22 July 2025 – ELRC345-24/25WC

Commissioner: Gerald Jacobs
Case Number: ELRC 345-24/25WC
Date of Award: 21 July 2024

In the matter between:

NAPTOSA obo Yoliswa Seula Gwebushe
(Applicant/Employee)

And

Education Department of Western Cape
(Respondent/Employer)

Details of Hearing and Representation

This is the award in the arbitration between Ms.Yoliswa Seula Gwebushe, the applicant, and the Education Department of Western Cape, the respondent.
The arbitration was held under the auspices of the Education Labour Relations Council (ELRC) in terms of section 186(2)(b) 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.
The arbitration hearing was held over eight separate days, beginning on 18 September 2024 and continuing on 17 October 2024, 13 November 2024, 21 February 2025, 8 and 9 April 2025, 30 May 2025, and concluding on 23 June 2025. The applicant was initially represented by her trade union’s labour relations officer, Ms Vuyokazi Mthwazi. Due to unforeseen personal circumstances, Ms Mthwazi was unable to attend the final two sittings and was replaced by her colleague, Ms Aqeelah Pietersen, who had been fully briefed and was prepared to proceed with the case. During the entire course of the proceedings, the respondent was represented by its Labour Relations Officer, Ms Nomxolisi Qonongo.
Both parties agreed to file written submissions in place of delivering oral closing arguments and were directed to do so by 30 June 2025. Due to a bereavement in the applicant’s representative’s family during that week, an extension was requested and granted, moving the deadline to 4 July 2025.
Despite the extension, no written submission had been received from the applicant at the time this award was written. Nonetheless, in accordance with section 138(7) of the Labour Relations Act, the 14-day period for issuing the arbitration award is calculated from the extended deadline of 4 July 2025.
The proceedings were digitally recorded.

The issue/s to be decided

The issue to be determined is whether the respondent committed an unfair labour practice as contemplated in section 186(2)(b) of the Labour Relations Act by finding the applicant guilty of misconduct and imposing a disciplinary sanction.
The applicant seeks relief in the form of the disciplinary outcome and sanction being set aside, a refund of all monies deducted according to the sanction and compensation for the unfairness.

Background to the dispute

The applicant has been employed by the respondent, the Western Cape Education Department, as a Level 1 educator for sixteen (16) years. At the time of the incidents in question, she was serving as a Departmental Head at Nomlinganiselo Primary School.
The applicant appeared before a disciplinary hearing held on 13 November 2023, which concluded on 31 January 2024. She faced four charges of misconduct, all stemming from incidents that occurred at Nomlinganiselo Primary School, namely:

Charge 1: Assault of Learner A (a Grade 3 learner) on or about 19 April 2023, by hitting him on the back of the head with a flat hand.
Charge 2: Assault of Learner B (also a Grade 3 learner) on or about 30 May 2023, by hitting him on the hand with a board duster
Charge 3: Preventing Learner C from attending class on or about 30 August 2023.
Charge 4: Preventing Learner A from attending class on or about 31 August and/or 1 September 2023.

All charges were brought under Sections 18(1)(r) and 18(1)(a) of the Employment of Educators Act, 76 of 1998. The applicant pleaded not guilty to all four charges and consistently denied any wrongdoing throughout the proceedings.
On 13 February 2024, the Presiding Officer found the applicant guilty on all four charges, concluding that the respondent had proven its case on a balance of probabilities. The Presiding Officer emphasised that the assaults were not traditional corporal punishment but acts of violence, and that barring learners from class violated their right to basic education.
The disciplinary sanction was issued on 19 February 2024 and included a fine equal to 75% of one month’s salary, with 25% suspended for five years and the remaining 50% payable over six months, as well as a final written warning valid for six months. This sanction was imposed in terms of Sections 18(3)(e) and 18(3)(d) of the Employment of Educators Act.
The applicant appealed the disciplinary findings and sanction to the Member of the Executive Council (MEC) for Education. The appeal was dismissed, with the MEC upholding the guilty findings but increasing the sanction to a deduction of one month’s salary, to be recovered in two instalments on 15 August and 15 September 2024.
Dissatisfied with the outcome of her appeal, the applicant referred the matter to the ELRC. The dispute was conciliated without success and eventually referred to arbitration.

