Commissioner: Gerald Jacobs
Case Number: ELRC 4-24/25WC
Date of Award: 30 October 2024

In the matter between:

Cyril Hendry van Wyk
(Applicant/Employee)

And

Western Cape Department of Higher Education and Training – South Cape TVET College
(Respondent/Employer)

Details of Hearing and Representation

1. This is the award in the arbitration between, Mr Cyril Henry van Wyk, the applicant, and the Western Cape Department of Higher Education and Training – South Cape TVET College, the respondent.

2. The arbitration was held under the auspices of the Education Labour Relations Council (ELRC) in terms of section 191(5)(a) of the Labour Relations Act, 66 of 1995 as amended (“the Act ”) and the award is issued in terms of section 138 (7) of the Act.

3. The arbitration hearing was held remotely via Microsoft Teams over several days and initially began on 5 June 2024. At the start, Mr van Wyk requested a postponement because his lawyer was unavailable. He explained that he had travelled from George to Cape Town to meet his lawyer but found the office closed, likely due to an unpaid fee from a previous appearance. The request for legal representation was granted, and the hearing was adjourned to 11 July 2024.

4. When the hearing reconvened on 11 July 2024, Mr van Wyk was represented by Mr. Marinus Barnard from the law firm BDP Attorneys, who requested another postponement, stating he was unprepared and had not received all relevant documents. Despite this, the hearing continued and was further adjourned to 21 August 2024. By this date, Mr. Barnard had withdrawn as attorney, and Mr van Wyk was now represented by Mr. Mziyanda Shuan Mtiya from Mtiya Attorneys, who took the case on a pro bono basis. He requested a postponement to familiarise himself with the case, but this was denied, and the hearing proceeded slowly before being adjourned again to 16 September 2024.

5. On 16 September 2024, Mr van Wyk’s attorney, Mr. Mtiya, was absent. Mr van Wyk stated that his attorney had withdrawn as his legal representative, and he was ready to proceed without one. However, the absence of an interpreter led to another adjournment, with the matter set to reconvene on 29 September 2024.

6. On 29 September 2024, the hearing was further postponed due to time constraints and finally concluded on 4 October 2024. Throughout all sittings, the respondent was represented by Mr. Hopewell Simehiwe Dlamini, its Labour Relations Officer. Both parties agreed to submit written submissions instead of oral closing arguments. The parties were instructed to submit their written submissions by 11 October 2024, and the 14-day period to issue the arbitration award, as required by section 138(7) of the Labour Relations Act, would be calculated from this date. Both parties submitted their closing arguments as directed.

7. The proceedings were digitally recorded.

The issue/s to be decided

8. The issue to determine is whether the dismissal of Mr van Wyk was substantively and procedurally unfair. In respect of the substantive fairness of the dismissal, the issue is whether Mr van Wyk was guilty of misconduct, and the appropriateness of the sanction of dismissal.

9. The procedural issue is whether Mr van Wyk was allowed to obtain the assistance of a trade union representative or a fellow employee and whether the chairperson was biased by not considering the medical certificates.

10. As to the relief, Mr van Wyk sought retrospective reinstatement.

Background to the dispute

11. The respondent employed Mr. Van Wyk as a lecturer at its George Campus. He was appointed permanently by the College Council in 2014, earning a monthly salary of R36,810.13. Before this, Mr. Van Wyk had been employed by the college since 2010, working under a series of fixed-term contracts.

12. Following an incident at the Campus on 11 September 2023, the family of a student involved filed a criminal complaint against Mr. Van Wyk, which led to his arrest. On 14 September 2023, shortly after his arrest, Mr. Van Wyk was suspended. He was issued a disciplinary notice to attend a hearing along with a charge sheet. He faced three charges of misconduct, primarily centred around an allegation of sexual misconduct, where he was accused of kissing the student on her cheek without her consent. The charges also included allegations of bringing the name of the South Cape TVET College and the teaching profession into disrepute.

13. The initial disciplinary hearing was scheduled for 9 November 2023, but Mr. Van Wyk submitted a medical certificate booking him off sick from 7 November 2023 until 8 December 2023. As a result, the hearing was postponed to 12 December 2023. Mr. Van Wyk then submitted another medical certificate covering the period from 11 December 2023 to 21 February 2024. However, the hearing proceeded in his absence, and the chairperson found him guilty on all three charges, recommending dismissal. This recommendation was endorsed by the respondent, and his dismissal was upheld. His appeal against the sanction was unsuccessful, and the dismissal was confirmed on 31 January 2024.

14. Dissatisfied with the outcome of his appeal, Mr. Van Wyk referred the dispute to the Education Labour Relations Council, challenging both the procedural and substantive fairness of his dismissal. The matter remained unresolved during conciliation, and a certificate of non-resolution was issued. Mr. Van Wyk subsequently requested that the dispute be resolved through arbitration.

Survey of evidence and arguments
Documentary evidence:
15. The parties had prepared an agreed bundle which was referred to from time to time and in front of me during the course of the hearing. The agreed bundle of documents marked ‘Bundle A’, containing 162 pages of documents.

The respondent’s evidence
The testimony of Mr Ayabonga Mxinwa
16. Mr Ayabonga Mxinwa, a 23-year-old Level 3 Office Administration student at South Cape TVET College, George Campus, testified that on 11 September 2023, he was with his fellow student, Felicity, after they had completed an exam. While on their way to the taxi rank, they decided to stop by a nearby tuck shop as Felicity wanted to buy something to eat.

17. At the shop, they encountered their math lecturer, Mr. Cyril Henry van Wyk. They casually asked him if he had any past exam papers they could use for revision as they had another math exam coming up. Mr. van Wyk confirmed that he had some old papers in his classroom, and the students thanked him.

