IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD IN
CAPE TOWN

Case No ELRC1189-25/26WC

In the inquiry between

CE Joseph Employee

and

DOE-WC Employer
Date of Award: 10 April 2026
Arbitrator: A.Singh-Bhoopchand

ARBITRATION AWARD

DETAILS OF HEARING AND REPRESENTATION

1. This Inquiry by Arbitrator was convened for hearing on 12 March 2026 in terms of the provisions of section 188A of the Labour Relations Act no.66 of 1995, as amended (LRA) read together with the provisions of Collective Agreement 3 of 2018, at the offices of the Western Cape Education Department in Cape Town. Mr CE Joseph (hereinafter referred to as the educator) was represented by Mr Timmet, a representative of the trade union SADTU. The employer was represented by Ms Diedericks, a professional officer within the Labour Relations Directorate of the employer.
2. The learner, the complainant in this matter, is over the age of 18 and accordingly did not require an intermediary to assist her.
3. One bundle of documents was handed as evidence and shall be referred to where necessary.

THE ALLEGATIONS

CHARGE 1
It is alleged that you are guilty of misconduct in terms of Section 17(1)(b) of the Employment of Educators Act, no 76 of 1998 (hereinafter referred to as the Act), in that during or about the third or fourth term of 2025 you sexually abused a grade 12 learner at the Forest Heights High School in that you touched her buttocks and /or waist.

CHARGE 2
It is alleged that you are guilty of misconduct in terms of Section 18(1(q) of the Act in that during the third and fourth term of 2025 in that you uttered the following words to a grade 12 learner in an indecent, scandalous and unacceptable manner;

(a). Your body is beautiful
(b) You’re more prettier than you were before.
(b). Can you give ne your number. I want to talk about us and our relationship.

PLEA

4. The employee pleads not guilty to all the allegations

ISSUE IN TO BE DETERMINED

5. I must determine whether the employee is guilty of the allegations against him, and if so, the appropriate sanction.

BACKGROUND

6. The employee is a post level 1 educator at the Forest Heights Secondary School. He has been in the profession for the past three years. This is the first time that he is being formally charged for an offence. The following facts are common cause.
   • Mr Joseph taught the learner, the complainant in this matter, history when she was in grade 10 for terms 3 and 4
   • Mr Joseph was present in the corridor on the day of the incident referred to in charge 1, where he encountered The learner and walked past her.
   • The learner swore at Mr Joseph as he passed her in the corridor on that day.
   • Mrs Melh confronted Mr Joseph after The learner reported him to her.
   • Mr Joseph often complimented Mrs Melh and made comments to her which she considered inappropriate.
   • Mrs Mehl’s husband confronted Mr Joseph about sexually harassing his wife and asked him to refrain from doing so.
   • Other learners have lodged similar complaints. The complaints were not escalated to the Respondent.