Survey of evidence and arguments
Documentary evidence:

The parties had prepared an agreed bundle of documents, which was referred to from time to time during the course of the hearing. The agreed bundle of documents marked ‘Bundle A’, containing 44 pages of documents.
Special care was taken in writing this award because it involves minors, specifically, Grade 3 learners, as complainants and witnesses. To protect their identities, the complainants are referred to as Learners A, B, and C, as listed in the charge sheet. The two minor witnesses called by the applicant are identified by the initials SKH and SLM, which do not reflect their real names. A social worker acting as an intermediary and an interpreter was used to assist during their testimony. To further protect the children, they gave evidence from a separate room within the same building, outside the arbitration room. Their testimony was streamed via Microsoft Teams, allowing the parties in the arbitration room to see the child witnesses while ensuring the children could not see the applicant.

The applicant’s case

The applicant called three witnesses to support her case: two learners who were classmates of the complainants, and Ms Primrose Nobathembu Mbambo, the school secretary.

Witness 1: Ms Gwebushe’s testimony (the applicant)

The allegation levelled against the applicant, Ms Yoliswa Gwebushe, was that she allegedly struck Learner A on the back of his head with an open hand while he was handing a pencil to a classmate. The impact allegedly caused his face to hit the desk and his nose to bleed. The class assistants then reportedly cleaned him up, and the Learner later told his grandmother about the incident. The learner’s mother allegedly reported the incident to the principal.
Ms Gwebushe denied hitting Learner A and described the allegations as fabricated. She explained that Learner A arrived in class crying that morning, accompanied by the school secretary, and accused her of hitting him for not remembering a story titled “the sun and the wind.” She maintained that no such assault took place and described the child’s story as implausible, especially since the story in question had been taught weeks earlier to a different learner group.
She argued that inconsistencies in the complainant’s version were ignored at the disciplinary hearing, particularly regarding what the learner wore that day, some said a jersey, others a tracksuit, and whether bloodstains were visible. She also cited testimony from the class assistant (at the disciplinary hearing), who initially denied the learner had cried, only revising his account after hearing the applicant’s version.
The applicant is further accused of hitting Learner B three to four times on his right-hand knuckles with a wooden board duster after he failed to respond to a question (charge 2). The alleged incident caused visible swelling, and the learner was reportedly kept out of school the following day.
Ms Gwebushe denied hitting Learner B and stated categorically that no duster was used in her class. She maintained that her classroom only had a whiteboard and that she used a cloth to clean it. According to her, had the incident occurred as described, it would have been seen by other learners, but no one corroborated Learner B’s version. She testified that the learner’s mother confronted her afterwards, claiming her son had said he was hit. She told the mother that she did not hit her child. The learner was absent the next day and upon questioning the mother about the child’s absence she initially claimed the father took the child to the doctor. However, at the disciplinary hearing the mother admitted under cross-examination that she herself had treated the injury and that the earlier claim was made “as a joke.” The learner later returned to school with a ragged-looking bandage.
As to charge 3, the applicant allegedly sent Learner C out of class as punishment for chewing gum. The learner was later found outside the class during instruction time and claimed the applicant had chased him out. Ms Gwebushe acknowledged that she had sent Learner C out of the classroom but denied doing so as punishment. She explained that the learner had a tendency to fall asleep during lessons, and on that particular day, she had told him to step outside for fresh air and return shortly thereafter. She emphasised that this was not a disciplinary action but a supportive one. She disputed the claim that he was chewing gum or that she had removed him for any rule violation. She also challenged the principal’s account that the incident happened before break, stating instead that it occurred afterward.
The applicant is accused of sending Learner A out of class on two consecutive days and instructing him not to return, effectively barring him from attending class (Charge 4). Ms Gwebushe denied excluding Learner A on either of the alleged days. She maintained that the learner had not been present at school on those dates and presented attendance records to support this claim at the disciplinary hearing. She explained that the learner had a longstanding pattern of frequent absenteeism. To address this, she had engaged both the learner’s mother and the school-based Support Committee, a school’s support systems. She pointed out that during a visit by the Department of Education, the learner had to be fetched from home, further evidence, in her view, that his absenteeism was habitual.