18. As they were about to leave the shop, he noticed that Mr. van Wyk moved uncomfortably close to Felicity, making her visibly uneasy. Mr. van Wyk appeared to be saying something to her, although he could not hear what was being said. He observed Mr. van Wyk giving Felicity a strange, unsettling look, and then witnessed him kiss her on the cheek. After this, Mr. van Wyk left the shop.

19. He and Felicity left the shop as well, both initially stunned by what had just happened. They laughed it off at the time, not fully processing the event. However, the next day, he found himself repeatedly thinking about the incident. He discussed the matter with a friend who was also a classmate and a member of the SRC, seeking advice on how to handle the situation. He knew that Mr. van Wyk’s behaviour was inappropriate, particularly because Felicity was underage.

20. After discussing the incident, they decided to approach Felicity to ask if she wanted to take action. They assured her that it was her choice and that they would not pressure her into anything. Felicity decided to report the matter and open a case.

21. Later that day, he received a call from one of Felicity’s relatives informing him that a case had already been opened against Mr. van Wyk. He also confirmed that both he and Felicity reported the matter to the Campus Manager. He had initially spoken to a class representative and a lecturer about the incident, and the lecturer then arranged for him to meet with the Campus Manager to explain what had occurred. After discussing the matter with the campus manager, he was notified that the case against Mr. van Wyk had been officially opened.

Cross-examination
22. He described Mr. van Wyk’s teaching style as “very chill, calm, open, and laid-back,” noting that he enjoyed the classes despite them sometimes ending early. However, he also testified that Mr. van Wyk had been “a bit touchy” with female students before and “very humorous, but in a flirtatious way.” This behaviour had been noticed previously but was not reported, as they were unsure if it was serious enough or just playful. However, he expressed shock at Mr. van Wyk’s alleged actions given his previous positive experiences with him as a lecturer.

23. He was adamant that he witnessed Mr. van Wyk kissed Felicity, on the cheek at a shop. He described seeing Mr. van Wyk put his arms around Felicity and kiss her cheek, emphasising that he heard the sound of the kiss. He firmly refuted Mr. van Wyk’s claim that it was merely a hug where his lips accidentally touched Felicity’s cheek.

24. He stated further that Felicity was visibly upset and crying after the incident. He and another student, Valencia, spoke to Felicity about what happened, advising her that Mr. van Wyk’s actions were wrong but leaving the decision to report it up to her. Felicity later decided to report the incident. Felicity met with the campus manager. He initially stated that during this meeting, she reportedly showed the campus manager some messages on her phone, which caused the campus manager to look shocked but later clarified that he had not seen them himself and was relying on what he had been told. He stated that the Student Support Officer was then called in to assist Felicity. However, he was not present for these private conversations.

25. During cross-examination, Mr. van Wyk brought up private information about Mr. Mxinwa personal life. He mentioned that Mr. Mxinwa had planned to visit his girlfriend in Johannesburg during the June 2023 holiday to discuss “a very serious matter.” Mr. van Wyk speculated that this matter might have been that Mr. Mxinwa wanted to tell his girlfriend he was in love with or had a crush on Felicity. In response, he confirmed the planned visit his girlfriend but vehemently denied any romantic feelings for Felicity or having any ulterior motives for his testimony, maintaining that his only goal was for Mr. van Wyk to admit to his actions so the matter could be resolved.

26. He clarified his relationship with Felicity, describing it as that of brother and sister. He emphasised the age difference between them and stated that Felicity’s family had asked him to ensure her safety, which is why he sometimes walked her to the bus stop.

The testimony of Ms Felicity Nadia Smith (the complainant)
27. Felicity testified on what transpired on the morning of 11 September 2023. She testified that at the time of the incident, she was 17 year’s old studying office administration level 2. On the day in question, she gathered some things after the exams and asked her friend Ayabonga Mxinwa to accompany her to the shop. While at the tuck shop, they encountered their teacher, Mr. Van Wyk. They began discussing the mathematics paper they had recently written, and she and Ayabonga asked Mr. Van Wyk if he had any past papers they could use to prepare for their next exam.

28. During this conversation, while they stood at the entrance of the shop, Mr. Van Wyk came closer to her and requested a kiss. She refused and moved away from him. Despite her refusal, Mr. Van Wyk came closer again and kissed her on the cheek. She said that, at the moment, she did not feel much, but the incident impacted her later when she was on the bus heading home. The following day, Ayabonga informed her that he had told Valencia and Alexia, about what had happened and took her to them. Valencia and Alexia told her that they were made aware of the situation, and they later accompanied her to report the incident to their teacher, Mr. Terreblanche. Following this, Felicity took her exam and later reported the incident to the Campus Manager.

29. At the Campus Manager’s office, she was asked to recount and explain everything that had happened during the incident with Mr. Van Wyk. She confirmed that she voluntarily shared the details of the event with the Campus Manager, without being forced or pressured to do so.

30. In her testimony, she described her relationship with Ayabonga as close, viewing him as a brother figure. She stated that Ayabonga regard her as a younger sister, and she feels the same way about him, considering him a brother. She denied the suggestion of romantic feelings or inappropriate dynamics in their relationship.

31. She stated that she had no reason to make up the story and what happened on that day. She indicated it was a repeated issue she had experienced. On one occasion Mr van Wyk passed her in the corridor of the campus and he touched her shoulder. On another occasion, Mr van Wyk asked her and a fellow learner for their phone numbers.

Cross-examination
32. A significant part of the cross-examination revolved around what happened in the shop, specifically around a refrigerator’s position inside the shop, and whether people standing near it or the door saw or heard something inappropriate. It was emphasised that if the refrigerator were indeed blocking the door, customers would not be able to enter the shop easily. She was adamant that the refrigerator was not in front of the door and her recollection of the placement of the refrigerator does not negate their experience of discomfort during the incident. However, it was suggested they stayed in the shop despite feeling uncomfortable, which raises doubts about the severity of their discomfort.

