Panelist: Kuvonakala Chavalala
Case No.: ELRC39-25/26 GP
Date of Award: 15 August 2025

In the ARBITRATION between:

NAPTOSA obo Nkosi Nhlanhla Eric
(Union / Employee)

and

Department of Education Gauteng
(Employer)

Union/Employee’s representative: Mr. Pietersen

Employer’s representative: Mr. Lefosa

DETAILS OF HEARING AND REPRESENTATION

[1] This is an award between NAPTOSA obo Eric Nhlanhla Nkosi (hereinafter referred to as “the employee”) and Department of Education Gauteng (hereinafter referred to as “the employer”). The matter was set down as an inquiry by arbitrator in terms of section 188A of the Labour Relations Act 66 of 1995 as amended (“the LRA”) and also in terms of clause 32 of the ELRC Constitution (as amended). The hearing sat on 21 May 2025 and was finalised on 24 July 2025.
[2] Clause 3 (3.1) Collective Agreement 3 of 2018 of the ELRC provides that in all matters in which an employer wants to take disciplinary action against an educator for alleged sexual misconduct towards any learner, an inquiry by an arbitrator, as intended by section 188A of the LRA, and clause 32 of the Dispute Resolution Procedures of the Education Labour Relations Council (“ELRC”), shall be mandatory. All the charges the employee faced were alleged sexual misconduct against a learner.
[3] I informed the parties that the names of the learners will be omitted from the award since they are still minors.
[4] The employee was represented by Mr Pietersen, an official from NAPTOSA. Mr Lefosa represented the employer.
[5] The employer submitted a Bundle of documents which we named Bundle R which was used as a common bundle.
[6] Parties had to submit written closing arguments on or before 01 August 2025 and the employee did so. The employer had technical challenges and could only submit on 02 August 2025 and same was forwarded to me on 04 August 2025. The arguments were considered in this award.
[7] The hearing was held in English and it was digitally and manually recorded.

ISSUES TO BE DECIDED
[8] I am required to decide whether the employee committed misconduct as per the allegations levelled against him. If I find that he did commit the misconduct, I have to decide on an appropriate sanction.

BACKGROUND TO THE ISSUES TO BE DECIDED
[9] The employee is currently employed as an educator at Esterhuysen Primary School. The employee was notified of the allegations on 08 April 2024 and he was placed on precautionary transfer since the notification of the allegations.

[10] The allegations levelled against the employee are as follows:
• Allegation 1

It is alleged that on or around 04 February 2025, while on duty, you conducted yourself in an improper, disgraceful or unacceptable manner in that you sexually harassed OM a Grade7 learner at T.C Esterhuysen Primary School, by hugging her and kissing her on her cheek.

In view of the above you are thus charged with misconduct in terms of Section 18(1)(q)) of Employment of Educators Act 76 of 1998 as amended.

• Allegation 2

It is alleged that on or around 04 February 2025, while on duty, you conducted yourself in an improper, disgraceful or unacceptable manner towards OM Grade7 learner at T.C Esterhuysen Primary School, by giving her your cell phone numbers and telling her to call you.

In view of the above you are thus charged with misconduct in terms of Section 18(1)(q)) of Employment of Educators Act 76 of 1998 as amended

[11] The employee pleaded not guilty to both charges.

[12] The parties agreed that the following were common cause issues: –

a) The employee has been employed by the employer since 01 January 2016 as a PL1 educator. He is stationed at Esterhuysen Primary School.
b) The employee is currently precautionarily transferred to Johannesburg North District offices. Employee was given a notice to attend disciplinary hearing with clear charges and it informed him of his rights.
c) The employee has a clean disciplinary record.
d) He knows OM and that she is a learner at the school, he does not teach her as she is currently in Grade 7.

SUMMARY OF THE PARTIES’ EVIDENCE AND ARGUMENT
This section only records the summary of the evidence that was tendered and not the verbatim testimony of the witnesses. The case was digitally recorded, and such recordings can be provided to the parties upon request.

