Commissioner: Lanthis Taylor
Case No.: ELRC858-25/26WC
Date of Award: 17 February 2026

In the Inquiry by Arbitrator between:

DEPARTMENT OF EDUCATION – WESTERN CAPE
(Union/Applicant)

and

Mr. EK Swartz
(Respondent)

Applicant’s representative: Ms. Athne Mpayipheli

Respondent’s representative: FAILED TO ATTEND (process conducted in absentia)

PARTICULARS OF PROCEEDINGS AND REPRESENTATION

1. An Inquiry by Arbitrator process was convened under the auspices of the Education Labour Relations Council 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. The process commenced on 28 November 2025 with both Ms. Athne Mpayipheli, from the Labour Relations Department of the employer, and the respondent employee, Mr. Swartz being online. The matter was postponed as I determined at the time that the respondent employee had not been afforded the right of representation. I issued a ruling and a directive wherein I gave the employee an opportunity to acquire representation. The agreed return date was set for 3 and 4 February 2026 due to school year-end closures and my own unavailability. The process was conducted by way of Microsoft Teams, a virtual platform as agreed between the parties and the set down notices were duly sent to the parties.
2. On the morning of 3 February 2026, I received correspondence from the Case Manager at the ELRC where the respondent employee submitted at 06H56 that he was medically indisposed and submitted the following email in Afrikaans:
   Geagte Meneer / Mevrou,

Hiermee wil ek u formeel in kennis stel dat ek oor ’n geldige doktersbrief beskik wat verband hou met my afwesigheid gedurende die betrokke tydperk.

Die doktersbrief is beskikbaar en kan op versoek aan u voorgelê word vir rekorddoeleindes en verdere oorweging in die aangeleentheid.

Ek vertrou dat bogenoemde kennis geneem sal word en dank u by voorbaat vir u aandag en begrip.

Hoogagtend
E. Swartz
A Translation of the above is as follows:
Dear Sir / Madam
I would like to formally inform you that I have a valid medical certificate available which relates to my absence during the relevant period.
The medical certificate is available and can be presented to you upon request for record purposes and further consideration in this instance.
I trust that the above is noted and thank you in advance for your attention and understanding
Yours faithfully
E. Swartz

3. A copy of a medical certificate dated 2 February 2026 indicating “medical condition” was attached to this email. The medical certificate indicates that Mr. Swartz is booked off until 5 February 2026. Before exercising my discretion to proceed with the matter in the absence of the respondent employee, I directed that the Case Manager of the ELRC, contact the employee telephonically to determine whether he had acquired representation and whether there would be any submissions made in respect of his absence. No representative appeared online and the respondent employee, did not answer his phone where the Case Manager called him on a few occasions. Ms. Athne Mpayipheli was online along with her witnesses.
4. In exercising my discretion to continue in the absence of the respondent employee, I considered a number of factors associated with this matter. The medical certificate presented constitutes hearsay evidence as outlined in Mgobhozi v Naidoo NO & others (2006) 27 ILJ 786 (LAC). This judgment states that medical certificates are no different to other documentary evidence and that it is not sufficient for employees to simply obtain a copy of a medical certificate and present this in the absence of at least an affidavit from the doctor concerned without questions being asked. I also considered that I had previously postponed the matter in order to afford the employee an opportunity to obtain representation. I also had regard for the serious nature of the allegations levelled against the employee. It is evident, despite being afforded the opportunity to do so, that the employee did not obtain representation. No representative appeared on behalf of the employee and the employee himself failed to come on line.
5. I have also had consideration for the complainant in this instance in accordance with the provisions of section 28(2) of the Constitution of the Republic of South Africa 108 of 1996 which provides that a child’s best interests are of paramount importance in every matter concerning the child. This is a factor that I kept in mind as surely it was not in the best interest of the Complainant being a minor female learner who due to the previous postponement, already had to endure an extended period of uncertainty and angst because of the matter being stood over for an extended period. The complainant’s angst was indeed confirmed when she testified.
6. The learner, the complainant in this matter, was assisted by an intermediary. An interpreter was also present. In keeping with ELRC Policy, the names of the complainant and a witness who are both learners are withheld. The complainant and the learner witness shall be referred to as BM and AJ respectively.