33. In an attempt to challenge the credibility of her testimony, she was asked why she did not immediately report the incident if it was truly serious. She initially laughed it off, brushing aside the inappropriateness of the situation and only realised the seriousness of the situation the next day. She denied laughing at the time of the event, maintaining that they never found the situation amusing. She could not sleep after the incident and did not know how to handle the situation.

34. It was put to her that Ayabonga said in his statement that she showed the Campus Manager the WhatsApp messages between them. She denied that she showed the Campus Manager WhatsApp messages between them and said the one of the teachers went through her phone to see if there was any communication between her and Mr van Wyk and there was none. She never had Mr van Wyk’s number.
The testimony of Mrs Vernalda Hartnick
35. She is the Campus Manager, serving as the accounting officer for the institution. She played a key role in handling the allegations brought forward by Felicity regarding inappropriate behaviour by Mr. van Wyk. As the head of the institution, she was responsible for ensuring the correct procedures were followed after the complaint was made, including facilitating student counselling, consulting with corporate services and labour relations officers, and overseeing the suspension and disciplinary process against Mr. van Wyk.

36. She testified that the incident was brought to her attention on Wednesday, 13 September 2023. A staff member informed her that something had happened, but she could not act on hearsay, so she insisted on speaking to the students involved. She arranged for a meeting on Thursday, with both Ayabonga and Felicity. Because of the seriousness of the allegations, she had her two deputies, Mrs. Kholeka Webber and Dr. Christopher Terblanche, present during the meeting. They listened to the accusations, and when Felicity began crying, they called in the Student Support Officer to assist. Felicity was referred to the Support Officer for further counselling, and arrangements were made for her to be taken home. Thereafter she went to the central office to consult with the Deputy Corporate Services and the Labour Relations Officer to determine the correct procedure for handling these allegations.

37. Following the consultation, they proceeded with the formal process. Felicity gave her statement, and they provided counselling for both of them. They also informed the staff about the situation, though they did not disclose any names because of the sensitive nature of the case.

38. On Friday morning, she learned that Mr. van Wyk had been picked up by the police after Felicity and her guardian filed an official case at the local police station the previous evening. She issued him a suspension letter for 60 days, during which time the case would be investigated. She said that it took some time to locate Mr van Wyk, but they eventually found him at the George Police Station, where he was handed the suspension letter.

39. She testified that it was not the first time she received complaints about Mr. van Wyk’s inappropriate behaviour with students. However, in the past, those students did not file official complaints, and without a formal complaint, she could not act. This time, Felicity made an official complaint, which allowed her to escalate the matter to Corporate Services and the Labour Relations Officer.

40. As to the appropriateness of the sanction imposed on Mr. van Wyk, particularly regarding whether the dismissal was justified under Section 18 of the Employment of Educators Act. She testified that she would not trust Mr. van Wyk to continue teaching in light of the allegations against him. She cited both the previous and current allegations, the emotional impact on the students resurfaced during the internal exams which prompted the need for counselling, and the potential for future issues she did not believe it was advisable for Mr. van Wyk to return to the campus and that dismissal was appropriate. When asked if it would be appropriate to transfer Mr. van Wyk to a different campus within the college, she responded that she would not advise this course of action, as it would merely shift the problem elsewhere, and the issue would likely resurface.

Cross-examination
41. Throughout the cross-examination, the focus was on her actions in managing the allegations, including the procedures followed and her interactions with the students involved. Concerns were raised about the fairness of the investigation, including issues like the relationship between members of the disciplinary process and the potential for bias.

42. She was questioned about her relationship with Dr. Terblanche and clarified that there was no personal relationship between herself and Mr. Terblanche. She emphasised that her maiden surname was Domingo, and she had no relation to the Terblanche family.

43. Regarding Mr. Webber’s involvement in the Investigation, she explained that Mr. Webber, the Campus Manager of the Bitou Campus in Plettenberg Bay, was selected to handle the hearing because they wanted a neutral party from another campus to chair the disciplinary process. She indicated that this decision was made to ensure fairness and that Mr. Webber was not given any information about the case until the day before the hearing.

44. When asked about a potential conflict of interest since Mr. Webber and Ms. Webber were related, she insisted that this had nothing to do with her or the fairness of the investigation. She maintained that the relationship between Mr. Webber and Ms. Webber was irrelevant to the case or the process she followed. She maintained that the procedures she followed were professional and in line with the required protocols, despite Mr. Webber’s relationship with Ms. Webber.

The testimony of Mr Chumani Webber
45. Mr. Chumani Webber, the Campus Manager at the Plettenberg Bay campus, testified regarding his role as chairperson in the disciplinary hearing for Mr. van Wyk. He testified that the first sitting of the hearing, scheduled for November, could not proceed as Mr. van Wyk submitted a sick note stating he could not attend. Following this, the hearing was rescheduled for December. Unfortunately, Mr. van Wyk was again absent during this second sitting, prompting Mr. Webber to seek clarity on his whereabouts.

46. He instructed Mr. Dlamini, the college’s initiator, to contact Mr. van Wyk, but all attempts to reach him were unsuccessful. With Mr. van Wyk’s phone going directly to voicemail and no further communication received, he decided to proceed with the hearing. This decision was supported by a precedent allowing the hearing to continue in the absence of the accused if they do not provide valid reasons for their non-attendance.

47. During the hearing, Felicity and Ayabonga provided testimony regarding the allegations against Mr. van Wyk, and their statements went unchallenged due to his absence. Mr. Webber confirmed that he found the witnesses’ testimonies credible and had no reason to doubt their accounts. Given that Mr. van Wyk failed to present a defence or challenge the evidence, the credibility of the witnesses remained intact.