Employer’s case
The employer called three witnesses who testified as follows:
First witness: Alfred M, whose full names are withheld due to the fact that he is a parent to the alleged victim, who is a minor leaner. Stating his full names may expose the identity of the minor learner. He gave evidence under oath as follows:
[13] On 04 February 2025, OM contacted the witness via video call while he was at work, recounting an incident that had occurred at school earlier that day. OM reported that the employee had hugged her, kissed her on the cheek, and questioned why she had not called him during the school holidays, to which she replied that she does not contact teachers. The employee then provided her with his phone numbers. The witness advised OM to report the incident to a trusted teacher. Subsequently, on 06 February 2025, he was summoned to the school to provide a written statement, which is appears on page 6 of Bundle R. It was the first time OM had raised a complaint regarding the employee or any conduct of this nature. He believes that what triggered OM’s discomfort is the kiss on the cheek and him asking her to call him.

Second Witness: Learner OM, whose identity is withheld due to the fact that she is a leaner who was at the time of incident and testimony a minor. She understood what taking an oath is. She is 13 years old and testified under oath with the assistance of an intermediary, Ms Mule Padi who also took an oath. She testified in camera. The summary of the evidence is as follows:

[14] She started at the school in Grade 1. The employee has never taught her but she is aware that he is teaching other foundation phase classes.
[15] On the day of the incident, the principal gave her a book and documents and tasked her with delivering documents to teachers listed therein, who were required to sign upon receipt. Accompanied by her friend, MM, OM proceeded to the employee’s classroom, where she inquired whether he had signed. He indicated that he had not signed, he then signed and took one document He then requested for a hug. She did not want to appear rude or disrespectful so she complied. The employee then kissed her on the cheek. This was in his class and all his learners and MM were present. Following the incident, OM reported the matter to her father after school, who instructed her to formally report it the next day. She confided in her father because she is close to him and tells him everything. OM subsequently informed MM of her father’s advice that they report the incident.
[16] In the previous year, OM’s class teacher had sent her and another learner, S, to the employee’s classroom to get something. Upon their arrival, the employee inquired about her school holidays and questioned why she had not contacted him, to which OM replied that she does not call educators. The employee then wrote his phone number on a piece of paper and handed it to her. When she went out of his classroom, she threw the paper in the bin.
[17] After the kissing incident, one learner A, approached her on three different dates and told her that the employee wanted to talk to her. She refused to go and talk to him.
Cross-examination
[18] MM was leaning by the door when this happened so she could see what was happening. Upon leaving the classroom, she asked her friend MM “Did sir really kiss my cheek?” and her friend said yes. She asked for MM’s confirmation because she, OM had been facing forward at the time and had only perceived the employee’s movement toward her cheek through her side vision.
[19] OM acknowledged recording the dates of 16 and 17 February 2025 in her statement. She explained that after submitting an initial version, her teacher advised her that it lacked sufficient detail and instructed her to rewrite it with comprehensive particulars. While she cannot recall the exact date of the incident, she confirmed it occurred on the same day she reported the matter to her father via call.
[20] The incident where the employee gave her his cell phone numbers occurred on a separate occasion in the previous year (2024), though OM could not recall the time of the year it happened. She maintained that she had no motive to fabricate allegations against the employee, nor was she influenced by any third party to lie against him.

