06 November 2025 -ELR648-25/26FS

Commissioner: Ephraim Dikotla
Case No.: ELR648-25/26FS
Date of Award: 06 November 2025

In the ARBITRATION between:

SADTU obo Lehlohonolo Masili: (Employee / Applicant)

AND

Department of Education –Free State Province: (Employer / Respondent)

DETAILS OF THE HEARING AND REPRESENTATION

The arbitration hearing was conducted virtually on 28 October 2025. The Applicant was represented by Mbuyiselo Elliot Frans, an official of SADTU. The Respondent was represented by Vuyisile Gubuza, its Deputy Director: Dispute Resolution Management.
Both parties submitted their written closing arguments on 31 October 2025. In making my decision, I have taken into account these closing arguments.

ISSUES TO BE DECIDED

I am required to determine the proper interpretation of clause 3.1 of the ELRC Collective Agreement 3 of 2018, and then determine whether or not the employer was entitled to invoke it.

BACKGROUND TO THE DISPUTE

The Applicant was employed as an Educator by the Respondent. He was issued with a notice to attend a disciplinary hearing in terms of Schedule 2, Item 5 of the Disciplinary Code and Procedure for Educators.
The allegation that was proffered against the Applicant reads: ‘ You have contravened Section 18 (1) (q) of the Employment of Educators Act No 76 of 1998, in that during 2nd terms 2025 while on duty, you conducted yourself in an improper, disgraceful or unacceptable manner when you had an inappropriate relationship with a grade 08 Lerato Tladi.’
The Respondent then invoked ELRC Clause 3 of Collective Agreement 3 of 2018 as it was of the view that the Applicant had committed a sexual misconduct towards a learner, one Lerato Tladi. The Union, acting on behalf of the Applicant referred a dispute of Interpretation and Application of the Collective Agreement. The Union contended that the allegation against the Applicant was about the contravention of section 18 (1) (q) of the Employment of Educators Act 1998 as amended (‘the EEA’) and not about sexual misconduct.

SURVEY OF PARTIES’ EVIDENCE AND ARGUMENTS

A summary of only what I consider relevant evidence and argument is given below.

Applicant’s case

Mbuyiselo Elliot Frans’s evidence was briefly to the following effect:

The Respondent made a referral relating to enquiry by arbitrator to the ELRC in terms of ELRC Collective Agreement 3 of 2018. This deals with an enquiry by arbitrator where Educators are charged with sexual misconduct towards learners. SADTU as a signatory to the collective agreement understood what it was protecting. They did not want to see children testifying about matters that are sexually related. The Collective Agreement was not made to deal with any matter outside sexual misconducts.
The other serious misconducts are found in section 17(1) of the EEA. Not all of these are subject to section 188A of the Labour Relations Act. Even matters of capital punishment and assault are serious but they are not referred as enquiry by arbitrator.
The process of enquiry by arbitrator has a mandatory sanction. Reference was made to clause 5 of the Collective Agreement. The Applicant was accused of improper conduct but was subjected to enquiry by arbitrator. There is no provision for warnings as the mandatory sanction is dismissal. The Respondent has made an offence of, ‘improper conduct’ mandatory to be referred to enquiry by arbitrator.
Under –cross examination, the witness maintained that it was improper for the Respondent to refer a matter of improper conduct to enquiry by arbitrator. He refuted the Respondent’s claim that improper conduct or inappropriate conduct could be of sexual nature. The witness was asked to classify a situation where an Educator makes sexual advances. His response was that if the sexual advances are rejected and persisted, they would amount to sexual harassment. Respondent’s case Vuyisile Gubuza’s evidence was briefly to the following effect:
The Collective Agreement provides for compulsory enquiry by arbitrator. Reference was made to page two (2) of the Collective Agreement. The object was to protect a learner from giving the same evidence at different forums. Clauses 3.1 and 5 of the Collective Agreement were read into the record. Reference was also made to section 17 of the EEA. If an Educator displays a behaviour that is sexual in nature towards a learner, it cannot be said that the Educator has a relationship with a learner.
The Applicant was accused of proposing to have a romantic relationship with the learner. This relationship cannot be defined in terms of section 17 (1) (b). In terms of the EEA, the relationship was improper and unacceptable as the Applicant proposed to have a sexual relationship with the learner. Reference was made to clause 6 of the Collective Agreement. The Applicant could be charged in terms of section 18 (1) (q), as long as it could be proven that the conduct was sexual in nature.
Under cross-examination, he maintained that improper conduct by the Applicant was of sexual nature. He further maintained that the Applicant made sexual advances towards the learner outside the school and the learner had not yet consented.