Witnesses SKH and SLM

Regarding the allegation that the applicant struck Learner A on the back of his head with an open hand while he was handing a pencil to a classmate, both learners who were seated near the front of the class testified that they did not witness any such incident. SKH confirmed that Learner A entered the classroom crying but stated she did not know why he was upset. She explained that she only heard about the alleged assault from other learners. SLM likewise denied seeing any form of assault and stated that Learner A often cried in class when he did not know the answer to questions. Both SKH and SLM testified that the applicant did not use a duster in class and that they had never seen her hit any learners.
On the allegation that the applicant hit Learner B three or four times on his right-hand knuckles with a wooden board duster after he failed to respond to a question, both SKH and SLM again denied witnessing any such incident. They testified that the applicant only used a cloth to clean the board, not a wooden duster. SKH did recall seeing Learner B arrive at school with a bandaged hand, but she observed that the bandage appeared dirty and concluded that the injury must have occurred outside of school. Neither of the two learners witnessed any form of physical assault, and both maintained that the classroom was equipped with a whiteboard only. They denied ever seeing the applicant physically discipline any learners.
Concerning the allegation that the applicant sent Learner C out of class as punishment for chewing gum, both SKH and SLM testified that they had never seen the applicant remove any learner from the classroom for eating chewing gum. SKH explicitly referred to the chewing gum allegation as false, describing it as a rumour or lie that gained attention among the learners. SLM similarly stated that the applicant never excluded learners from her lessons and remarked that Learner C was known to frequently fall asleep during class.
In relation to Charge 4, which also concerns learner A being sent out of class, both SKH and SLM again testified that they had never seen the applicant send any learner out of the classroom. While they had no direct knowledge of the specific incidents alleged under Charge 4, they both described the applicant as a teacher who did not exclude learners and maintained that they had never observed her removing anyone from class.

Ms Primrose Nobathembu Mbambo

Ms Primrose Mbambo, the school secretary, testified mainly about procedural matters concerning learner movement and access control at the school. Her evidence related in particular to Charges 1 and 4, where Learner A alleged that he had been assaulted and later excluded from class. She recounted that on one occasion, she was instructed by the principal to return Learner A to his class. She personally escorted him, knocked on the door, and observed the applicant allow him back into the classroom.
Importantly, she stated that Learner A did not appear upset, injured, or in distress at the time. She was consistent in her position that, had Learner A been injured or traumatised, she would have noticed it. She also denied ever seeing any blood-stained jacket, either during that visit or on any other occasion.
A key aspect of her testimony was her emphasis on the school’s established protocol regarding learner movement. She explained that learners are not allowed to leave the school premises without proper authorisation and that the school operates under a system of controlled movement, which is overseen by staff and governed by routine procedures. According to her, any departure during school hours requires the prior knowledge and approval of senior staff, usually the principal or someone in the administrative office. She further stated that she had no recollection of Learner A leaving the school grounds on the dates in question. In her view, if the learner had indeed been sent away by the applicant and left the premises, the event would likely have come to the attention of the staff, as such a departure would have required official approval.
She also testified about visits made by Learner A’s mother, noting two separate occasions but expressing uncertainty about their dates. On one of these visits, the mother reportedly delivered a business card of an official from the Department of Education. However, Ms Mbambo could not confirm whether these visits aligned with the alleged dates Learner A was sent home by the applicant.

The respondent’s case
Witness 1: Learner A

He described the applicant as having a mixed personality, sometimes kind, other times harsh. He recalled moments when she made the class laugh and referenced the phrase “turtles, turtles” to describe her nicer side, though he did not explain its meaning. However, he emphasised that she could also be strict, saying she would hit them and use words like “kataza kataza,” which he did not understand but said made him feel bad.
As to the applicant allegedly striking him on the back of his head, he testified that while handing a pencil to a classmate, the applicant hit him on the back of the head, causing his nose to strike the desk and bleed. He recalled the entire class reacting in shock, and he claimed that the class assistants cleaned him up. According to him, the applicant dismissed his crying and told him he was not listening. After school, he went home and told his grandmother, who saw the blood on his tracksuit. The next day, he and his mother went to the school and showed the jacket to the principal, who allegedly promised to report the matter.
Concerning Charge 4, the learner testified that on 30 August, he returned to class late after being locked in the toilet by a friend. He claimed that the applicant accused him of lying and sent him out. While outside, he saw the principal, who instructed him to return to class. The principal spoke to the applicant, and she reportedly told him that the learner had been playing in the toilets. Learner A said the incident occurred around 10:00 a.m.
He claimed that the next day, the applicant told him he was lazy and a liar and refused to allow him into the classroom. He left the school premises, which he admitted was against protocol, and was stopped by the “grandfather” at the gate. When he explained that he had been chased out, the man let him leave.
He testified further that on 1 September, he and his mother returned to school with the blood-stained jacket, but the principal was not present. They then went to the district office to report the incidents.

Cross-examination

Under cross-examination, he denied ever saying that the applicant hit him for not recalling the “sun and wind” story, though this version had emerged in other testimony. He also confirmed that the secretary had only escorted him into class once, on a different day, and not on the day of the incident.