EVIDENCE
The Employer’s Evidence

7. The learner; She testified that she was on her way to class one Monday morning after break. There was a crowd of learners in the corridor in S block as everyone was returning to class. She was limping at the time as she had sustained an injury to her foot. Given that she walked much slower than the rest of the crowd, she did not want to hold up the movement of the learners, so she walked aside close to the wall to allow learners to pass freely.
8. Mr Joseph came up behind her, and while making as if he was moving her out of the way to pass, he touched her buttocks. She responded by swearing at him. She did not report the incident because she was shocked and she was trying to process what had happened.
9. In relation to the touching of her waist, she testified that one morning while in Ms Mehl’s class, she asked Ms Mehl for permission to fetch her headphones from Mr Plillay’s class. As she was walking to Mr Plillay’s class she saw Mr Pillay, Mr Beukes and Mr Joseph standing in from of Mr Plillay’s class, talking. As she was entering Mr Pillay’s class, Mr Joseph followed closely behind her and touched her waist. She looked at him and proceeded to walk back to her classroom. She was upset by the incident. When she got back to her class, she sat at her desk but within a few minutes of sitting down she got up to ask her teacher, Ms Mehl if she could speak to her outside of the classroom. She then reported the incidents with Mr Joseph to Ms Mehl because it was the second time it happened and she felt very uncomfortable. Mrs Mehl undertook to speak to Mr Joseph.
10. She also testified about incidents where Mr Joseph made inappropriate comments. He made such comments often. In one specific instance while she and her friend LN were standing in front of a classroom at the S-Block, Mr Joseph who was in the vicinity came to stand near them. He then said to her, ‘Your body is beautiful, you more prettier than you were before. Can I have your number. I want us to speak about us and our relationship.’ He made similar comments often. She did not report what he said to her on that day, but when he started touching her, she reported him.
11. LN: She testified that she was with her friend The learner one morning at school in the month of October 2025 when Mr Joseph asked The learner for her number. When The learner asked him why he wanted her number, he said, ‘I want us to talk about us and our relationship,’ When The learner refused to give her number to him, he walked away.
12. S.D Mehl; She was The learner’s grade 11 class teacher and is currently her grade 12 teacher. She testified that The learner reported the incidents to her. On the day that she reported the incidents, The learner asked for permission to fetch her headphones from Mr Plillay’s class. She granted permission. When The learner returned to class, she sat down but soon got up again and asked if she could speak to her outside. They went outside and The learner told her that Mr Joseph has been harassing her and making her feel uncomfortable. She appeared ‘panicked’ and ‘spooked ‘while she related the specific incidents as described in the charges.
13. She then confronted Mr Joseph about what she had been told. Mr Joseph denied the allegations and said that The learner had sworn at him in the corridor. On the Monday following her confrontation with Mr Joseph, The learner came to her in tears and told her that Mr Joseph has been looking at her during assembly and smiling at her in a taunting manner throughout assembly. The following day The learner did not attend school and stayed at home for almost two weeks until the beginning of the November 2025 examinations. When she contacted The learner’s mother to enquire about her, she said that she was concerned about her daughter’s mental state. She also said that The learner was receiving medication for anxiety and depression. The learner is a bright and well-disciplined child. Her standard of work has dropped since the incidents.
14. She completed the necessary forms and reported what The learner had told her to her head of department, who then reported it to the principal. The reason why she had confronted Mr Jospeph personally is because he had also frequently made inappropriate comments to her. She asked him to stop as it made her uncomfortable. She reported this to her husband who confronted Mr Joseph and asked him to stop.
15. L.Fernandez; He confirmed that the incidents were reported to him. He did not question Mr Joseph about it but followed procedure and duly completed the necessary documentation and submitted the complaint to the Department. He thereafter withdrew from conversing with Mr Joseph because his priority was the protection of the learner.
16. He went on to say that the trust relationship with Mr Joseph is completely broken. This is based not just on this incident but also on the fact that he has received other similar complaints from other learners. There were complaints from three other learners. In all those instances he had called the parents in. The parents did not want to take the matter further as they did not want to put their learners through the further trauma of having to testify.

The Employees Evidence

17. Cornwell Henry Joseph: In relation to charge 1, he testified that he was on his way to his class towards S-block when he encountered a group of girls. A learner by the name of J was walking behind him at the time. He noted that there was no space for him to pass through the crowd of girls, so he asked then to make space for him to pass. In response, The learner who was in the group swore at him as the group made space for him to pass. He assumed that she felt that it was an unreasonable request. J heard The learner swearing at him. He did not touch -he just continued walking towards his classroom. That was the only time he remembers being in contact with The learner. He denied that he touched her, and he also denied saying the words in charge 2 to The learner. He said that black learners at the school are not respectful towards him.
18. The charges against him have affected him to the extent that he has become depressed. His only agenda at school is to teach though he does not want to go back to that school. He wishes to be placed at another school.
19. During cross examination he said that when The learner swore at him, he turned around and asked her why she was swearing at him. She did not answer him.
20. In relation to charge 2 he said that he goes to Mr Pillay’s class every morning. However, he denied having ever touched The learner or ever having complimented her. The charges are unfounded -The learner has made them up. When asked why she make up the charges he said that it was probably to help her friend LN. He conceded that he had complimented Ms Mehr, but he had realised that it was inappropriate and he had apologised.
21. In response to the principal’s testimony that other learners had made similar complaints, he said that the parents of those learners had confronted him about the complaints. He said he had reprimanded those learners as he oversees discipline. The accusations came after he disciplined the learners. He conceded though that he had never disciplined The learner and LN.
22. JE; He was in grade 9 last year. He recalls that on the day in question, he was on his way to Mr Joseph’s class. He walked with Mr Joseph. There was a group of learners that were walking towards S block. He heard Mr Joseph say ‘’excuse me’ (in Afrikaans). The girl swore at Mr Joseph. He did not see Mr Joseph touch her. He looked at Mr Joseph to see his reaction to the swearing. Mr Joseph continued to walk past, and he wondered why Mr Joseph did not react.