THE ISSUE IN DISPUTE

7. I must determine whether the accused employee is guilty of the allegation levelled against him and in line with the appointment as the arbitrator in this inquiry by arbitrator, determine an appropriate sanction if applicable.

BACKGROUND TO THE ISSUE

8. It is common cause that the applicant was employed as an educator and hostel superintendent at Steinthal School of Skills. He was charged with the following allegation:

Klag 1
Daar word beweer dat us skuldig is aan wangedrag ingevolge artikel 18 (1) (q), van die Wet op Indiensneming van Opvoeders 76 van 1998, deurdat u op of omtrent 26 Augustus 2025, onderwyl aan diens, uself op ‘n onbehoorlike, skandelike of onaanvaarbare wyse teenoor ‘n jaar 3 leerder verbonde aan Steinthal Vardigheidskool gedra het deur haar sexueel te teister deur haar te versoek om:
• na u kamer to gaan, en/ of
• haar broek af te trek, en/ of
• vir u te wys hoe haar eks kêrel haar ‘gevinger’ het.

A Translation of the above is as follows:
Charge 1 – It is alleged that you’re guilty of misconduct in terms of section 18 (1) (q) of the Employment of Educators Act, 76 of 1998 (hereinafter referred as the Act), in that on/or about 26 August 2025, while on duty, conducted yourself in an improper, disgraceful, or unacceptable manner towards a learner of Steinthal Skills School in that you sexually harassed her by requesting her to:
• go to your room and/ or
• remove her pants and/ or
• show you how her former boyfriend “fingered” her

SUMMARY OF THE EVIDENCE & ARGUMENTS:

5. The employer presented a bundle of documents in support of its version which included the allegations levelled against the employee, the suspension notice, the request to the ELRC for an Inquiry by Arbitrator and the M22A document relating to reporting of abuse or deliberate neglect of a child (Section 110 of the Children’s Act 38 of 2005). I am required by the LRA to provide brief reasons to substantiate my findings and determinations in this dispute. As such despite considering all the submissions presented, I will only deal with what I believe is relevant and what will relate to the core issues in dispute.

