IN THE EDUCATION LABOUR RELATIONS COUNCIL
In the INQUIRY BY ARBITRATOR between

DEPARTMENT OF EDUCTION – MPUMALANGA PROVINCE “the Employer”

AND

M ZULU “the Employee”

SECTION 188A INQUIRY BY ARBITRATOR RULING

CASE NUMBER: ELRC364 – 26/27MP
DATE AWARD SUBMITTED: 08 September 2026
NAME OF COMMISSIONER: Coen Havenga

Details of hearing and representation

1. This process was set down in terms of section 188A of the Labour Relations Act 66 of 1995 as amended (hereafter “the LRA”), and ELRC Collective Agreement 3 of 2018. The matter was heard on 17 August 2026 at the Employer’s premises in Ermelo. The Employer requested opportunity to submit written closing arguments which was duly submitted on 24 August 2026.
2. The Employer is the Mpumalanga Department of Education, represented by Mr Gaza, W. The accused Employee is Mr Zulu, M (“Zulu”).
3. Ms Ntshela, T, acted as interpreter, and the intermediary was Ms Padi, M.
4. The Inquiry proceeded in the absence of the Employee on 17 August 2026.
5. The Employer submitted that the Employee had been properly notified of the time, date and place of the proceedings. Proof of the notification is available in the file of the Council.
6. The charges were served on the Employee on 24 June 2026. On 26 June 2026 the Employee tendered his resignation. The process of resignation and his exit from the Department were still in process on 17 August 2026 and had not been completed. The notice period is 90 days, and the Employer could therefore proceed with disciplinary action during the period of notice, which would only expire on 26 September 2026. The Employee chose to forfeit his right to be present. The Employer argued that the resignation was an attempt to sidestep the consequences of allegations of sexual misconduct.
7. In the Labour Court (“LC”) case of Mzotsho v Standard Bank of South Africa Ltd, case no. J2436-18, judgement delivered on 24 July 2018, the LC dealt with an instance where an employee resigned immediately upon given a notice to attend a disciplinary hearing. The LC concluded that the contractual power to discipline remained with the employer.
8. In the LC case of Mthimkhulu v Standard Bank of South Africa [2020] ZALCJHB 201, the LC agreed with the judgement in the Mzotsho case above and found that an employee may still be dismissed by an employer if the employee resigns with immediate effect. The LC referred to the principles of the law of contract, which state that an employee who is obliged by contract to serve a notice period, repudiates a contract when the notice period is not served. The employer then has the right to reject the repudiation and hold the employee to his notice period.
9. This issue was finally settled in December 2020 in the Labour Appeal Court (“LAC”) matter of Standard Bank of South Africa Ltd v Nombulelo Chiloane, case no. JA85/18, where the LAC held that that resignation with immediate effect does not terminate the employment relationship in cases where the contract of employment has a notice period.
10. Therefore, in following the legal principles set out in the above precedents, I find that the employer had the right to continue with the Inquiry by Arbitrator against the employee during his contractual notice period. The 90-days’ notice period is regulated by section 15(1) of the Employment of Educators Act 76 of 1998. The employee’s resignation with immediate effect did not terminate the employment relationship in the absence of acceptance thereof by the employer.
11. The Employee failed to attend the arbitration hearing without reasonable and just cause. No proper reason or explanation was supplied for the failure to attend by the Applicant.
12. I also had regard for the serious nature of the allegations levelled against the Employee. In this instance section 28(2) of the Constitution 108 of 1996 is of utmost importance, which provides that a child’s best interests are of paramount importance in any matter concerning a child. It is the interest of learners and the education system as a whole that sexual misconduct against educators concerning children or learners be dealt with expeditiously without undue unsubstantiated delays.
13. I therefore ruled that the Inquiry by Arbitrator proceed in the absence of the Employee.
    Issue to be decided
14. I am required to determine whether Zulu is guilty of the charge levelled against him. Should I find him guilty of the charge, I then need to determine the appropriate sanction, as well as make a determination in terms of section 120(1)(c) of the Children’s Act 38 of 2005 whether Zulu is unsuitable to work with children.

Background and charges
15. Zulu, an educator employed at Uthaka Secondary School (“the School”), is charged with three allegations of misconduct.