Witness 2: Learner B

The learner testified that the applicant would hit students when they did not listen to her. He specifically recalled being hit on 30 May. According to his account, the applicant struck him three or four times on his right-hand knuckles with a wooden board duster that had a green underside. The classroom used a blackboard, typically cleaned with a cloth. He said the applicant also used the board duster to hit other children. On that day, he was writing when the applicant asked him a question; because he did not respond immediately, she stood up and hit him. He began crying, and when break time started, he reported the incident to his mother, who works in the school kitchen.
He stated that his mother later confronted the applicant, though he could not hear their conversation as he remained inside the classroom while they spoke outside. His hand became swollen from the incident. At home, his father applied ointment and wrapped it with a bandage, but he was not taken to the hospital. He did not attend school the following day due to the swelling and could not recall when he eventually returned.

Cross-examination

When asked about the purpose of a duster, the witness said it was used both to clean a chalkboard and to hit students. He accurately described a whiteboard as having a white surface, written on with a pen and erased with a cloth. However, he later insisted the teacher wrote on a chalkboard, denying the use of a whiteboard, contradicting his earlier description.
More contradictions arose regarding the applicant’s alleged apology. The learner claimed the applicant apologised to his mother. Yet earlier, he admitted he could not hear the conversation because he had already entered the classroom. This directly contradicts his later statement that he was present and heard the apology, raising doubts about the reliability of his account. Similar confusion surrounded the classroom’s rule about chewing gum.
When asked how he remembered the exact date of the incident but not the story of “the sun and the wind,” or when he returned to school after being hit, the learner admitted his mother told him the date. When asked if she told him anything else to say, he initially stayed silent, then later claimed that was all she told him.

Witness 3 Learner C

He described his relationship with the applicant as a mix of playful and disciplinary. According to him, the applicant could be friendly and playful with the students on some days, but on others, she would discipline them physically. He stated that she usually hit him, specifically mentioning an incident where she struck his hand with a wooden duster. Despite the classroom having a whiteboard, she kept a duster, suggesting it was used for more than cleaning. One such incident occurred when he and other students arrived late, and the applicant lined them up in front of the board and hit them with the duster.
Disciplinary actions are often followed by specific rule violations. One key example was related to chewing gum (“chappies”) in class. He explained that students were not allowed to be seen eating chappies and were expected to throw them out before entering. He forgot this rule one day and was seen chewing gum in class. The applicant instructed him to spit it out and throw it in the bin. As he walked to the bin, she also told him to leave the classroom. This took place shortly after the first break, around 1:00 PM. While outside, the principal questioned him, and he explained the situation. The principal told him to return to class. When he re-entered, the applicant accepted his explanation and told him to sit down.
He also referred to other occasions when he had been told to leave the classroom, particularly when he had fallen asleep during lessons. However, he emphasised that those instances were different from the one currently under discussion. He admitted that he never reported this specific incident to either his mother or the principal.

Coss-examination

In response to the suggestion that the applicant would never throw him out of the classroom and had merely instructed him to go outside and wash his face, he clarified that this did not reflect his full experience. While he acknowledged that the applicant was generally lenient when he fell asleep in class, he maintained that she did, in fact, chase him out of the classroom when he broke the rules. This, he insisted, was based on what had actually happened to him.
Witness 4: Bhejile Robert Mzinda
He is the principal of the school, has served in the teaching profession for 20 years. His testimony covered a timeline of events reported to him by parents of affected learners, starting from April through to September 2023. In each case, he described his role as limited to reporting incidents to the Department of Education rather than directly confronting the teacher involved.
He confirmed that Learner A’s mother reported the incident to him two days after it allegedly occurred. She claimed the child had been struck on the head and bled from the mouth. He could not recall whether the child spoke at the time, and he did not observe any physical evidence of injury or a jacket with blood stains. Nonetheless, he undertook to report the matter to the Department, which he did.
He confirmed receiving a report from the learner A’s mother on 4 September and stated that no learner is permitted to leave the school without his permission. However, he stated that on 1 September, Learner A managed to exit the school before normal arrival routines had finished. He later visited the learner’s home and spoke with the mother. During their conversation, he acknowledged that the matter had been escalated.
He also confirmed that Learner B’s mother reported the incident to him and that he escalated it to the Department. He observed the learner with a bandaged hand but took no further action, explaining that the matter had already been reported.
As to the applicant’s claim that she only used a cloth to clean the board and that no duster was present in her classroom, the principal testified that board dusters were still in use at the school, even though whiteboards had replaced chalkboards in many classrooms. He stated that it was standard for each teacher, including the applicant, to have a board duster, although he admitted that no formal signature log was kept verifying who had received one.
He further testified that he found Learner C sitting outside class and that the learner told him he had been sent out by the applicant. However, he admitted that he could not recall the specific date and could not confirm the exact context. He could also not confirm that he found learner A outside the class because he has many children at the school, and on many occasions, finds them sitting outside the class. While he reiterated that sending a learner out of class contravened school policy, he acknowledged that he did not confront the teachers or investigate further. He simply reported the trend of incidents to the Department.
Witness 5: Ms. Nonzwakazi Nobhongoza
She is the mother of Learner B. She testified in relation to the alleged incident that forms the basis of Charge 2, that the applicant hit her son on the hand with a wooden board duster, causing swelling.
She recalled that on the day in question, during lunchtime in May (though she could not remember the exact date), her son came to the school kitchen, where she worked as part of the feeding scheme, and asked her for tuck shop money. While handing him the money, she noticed that one of his hands was swollen. When she asked him what had happened, he told her that the teacher had hit him because he was writing while she was teaching. She then went to confront the applicant, who, according to her, admitted to hitting the child and demonstrated how she did it, allegedly striking his hand twice. The applicant reportedly justified her actions by saying the boy was not paying attention in her English class. While the applicant did not indicate what she used to hit him during this exchange, Ms Nobhongoza later learned from her son that it had been a board duster.
Ms Nobhongoza said she treated the injury herself at home, applying ointment and wrapping the hand in a bandage. She explained that she informed the applicant the child’s father would be taking him to the hospital for treatment due to the swelling and pain, and that she kept the child home from school the following day. While she did not witness the strike herself, she believed her son’s version and said the applicant conceded to the assault.