THE APPLICANT’S CASE

6. The applicant’s first witness, Mr. Wilmar Joslyn Albert Saville indicated that he was the principal of the school having been appointed 1 June 2025 after acting in that capacity from January 2024 until his appointment. He was the accused employee, Mr. Swartz’s immediate line manager and had appointed the accused employee in the capacity of hostel superintendent in 2025 after the resignation of the former hostel superintendent. Swartz was the only educator at the hostel and lived on the hostel premises. He stated that Mr. Swartz had been an educator for longer than 10 years and taught the subject of motor mechanics to learners in years 1 to 4.
7. Saville explained that the grading system in schools of industry differed from mainstream schools where learners enter the school in year 1 and leave after year 4. This is aligned with grade 12 and is geared for learners who have a history of failure or who are held back in the intermediary phase. When the learner reaches grade 6 and is 13 years old, the learner is referred to the school. Referral is done a year in advance of the learner entering the school.
8. Saville testified that when he became aware of the alleged transgression, he immediately asked Swartz to leave the premises. Swartz did not have any objection to this and continued his role as a teacher who commuted from Tulbagh to the school until his suspension was effected. He and Swartz only met in relation to the pending disciplinary action. The school counsellor, Constance Jacobs called him after being approached by the complainant learner and informed him of the allegations. He was present when the learner and her friend explained what had happened to her and her friend confirmed the complainant’s version.
9. Saville testified that the complainant told him and Ms. Jacobs that there was an altercation between her and another learner which was causing unhappiness in the hostel. The complainant told them that the other learner went to Swartz to lodge a complaint and he called them to the office at the hostel where such issues are addressed. Swartz spoke to them and addressed them on the use of inappropriate language. The other learner left and she apologized for her involvement. She was alone with Swartz and her friend was outside of the office. The complainant relayed that Swartz asked that she show him how her former boyfriend had “fingered” her sexually. Swartz then told her that when she leaves the office she is to go to his room and is to take a detour to get there. She was bewildered and flabbergasted and could not react.
10. The complainant told him and Ms. Jacobs that she went to Swartz’s room and met him there. She went into the room and he closed the door. Swartz then asked her to pull down her pants or panties and demonstrate how she was “fingered”. She refused to comply and told Swartz that he is an adult and she is a minor. Swartz told her not to tell anyone about the instance. She opened the door and left the room. The complainant met up with her friend and relayed to her friend what had happened to her.
11. Saville indicated that he then followed the process of completing the M22 form and contacted the school social worker, Melzandre Vermeulen who advised him to inform the relevant parties of the situation including Mandy Baartman, Marna Knoetze and Child protection Services in Ceres. He also spoke to Swartz and informed him that the allegations were of a sexual nature and also informed him of the seriousness thereof. He asked Swartz to leave his room and relinquish his duties as a superintendent. Swartz responded that he understood and that it was okay.
12. Saville stated that he was shocked by the allegations as it was his view that Swartz was doing an excellent job at the hostel. He entrusted Swartz as the superintendent after Mr. Pietersen resigned. It is difficult to find an appropriate person to appoint and Swartz is a young, unmarried person who had matured as a teacher. Swartz was involved in school sport activities and there was no reason to doubt his decision to appoint Swartz initially. He expressed his disappointment to Swartz who complied with the request to leave the hostel. His view of Swartz after the incident changed in that he can no longer trust him and he still blames himself for the wrong decision of appointing him.
13. The applicant’s second witness, Constance Jacobs, testified under oath that she is the school counsellor for the past 11 years and is registered under the Health Professionals Act. She stated that she became aware of the incident when 2 third year learners came to her office. They were the complainant (Learner BM) and her friend (Learner AJ). AJ told BM to relay to her as the counsellor what had happened to her. BM was shy and asked AJ to tell her what had happened. AJ then relayed to the counsellor what BM had told her.