48. He emphasised that the decision to recommend dismissal was not made lightly. In reaching his conclusion, Mr. Webber considered the serious nature of the allegations and Mr. van Wyk’s failure to engage in the process despite having multiple opportunities to attend the disciplinary hearing. It was based on the weight of the evidence presented, the lack of any rebuttal from Mr. van Wyk, and the need to uphold the integrity of the disciplinary process. He stated that dismissal was the only appropriate sanction in this case, as the disciplinary guidelines from the department indicated that such a response was warranted for the circumstances presented.

Cross-examination
49. He defended his impartiality in the case and his relationship with Ms. Webber and Mr. Dlamini, stating that he has a professional relationship with both, with no personal ties to Mr. Dlamini. He clarified that Ms. Webber, the Head of Department at George campus, is married to his uncle. As for Mr. Dlamini, he stated that they worked in the same building but not in the same office, emphasising that their relationship remained professional.

50. Regarding his appointment as chairperson, Mr. Webber noted that he was appointed by the CEO of the institution and had chaired hearings since 2013, including high-profile cases such as those involving racial discrimination allegations. He outlined his qualifications and stated that he had undergone extensive training in chairing hearings and conducting investigations. Mr. Webber emphasised that his experience allowed him to handle complex cases, ensuring fairness and adherence to procedural standards.

51. Concerning the disciplinary hearing, Mr. Webber explained that the hearing was initially postponed after Mr. Van Wyk submitted a medical certificate. He stated that although Mr. Van Wyk did not attend the rescheduled hearing, he had been given ample time to request another postponement, which he failed to do. He further stated that the only communication received was a medical certificate, and Mr Van Wyk’s phone was on voicemail on the day of the hearing. He considered the medical certificates but found them insufficient to justify a second postponement. He also pointed out that Mr. van Wyk was pre-warned that the hearing would proceed without him if he did not attend, as communicated via WhatsApp.

52. He cited legal precedents in the Old Mutual v Gumbi [2007] SCA 52 (RSA) case to show consistency in his decision-making, arguing that the hearings were conducted fairly and that the employee had ample opportunity to provide more evidence or seek representation.

53. He emphasised the seriousness of the allegations, which include sexual harassment, which influenced his decision to recommend dismissal. He believed this sanction was consistent with similar cases. He further stated that the testimony of the two witnesses was credible, and, on the balance of probabilities, the evidence supported the conclusion that Mr. Van Wyk was guilty.

The applicant’s evidence
Mr Cyril van Wyk’s testimony
54. Regarding the incident on 11 September, he testified that he met with two witnesses, Felicity and Ayabonga, at a shop. He was emotionally distressed due to the first anniversary of his father’s passing. Felicity offered a comforting hug, during which his face was close to her cheek, but he denied kissing her. When Ayabonga who identifies as LGBTQ+ and bisexual, also requested a hug, he refused and offered a handshake instead, which offended Ayabonga. Van Wyk emphasises that the incident occurred in public and that his role is to teach and empower students, not harm them.

55. In his defence against the charges, he questions the credibility of the witnesses. He points out that the incident was not reported for three days, arguing that if it were severe, it would have been reported immediately. He notes the lack of corroborating evidence despite the presence of other people in the shop. He also highlights inconsistencies in the witnesses’ behaviour, such as Felicity claiming to be scared but not running away, and initially laughing about the incident. He argued that the witnesses’ statements seemed scripted rather than natural recollections and suggested that emotional reactions and personal conflicts do not necessarily indicate wrongdoing.

56. Regarding procedural fairness, he stated that his absence from the disciplinary hearing was due to medical reasons. He explained that the first medical certificate covered him until 8 December 2023. On that day he tried to see the doctor again but could not get an appointment due to existing bookings. He went back on the following Monday, 11 December 2023 and at this follow-up visit, the doctor determined that his condition had worsened and issued him with a second sick note stating “severe stress.” Before issuing the new sick note, the doctor contacted a psychiatrist to explain his situation and how it had deteriorated since the initial visit. Based on this consultation, the psychiatrist’s earliest available appointment was 21 February 2024. The doctor then extended his sick leave until this date. The psychiatrist, though not having seen him in person, prescribed generic medication to “keep him intact” until the appointment. He described his condition as severely affecting his mental state, saying he would get “weird feelings” when seeing a college car and that he was “psychologically not well.” He also mentioned visible physical effects, stating that he had gone grey in a year’s time due to the stress of the case.

57. He argued that the college misapplied the Gumbi- case to justify proceeding with the hearing in his absence. He stresses that, unlike the Gumbi-case, his absence was due to a legitimate medical condition, supported by documentation. He further claimed that he was not allowed representation and was prohibited from speaking to potential student witnesses, which he argued left him isolated and at a disadvantage. He cited several cases to support his arguments, that without a fair hearing, his dismissal cannot be substantively justified.

58. He further argued that the College Council, as his employer, should have been involved in the disciplinary process. He based this on his understanding that the Council plays a crucial role in significant employment decisions. He contested the respondent’s representative’s assertion that the Council is not involved in disciplinary matters and day-to-day administration. He expresses surprise at this claim, stating that if this were the case, someone from management should have explained it to him, as it contradicts his understanding of the Council’s role. By raising this issue, he implied that the absence of Council involvement in his disciplinary process might constitute a procedural flaw, potentially affecting the fairness and validity of the proceedings against him.

Cross-examination
59. During the cross-examination, Mr. van Wyk was questioned about his previous arrest and criminal record for fraud as well as a previous allegation of an inappropriate relationship with a student, aiming to challenge his credibility and demonstrate a pattern of misconduct.

60. Regarding his previous arrest and criminal record, Mr. van Wyk asserts that he was wrongfully implicated in a fraud case at the Municipality of George Local Municipality. He attributes his conviction to inadequate legal representation, maintaining his innocence despite the criminal record.