Cross-examination

Under cross-examination, she admitted that she had previously described the plan to take the child to the hospital as a joke. She struggled to explain why she would make such a joke under serious circumstances. She also could not remember which hand was injured.

Witness 6: Ms Funeka Boniswa

Ms Boniswa is the mother of Learner A. She testified that she heard about the incident from her mother and called her son to explain what happened when she came home from work. She observed that blood stains on his tracksuit jacket, but did not take the child to the doctor. She admitted to not taking photos, but said she preserved the tracksuit and brought it to the principal.
Ms Boniswa confirmed that her son came home on 1 September around 8:30 a.m., saying the applicant had again sent him away. She expressed frustration over the school’s failure to act on the earlier assault allegation and took the matter directly to the Department. She stated that she showed the blood-stained jacket to both the principal and the district office, though both denied seeing it.

Cross-examination

During cross-examination, she maintained that the jacket had been shown to both the principal and the department, despite the principal and secretary denying ever having seen it.
When it was put to Ms Boniswa that her son may have been truant on the days he claimed the applicant sent him home (specifically 31 August and 1 September 2023), she denied that he was absent without cause and insisted that he had returned home because the teacher had excluded him from class. She further argued that the fact that her son came home carrying his schoolbooks showed that he had been at school, and thus his absence could not be attributed to truancy. However, it was put to her that Grade 3 learners are not typically allowed to take schoolbooks home, and she was unable to convincingly rebut that claim. She stated that she believes her child, regardless of what anyone else may say.

Closing arguments

The respondent submitted that the disciplinary process was procedurally and substantively fair. The applicant was found guilty following a formal disciplinary hearing, appealed to the MEC, who upheld the sanction, and was invited to make submissions on an appropriate sanction, but failed to do so. The respondent’s submissions were considered by the MEC, which imposed the final sanction. According to the respondent, this demonstrates that due process was followed and that the applicant’s failure to engage with the process undermines her claim of unfairness.
The respondent further emphasised the school’s established protocols, particularly regarding learner movement and discipline, asserting that the applicant was fully aware of these policies, such as the requirement for learners to obtain authorisation before leaving the premises and the prohibition on excluding learners from class. The respondent characterised the applicant’s defence as a bare denial unsupported by reliable evidence and maintained that their disciplinary process and the sanction imposed were lawful, reasonable, and appropriate under the circumstances. They concluded that the applicant’s referral should be dismissed.