Third Witness: Learner MM, whose identity is withheld due to the fact that she is a leaner who was at the time of incident and testimony a minor. She understood what taking an oath is. She iwas13 years old and testified under oath with the assistance of an intermediary, Ms Mule Padi who also took an oath. She testified in camera. The summary of the evidence is as follows:
[21] The employee had previously taught her in Grade 1. She does not recall the dates but on the day in question, OM and the witness were instructed to deliver documents to various educators. Upon entering the employee’s classroom, they inquired whether he had signed; he confirmed having done so, then winked at OM and requested a hug. OM complied, after which the employee kissed her on the cheek in the presence of his learners. OM had also told her of an earlier incident in which the employee provided OM with his contact details. She had no direct knowledge of this incident as she was not present at the time.
[22] On the day of the incident, she specifically positioned herself near the classroom door at OM’s request, as OM had raised concerns about the employee’s inappropriate behaviour and sought an observer. OM also disclosed that the employee had previously given her his phone numbers, which she had thrown away.
[23] The witness accompanied OM when reporting the matter to Ms. Madonsela. They were together when they wrote their statements.

THE EMPLOYEE’S CASE

Employee: Nhlanhla Eric Nkosi, the employee testified under oath and the summary is as follows:-
[24] He genuinely believes he has good interpersonal skills and does not know of any strained relationship with any of his colleagues. He enjoys a positive rapport with the learners, who are equally fond of him. Learners he previously taught in Grade 1 and Grade 2 continue to visit his class to greet him, often doing so with a hug.
[25] On the day of the incident, he was in his classroom with his learners. He observed OM and MM through the window, carrying a communication receipt book. Earlier that morning, an assistant teacher had been responsible for distributing communications to the educators and had the receipt book in her possession. At that time, he signed the book and received his communications. However, the assistant teacher became occupied with other duties before completing the task, and subsequently, the two learners were sent to deliver the remaining communications to the educators who had not yet received them.
[26] As the two learners approached his classroom door, he heard one of them say, “Sir Nkosi has already signed.” Despite this, they entered the classroom. He remarked, “I have already signed; perhaps you came to greet me.” It was at this point that the hug occurred. He described the hug as parental in nature and entirely non-sexual. He stated that it would have been difficult to reject such a gesture, given its innocent and familial character. There was never at any stage any kissing. And the learners left. He assumed that the learners had come to greet him, as he believed they were fond of him, having taught and trained them from the outset of their schooling. At no point did he provide OM with his contact number.
[27] He recalled a previous incident during a school strike when he was absent for a day. Upon his return, he discovered that his classroom had been vandalised, while the other classrooms remained untouched. In light of the current allegations, he now suspects that there may be an individual with malicious intent against him, and that this person may have influenced the learners to fabricate claims against him.
[28] He continued with his duties as usual, unaware of the events that would soon unfold. A day or two later, a fellow educator informed him that there were rumours circulating regarding allegations of sexual harassment against him. He was taken aback by this and stated that he was unaware of any such accusations.
[29] It was only when a departmental official visited the school that he became aware the allegations related to his interaction with OM and MM on the day in question. He expressed disbelief that such an incident could lead to disciplinary action, as he perceived nothing inappropriate or improper about the interaction. The matter caused him considerable distress, leading to several sleepless nights.
[30] Although he continued to see OM at school, he did not initially approach her about the issue. Approximately four days after the departmental officials’ visit, he saw her and asked another learner to call her over. His intention was to speak with her in hopes of persuading her to correct what he believed to be a false accusation. However, he was informed that OM refused to engage with him, and he did not make any further attempts to contact her thereafter.
[31] He denies the allegation that he asked the same learner three times to call OM. He states that this would not have been possible, as he does not teach that learner. He only asked the learner to call OM because she happened to pass by his classroom to greet him. He submitted that it would not have been possible for him to have managed to approach the very same learner on three separate occasions under those circumstances.
[32] In his statement, he expressed that he was sorry if the learner felt violated; not as an admission of guilt, but as a reflection of his emotional response upon learning of the allegations made against him. He maintains that while an interaction in the form of a greeting and hug did take place, he did not kiss the learner. He described the hug as a side-by-side gesture, where one places an arm over the other’s shoulder and the other reciprocates in a similar manner, which he demonstrated during the proceedings.

