section 122(2) of the Children’s Act enter his (Mthembeni Tafeni’s) name as contemplated in section 120 in part B of the register.

Mbulelo Safa: ELRC Panelist