ANALYSIS OF EVIDENCE AND ARGUMENT

The applicable legal principles

23. The employer bears the onus to prove the allegations on a balance of probabilities. Any misconduct of a sexual nature is viewed in a very serious light in terms of the Employment of Employment Act to the extent that the sanction of dismissal is mandatory if the employee is found guilty.
24. Section 17(1)(b) of the Employment of Educators Act 96 0f 1998 (as amended) reads as follows:
    An educator must be dismissed if he or she is found guilty of committing an act of sexual assault on a learner, student, or other employee.
25. Assault is defined in our law as the unlawful and intentional act which results in another person’s bodily integrity being impaired, or which inspires in another person a belief that such impairment of his bodily integrity is immediately to take place. Sexual assault is any form of assault committed in circumstances of a sexual nature so that the sexual integrity the victim is violated or threatened.
26. The Employment of Educators Act does not specifically define sexual abuse. However, because educators are in loco parentis, the Department of Basic Education uses the Children’s Act definition to identify abuse. This includes:
    Sexual molestation: Any inappropriate touching
    Sexual harassment: Forms of abuse that do not involve physical contact or a relationship often fall under Section 18 (misconduct). While dismissal is not mandatory here, it is still a frequent outcome. This includes:
    Verbal abuse: making sexual jokes, comments about a learner’s body. Or using sexual names
    Nonverbal conduct: Inappropriate staring (leering)
27. Conduct of a sexual nature perpetrated on learners is prohibited in terms of the SACE Code of Ethics to which all educators are enjoined to adhere to.
28. The test to be applied in determining whether conduct has the requisite sexual nature is an objective one, viewed in the light of all the circumstances. The part of the body touched, the nature of the contact, the situation in which it occurred, the words and gestures accompanying the act and the circumstances surrounding the conduct.
29. The alternative charge is in terms of section 18(1)(q) of the Employment of Educators Act (as amended), which reads as follows:

Misconduct refers to a breakdown in the employment relationship, and an educator commits misconduct if he or she-
(q). while on duty, conducts himself or herself in an improper, disgraceful, or unacceptable manner.

In this charge, the sanction of a dismissal is not mandatory, but the arbitrator maintains the discretion to impose an appropriate sanction after a consideration of mitigating and aggravating circumstances and the surrounding factors and circumstances.

30. The employer bears the onus to prove the allegations on a balance of probability

Is the employee guilty of the allegations?