Cross examination
[33] He stated that he does not recall being explicitly instructed by the departmental officials to refrain from interacting with OM. However, he could not categorically deny that such an instruction was given, as he recalls being in a state of shock and confusion during that meeting.
[34] He conceded that his testimony regarding a possible vendetta against him is based on assumption, as he is not aware of having any strained relationships with his colleagues. He also acknowledged that he did not report the vandalism of his classroom to the school principal.
[35] He conceded that the distance from the door of his classroom to the board is approximately four metres and acknowledged that it is indeed possible for anyone standing at the door, such as MM, to have a clear view of everything occurring inside the classroom.
[36] He explained that the concept of a “parental hug” relates to his role as a father, noting that such gestures close the gap where there is one. He maintained that there was nothing sexual about the hug. He could not recall whether it was he or the learner who initiated the hug.
[37] He stated that he has never read or come across any provision in the departmental policies that prohibits a hug between a learner and an educator. He further noted that he has observed learners hugging educators of both genders and has never seen any educator reject or push a learner away in such instances. He also indicated that he is aware of the South African Council for Educators (SACE) and its regulations, and stated that, to his knowledge, there is no explicit prohibition against an innocent hug between an educator and a learner.
[38] He firmly denied ever providing OM with his cell phone number.

ANALYSIS OF THE PARTIES’ EVIDENCE AND ARGUMENT
[39] The employee was charged under sections 18(1)(q)) of the Employment of Educators Act (EE Act) which provide as follows:
18(1) 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;
[40] The allegation against the employee is that he committed acts of sexual harassment on OM by hugging her and kissing her on the cheek and also giving her his number suggesting that she must call him.
[41] The employee admitted that there was an interaction between him and OM in the presence of MM and his learners in class. Regarding that interaction, he denied that there was a kiss on the cheek and that the hug was sexual in nature. The employee denied that he ever gave the learner his cell-phone numbers.
[42] The employer presented the testimony of three witness, the learner OM, her friend MM, and OM’s father. The three did not need to prove that there was hugging but rather that is was sexual in nature. They needed to prove that the employee did kiss OM on the cheek and that he gave her his numbers and requested her to call him. The employee relied only on his testimony.
[43] I now turn to the question of whether the employee kissed learner OM. The employee has denied that any such incident occurred. OM testified that she observed the alleged kiss through her side vision, which is why she sought confirmation from her friend as to whether the kiss had in fact taken place. It is noted that Mr Nkosi is not a particularly tall individual, and his height is relatively similar to that of learner OM. Therefore, any physical leaning toward the learner in an attempt to kiss her may not have been particularly noticeable, unlike in the case of a significantly taller person who would have had to visibly bend down.
[44] Furthermore, neither OM nor MM mentioned hearing any kissing sound. Given the height, the absence of a sound and sideview vision, it is understandable that OM might have felt the need to confirm the incident with her friend to dispel uncertainty. The apparent lack of certainty from MM herself diminishes the probability that the alleged kissing occurred.
[45] Given his height and absence of a kissing sound, it is also plausible that his face may have just unwittingly touched OM’s.
[46] The improbability of the alleged kissing is further exacerbated by the claim that the kiss occurred in full view of the employee’s learners as well as MM. The employee conceded that when MM is positioned at the classroom door, she would have a clear view of everything taking place inside the classroom.
[47] MM testified that she deliberately positioned herself to observe whether the employee would engage in any inappropriate conduct, as OM had instructed her to do so. This indicates that the two learners entered the classroom with a preconceived expectation that some form of inappropriate behaviour might occur.
[48] Further, OM testified that she agreed to hug the employee because she did not want to appear rude or disrespectful. This was not something she expressed aloud, but rather a thought she had internally. However, in both her written statement and oral testimony, MM repeated the exact same reasoning; that OM accepted the hug to avoid seeming rude or disrespectful. This strongly suggests that the two learners discussed the incident in advance and may have rehearsed their versions to ensure consistency. Otherwise, how would MM have known OM’s internal reasoning unless the matter had been previously discussed between them. Beyond the likelihood of prior discussion, this also points to potential bias on the part of MM, who was the sole eyewitness to the alleged kiss.