Analysis of evidence and arguments

The Constitution of the Republic of South Africa guarantees every individual the right to fair labour practices. Section 185 of the Labour Relations Act affirms the right not to be subjected to unfair labour practices. This constitutional right is reinforced through section 186(2) of the Labour Relations Act 66 of 1995 (as amended) and the Employment Equity Act 55 of 1998 (as amended). Under section 186(2) of the Labour Relations Act (LRA), an unfair labour practice is defined as:
“Any unfair act or omission that arises between an employer and an employee involving —
(b) …………. any other unfair disciplinary action short of dismissal in respect of an employee.”
The applicant alleges that the respondent committed an unfair labour practice by imposing a disciplinary sanction short of dismissal. This sanction was imposed following findings of guilt on charges of misconduct. However, it cannot be said that the disciplinary sanction was unfair if the applicant was, in fact, guilty of the alleged misconduct. Conversely, should the applicant be found not guilty of the misconduct in question, the imposition of the disciplinary sanction would then constitute an unfair labour practice. In terms of section 10(a) of the Labour Relations Act, a party who alleges that a right or protection afforded by the Act or, by extension, the Constitution has been violated bears the onus of proving the factual basis of the conduct said to constitute that violation. Accordingly, the burden of proof in establishing the alleged unfair labour practice rests squarely on the applicant.
The applicant’s case was that the findings of guilt were based on evidence that was both unreliable and inconsistent. She challenged the credibility of the witnesses who testified against her, alleging that their testimony was influenced by bias and improper influence, with particular emphasis on the role of the principal in shaping their accounts. The applicant highlighted various contradictions in the evidence and maintained that her version, in which she denied the allegations, was not given due consideration. A central aspect of her case was that the sanction imposed on her was disproportionate to the alleged misconduct and did not meet the standard of reasonableness and fairness required under the Labour Relations Act.
There is a factual dispute over whether the applicant committed the misconduct. Resolving this dispute requires a determination on the balance of probabilities.

Charges 1- Assaulted Learner A on or about 5 May 2023

The learner demonstrated an understanding of the difference between truth and falsehood. However, during cross-examination, his testimony was disrupted by signs of nervousness, such as fidgeting, nail-biting, shortness of breath, and other physical symptoms, which ultimately required an adjournment. With the support of the intermediary, his distress was alleviated, enabling him to respond to questions coherently. It is important to emphasise that the learner’s distress did not arise from the process itself, as care was taken to ensure that he was questioned in a child-sensitive and non-intimidating manner. Rather, his anxiety appeared to stem from a concern about providing the correct answers, those he believed were expected of him, rather than simply recounting his own experience.
His version contained key claims that he was hit on the back of the head, bled from the nose, and that the whole class witnessed it. Yet two of those classmates, SKH and SLM, expressly denied witnessing the incident. SKH and SLM not only showed that they understood the difference between truth and falsehood; they also testified in a composed and structured manner, which was a strong indicator that they were effectively communicating their lived experience at school. They described the classroom layout in detail, explained groupings by academic ability, and gave clear responses. There was no indication of coaching, evasion, or internal contradiction. Their denial of the incident was firm. While the possibility of bias cannot be excluded, their presentation lacked signs of fabrication or motive to protect the teacher.
Furthermore, both SKH and SLM were seated near the teacher and Learner A. Their descriptions of group placement and classroom layout suggest attentive observation. The fact that both deny witnessing the event and deny hearing the class erupt as Learner A claimed supports the reliability of their evidence, especially given its contextual detail.
The applicant maintained her denial of the assault, countering that Learner A arrived crying and fabricated the story. She referenced prior testimony from a class assistant (at the disciplinary hearing) who allegedly also denied the event. While self-serving, the applicant’s version was internally consistent. It aligned with the testimony of SKH and SLM and was indirectly supported by the principal and secretary. Although not eyewitnesses, they reported finding no corroborative physical evidence (e.g., no jacket presented, no injury observed) at the time.
Learner A’s mother’s testimony was emotionally charged and assertive. Her tone conveyed unwavering belief in her child despite contradictory evidence, dismissiveness of opposing testimony, and defensiveness when challenged on inconsistencies. She claimed to have presented a blood-stained tracksuit jacket to the principal, a claim denied by both the principal and secretary. The mother’s claim regarding a blood-stained jacket, therefore, lacks corroboration from physical evidence or independent witnesses. Critically, she did not witness the alleged incident herself.
If the applicant had struck Learner A with sufficient force to cause a nosebleed and significant class disruption, it is highly probable that other individuals present would have observed it. However, no other learner or adult corroborated Learner A’s account.
On a balance of probabilities, the alleged assault is unlikely to have occurred in the manner described by Learner A. The version of events provided by the applicant, supported by the testimonies of SKH and SLM, is more plausible, particularly in light of the lack of corroborating evidence for Learner A’s account.