16. Charge 1 – charged with serious misconduct in terms of section 17(1)(c) of the Employment of Educators Act 76 of 1998. It is alleged that on or around 7 March 2026 he committed an act of sexual misconduct by pursuing a sexual relationship with a learner (hereinafter referred to as “SS”) in the School where he was also employed as educator.
17. Charge 2 – charged with serious misconduct in terms of section 17(1)(c) of the Employment of Educators Act 76 of 1998. It is alleged that on or around 15 March 2026 he committed an act of sexual misconduct by pursuing a sexual relationship with a learner (hereinafter referred to as “BM”) in the School where he was also employed as educator.
18. Charge 3 – charged with misconduct in terms of section 18(1)(a) of the Employment of Educators Act 76 of 1998. It is alleged that during the period January to May 2026 he brought the name of the Mpumalanga Department of Education into disrepute when he pursued sexual relationships with the learners in the School where he was also employed as educator.

Plea

19. In the absence of Zulu, I entered a plea of not guilty on all three charges on his behalf.

Summary of evidence
20. The Employer submitted the documents contained in Bundle A.

21. The proceedings have been recorded digitally, and a summary of the Employer’s witnesses’ evidence follows below. What follows is only a summary of the evidence deduced at the arbitration hearing and does not purport to be a verbatim transcription of all the testimony given. The digital record of the proceedings will reflect the complete testimony of the witnesses. The fact that I have not captured all of it herein should not be misconstrued that I have not taken all the evidence presented into account. My findings are, accordingly, within the context of all the evidence provided by the parties during the arbitration hearing.
22. The matter relates to, inter alia, allegations of sexual misconduct towards learners who were minors at the time of the alleged incidents. In accordance with the protection of the rights of minors afforded them in the Constitution of the Republic of South Africa, the identity of that learner and other minor witnesses will not be disclosed. I will refer to the minor witnesses for the Employer as BM and SS in this award.
23. In the absence of the alleged perpetrator, the minor learners testified in the hearing room with the assistance of the intermediary, in the presence also of only the commissioner, Employer representative and interpreter.

Employer’s case

24. BM, a 15-year-old female, testified under affirmation that she was a learner in the School where Zulu was her teacher. She referred to the text messages in Bundle A. Zulu sent her text messages when he responded to her Whatsapp status. He asked her how she was and who she was speaking to. She made a screen shot of the texts and sent it to her friend to find out who it was. The friend confirmed that it was from Zulu. He asked if he could text her on Whatsapp. He asked her to send him pictures of her. She did send a picture, and he responded by saying he was in love with her. He asked for more pictures. She said she did not have more. The following day he sent more texts, asking how she was and what she was doing. She did not respond.
25. The next day at school she asked Zulu for a charger for her phone. He told her that he loved her. The following day he sent texts again, asking about her brothers. He asked her when she was going to bed, and she said she did not know. He said, “okay baby”. She ignored him. He asked if she would go home with him on Friday. She asked him to do what, and he said what was wrong with that. He said he chose her because she could see why. She said she did not know why, and he said that he loved her. She asked him if he was for real, and he said yes, he was serious. He said he loved her from day one. He asked her whether she was scared and told her not to worry as she would get used to it.
26. BM felt uncomfortable when Zulu texted her. When he invited her to his home, she was afraid of what he would do to her there. She felt he was forcing her into a sexual relationship. She was afraid of him at school. He sent her emojis of blowing kisses to her. He continued to say he loved her, which shocked her. She was convinced that he wanted a sexual relationship with her.
27. SS, a 16-year-old female, testified under affirmation that she was a learner in the School where Zulu was her teacher. She referred to the text messages in Bundle A. Zulu sent her text messages after he took her number from a group chat. He asked whether she would agree to dating him. She replied that she did not think about those things yet. She said she loved her father more. Zulu said that she had to agree to date him. The next day he asked her to send him a picture of her. She did send him a picture. He said, “thank you babe”.
28. She was scared when he asked her to have a relationship with him. A9 reflects a message from him wherein he said if she was 18 she was going to be his and leave her father. He told her that she should date him. She did not like the way he was looking at her in class, and she was scared of him. He wanted to have a sexual relationship with her. He was leading her on.

Employee’s case

29. The Employee elected not to attend the inquiry.

Summary of arguments
30. The Employer submitted extensive written closing arguments which form part of the record and will not be repeated here. The arguments addressed the issues of guilt, appropriate sanction, should the Employee be found guilty, and his fitness to work with children, should he be found guilty. I have considered the arguments, together with the other evidence, oral and documentary, presented by the Employer during the inquiry, as reflected in the record of the hearing.