[49] Given MM’s apparent bias in favour of OM, it is more probable that her confirmation of witnessing the alleged kiss was influenced or prompted by OM’s suggestion, rather than being an independent observation.
[50] On the other hand, the employee’s assumption of bias is also rejected on the basis that it remains purely speculative. The employee himself acknowledged that it was merely an assumption, as he was unable to identify any concrete reason why anyone would be motivated to act against him. However, my impression of the employee’s testimony is that it was truthful and credible. He actively listened to questions and precisely answered them even though it appeared to be detrimental to him, for an example, that he had attempted to speak to OM by sending a learner to call her for him. He was not argumentative and he remained candid. His versions remained sturdy even after rigorous cross-examination by Mr Lefosa.
[51] I find it highly unlikely that anyone instructed the learners to fabricate their accounts, nor do I believe that the learners acted with an intention to deceive as argued by the employee representative. It is, however, plausible that their expectation, particularly OM’s, that something inappropriate might occur influenced their perception and interpretation of events. MM’s obvious bias makes her version to not be reliable.
[52] Having considered the totality of evidence on this aspect, I find that the probabilities favour the employee’s version that there was no kissing that took place.
[53] I now turn to the question of whether the hug was sexual in nature. Based on OM’s testimony, it is evident that what rendered the hug allegedly sexual was not the nature of the hug itself, but rather the presence of the alleged kiss. She testified that she had previously regarded the employee’s hugs as innocent. The employee stated that the hug in question was a side-by-side hug rather than a front-to-front hug. OM’s own version that she was facing forward and observed the employee through her side vision supports the conclusion that the hug was indeed side-by-side in nature. It is thus my finding that the evidence supports the version that the hug was not sexual in nature.
[54] I am not aware of any specific provision, as suggested by the employer in their arguments, that explicitly prohibits any physical contact between learners and educators per se. However, I do acknowledge and agree that any form of physical contact with learners should be approached with great caution, as such interactions are open to different interpretations and may be misconstrued. This is so given the fact that the SACE Code of Professional Ethics, item 3.6 specifically prohibits any improper physical contact with learners.
[55] The question that subsequently arises is whether that hug can be regarded as improper under the circumstances. Both MM and OM testified that the employee initiated the hug. The employee, on the other hand, stated that he could not recall who initiated the hug. This effectively means that the employee is unable to deny that he was the one who initiated the hug. It is evident that the hug was not solicited by learner MM and that she perceived it as unwelcome. The employee did not seek consent before hugging learner MM and thereby encroached upon her personal space. Evidently, learner MM did not consent but obliged. In light of the above, I find that, although the hug was not sexual in nature, it was nevertheless improper under the circumstances.
[56] Although this was not the charge preferred against the employee, it he is aware or reasonably should be aware that improper physical conduct is prohibited. I am satisfied that the employee was not prejudiced by the manner in which the offence was categorised because the hugging in itself was not an issue in dispute. I am guided in this regard by the findings of the Labour Appeal Court in EOH Abantu (Pty) Ltd v CCMA & Others (JA4/18) [2019] ZALAC 57 where the court confirmed a principle that an employee may be found guilty of a lesser charge or competent verdict if it arises from the evidence led.
[57] I therefore subsequently find the employee “guilty” for the offence of having conducted himself in an improper, disgraceful or unacceptable manner by hugging learner OM on 04 February 2025 without her consent.
[58] I now turn to the allegation that the employee provided learner OM with his cell phone numbers and asked her to call him.