14. AJ told the counsellor that BM had advised her that the educator, Mr. Swartz had asked her to explain how her former boyfriend had “fingered” her sexually. Jacobs stated that she enquired from the learners when the incident occurred and what exactly happened. They both gave her an account of what had happened with AJ initially mostly speaking and BM filling in the gaps. She was told that there was an incident with another girl at the hostel and that this girl went to complain to Swartz. He called AJ and BM to his office at the hostel for them to explain the situation to him. BM prompted AJ to say what Swartz had said to them. AJ said that she and the other girl were asked to wait outside as he wanted to talk to BM on his own. AJ then prompted BM to tell her what Swartz had said to her. BM then told her that Swartz wanted her to explain how her former boyfriend had “fingered” her sexually. She explained this to him. He then told her to meet him at his room but she was to take a detour in order not to be seen.
15. AJ was somewhere outside of the office or had already left the office area. BM confirmed to Jacobs that she went to Swartz’s room and waited for him. Later, she went inside and he closed the door. She told Jacobs that Swartz asked her remove her pants and to show him how she was “fingered”. Jacobs testified that while BM was telling her this, AJ was present but did not engage at the time. Only BM relayed what had happened to her.
16. BM told her that she refused Swartz’s request telling him that he is an adult and she is a minor. She opened the door to leave and he told her that she is not to tell anyone what had happened. She went to the girls hostel and spoke to AJ. AJ told Jacobs that BM was red and panicky when she approached her. BM relayed what had happened to her and she (AJ) told BM that they would go to Jacobs the next morning. The incident happened just after supper which is at 5pm. Jacobs then called Saville and the learners relayed to him what they had told her.
17. Jacobs stated that she was informed that BM was acting out and behaving inappropriately with the boys at the school. She herself had not noticed this behaviour but at the previous sitting of this matter when BM was ready to testify, she broke down and wanted to speak to AJ. She told AJ that she had been molested when she was much younger and that this situation opened up old wounds. Her parents were aware of the previous incident. Jacobs stated that she had spoken to BM about the allegations that she was acting inappropriately with the boys. BM told her that the other learners were lying.
18. The applicant employer was ready to present BM to testify. However, she had a melt down and I saw fit to adjourn the matter until 4 February 2026. The matter had in any event been scheduled for 2 days.
19. On 4 February 2026, Ms. Mpayipheli presented BM to testify. She was accompanied by an intermediary, Cheryldene de Bruin and a request was made that the school social worker be allowed to sit in the proceedings in support of BM as BM had built a rapport with her. The social worker, Melzandre Vermeulen was allowed to sit in but was warned that she would not be part of the process. She was further reminded that she cannot prompt the complainant learner and that her role is one of purely moral support.
20. At the start of BM’s testimony, I ascertained whether she understood the difference between the truth and lies and consequences of not telling the truth. It was evident that she indeed understood the difference and I accepted her testimony under oath per se. While I am by no means qualified to assess the complainant’s level of intellect, it was clear to me that both her Intelligence Quotient (IQ) and Emotional Quotient (EQ) levels are misaligned with her age. In my view she displayed diminished levels in both instances. More about this later.
21. BM again had a mini melt down just prior to commencing her testimony and had to be comforted by the intermediary and the WCED representative. When she eventually testified, BM explained that she is currently a fourth-year learner at the school and that she understood why this process was happening. She explained that it related to the incident with Mr. Swartz which happened when she was a third-year learner.
22. BM testified that Swartz is a teacher teaching motor mechanics and is also at the hostel. He does not teach her any subjects. She is resident at the hostel and he has an office at the hostel. She does not know what he does at the hostel. BM stated she was called to the office at the hostel with another girl CW to see Swartz. She asked her friend AJ to accompany her. Swartz told AJ and CW to leave the office as he wanted to speak to her alone. She stated that she asked AJ to wait for her outside and closed the door. Swartz asked her to explain how her former boyfriend had fingered her. She responded by telling him that she would not do that as she is a child. He then told her to meet him at his room and he left for his room. She followed his instruction and went to his room. He told her to go there by a different route and that he would wait for her there.
