Commissioner: Jacques Buitendag
Case No.: ELRC1042-25/26WC
Date of Award: 7 April 2026

In the Arbitration between:

SADTU OBO M FELIX
(Applicant)

and

DEPARTMENT OF EDUCATION OF WESTERN CAPE
(Respondent)
 
PARTICULARS OF PROCEEDINGS AND REPRESENTATION

1. The arbitration hearing held under the auspices of the Education Labour Relations Council (ELRC) took place virtually on the Teams platform on 17 March 2026. The proceedings were digitally recorded.
2. The Applicant Mr. M Felix was presented by Mr. J Adams of SADTU. Ms. V Mortlock represented the Respondent, the Department of Education of the Western Cape.
3. At the conclusion of the proceedings the parties requested the opportunity to submit written closing arguments. I received the closing arguments of the Applicant on 23 March 2026 and the closing arguments of the Respondent on 24 March 2026.

THE ISSUE IN DISPUTE

4. I must determine whether the Respondent’s conduct constitutes an unfair labour practice involving disciplinary action short of dismissal and if so, I must determine the appropriate remedy.

BACKGROUND TO THE ISSUE

5. The Applicant is employed as a Departmental Head at Groenberg Secondary School.
6. The Respondent charged the Applicant with multiple allegations of misconduct in terms of sections 18(1)(r) and 18(1)(q) of the Employment of Educators Act, 76 of 1998 (EEA) concerning his conduct towards learners during the 3rd term of 2024.
7. The disciplinary hearing commenced in February 2025 and was conducted in August 2025. Mr. Williams, the chairperson of the disciplinary hearing, found the Applicant guilty on charge 1 and charges 4 to 19.
8. Charge 1 concerns an allegation that the Applicant contravened section 18(1)(r) of the EEA in assaulting a learner by hitting the learner (allegedly with a plank) on his hand. The Applicant denied the allegation.
9. Charges 4 to 19 concern allegations that the Applicant contravened Sections 18(1)(r) and 18(1)(q) of the EEA in assaulting 8 learners by hitting them on their heads and locking them in a classroom. The Applicant pleaded guilty to these allegations.
10. The chairperson decided on the following sanction:
    “One month suspension without pay in terms of Section 18(3)(f) of Chapter 5 of the Employment of Educators Act, 76 of 1998 effective 01 October 2025;
    Plus
    Final Written Warning in terms of Section 18(3)(d) of Chapter 5 of the Employment of Educators Act, 79 of 1998 valid for Six (6) months.”
11. The Applicant served his period of unpaid suspension from 15 November 2025 – 15 December 2025.
12. On 4 December 2025 the Applicant referred a unfair labour practice dispute to the ELRC. A certificate of non-resolution of the dispute was issued on 15 December 2025 whereafter the dispute was set down for arbitration.

SUMMARY OF EVIDENCE AND ARGUMENT

13. I have considered all the evidence and argument. Because section 138(7) of the Labour Relations Act, 66 of 1995, as amended (LRA) requires an award to be issued with brief reasons for the findings; I shall briefly summarize the evidence and argument that I regard as necessary to substantiate my findings in the determination of the dispute. If I do not refer to particular evidence and argument, it does mean that I did not consider it.