[59] In terms of the charge, it was alleged that this happened on the very day of the hugging incident. It was clarified during testimonies of by both OM and MM that this was on a separate incident the previous year and not on 04 February 2025. The charge against the employee is that he gave the learner the phone numbers on or around 04 February 2025. I am aware that the courts have reinforced the principle that the wording of charges, and omission of some elements in the charges, are inconsequential as all that is required is for an employee to be aware of and understand the charges which warrant a defence without the employee being unfairly prejudiced. The employee was aware, at least after the testimony of the two learners that the said incident is of the previous year.
[60] The employee’s defence, which in any event, would have remained the same even if the charges had alleged that the incident occurred the previous year, was that he never, at any stage, provided the learner with his contact details. The learner, however, testified that the employee did give her his number while she was in the company of S, and that she subsequently discarded it in a bin. Learner S was not called to corroborate this allegation. The parties’ versions on this charge are mutually destructive.
[61] I have already commented on my impression of the employee and the learners as witnesses on the witness stand. What remains is OM’s word against the employee’s and vice versa. In my assessment, the probabilities in respect of this charge favour the employee.
[62] The probabilities are swayed by the fact that Learner MM indicated that she is very close to her father and that she tells him everything. She however did not tell him about this incident until the 04 February 2025 incident. When she related this incident to her father, she did so as if the incident had just occurred. This would also explain why the charge was formulated in a manner it was; that the incident had occurred on 04 February 2025. Further, I do note that witnesses (young or old) do not always recall all events with precise particularity, but at the very least, witnesses must recollect pieces of facts that assemble a picture visible enough for a trier of facts to see. The quality of her recollection on this allegation was not good. She could not recall which part (beginning or end), quarter or semester of the year this incident occurred, only that it had occurred in 2024. She could not recall what she was to get in the employee’s class.
[63] I subsequently return a verdict of ‘Not Guilty’ on this charge.
[64] Having found the employee guilty for the offence of having conducted himself in an improper, disgraceful or unacceptable manner by hugging learner OM without her consent, I now turn to the question of sanction.
[65] Schedule 8, Code of Good Practice: Dismissals, item 4 and 5 provides:
(4) ‘Generally, it is not appropriate to dismiss an employee for a first offence, except if the misconduct is serious and of such gravity that it makes a continued employment relationship intolerable. Examples of serious misconduct, subject to the rule that each case should be judged on its merits, are gross dishonesty or wilful damage to the property of the employer, wilful endangering of the safety of others physical assault on the employer, a fellow employee, client or customer and gross insubordination.
(5) When deciding whether or not to impose the penalty of dismissal, the employer should in addition to the gravity of the misconduct consider factors such as the employee’s circumstances (including length of service, previous disciplinary record and personal circumstances), the nature of the job and the circumstances of the infringement itself’.
[66] I also note that in terms of Schedule 2 of the Employment of Educators Act, one of the principles underlying a decision to discipline is that discipline is a corrective and not a punitive measure.
[67] It is trite that the nature and circumstances of each individual case should be taken into consideration, prior to making a decision. This is in accordance with fair labour practices and general principles of fairness which require that due consideration should be given to all relevant considerations before a sanction of dismissal (or for any other sanction) is imposed.
[68] The employee from the outset in his statement indicated that he was sorry if the learner felt violated. This statement of remorse is the first step towards rehabilitation. He also did not deny the existence of an interaction between him and the learner. I have also reasoned that although the interaction was improper, it was not sexual in nature. There was no evidence of any previous offences. In my view, the nature of the offence the employee is found guilty on does not irretrievably break down the employer-employee trust relationship and can be corrected.
[69] I therefore find that a sanction of a final written warning valid for 12 months is warranted under the circumstances.

AWARD
[1] The employee is found guilty on a lesser offence of having conducted himself in an improper, disgraceful or unacceptable manner by hugging learner OM without her consent on 04 February 2025. For this offence, the employer must issue a final written warning against the employee, valid for 12 months.
[2] The employee is found not guilty on Allegation 2.
[3] I make no order as to costs.

Dated on the 15th day of August 2025

Kuvonakala Chavalala
ELRC Panellist