23. BM stated that when she got to the room Swartz was already there. She went into his room and he closed the door. Swartz told her to remove her clothing and show him how her former boyfriend had fingered her. She opened the door to leave and Swartz told her not to tell anyone what had happened. BM stated that she ran back to her room at the hostel and cried. She spoke to AJ about what had happened and AJ said that they would report this to Constance Jacobs the next day. The next morning, they saw Swartz standing at a point. He called her but she and AJ continued walking to go and see Constance Jacobs.
24. BM confirmed that AJ was standing outside of the office at the hostel but AJ left when BM went to Swartz’s room. Being called to his room was not normal as he usually addressed issues at the office. Of the three learners in his office, he only called BM to his room. He told her that it related to her former boyfriend. She was adamant that her former boyfriend did not finger her and she did not know where Swartz got the story that this had happened. BM confirmed that she had told Constance Jacobs what she had testified to today. She also stated that she had no previous interaction with Swartz and only used to greet him.
25. BM got very animated saying that he had asked her to pull down her pants. This incident made her feel uncomfortable, heartsore and that she was bad. She confirmed that Saville was with Constance Jacobs when she relayed her story. She stated that this was her last year at the school and she still thinks about the incident when she is in class but she needs to try to get past it. She confirmed that she is doing hospitality cooking as the base trade at the school.
26. The WCED called AJ to testify. In comparison to BM, AJ appeared more emotionally stable and testified comfortably under oath. She confirmed everything that BM had testified to and confirmed BM had lodged a complaint to Swartz about being bullied by one Samantha. Swartz sent her to call Samantha and she was in the office with BM and Samantha. The door was open. Swartz then asked her and Samantha to leave as he wanted to speak to BM on her own. They went out and BM asked her to wait for her. When BM came out, she told AJ that Swartz wanted her to go to the other hall and wait for him at his room. She went back to the hostel.
27. When BM returned to the hostel, she looked pale and upset. When AJ questioned her, she explained that Swartz had asked her to pull down her pants and show him how her former boyfriend had fingered her. She also told AJ that Swartz had told her to keep it secret. She told BM that they would go to Constance Jacobs the next day. She confirmed that it was not the norm to go to his room which is at Esther Hall and which is part of the boys hostel division. When they were on their way to Constance, they passed Swartz but did not speak to him as BM was scared. She confirmed that they both spoke to Constance Jacobs and when she called Saville also relayed the same to him. Later that day, Swartz asked them where they had been. They told him that he does not need to know as he does not teach them.
28. AJ stated that the only interaction that she had had with Swartz previously was when she reported a situation to him where she was being bullied. He comforted her by hugging her outside of the hostel and told her that he is there for her. He however did not address or call the other person against whom she had lodged the complaint. She was not called to the office or his room. When he hugged her, she was uncomfortable but did not deem it necessary to report to Constance Jacobs.
29. Ms. Mphayipheli submitted the following in aggravation and closing. She stated that the WCED, called four witnesses who testified consistently and corroborated the complainant’s version. The WCED had proven improper conduct on the part of Swartz who had made two separate requests to the complainant. The first being in the office where he asked her to explain how she had been fingered and in the second instance in his room, where he asked her to pull down her pants and show him how she had been fingered. Swartz was the hostel father who dealt with learner issues presented to him and it was noticeable how differently he dealt with MB and AJ as examples.
30. Ms. Mphayipheli stated further that what stood out was when MB was asked why she went to his room, she innocently replied, “because Sir told me to go”. This showed obedience and subservience to Swartz. This school specializes in education for learners who struggle in mainstream education and also caters for differently-abled learners. Most of the learners live in the hostel which is to be a safe environment. Swartz took advantage of learners’ vulnerability and acted on this. WCED promotes the spirit of the Constitution relating to dignity, equality and protection of learners in all schools. She stated that the uncontested versions of the witnesses should be accepted and that based on what was presented and the allegations, that Swartz should be found guilty with the sanction of summary dismissal being imposed. He’s line manager, Saville, testified that he is no longer trustworthy. Swartz is not fit to deal with minors and should not be allowed to teach in any institution in South Africa. His SACE registration should be terminated.
31. The WCED closed its case.