31. The main witness, The learner was clear, consistent and steadfast in her testimony. The evidence was that she is a bright and well-disciplined child. The educator himself conceded that although he oversaw discipline at the school that he had never had reason to discipline her. There is no plausible reason why such a learner would fabricate such serious allegations against an educator. She was visibly emotional while testifying. This was consistent with the evidence of Ms Mehl that the incidents had caused the learner anxiety and distress.
32. In relation to charge 1, it is common cause that the learner swore at the educator. It is improbable that a well-disciplined learner would swear at an educator for no reason. Her spontaneous reaction was clearly triggered by an unwarranted and unwanted event. It is hardly the reaction to an educator politely asking learners to make way for him to pass- which is the version that Mr Joseph would have us believe.
33. The learner J’s testimony does not serve to prove anything. He was walking behind the educator and would not necessarily have been able to witness the touching. In fact, his version was that he heard The learner swear at the educator and that he wondered why he did not reprimand her for swearing at him. Indeed, that is a crucial question as to why an educator that oversees discipline at the school would not reprimand the learner for such behaviour. The only logical conclusion is that he had touched her inappropriately and understood the reason for her reaction. In his evidence in chief Mr Joseph did not mention that he questioned The learner’s response. It is only during cross examination when he was challenged on this issue and when perhaps realising that it was a questionable omission on his part that he then claimed that he had questioned her response. Neither The learner nor Mr Joseph’s own witness J testified that he had questioned her, instead saying that he had simply walked on.
34. The learner’s demeanour and her emotional state as described by Ms Mehl when she reported the incidents to her are consistent with the extent of the pain, discomfort and trauma that she says she suffered because of the educator’s persistent inappropriate comments and eventual touching. Clearly something disturbed her on that day that caused her reaction and her need to report all the incidents to Ms Mehl. It is more likely that she was indeed touched inappropriately on that day as well.
35. As with The learner, her friend LN also came across as a credible witness. She has not been disciplined by Mr Joseph and had no reason to fabricate serious allegations- or any allegations for that matter- against him.
36. The educator’s version on the other hand is an unconvincing bare denial.
37. There is sufficient direct evidence before me to make a finding. However, I have also considered the evidence of the principal regarding the complaints by three other learners. I am mindful of the hearsay nature of the evidence in that the learners did not testify. However, given the Constitutional imperative to protect the best interests of the child, I cannot ignore the fact that three other learners have made complaints of a sexual nature against the very same educator. The odds that four different learners, independently and at different times, would fabricate similar allegations against the same educator are simply against the educator. The educator conceded that there had indeed been such complaints and that he had been challenged by the parents. His version was that the parents accepted his version that the complaints came about because he had disciplined the learners. The principal on the other hand gave a different version saying that the parents although still aggrieved had chosen not to put their children through the added trauma of having to testify. I find the principal’s more probable. In David Oupa Diholo v Gauteng Department of Education & Others , even though in that case the educator had not been called upon to answer to the previous allegations, the court nevertheless found that there appeared to be a pattern of inappropriate conduct towards learners. I find that similarly in this case there appears to be a pattern of inappropriate conduct towards learners.
38. In the same vein, the educator’s concession that he made inappropriate sexual comments to a female colleague does serve to prove that he is capable of sexualising professional interactions. It is logically more probable that someone who admits verbal sexual harassment in the workplace would also cross boundaries with learners.

FINDING

39. The employee intentionally violated the learner’s bodily integrity. I find that the act of touching the learner’s buttock and her waist is a sexual assault and accordingly find the employee guilty of sexual assault. I also find him guilty of charge 2.
40. Section 28(2) of the Republic of South Africa provides that the best interests of the child are of paramount importance in every matter concerning the child. I have accordingly considered the effect that this decision will have on the life of this child as well as the other children in that school and any other that the educator may be tasked to teach in his teaching career. Children have a right to be protected, more especially in the school environment where they are placed in the care of educators.
41. In terms of common law educators and management have a legal duty to take care of the children entrusted to them. Learners being vulnerable and since teachers are the closest adults to them during their school lives, teachers ordinarily have a positive duty to provide a safe educational environment to them, free from any form of fear, abuse intimidation or physical and/or emotional harm. This is so in that in the educational sector in particular, the in loco parentis principle ought to be supreme. As it is meant to protect learners, and accordingly, teachers are at all material times, in the position of diligens paterfamilias.
42. Section 120© 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 recognised 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. I informed the employee of this provision, and I requested submissions in this regard from him. Save for saying that he was aware of the provision, he chose to make no further comment or submission.
43. In view of my finding of the serious nature of the employee, Mr Joseph’s conduct 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 this conduct will not be repeated. My finding is aimed at the protection of children and in particular in this case , vulnerable young girls.

SANCTION

44. I have already stated that in terms of Section 17 (1) Employment of Educators Act, an educator must be dismissed if he or she is found guilty of misconduct of a sexual nature with a learner of a school where he or she is employed.
45. There is no discretion for the arbitrator to consider any other alternative sanction, short of dismissal. Dismissal is the statutory sanction.

AWARD

1. The employee, Mr C.E Joseph is found guilty of Charge 1 and 2
2. The employee, Mr C.E Joseph, is dismissed with immediate effect.
3. The employer, The Western Cape Education Department must inform the employee, Mr Joseph of his dismissal immediately upon receipt of this award.
4. The Education Labour Relations Council as the Administrator of this Section 188A inquiry is entitled:
   • In terms of section 122 of the Children’s Act, Act 38 of 2005, to notify the Director General: Department of Social Development, in writing of the findings of this Tribunal.
   • To send a copy of this arbitration award to the South African Council for Educators (SACE) for the revoking of Mr Joseph’s SACE Certificate.

A. Singh-Bhoopchand
Arbitrator
ELRC Panellist