Charge 4 – Prevented Learner A from attending class

The central factual dispute is whether the learner was physically present at school but excluded from the classroom, or whether he was entirely absent on the relevant dates.
The applicant maintained that Learner A was absent on both 31 August and 1 September, citing his documented history of absenteeism and her prior efforts to engage the mother on the matter. The applicant relied on the attendance register presented during the disciplinary hearing to support her claim that the learner was absent. However, this register was not submitted as evidence at the arbitration hearing.
Learner A alleged that the applicant chased him out of class on both 31 August and 1 September and refused to allow him back in. He claimed that, on 1 September, he left the school premises after a “grandfather” at the gate permitted him to exit upon hearing that he had been excluded from class. His mother testified that he arrived home at approximately 8:30 a.m. that day, which led her to report the matter to the Department of Education. She insisted that her child was not truant on either day. However, her credibility was undermined when her claim that the learner had returned home with schoolbooks was challenged, since Grade 3 learners typically leave their books at school, a point she could not dispute. Importantly, her entire version of events rested solely on what her son had told her.
Three conflicting versions emerged regarding whether and how Learner A left the school premises on 1 September. The school secretary testified that learners are not allowed to leave without authorisation and that she observed no indication that Learner A had exited the premises on either 31 August or 1 September. While this account reinforces the existence of institutional controls, it is based on the fact that she did not directly monitor the gate throughout the day. Her evidence confirmed that proper procedures were in place, but it did not account for whether a learner could leave unnoticed, especially before the start of the formal school day.
In contrast, Learner A’s version lacks internal and external consistency. He claimed that the applicant called him “lazy and a liar,” barred him from entering the classroom, and that he was then allowed to exit the school gate by an elderly man after explaining he had been chased out. This version places his presence at school during formal teaching hours, yet it is contradicted by his classmates, SKH and SLM, who both testified that the teacher did not exclude learners and that Learner A was not seen in class. Additionally, his explanation of how he left the premises not only lacks corroboration but also contradicts established school security protocols, making it implausible. His account appears to be shaped more by what he believed others expected to hear than by a clear, independent recollection of events.
The principal offered a more detailed and plausible explanation. He stated that Learner A likely left school before the formal start of the day, during a time when the gate was still open and learners were arriving. This timeframe, when teachers had not yet begun structured lessons and supervision was partial, made it feasible for a child to slip out without being seen or authorised. This version provides a logical bridge between school procedures and the learner’s later absence and is further supported by the applicant’s register, which marked Learner A as absent. The principal did not personally witness the learner leaving, but his account aligns with operational realities and is not contradicted by other credible witnesses.
Given these inconsistencies, coupled with the reliability of the principal’s version and the lack of support for Learner A’s claim, the most probable inference is that Learner A left the school before formal classes began, through an open gate, without being barred by the teacher.
Learner A further claimed that on 31 August, the principal had found him outside the classroom and intervened by speaking to the teacher to allow him back in. However, the principal stated that he did not recall any such incident and clarified that it was not his practice to speak to teachers in such situations. Instead, he simply instructs learners to return to class. This statement contradicted the learner’s version.
Critically, there is no supporting evidence that points to the fact that Learner A was indeed at school on 31 August. No evidence was presented to support the claim that the applicant had told Learner A to leave the classroom or had barred him from entering the classroom on 31 August.
Given the lack of corroborating testimony or evidence, it is more probable that Learner A was not present at school on 31 August and 1 September and was not excluded from class by the applicant.

Charge 2 – Assault of Learner B on or about 30 May 2023

The first issue that needs to be considered is whether the applicant had a board duster in the classroom, as she denied the allegation and stated that she never used a board duster, only a cloth for the whiteboard. While it is possible that board dusters were used elsewhere in the school, the evidence suggests it was unlikely that one was present or used in the applicant’s classroom. Learner B’s account was internally inconsistent. He initially described the classroom as having a whiteboard that was wiped with a cloth, but later changed his version to say it was a chalkboard, aligning with the allegation of being hit with a duster. This shift raises doubt about the accuracy of his memory or whether his version evolved to support the accusation. In contrast, SKH and SLM gave clear, consistent testimony that the applicant used only a cloth and that the classroom had a whiteboard. The principal confirmed that board dusters were in use elsewhere at the school, but not that one was in the applicant’s classroom. Taken together, the evidence points to it being unlikely that a board duster was present or used in the manner described by Learner B.
Next is whether the applicant assaulted the Learner. Ms Nobhongoza (learner’s mother) gave assertive and emotionally driven evidence, claiming the applicant admitted to hitting the child and demonstrated how she did it, allegedly striking his hand twice. However, the applicant denied both the assault and any such demonstration. Learner B gave contradictory accounts. He first stated he was outside the classroom and could not hear the conversation, then later claimed heard the applicant apologise without being able to explain how he was able to hear the apology. These inconsistencies are important because they raise doubts about the reliability of the exchange even taking place as described. Combined with the mother’s second-hand and internally conflicted version, weakens the overall reliability of their account that the applicant apologised.
Learner B claimed that the applicant stood up from her desk and hit him, after which he began to cry. If this incident had occurred publicly in the classroom as described, it is likely that other learners would have witnessed the assault or at least heard him crying. However, no other learner saw or heard the incident, and no one corroborated his version. This makes it less probable that the applicant assaulted Learner B with a board duster as alleged. A more likely explanation is that the injury occurred outside of class.
The applicant has therefore proven, on a balance of probabilities, that the alleged assault did not occur as claimed.