The Applicant’s case

14. The Applicant, Mr. Felix, testified that he was responsible for discipline at the school.
15. In respect of charge 1 the Applicant testified that during one of the periods he went to the men’s bathroom where he encountered Mr. Uren and a learner. Mr. Uren informed him that the learner had skipped class. The Applicant testified that he had a talk with the learner about his poor discipline and his future. He was later informed that the learner accused him of hitting him with a plank. The Applicant testified that there were no planks in the vicinity of the bathroom and that he did not hit the learner with a plank. He pointed out that the learner first claimed that he was hit twice and later changed his version to say that he was hit three times.
16. In as far as charges 4 to 19 is concerned the Applicant testified that he pleaded guilty to the allegations. The Applicant explained that it was on a Friday afternoon that Mr. Sauls informed him that the Grade 9H class is causing disciplinary problems. He decided to keep the learners after school for detention. As the learners walked into this classroom, he hit each of them behind the neck / back area. At one stage he had to go the bathroom, and he decided to lock the learners in the classroom until he returned about 5 to 10 minutes later. The Applicant acknowledged that his conduct on this day was unacceptable.
17. The Applicant submitted that the chairperson’s sanction was not implemented in October 2025 and that he suffered financial hardship because of a deduction of monies when he was at work and because of his suspension from work without pay. He confirmed that monies deducted from his salary for days that he worked was refunded by the Respondent. The Applicant submitted that the chairperson’s sanction was unfair and that a written warning would have been a more appropriate sanction.
18. Mr. Uren testified he and a learner who skipped his class were on their way to the Applicant’s classroom when they encountered the Applicant rushing to the bathroom. They followed the Applicant into the bathroom. Mr. Uren testified that after the Applicant used the bathroom, he explained to the Applicant the disciplinary challenges that he is having with the learner. The Applicant then verbally reprimanded the learner.
19. Mr. Uren testified that he later learned that the learner accused the Applicant of hitting him with a plank. Mr. Uren testified that he would not have allowed the Applicant to inflict corporal punishment on the learner. He is adamant that the Applicant did not hit the learner with a plank.

The Respondent’s case

20. Mr. Achillies is a Labour Relations Officer employed by the Respondent. Mr. Achillies testified that he met with the Applicant on 23 September 2025 to inform him of the sanction and that the Respondent is considering implementing the suspension without pay in November 2025. He did not inform the Applicant of the exact date of when the suspension will commence. When Mr. Felix informed him that his representative has lodged an appeal, he informed the Applicant that a sanction cannot be implemented if an appeal was lodged. Mr. Achillies testified that he later learned that the appeal was submitted outside the prescribed timeframe.
21. Mr. Parnell, the Principal of Groenberg Secondary School testified that the educators are aware of the “Abuse no more” principle. Educators are also aware that parents must be contacted prior to learners serving detention.
22. In as far as charge 1 is concerned, Mr. Parnell testified that a learner reported to him that he was assaulted by the Applicant. He requested that the learner file a written complaint.
23. Regarding the implementation of the suspension without pay, Mr. Parnell confirmed that he received an email from the Directorate Labour Relations on 15 September 2025 in which the Directorate requested that he meet with the Applicant to establish when the Applicant would be going on suspension. Mr. Parnell testified that he did not meet with the Applicant because he was not supplied with a written report.
24. Mr. Parnell confirmed that the Applicant approached him on 14 November 2025 when he did not receive his salary. The Applicant thereafter served his unpaid suspension from 15 November – 15 December 2025.
25. Mr. Parnell testified that he did not receive a final written warning to be placed on the Applicant’s personal file at the school.
26. The chairperson of the Applicant’s disciplinary hearing, Mr. Williams, confirmed that he found the Applicant guilty of charges 1 and charges 4 to 19 based on his evaluation of the evidence and the Applicant’s guilty plea on charges 4 to 19.
27. Mr. Williams testified that it was agreed that aggravating and mitigating arguments would be included in the closing arguments of the parties. It was put to Mr Williams that he did not request mitigating arguments from the Applicant after he made the guilty finding, which is in contravention of Schedule 2, item 17(a) of the EEA.
28. Mr. Williams confirmed that the Applicant’s suspension without pay should have been implemented with effect from 1 October 2025 as per his report.