61. Concerning the previous allegation of a relationship with a student, Mr. van Wyk presented a complex narrative of misunderstanding and misdirected blame. He claims that a student’s father, who was allegedly having an extramarital affair, accused him of having a relationship with the student to deflect attention from his indiscretions. He insisted he was merely helping the student during a difficult time, including finding her accommodation when she was locked out of her home. The respondent, however, implied that this incident, regardless of his explanation, demonstrated a troubling pattern of inappropriate interactions with students, using it to cast doubt on his professional conduct and judgment. This incident created a “blockage” in the system that prevented his appointment to personal staff.

62. It was further pointed out that he initially did not dispute Felicity’s testimony that he had kissed her on the cheek, only to later deny it vehemently. When pressed, he claimed that it would have been physically impossible for him to kiss her as described, given their relative positions. He suggested that this accusation, like the others, is fabricated.

63. Regarding the Council’s involvement in his employment and disciplinary process, he was adamant that the Council’s approval was necessary for the approval for taking disciplinary steps against him and the decision of his dismissal. On the other hand, the respondent contended that the Council was not directly involved in his appointment or day-to-day employment matters. The Council’s involvement was limited to handling his appeal, as they are the executive authority of the college.

64. The respondent challenged the validity of the medical certificates. It was put to him that the certificates, especially coming from a general practitioner for an extended period, constitute hearsay evidence. The respondent contended that either he or his doctor should have testified about his medical condition to validate his absence from the hearing. In response, he said that it was due to doctor’s order that he did not attend the disciplinary hearings.
Ms Mary-Ann Erasmus’s testimony
65. Mary-Ann Erasmus’s testimony provided no direct insight into the incident of 11 September, as she did not witness the event or have first-hand knowledge of it. She learned about the allegation through campus rumours and informal discussions with students and colleagues.

66. Based on her personal interactions with Mr. Van Wyk as a student and former SRC member, Mary-Ann expressed doubt about the validity of the allegations. She stated that in her view, Mr. Van Wyk was a person of good moral character who was always approachable and supportive of students. She also mentioned that she did not believe he was capable of the alleged misconduct, particularly not in a public setting during daylight hours.

67. Mary-Ann testified that Mr. Van Wyk’s dismissal caused confusion and concern among students, many of whom relied on him for academic guidance. While she acknowledged that his absence negatively affected students, she did not suggest that his alleged actions, as described in the rumours, had a broader negative impact on the reputation of the college or the profession.

68. She mentioned that the former SRC members, including herself, felt that the dismissal was unjust and that the process lacked transparency. Her testimony suggests that the rumours of misconduct did not significantly damage Mr. Van Wyk’s standing among the SRC or students who knew him.

Cross-examination
69. She testified that rumours circulated about Mr. Van Wyk’s alleged inappropriate behaviour with a student, but there were no clear or official details. She confirmed that the information she heard was mostly speculation, and there was no solid evidence or first-hand accounts provided to her.

Summary of written submissions.
Respondent’s arguments
70. Mr. Dlamini, submitted that Mr. Van Wyk’s claim of procedural unfairness should be evaluated through the lens of two key legal precedents. The Labour Appeal’s Court case in Mgobhozi v Naidoo NO & other [2006] 3BLLR 242 (LAC) established that medical certificates without supporting doctor testimony may be considered hearsay, while Solidarity obo Van Vuuren v Volkswagen SA [2003] 10 BALR 1191 (CCMA) affirmed that conducting disciplinary hearings in an employee’s absence during sick leave is not inherently unfair. Based on these precedents, Mr. Dlamini contended that the respondent’s decision to proceed with the disciplinary hearing in Mr. Van Wyk’s absence was not procedurally unfair. The implication is that Mr. Van Wyk’s absence due to alleged illness, presumably supported only by a medical certificate, did not automatically render the disciplinary process unfair or invalid. The medical certificates for stress without providing doctor testimony, aligned with the Mgobhozi case’s warning about potential abuse of medical evidence. Furthermore, the disciplinary hearing proceeding in his absence, given his pattern of uncooperativeness and apparent use of sick leave as a delaying tactic, is justifiable under the Van Vuuren precedent.

71. He argued further that Mr. Van Wyk’s alleged misconduct of kissing a learner without consent renders him unsuitable for a position of trust in education. His behaviour contrasts sharply with the standards expected of educators and aligns with recent ELRC decisions to dismiss educators for similar misconduct. He further argued that Mr. Van Wyk’s name be removed from the South African Council for Educators (SACE) roll to maintain the integrity of the education system and ensure student safety.

72. While there are strong grounds to consider not only Mr. Van Wyk’s dismissal but also the removal of his name from the South African Council for Educators (SACE) roll. However, such a determination must follow the specific legal procedures outlined in Section 120 of the Children’s Act. To proceed, the Commissioner must first confirm the substantive and procedural fairness of the dismissal. Then, the determination to declare Mr. Van Wyk unsuitable to work with children. This involves informing Mr. Van Wyk about the possibility of such a finding, providing him with an opportunity to argue against it, and allowing the Department of Education to present its case during the arbitration process. Only after ensuring both parties have been heard in accordance with the audi alteram partem rule, can the Commissioner make a final determination. However, the respondent’s representative only led evidence for dismissal as an appropriate sanction given the circumstances, without explicitly leading evidence for the removal of Mr. Van Wyk’s name from the South African Council for Educators (SACE) roll. The principles of natural justice and due process require that Mr. Van Wyk be fully informed of all potential consequences and given an opportunity to defend against them.

The applicant’s arguments
73. Mr. van Wyk’s closing arguments contend that his dismissal from the South Cape TVET College was both procedurally and substantively unfair, and it was discriminatory due to his serious health issues at the time. He asserts that the college failed to provide reasonable accommodation for his psychiatric condition, which escalated to severe stress, and instead chose to terminate his employment. This, he argues, was a violation of labour laws and his fundamental rights. His dismissal was marred by procedural errors and inconsistencies in witness testimonies, which he believes undermines the fairness of the entire process.