APPLICANT’S CASE:

32. As indicated above, I proceeded with the matter in the absence of the accused employee. I considered that I had previously postponed the matter in order for the accused employee to obtain representation. All the while, the complainant had to bear the angst of having to relive and relay her traumatic experience to this tribunal. Despite the accused employee being afforded an opportunity to obtain representation, no representative came online to make any submission in respect of the accused employee’s absence. The medical certificate provided only included “medical condition” as the cause for absence. The period covered by the medical certificate in my view, conveniently coincided with the period over which the inquiry would be held. I believe this was by the design of the employee. Further to this, the tone of the accused employee’s email, smacks of an automatic entitlement to a postponement which has no basis in law. It is also noted that the accused employee was still on paid suspension at the time.
33. In order to still afford accused employee an opportunity to make some representation, the case manager of the ELRC was instructed to telephonically make contact with him. He did not answer the calls (3) and also did not call back. I believe that I was justified in proceeding with the matter as it became very clear that the complainant learner was extremely nervous, anxious, emotional and apprehensive. The accused employee did not adhere to the directive to obtain representation and in my mind benefitted from the extended paid suspension over the period of 28 November 2025 to 3 February 2026. Granting a further postponement in my view would certainly favour the accused employee by extending the paid suspension unduly and would also be prejudicial to the complainant learner and the employer.
    ANALYSIS OF THE EVIDENCE AND ARGUMENTS:
34. The employer bears the onus to prove the allegations on a balance of probabilities. Under the given circumstances there was no cross-examination of the witnesses or any submission on the part of the accused employee. The uncontested versions of the witnesses is accepted and is considered with the award being rendered on such uncontested versions. 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 which includes, but is not limited to, 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.
35. The WCED’s first witness gave an account of what had been relayed to him by the complainant and her friend when he was called by Constance Jacobs to meet with them. Mr. Saville gave an unfettered and thorough account of what the learners had told him directly and what action he took in that regard having accepted the serious nature of the allegations. Mr. Saville also explained the grading system in schools of industry and how this is geared for learners who have a history of failure or who are held back in the intermediary phase. It is my unqualified view that such history of failure is often because of emotional and intellectual immaturity. I have observed first hand in the arbitration process, the difference in the maturity levels of the two learners, BM and AJ, who testified to the same instance. AJ came across more sophisticated than BM. Despite this, there is no doubt in my mind that BM gave a credible and believable account of what happened to her.
36. Mr. Saville’s testimony was entirely corroborated by Ms. Jacobs’ testimony. Their testimonies were consistent without coming across as rehearsed or pre-prepared. The complainant, BM, while initially struggling with having to relay her story to the tribunal due to being anxious, gave an absolutely credible and believable account once she had settled her nerves. Her submission matched that of both Saville and Jacobs and was further corroborated by AJ’s testimony. I do not deem it necessary to regurgitate what was already testified to and corroborated.
37. In considering the unopposed but corroborated version of BM, I find that the accused employee is guilty of the allegations on the balance of probabilities. BM testified that Swartz did not teach her or have any direct interaction with her except when he had to intervene in issues between learners. It was testified that generally such issues would be sorted out in the office at the hostel. Both BM and AJ testified that they were called to the office at the hostel and this is where Swartz engaged BM on her own behind closed doors after asking the other two girls to leave the office. This is where Swartz, according to BM, asked her to explain how her ex-boyfriend had “fingered” her sexually (my emphasis). This appears to be an unusual situation given that BM testified that this “fingering” did not happen and that she did not know how this was brought to Swartz’s attention.
38. The inappropriate interaction did not end there. According to BM’s direct testimony and what she had relayed to Jacobs, Saville and AJ, Swartz then instructed her to meet him at his room. He told her to take a detour to his room from the office at the hostel. This, in my view, is a premeditated action on the part of Swartz where he knew what he intended to do.
39. BM testified that she went there because “sir told me to go there”. This displays a level of subservience and obedience that is associated with the complainant’s view of her “teacher’s” level of authority. When she went to his room, Swartz then told her to pull down her pants and show him how her ex-boyfriend had “fingered” her sexually (my emphasis). In my view, the level of inappropriateness escalated because Swartz saw an opportunity to take advantage of a vulnerable and naïve young learner. BM testified that she refused to adhere to this request and had told him that he is an adult and she a minor. BM testified that Swartz told her not to tell anyone what had happened when she was leaving his room. This shows that Swartz was well aware of his wrongdoing and used his authority over a vulnerable learner to try to deflect or hide his untoward behaviour.