CLOSING ARGUMENTS

29. The written closing arguments of the parties are on record. I have considered it and I do not find necessary to repeat it here in full. I shall only provide a brief summary.
30. Mr. Adams argued that the Respondent committed an unfair labour practice concerning disciplinary action short of dismissal, inter alia the following basis: The Applicant was unfairly found guilty of charge 1; The chairperson has not requested for arguments in mitigation after he found the Applicant guilty; the Applicant was not informed in writing of the sanction; the chairperson imposed the suspension without pay from 1 October 2025- 31 October 2025 but the Respondent unilaterally changed the date to 15 November – 15 December 2025; the Applicant suffered financial prejudice as result of an unlawful change to the implementation date of the suspension period and the deduction of salary; furthermore the sanction was unfair and disproportionate.
31. The Applicant’s claims the following relief: a) The guilty finding on charge 1 be set aside; b) the sanction in respect of charges 4-19 be set aside; alternatively that it be reduced to a written warning; c) the suspension without pay be declared substantively and procedurally unfair; d) that the final written warning be declared a nullity because it was never communicated to the Applicant as required by the EEA and PAM; e) that the Applicant be awarded full financial restitution of all salary withheld and deductions made unlawfully.
32. Ms. Mortlock argued that the disciplinary action against the Applicant was fair. She however submitted that the sanction imposed by the chairperson was too lenient and that the Applicant ought to have been dismissed.