74. He identifies key flaws in the witnesses’ testimonies, particularly focusing on discrepancies in the complainant’s account and contradictions in Ayabonga’s testimony. Both witnesses, according to Mr. van Wyk, were biased and lacked credibility, with their statements appearing rehearsed rather than genuine. He also raises concerns about the delayed reporting of the incident and suggests the allegations were influenced by external pressure from the college administration rather than being based on truth.

75. Mr. van Wyk also highlights serious procedural flaws in the disciplinary hearing, including biased conduct by the respondent and the chairperson. He claims that he was unjustly labelled a “paedophile” without evidence, and crucial documents were withheld, preventing him from mounting a full defence. The chairperson’s connections to members of the disciplinary panel and his failure to apply independent judgment further tainted the fairness of the hearing. The hearing process, according to van Wyk, was flawed from the outset, particularly regarding the lack of involvement from the College Council and key witnesses.

76.
77. In conclusion, Mr van Wyk references multiple case laws to support his claims of procedural unfairness, emphasising that his dismissal was carried out without properly considering his medical condition or affording him a fair opportunity to defend himself. The cases he cites highlight the employer’s duty to ensure procedural fairness, especially when an employee is absent due to illness. He asserts that the college failed to meet this obligation and acted unreasonably.

Analysis of evidence and arguments

78. After hearing the testimonies of Mr. van Wyk and the three witnesses for the respondent, reviewing the documents in the provided bundle, and carefully considering the closing arguments of both parties, I made the following findings of fact based on a balance of probabilities.

79. On 11 September 2023, Ayabonga and Felicity, both students, encountered their math lecturer, Mr. van Wyk, at a shop after completing an exam. Felicity, who was 17 at the time, asked him for past exam papers. Felicity testified that during this interaction, Mr. van Wyk came close to her and asked for a kiss. When she refused and moved away, he approached her again and kissed her on the cheek. After the kiss, Mr. van Wyk left the shop. Ayabonga corroborated her account of events. The following day, Felicity reported the incident. Since she was a minor at the time, her family filed a criminal complaint against Mr. van Wyk for a sexual offence against a minor, which led to his arrest. While he was in custody, the College suspended him. Upon his release, the College summoned him to a disciplinary hearing. The charges that led to his dismissal as previously stated were for sexual harassment of a student and bringing the name of South Cape TVET College and the teaching profession into disrepute. Mr van Wyk denied the charges and challenged the substantive and procedural fairness of his dismissal.

80. In terms of section 192(1) of the Labour Relations Act, 66 of 1995 (the Act) the employee must establish that he was dismissed. Once the employee discharges that onus, the employer must prove that the dismissal is fair, in other words, for a fair reason and by a fair procedure (section 188(1)). In this case, the provision of section 192 of proving the substantive fairness of the dismissal places three requirements on the respondent. The respondent must prove that Mr. van Wyk committed the alleged conduct, that the conduct was sexual in nature, and that dismissal was appropriate in the circumstances.

81. Mr. van Wyk challenged both Felicity and Ayabonga’s account by offering an alternative explanation. He claimed Felicity initiated a hug to comfort him on his father’s death anniversary, denying any kiss occurred. He stated that while his face may have been close to Felicity’s during the hug, he never kissed her. Additionally, he claimed he refused to hug Ayabonga and offered a handshake instead, suggesting Ayabonga’s testimony might be motivated by this perceived slight. He emphasised that the incident occurred in public, yet no other witnesses came forward to corroborate the allegations.

82. I am faced with two mutually destructive versions only one of which is correct. In deciding which version to accept and which one to reject I am obliged to consider the issue on a balance of probabilities. The onus is on the respondent to prove on a balance of probabilities that its version that Mr van Wyk kissed Felicity in the manner described is the truth. The onus is discharged if the respondent can show by credible evidence that its version is the more probable and acceptable version.

83. Ayabonga claimed to have directly witnessed Mr. van Wyk kiss Felicity. The reliability of this testimony depends on his proximity during the incident. He stated that he was standing close enough to witness Mr. van Wyk’s interaction with Felicity in the shop. He testified that he saw Mr. van Wyk giving Felicity a strange, unsettling look before kissing her on the cheek, and he even heard the sound of the kiss. He was therefore close enough to observe both the body language and the physical act of the kiss. There were, however, points raised to challenge the reliability of his testimony regarding the layout of the shop, particularly the position of the refrigerator, which may have affected visibility and could introduce doubt about his ability to see everything. However, Ayabonga maintained that the refrigerator did not obstruct his view and reaffirmed his version of the events.

84. Mr van Wyk’s suggestion that the kiss occurred accidentally during a hug is not convincing for several reasons. First, it is unlikely for someone to accidentally kiss another person’s cheek while hugging them as such kisses typically require deliberate movement. Second, Ayabonga’s specific mention of hearing the “sound of the kiss” suggests a deliberate action rather than incidental contact. Finally, the fact that both witnesses interpreted the interaction as inappropriate further undermines the suggestion that this was merely an innocent hug gone wrong.

85. Mr. van Wyk further argued that the fact that Felicity and Ayabonga did not immediately report the incident raises questions about the seriousness of the event. He suggested that if the kiss had truly been inappropriate or alarming, they would have reported it straight away. In his defence, he used this delay in reporting to imply that the incident may not have been as serious as later claimed.

86. Additionally, he pointed out that both Felicity and Ayabonga initially laughed off the situation, which he argued was inconsistent with the behaviour of individuals who had experienced a significant boundary violation. By emphasising the delay and the students’ initial reaction, Mr. van Wyk aimed to cast doubt on their later claims of discomfort and the severity of the incident, suggesting that the allegations might have been exaggerated over time.