40. The employee was charged with an allegation of conducting himself in an improper, disgraceful, or unacceptable manner towards a learner of Steinthal Skills School in that he sexually harassed her by requesting her to do certain things of a sexual nature. In the Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace, enacted in March 2022, the element of sexual harassment in the workplace was encapsulated within the code along with other forms of harassment. This Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace (New Code) replaced the previous Amended Code of Good Practice on the handling of Sexual Harassment cases in the Workplace and expands on the narrative of the previous code of Sexual Harassment insofar as it defines the perpetrators and victims of harassment along with specifically clarifying the test for sexual harassment. The latest enacted code states that sexual harassment is “unwelcome conduct of a sexual nature, whether direct or indirect, that the perpetrator knows or ought to know is not welcome” (my emphasis).
41. In this instance, it can be confidently said that Swartz, the perpetrator, whom I have already found guilty on the balance of probabilities in paragraph 37 above, would have known or ought to have known that his conduct was unwelcome and of a sexual nature. That he told BM to not tell anyone of this indiscretion lends credence to my view that he very well knew what he had done and what his further intentions were when he called BM to his room. His role as a teacher and hostel superintendent is more than just an educator. He is also the confidante of impressionable youth. He abused this position of authority. BM testified that she told him that he is an adult and that she is a minor when he requested her to remove her clothes and show him what her ex-boyfriend had allegedly done to her sexually. AJ testified that when she saw BM, she was in a state of shock and was upset. Paragraph 5.2.3 of the “new code” refers to “where a complainant has difficulty indicating to the perpetrator that the conduct is unwanted, such complainant may seek assistance and intervention of another person such as a co-worker, superior, counsellor, human resource official, family member or friend.”
42. It is very evident that BM firstly approached her friend and the both of them went to see the counsellor, Constance Jacobs the very next morning given that the incidents occurred after 5pm when Jacobs was not at the school. BM and AJ did not shy away from reporting what they believed was inappropriate behaviour on the part of Swartz. When questioned during this arbitration process, both confirmed that they had no reason to fabricate a story against Swartz. Neither of them were taught by him and both had very little interaction with him.
43. In Stellenbosch Farmers’ Winery Group Ltd and another v Martell et Cie and others 2003 SA 11 (SCA), the court held that the credibility of a witness is in an extricable manner bound to the consideration of the probabilities of the case. Holistically considered, the question is not whether a witness is wholly truthful in all she says, but whether the arbitrator is satisfied that the story which the witness tells is a true one in its essential features.
44. The credibility of all the witnesses is above reproach. The WCED representative submitted that the seriousness of the offence not only warrants the termination of the employment relationship but also impacts the employee’s status as a South African Council for Educators (SACE) registered educator who should not be in any position to teach children or the youth given the circumstances in this matter.
45. Is dismissal appropriate? I have considered the totality of circumstances in this matter including the principles outlined in Sidumo & another v Rustenburg Platinum Mine Ltd & Others (2007) 28 ILJ 2405 (CC), the amended Code of Good Practice – Dismissal and the aspect of sexual harassment in the Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace and Sections 120 and 122 of the Children’s Act, Act 38 of 2005. Saville testified to the trust relationship being broken beyond repair and to a large degree he blamed himself for the appointment of Swartz to the position of superintendent of the hostel. In Woolworths (Pty) Ltd v Mabija and others [2016] ZALAC 5; [2016] 6bllr 568 (LAC); (2016) 37 ILJ 1380 (LAC), the Labour Appeal Court accepted that it is not necessary to lead evidence to prove a breakdown of the trust. The gravity of the misconduct would determine this breakdown in trust. The applicant’s conduct falls well within this ambit.
46. A further consideration is that AJ during her testimony also described how Swartz had dealt with her complaints of being bullied. He did not call her to the office as would be the norm but sought to comfort her by hugging her and telling her that he was there for her. His hugging her made her uncomfortable but she did not deem it necessary to report this to Jacobs or anyone else. In my view Swartz has previously displayed tendencies of engaging the young females in an inappropriate manner.
47. I am of the view that a sanction of summary dismissal is warranted in relation to the misconduct and accordingly issue the following award:

AWARD:

48. The employer, The Western Cape Department of Education must inform the employee, Mr. E Swartz of his summary dismissal immediately upon receipt of this award. 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. Swartz’s SACE Certificate.
    • Mr. Swartz is found to be unsuitable to work with children in terms of section 122(4) of the Children’s Act 38 of 2005.
    • The General Secretary of the ELRC must in terms of Section 122(1) of the Children’s Act 38 of 2005, notify the Director General of Social Development in writing of this finding made in terms of section 120(4) of the Children’s Act 83 Of 2005, that Mr. Swartz is unsuitable to work with children, for the Director General to enter his name as contemplated in section 120-part B of the register.

L M Taylor
Commissioner