31. The accused Employee did not submit any arguments.

Analysis of evidence and argument

32. This inquiry was conducted in terms of the principles contained in section 188A, as well as Schedule 8 of the LRA, and ELRC Collective Agreement 3 of 2018, in respect of the fairness of disciplinary action against educators charged with sexual misconduct in respect of learners. In applying those principles, the following factors were considered:
    a) Whether or not the accused employee contravened a rule or standard regulating conduct in, or of relevance to, the workplace; and
    b) If the rule or standard was contravened, whether or not –
    i. The rule was a valid or reasonable rule or standard;
    ii. The accused employee was aware, or could reasonably be expected to have been aware, of the rule or standard;
    iii. The employer has consistently applied the rule or standard.

iv. Dismissal would be an appropriate sanction for the contravention of the rule or standard.

33. The LRA does not prescribe the standard of proof to be used in labour matters. It is however universally accepted that the standard of proof that is applicable in disciplinary hearings, and therefore inquiries by arbitrators of this nature is identical to the civil standard – “the employer must prove the case against the employee on the balance of probabilities and not beyond reasonable doubt” – Meadow Feeds (Pietermaritzburg) vs. Sweet Food and Allied Workers Union (1998) Arb1.2.1.
34. All the allegations in the charge against the Employee, as well as the evidence, documentary and otherwise, deduced in support thereof by the Employer, were considered and weighed against the abovementioned standard of proof.
35. I have entered a plea of not guilty on behalf of the accused Employee. In his absence I have only the evidence of the Employer to consider. I will assume that the Employee disputed all the allegations in the charge sheet.
36. The Employee has been charged with the following misconduct as set out below.
37. Charge 1 – charged with serious misconduct in terms of section 17(1)(c) of the Employment of Educators Act 76 of 1998. It is alleged that on or around 7 March 2026 he committed an act of sexual misconduct by pursuing a sexual relationship with a learner (hereinafter referred to as “SS”) in the School where he was also employed as educator.
38. Charge 2 – charged with serious misconduct in terms of section 17(1)(c) of the Employment of Educators Act 76 of 1998. It is alleged that on or around 15 March 2026 he committed an act of sexual misconduct by pursuing a sexual relationship with a learner (hereinafter referred to as “BM”) in the School where he was also employed as educator.
39. Charge 3 – charged with misconduct in terms of section 18(1)(a) of the Employment of Educators Act 76 of 1998. It is alleged that during the period January to May 2026 he brought the name of the Mpumalanga Department of Education into disrepute when he pursued sexual relationships with the learners in the School where he was also employed as educator.
40. I am mindful of the fact that the Employee is charged with, inter alia, sexual misconduct. It is a natural response in matters relating to the sexual assault or sexual harassment that the reasonable person might view such conduct with disgust and revulsion. This is even more applicable where a trust relationship is abused. As arbitrator one should however be conscious of the need to not to prejudge but to objectively consider the facts of the matter on a balance of probabilities and credibility of the evidence adduced.
41. I accept that the Employee’s defence in respect of pursuing the alleged sexual relationships is a blanket denial of any wrongdoing.
42. The risk of false incrimination in sexual cases is addressed in Hoffman and Zeffert, The South African Law of Evidence, 4th Edition, Butterworths, 1992, as follows: “Corroboration is the most satisfactory indication that the Complainant is truthful, but false evidence by the accused or his failure to testify may also be taken into account, as may any other feature of the case which shows that the Complainant’s evidence is reliable and that of the accused false.”. The versions of BM and SS corroborated each other.
43. BM and SS both stated that the Employee proposed love to them and that he pursued a sexual relationship with them. Their testimony is undisputed and I have no reason to doubt their credibility.
44. Even though the Employee’s conduct did not result in an active sexual relationship, he clearly pursued a sexual relationship with both minor female learners. His conduct and tone of messaging was clearly of a sexual nature and fell within the realm of sexual misconduct as provided for in section 17 of the Employment of Educators Act 76 of 1998.
45. I took note of the case law pertaining to the formulation of charges in disciplinary hearings, that it is not a criminal court, and that an employee may for instance be fairly found guilty of unauthorised removal of company property although the charge referred to theft of company property. The crux of the alleged misconduct in such scenario remains clear, although the formulation of the charge might not have been correct – refer to EOH Abantu (Pty) Ltd v CCMA & Others (JA4/18) [2019] ZALAC 57. The Labour Appeal Court held that in respect of the formulation of charges the approach adopted by courts and arbitrators must not be formalistic or technical. This is because lay persons often craft the charges too narrowly or incorrectly. It was the Labour Appeal Court’s view that the categorisation of misconduct in the charge sheet is of less importance. The Labour Appeal Court held that the correct approach is that it must be established that a workplace standard has been contravened, that the employee knew (or reasonably should have known) the workplace rule and that no significant prejudice flowed from the incorrect categorisation of the offence. The essence of this judgment is that an employer is not restricted to the manner in which the charges are formulated in the charge sheet. An employer may find the employee guilty of a lesser charge or competent verdict if it arises from the evidence led.
46. Therefore, with consideration of all the relevant cautionary rules I find that the Employer provided evidence that proves on a balance of probabilities that the Employee committed the misconduct as contained in charges 1, 2 and 3. There is therefore evidence before me that proves that the Employee contravened a rule or standard regulating conduct in, or of relevance to, the workplace.