87. According to Ayabonga, although both he and Felicity laughed off the incident initially, Felicity later became visibly upset. This emotional shift indicate that her initial reaction was a defence mechanism, an attempt to cope with the discomfort and confusion caused by the kiss. Felicity’s testimony further suggests that while she did not immediately feel the full emotional impact of the incident, the weight of what happened began to settle in during her bus ride home. This delayed reaction suggests that she was initially in shock, and only after reflecting on the event did she fully understand its inappropriateness and the emotional toll it had on her. She needed time to process the incident before acknowledging the seriousness of Mr. van Wyk’s behaviour.

88. Mrs Hartnick, the Campus Manager was a credible witness. Her evidence was direct and to the point. She testified that when Felicity eventually reported the incident, she was emotional and cried during the meeting. This emotional display aligns with the burden Felicity carried after the kiss, which delayed her decision to report the matter. Mrs Hartnick also confirmed that Felicity was referred for counselling, which further indicates that the emotional toll the incident had taken on her. In the end, the testimonies of Ayabonga and Mrs. Hartnick support the conclusion that Felicity’s delayed report was a result of emotional processing, rather than an indication that the event was less serious.

89. Mr. van Wyk undermined his own credibility through his behaviour during cross-examination. Instead of addressing the allegations about the kiss, he resorted to personal attacks against Ayabonga, including inappropriately revealing confidential information about Ayabonga’s sexual orientation and making unfounded claims about romantic feelings for Felicity. His aggressive and defensive tactics during cross-examination were attempts to discredit Ayabonga’s testimony without any substantial basis. Mr. van Wyk’s inability to present a coherent alternative narrative, combined with his focus on personal attacks rather than facts, demonstrated he could not effectively refute Ayabonga’s account of events. While Mary-Ann Erasmus’s testimony reflects the general uncertainty on campus regarding the allegations and supports Mr. Van Wyk’s character, it does not offer direct evidence about the incident on 11 September or how the college’s reputation was affected by the events. Her statements mainly reflect her personal opinion and second-hand information rather than factual details about the charges.

90. Throughout the cross-examination, Mr. Dlamini consistently pushed Mr. van Wyk to account for what he framed as a series of dubious explanations and implausible denials. He contrasted Mr. van Wyk’s insistence on his honesty and integrity with his criminal record and the multiple allegations against him effectively putting Mr. van Wyk’s character and credibility on trial. The cross-examination painted a picture of a significant gap between Mr. van Wyk’s self-perception and the series of troubling incidents and allegations that have marked his career.

91. In contrast, Ayabonga appeared open and truthful throughout his testimony. His account remained consistent under cross-examination, and he addressed questions directly without becoming defensive or evasive. The reliability of his testimony is further strengthened by the consistency between his and Felicity’s testimonies. While there were minor discrepancies in their accounts of the shop incident, these differences were immaterial and did not affect the core allegations. These minor variations in their testimonies are typical of honest testimony, as he and Felicity naturally recall the events from their perspectives.

92. Based on the balance of probabilities, I find that Mr. van Wyk deliberately kissed Felicity. His claim that the kiss was accidental during a hug is less credible and unlikely. The circumstances suggest that the kiss, which took place after Felicity explicitly refused Mr. van Wyk’s request, was inappropriate. By proceeding with the kiss after Felicity denied his request, Mr. van Wyk ignored her consent, indicating a violation of her personal boundaries. Felicity’s emotional response to the incident further supports the conclusion that the kiss was not innocent but rather carried sexual undertones.

93. While Mr. van Wyk argues that a kiss on the cheek is innocuous, the context here is crucial. When an authority figure deliberately ignores a minor’s explicit refusal of physical contact and proceeds anyway, such an action carries sexual undertones and violates the student’s personal boundaries and sexual integrity. The power imbalance between a lecturer and a minor student, combined with the deliberate disregard for consent, elevates this unwanted physical contact to sexual harassment, regardless of which specific body part was kissed. This behaviour represents a clear abuse of his position of authority and a violation of the trust placed in him as an educator.

94. It is important to note that Mr. van Wyk was charged under Section 18 of the Employment of Educators Act, rather than Section 17, which specifically addresses severe misconduct such as sexual assault and sexual relationships with learners. Misconduct under Section 17 carries a mandatory sanction of dismissal. In contrast, under Section 18, dismissal is not automatic; instead, the employer bears the burden of proving, on a balance of probabilities, that dismissal is appropriate given the circumstances.

95. In her testimony, Mrs. Hartnick, the Campus Manager, stressed that the dismissal of Mr. van Wyk was warranted in light of the allegations of inappropriate conduct. She highlighted the emotional harm suffered by the learners and the risk of similar incidents occurring in the future if Mr. van Wyk were allowed to remain employed. She firmly expressed that, given the seriousness of the accusations, Mr. van Wyk should not be permitted to continue teaching. In her view, dismissal was necessary to safeguard the well-being of the learners and to prevent any potential harm.

96. The South African Council for Educators (SACE) Code of Professional Ethics establishes strict ethical standards that all registered educators must follow. At its core, this Code serves as a safeguard for learners, mandating that educators maintain clear professional boundaries and protect students’ dignity, rights, and well-being. It explicitly prohibits any form of abuse, humiliation, or improper physical contact, recognising that educators hold positions of significant trust and influence over their students. Mr. van Wyk’s actions represent multiple serious breaches of this Code. By kissing a minor student against her explicit wishes, he violated several fundamental ethical principles. First, he engaged in inappropriate physical contact that constituted sexual harassment. Second, he abused his position of authority by disregarding Felicity’s right to refuse physical contact. Third, he created an unsafe learning environment by introducing sexual undertones into what should have been a purely professional relationship. Fourth, he humiliated and emotionally damaged Felicity by violating her personal boundaries in a public setting. The testimony of Mrs. Hartnick, highlighting both the emotional impact on students and the risk of future misconduct, underscores the gravity of these violations. The Code specifically warns against sexual misconduct as one of the most serious breaches an educator can commit, as it violates the fundamental trust placed in teachers to protect, not exploit, their students. Given the deliberate nature of Mr. van Wyk’s actions, his disregard for consent, and the emotional harm caused to Felicity, his conduct warrants dismissal in accordance with the Code’s provisions for serious ethical breaches.