Charge 3 – Preventing Learner C from attending class on or about 30 August 2023

The applicant acknowledged that she had asked Learner C to step outside the classroom but maintained that this was not a punitive act. According to her, Learner C had a recurring habit of falling asleep in class, and on this occasion, she instructed him to leave momentarily to help him wake up. Her evidence was consistent with that of SKH and SLM, who both confirmed that Learner C often struggled to stay awake during lessons. Both testified that they had never seen the applicant remove any learner from the classroom for chewing gum, and there was no evidence to contradict or discredit this claim. Their accounts suggested that such behaviour would be noticed and was not part of the applicant’s disciplinary pattern. This unchallenged testimony provides contextual support for the applicant’s denial that chewing gum was the reason for Learner C’s removal. If removal of learners for gum-chewing were part of her usual practice, one would expect at least one of these learners to have observed it, especially given their attentiveness and clarity in describing class routines.
However, this does not negate that Learner C was removed from class, which the applicant herself admitted. However, the absence of any corroborated pattern of removing learners for chewing gum does weaken the plausibility of Learner C’s specific claim that he was told to leave the classroom. When weighed alongside the applicant’s consistent explanation and the shared understanding from learners that chewing gum was discouraged but not punished by removal, the evidence tips slightly more in favour of her version regarding motive. In this context, while the conduct may be technically inconsistent with the policy, it lacks the degree of harm or disregard typically associated with serious disciplinary breaches.
The respondent placed strong reliance on the school’s established protocols regarding learner movement and classroom discipline, stressing that the applicant was fully aware of these rules, including the prohibition on excluding learners without proper authorisation and argued that her conduct warranted the disciplinary sanction imposed. While the school’s rules are undisputed and serve an important protective and administrative function, not every technical breach of them amounts to serious misconduct under section 18(1)(a) of the Employment of Educators Act. A contextual and purposive application of the law requires consideration of the educator’s intention, the impact on the learner, and the degree of negligence involved. In this case, although the applicant removed Learner C, her motive was not disciplinary but supportive, aiming to help a known sleepy learner regain focus. Treating such conduct as serious misconduct warranting a final written warning without distinguishing between harmful exclusion and momentary, benign interventions would result in an undifferentiated and overly rigid application of disciplinary standards. Accordingly, the facts do not support a finding of serious misconduct in this instance. This incident is better characterised as a non-serious conduct in classroom management, not conduct warranting formal sanction.
Having considered the totality of the evidence, I am satisfied that the applicant has discharged the onus of proving, on a balance of probabilities, that the respondent committed an unfair labour practice as contemplated in section 186(2) of the Labour Relations Act 66 of 1995 (as amended).
The final written warning issued to the applicant was valid for period of six months, which has since lapsed. Accordingly, setting aside the warning at this stage has no practical consequence. However, the respondent is directed to remove the final written warning from the applicant’s personnel file. Furthermore, as part of the disciplinary sanction, the respondent deducted an amount equivalent to one month’s salary from the applicant. I find this deduction to have been unjustified, and the respondent is therefore directed to reimburse the applicant the amount equivalent to one month’s salary.

Relief

The applicant sought compensation as a remedy. In determining an appropriate solatium, I considered the substantive unfairness of the respondent’s conduct, as well as the reputational, professional, and financial prejudice the applicant suffered as a result of the guilty finding and the sanction imposed. In the circumstances, I find that compensation equivalent to one months’ salary is just and equitable in the circumstances.
In the exercise of the powers conferred upon me in terms of section 194(4) of the Labour Relations Act, I issue the following award for compensation.

Award

The applicant has proven, on a balance of probabilities, that the respondent committed an unfair labour practice as contemplated in section 186(2)(b) of the Labour Relations Act 66 of 1995 (as amended).
The respondent, the Western Cape Education Department, is ordered to pay the applicant, Ms Yoliswa Gwebushe, the amount of R38,707.80 (equivalent to one month’s salary), as compensation. In addition, the respondent is ordered to reimburse Ms Gwebushe for the deduction of one month’s salary previously made. The total amount payable is R77,415.60.
Payment of the total amount must be effected by depositing the said amount into Ms Gwebushe’s bank account, the details of which are known to the respondent. Payment must be made no later than 31 August 2025.
The respondent is further directed to remove the final written warning from Ms Gwebushe’s personnel file.