Finding
47. The accused Employee, Mr Zulu, M, is found guilty of the following misconduct:

48. Charge 1 – contravening section 17(1)(c) of the Employment of Educators Act 76 of 1998 in that on or around 7 March 2026 he committed an act of sexual misconduct by pursuing a sexual relationship with a female learner “SS” in the School where he was also employed as educator.
49. Charge 2 – contravening section 17(1)(c) of the Employment of Educators Act 76 of 1998 in that on or around 15 March 2026 he committed an act of sexual misconduct by pursuing a sexual relationship with a female learner “BM” in the School where he was also employed as educator.
50. Charge 3 – contravening section 18(1)(a) of the Employment of Educators Act 76 of 1998 in that during the period January to May 2026 he brought the name of the Mpumalanga Department of Education into disrepute when he pursued sexual relationships with the learners in the School where he was also employed as educator

Sanction

51. In considering an appropriate sanction, I am required to exercise my discretion reasonably, honestly and with due regard to the general principles of fairness.
52. Zulu’s conduct is in direct contravention of the values and obligations prescribed by The Code of Professional Ethics of Educators. He failed to act in a proper and becoming way so that his behaviour does not bring the teaching profession into disrepute. The Code places emphasis on educators refraining from any form of sexual relationship with learners at a school and not abusing the position he holds for personal gain. Section 28(2) of the Constitution of the Republic of South Africa 108 of 1996 provides that a child’s best interests are of paramount importance in every matter concerning the child. This is a factor that I keep in mind as surely it was not in the best interest of the Complainants being minor female learners to be lured into a sexual relationship by an educator. It could have had a devastating impact on them and their future.
53. Section 17(1) of the EEA states that dismissal is the mandatory sanction for the misconduct of having a sexual relationship with a learner in the same school, which I keep in mind considering the nature of Zulu’s misconduct.
54. Having considered all the facts before me, including but not limited to, the gravity of the offences, the position of trust the Employee was employed in, and the years of service of the Employee, I find that the sanction of summary dismissal is fair and appropriate in the circumstances.
    Sanction
55. In terms of section 188A(9) of the LRA I direct that the employee, Mr Zulu, M, be dismissed summarily.
    Finding in respect of section 120 of the Children’s Act 38 of 2005
56. Section 120(1)(c) of the Children’s Act 38 of 2005 (“the Act”) provides that a finding that a person is unsuitable to work with children may be made by “any forum established or recognized by law in any disciplinary proceedings concerning the conduct of that person relating to a child”. Section 120(2) of the Act provides that a finding that a person is unsuitable to work with children may be made by such a forum on its own volition or on application by an organ of state or any other person having sufficient interest in the protection of children. The arbitrator may also make the finding on his/her own accord.
57. The parties were quested to submit arguments in this respect. The Employer submitted arguments in this respect and requested that the Employee be declared unfit to work with children. In view of my finding of the serious nature of the Employee, Mr Zulu’s misconduct and the priority to protect the rights of children, I find that he is unsuitable to work with children. The fact that there are no previous incidents on record, does not necessarily mean that his conduct will not be repeated. In tribunals of this nature, consideration of the best interests of children is paramount. My finding is aimed at the protection of children and in particular in this case, vulnerable young girls.
58. Mr Zulu, M, is found to be unsuitable to work with children in terms of section 120(4) of the Children’s Act 38 of 2005. The General Secretary of the ELRC must, in terms of section 122(1) of the Act, notify the Director General: Department of Social Development in writing of the findings of this forum made in terms of section 120(4) of the Children’s Act 38 of 2005, that Mr Zulu, M, is unsuitable to work with children, for the Director General to enter his name as contemplated in section 120 in part B of the register.
59. I also direct the ELRC to provide South African Council for Educators with a copy of this award.

COEN HAVENGA
Senior ELRC Arbitrator
08 September 2026