ANALYSIS OF EVIDENCE AND ARGUMENTS

33. In terms of section 186(2)(b) of the LRA, unfair disciplinary action short of dismissal in respect on an employee falls within the meaning of an “unfair labour practice”. The onus is on the Applicant to prove, on a balance of probabilities, an unfair act or omission on the part of the Respondent that gives rise to an unfair labour practise.
34. The Applicant took issue with the guilty finding on the 1st charge. The Applicant denies that he has assaulted the learner in the men’s bathroom. His evidence, which was corroborated by Mr. Uren, is that he encountered Mr. Uren and the learner at or near the men’s bathroom where Mr. Uren informed him that the learner had skipped class. They then reprimanded the learner. The Applicant’s evidence that there were no planks in the vicinity of the bathroom was not challenged and the Respondent did not call the learner to testify during this arbitration or present any other material evidence to refute the version of the Applicant that he had not assaulted the learner. A transcript of the disciplinary hearing was also not presented into evidence to be considered. I have no reason to question the credibility of the evidence in respect of charge 1 that was presented by the Applicant and Mr. Uren during this arbitration. I also accept Mr. Uren’s testimony that he would not have allowed the Applicant to inflict corporal punishment on the learner. I accordingly find that the Applicant has presented sufficient evidence to prove that he was unfairly found guilty of charge 1.
35. The Applicant pleaded guilty to charges 4 to 19. The Applicant admitted that has assaulted the learners by hitting them behind the head or neck area as they entered his classroom and that he has conducted himself in an inappropriate manner by locking the classroom with the learners inside when he left the classroom, albeit for a relatively short period.
36. The Applicant challenge the fairness of the sanction, being a one-month suspension without pay coupled with a final written warning valid for 6 months. The Applicant argues that a written warning would have been a more appropriate sanction. In this regard the Applicant also takes issue with the alleged failure of the chairperson to request mitigating arguments after the guilty finding and before deciding on the appropriate sanction. In as far as the procedure is concerned Schedule 2, item 17(a) of the EEA provides that “Before deciding on a sanction, the presiding officer must give the educator an opportunity to present evidence in mitigation.”
37. On the other hand, the Respondent’s representative argued that the sanction was lenient and that the Applicant ought to have been dismissed.
38. In terms of Schedule 2 of the EEA the chairperson is clothed with the responsibility to determine the appropriate sanction. His /her decision then becomes the final decision of the employer.
39. An arbitrator is not vested with a discretion to decide or impose an appropriate sanction short of dismissal in cases of workplace incapacity or misconduct. The arbitrator’s primary duty in disputes such as these is to determine whether the employer’s sanction is fair. The determination of an appropriate sanction is a matter which is largely within the discretion of the employer and a decision-maker should embark upon the reasoning process of assessing a sanction by recognising that, within limits, the employer is entitled to set its own standards of conduct in the workplace having regard to the exigencies of its business subject to the requirement that the sanction imposed by the employer must be fair. The decision-maker should appreciate that the question of sanction for misconduct is one on which reasonable people can readily differ. There is a range of possible sanctions on which one person might take a different view from another without either of them being castigated as unreasonable. The test to be applied is whether the sanction was reasonable. If the sanction falls within a range of reasonable options, the decision-maker should generally uphold the sanction, even if the sanction is not one that the decision-maker himself would have imposed. Only if there is a striking disparity between the employer sanction and the one which the decision-maker would have imposed should the decision-maker interfere.
40. I have considered the mitigating arguments presented by the Applicant’s representative. The argument includes reference to the Applicant’s 20 years of service with a clean disciplinary record; no injuries sustained by the learners; no malicious intent; remorse shown; and a positive contribution by the Applicant to the school.
41. I also had regard to the fact that the chairperson indeed considered mitigating factors which is reflected in his comprehensive report. He inter alia considered the Applicant’s years of service; his clean disciplinary record; the remorse shown by the Applicant; that no evidence was presented that the learners sustained any injuries; and that the Applicant was allowed to continue with his duties after the Respondent became aware of the allegations.
42. I had regard to the South African Schools Act, Act 84 of 1996 and the National Education Policy Act, Act 27 of 1996 which prohibits corporal punishment in schools. I have also considered that the South African Constitution states that the best interest of the child shall be paramount in any matters affecting the child (section 28(2)). In this regard the Constitutional Court in Governing Body of the Juma Musjid Primary School v Essay 2011 (8) BCLR 761 CC, held that section 28 of the Constitution impresses an obligation on all those who make decisions concerning children to ensure that the best interest of the children enjoy paramount importance. Courts and administrative authorities are constitutionally bound to consider the effect their decision will have on children’s lives.
43. I find the sanction of a one-month suspension without pay coupled with a final written warning valid for 6 months to fall within a range of reasonable options. The sanction is upheld, even though the sanction may not be one that I would have imposed.
44. Commissioners have a wide discretion to determine the appropriate remedies in unfair labour practice cases. In Booysen v SAPS and another [2008] 10 BLLR 928 (LC) at 933 Cheadle AJ noted that unlike the list of remedies for unfair dismissal, the remedies for unfair labour practice are not limited to the ones specifically mentioned in the LRA.
45. The Applicant took issue with what can be described as the administrative actions by the Respondent post the chairperson’s sanction. In this regard the Applicant took inter alia issue with the suspension without pay not being affected from 1 October 2025 as per the chairperson’s report but instead from 15 November to 15 December 2025; that the Applicant has not been formally informed in writing of the final written warning; and that the final written warning does not appear on the Applicant’s personal file at the school.
46. I considered the apparent lack of clear communication with the Applicant subsequent to the chairperson issuing the sanction and I have considered all the intricate complexities in this dispute to arrive at the appropriate remedy. Substance over form ought to be preferred. The substance in this case is that the Applicant committed, and admitted, to serious misconduct and that the Respondent (as per the chairperson’s decision) opted for corrective disciplinary action in the form of imposing a one-month suspension without pay and a final written warning valid for 6 months on the Applicant.
47. I find the appropriate remedy is to set aside the guilty finding on charge 1 and to confirm that the sanction of a one-month suspension without pay coupled with a final written warning is fair in as per charges 4 to 19 is concerned.

AWARD

1. The Applicant has discharged the onus of proving that the Respondent, the Department of Education Western Cape committed an unfair labour practice concerning disciplinary action short of dismissal. The finding that the Applicant is guilty of charge 1 is set aside and expunged from the Applicant’s record.
2. The sanction of a one month suspension without pay coupled with a final written warning valid for 6 months is fair in so far as charges 4 to 19 is concerned.
3. I make no order as to costs.

ELRC Panellist: Jacques Buitendag