97. After considering all the evidence presented, I find that the respondent successfully demonstrated, on a balance of probabilities, that Mr. van Wyk was guilty of the charges brought against him. Furthermore, the respondent had a valid reason for the dismissal, and the sanction of dismissal was appropriate under the circumstances.

Procedural unfair
98. Mr. van Wyk’s claim of procedural unfairness centred on several key points. Mr. van Wyk alleged bias on the part of Mr. Webber due to his relationship with Ms. Webber, his relationship with Mr Dlamini and his appointment as the chairperson of the hearing. Given that no evidence was presented to support Mr. van Wyk’s claims of bias based on these relationships, no reasonable inference can be drawn that Mr. Webber’s appointment or his relationships with Ms. Webber and Mr. Dlamini caused Mr. van Wyk any prejudice or resulted in an injustice during the disciplinary process. Mr. Webber’s testimony regarding his neutrality and professional conduct remained unchallenged, and there was no indication that these relationships influenced the outcome of the hearing. Thus, the claims of bias appear to lack merit based on the available evidence.

99. Mr. van Wyk raised further issues relating to the fairness of the procedure and argued that he was not allowed adequate representation during the disciplinary process. He stated that his lack of legal representation put him at a significant disadvantage, particularly since he was unable to call or consult with potential student witnesses. He contended that this left him isolated and without sufficient support to mount a proper defence. Mr. van Wyk argued further that he provided medical certificates indicating he was suffering from severe stress, with one certificate covering him from 7 November to 8 December 2023, and another from 11 December 2023 to 21 February 2024. Despite these medical certificates, the disciplinary hearing proceeded in his absence on 12 December 2023. Mr. van Wyk claimed that his medical condition warranted a further postponement of the hearing, but his request was denied. He argued that his health issues were not properly accommodated, and the college’s decision to proceed despite the medical certificates showed a lack of fairness and compassion towards his condition.

100. Section 18 of the Employment of Educators Act No. 76 of 1998 outlines the procedures for addressing misconduct cases involving educators in South Africa. Schedule 2 establishes a disciplinary code and procedures for educators, providing clear guidelines for managing educator misconduct. Based on Schedule 2, Mr. van Wyk’s claims regarding the denial of legal representation and his inability to gather evidence while on precautionary suspension do not render the procedure followed unfair and lack merit under this Schedule.

101. Section 7 of the Act provides educators the right to be represented by either a fellow educator or a trade union representative. Legal representation is not automatically granted; rather, it may be permitted at the discretion of the presiding officer. Mr. van Wyk’s absence during the hearing weakens his argument that the lack of legal representation constituted unfairness. Furthermore, as he was not a union member, he did not have a union representative to advocate for him at the hearing. This matter could have been addressed had he attended the hearing.

102. Furthermore, as per Section 6 of the Act, Mr. van Wyk was placed on precautionary suspension, a common procedure when the presence of an educator may hinder an investigation or pose a risk to others. Precautionary suspension is generally considered neutral and not punitive. The condition of his suspension, which prevented him from interacting with anyone from the college, is also consistent with standard practice to prevent interference with evidence or witnesses during the investigation. While Mr. van Wyk argued that this suspension precluded him from gathering evidence and contacting witnesses, the disciplinary code does not explicitly require the respondent to facilitate such contact during the suspension. It is the educator’s responsibility to gather evidence for their defence, while under suspension. In Mr. van Wyk’s case, while the conditions of his suspension may have restricted his interaction with individuals at the College, attending the hearing would have allowed him to raise these concerns with the chairperson. If the chairperson had refused to consider his concerns and denied his request, Mr. van Wyk would have had a valid argument for procedural unfairness.

103. According to Section 7 of Schedule 2, if the educator fails to attend the hearing without a valid reason, the hearing can proceed in their absence. In this case, Mr. van Wyk submitted a second medical certificate, expecting that the hearing would be postponed as it happened in the first sitting when he also presented a medical certificate. Typically, if an employee is unable to attend their hearing due to illness and provides a medical certificate confirming their inability to do so, this would constitute valid grounds for a postponement. The absence of specific details in the medical certificate regarding the extent of Mr. van Wyk’s inability to attend the hearing made it challenging for the chairperson to make an informed decision about the postponement and left him to rely primarily on assessing Mr. van Wyk’s motives and conduct. In failing to provide these crucial details, Mr. van Wyk effectively failed to establish a valid ground for another postponement.

104. The chairperson, responsible for ensuring both fairness and efficiency in the disciplinary process, could not justify further delays based on insufficient medical evidence. Had Mr van Wyk disclosed why he was unable to attend the hearing, the chairperson would have been both entitled and obligated to consider this explanation alongside the medical certificate’s contents when deciding whether to grant a postponement. Mr van Wyk failed to provide these essential details, and merely submitted the medical certificate assuming it would automatically result in a postponement of the hearing. This was despite being warned that his failure to attend could result in the hearing proceeding in his absence.

105. The chairperson’s decision to continue with the hearing without a valid explanation from Mr. van Wyk for his repeated absence did not violate Section 7. The chairperson deemed the medical certificate presented by Mr. van Wyk inadequate to warrant another postponement and, therefore, not a valid reason for delaying the hearing. As a result, he proceeded with the hearing, which was in line with Section 7 of Schedule 2.

106. In the circumstances, I conclude that the dismissal was procedurally fair. As a result, I make the award below.

Award

107. The dismissal of the applicant, Mr van Wyk by the respondent, the Western Cape Department of Higher Education and Training – South Cape TVET College was substantively and procedurally fair.

108. The applicant’s case is dismissed.

Gerald Jacobs – ELRC Commissioner