ANALYSIS OF PARTIES’ EVIDENCE AND ARGUMENTS

The crucial issue which needs to be determined is whether the Respondent was entitled to invoke clause 3.1 of ELRC Collective Agreement 3 of 2018.
Clause 68 of the ELRC Constitution provides: ‘A party to a dispute about the interpretation or application, or non- compliance of a collective agreement including the provisions of the BCEA may refer such dispute to conciliation and arbitration in terms of these procedures’.
In HOSPERSA obo Tshambi v Department of Health, Kwazulu Natal (2016) 7 BLLR 649 (LAC), it was held that a dispute about the interpretation of collective agreement requires, at a minimum, a difference of opinions about the meaning of its provisions. A dispute about the application of a collective agreement requires, at a minimum, a difference of opinion about whether it can be invoked.
I must state from the outset that in the present matter, there is no difference of opinion about the meaning of its provisions, particularly, clause 3.1 of Collective Agreement 3 of 2018. Therefore it is not necessary for me to ascertain the real meaning of clause 3.1 of the Collective Agreement 3 of 2018.The dispute, as I understand it, is about a difference of opinion about whether this provision can be invoked. The Applicant contended that the Respondent was not entitled to invoke clause 3.1 of this Collective Agreement.
The Applicant averred that the allegation against him was about the contravention of section 18 (1) (q) of the EEA and not about sexual misconduct. He further averred that this section refers to conduct that is improper, disgraceful and unacceptable.
On the other hand, the Respondent testified that the Applicant was accused of proposing love or making sexual advances to one, Lerato Tladi, a grade eight (8) leaner. This was undisputed. In its view, this was a sexual misconduct. It further stated that the Applicant was charged with contravention of section 18 (1) (q) of the EEA as his conduct was improper, disgraceful, unacceptable and inappropriate.
I now turn to deal with the issue of whether the Respondent was entitled to invoke clause 3.1 of Collective Agreement 3 of 2018.
Clause 3.1 provides: ‘ In all matters in which an employer wants to take disciplinary action against an educator for alleged sexual misconduct committed towards an learner, an inquiry by an arbitrator (also known as a disciplinary hearing in the form of an arbitration), as intended in section 188A of the Labour Relations Act, and clause 32 of the Dispute Resolution Procedure of the ELRC, shall be mandatory.’
The Respondent charged the Applicant with contravention of section 18 (1) (q) of the EEA. This section reads as follows: ‘ Misconduct refers to a breakdown in the employment relationship and an educator commits misconduct if he or she-while on duty, conducts himself or herself in an improper, disgraceful or unacceptable manner’.
The Applicant argued that if the allegation were true, the Respondent should have charged him in terms of section 17 (1) (a) of the EEA and not section 18 (1) (q) of the EEA. In his view, improper and disgraceful conduct does not include sexual misconduct. I disagree.
Firstly, section 18 (1) (a-ff), provides for a list of thirty two (32) conducts which amount to misconduct. In other words, if an employer alleges that an employee has committed a misconduct, it will have to locate that particular misconduct in section 18 (1) of the EEA. It is important to note that if one looks at all these misconducts in section 18 (1), there is not a single one which specifically refers to sexual misconduct. But what is clear is that conduct of sexual nature includes amongst others the following: Sexual attention, sexual advances and proposals of a sexual nature (see Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace).
So the Respondent in this case charged the Applicant with contravention of section 18 (1) (q) of the EEA. It chose this particular section because sexual misconduct can be classified as conduct that is improper, disgraceful and unacceptable.

Secondly, section 17 of the EEA reads as follows: ‘Serious misconduct-(1) An educator must be dismissed if he or she is found guilty of- (a-f)’.

This provision simply provides that it is mandatory to dismiss an employee if he or she is found guilty of these serious misconducts in section 17 (1) (a-f). So sections 17 and 18 of the EEA are distinct and serve two different purposes. The former indicates misconducts which are regarded as serious and furthermore, indicates the appropriate sanction if an employee is found guilty. On the other hand, the latter merely provides a list of misconducts for the employers to choose from if there are allegations of misconduct against an employee.
Perhaps the charge / allegation against the Applicant should have been clear and specific. But the fact that the allegation was not specific, does not bar the Respondent from invoking clause 3.1 of the Collective Agreement. In this case, substance is over form. What is important here is that the allegation is that the Applicant committed sexual misconduct towards a learner. I am satisfied that this is sufficient enough to entitle the Respondent to invoke clause 3.1 of the ELRC Collective Agreement 3 of 2018.

AWARD