Panellist: Khuduga Tlale
Case Reference No.: ELRC825-25/26FS
Date of award: 24 April 2026

In the matter between:

Department of Education – Free State Employer

And

Modisaotsile Samuel Moitsi Educator

ARBITRATION AWARD

Details of hearing and representation

1. This 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”) between Department of Education – Free State (“employer”), and Mr. Modisaotsile Samuel Moitsi (“educator”) at the employer’s offices in Bloemfontein on 20 April 2026. Mr. Teboho Mokoena, Deputy-Director: Misconduct, represented the employer, and the educator was absent, and not represented.

Preliminary Issue

2. There was no appearance by or on behalf of the educator party at the scheduled time of commencement at 09h00, and even after 30 minutes’ grace period at the inquiry proceeding. The ELRC (“Council”) phoned the educator to find out his whereabouts. The educator’s phone rang without being answered. He was tried for several times without success. According to the Council’s case file, the educator was notified about today’s proceeding by email (mmoitsi@gmail.com) on 04 March 2026.
3. In this matter, the employer offered the educator a chance to defend himself against the allegations of misconduct levelled against him, but he did not use this opportunity. The crucial question was whether his absence from the inquiry was justified. There were no valid or justifiable grounds for his absence. The educator was the only person to be blamed for his absence. I am satisfied that the educator was properly notified of the inquiry, and the inquiry proceeded in his absence. Background to the dispute
4. The educator is currently employed as an educator (PL1) at St. Bernard Secondary School in Bloemfontein, Mangaung Metropolitan District The educator acknowledged receiving the allegations against him well in advance on 16 October 2025. The notice of set down was served to the Educator on 04 March 2026. The Council appointed Ms. Mpho Kubu, as interpreter, and Ms. Thiti Mokgwamme, as intermediary.
5. The allegations levelled against the educator is as follows:

Charge one- “you have contravened section 17(1)(b) of the Employment of Educators Act, 76 of 1998 in that around June 2023 while on duty, you committed an act of sexual assault on a learner when you sexually harassed her by sending her nude pictures and asker her when she is going to visit you to spend time together”.

Charge two- “you have contravened section 17(1)(b) of the Employment of Educators Act, 76 of 1998 in that around March 2023 while on duty, you committed an act of sexual assault on a learner when you sexually harassed her by making comments about her body, by making remarks on her thighs and telling her to remain wearing short skirts, while knowing it is not allowed at school”.

6. For the purpose of this award, the name of the learner will be kept confidential, and the learner will simply be referred to as “the learner”. The educator was absent, and I, as the commissioner entered a plea of not guilty on his behalf to the charges levelled against him. These proceedings were conducted in English, and were manually, and digitally recorded. The employer submitted a bundle of document, which was marked bundle “E”.
7. In all matters in which an employer wants to take disciplinary action against an educator for an 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 Council, shall be mandatory. In this regard, I have noted section 3.3.1 of Collective Agreement 3 of 2018 of the Council.

Issue to be decided

8. I have to decide whether an educator 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. Summary of Evidence THE EMPLOYER’S EVIDENCE

First witness: Learner

9. The witness testified under oath that she was a learner at St. Bernard Secondary School in the year 2023, and she knew the educator as her Information Technology teacher. During March 2023, she was doing Grade 11, and the educator sent her the nude pictures on her cell-phone. She showed the nude pictures to her friend, and she advised her to block the educator’s number. The educator further said that she must continue to wear short skirts. The educator’s conduct occurred in March 2023 and June 2023. The pictures the educator’s sent to her was his private parts.
10. In March 2023, the educator asked her whether or not she was going to wear short skirt. She was uncomfortable with the educator’s conduct, but she did not tell him. It was not allowed at the school to wear short skirt. If a learner wore short skirt, she must report that to the principal’s office. She wore the short skirt and she reported that to the principal. She further testified that her mother was going to buy her the new skirt. She does not have those nude picture because the cell-phone she was using then was not working anymore.
11. Under clarity questions, she stated that the educator started to send her the nude pictures in March 2023. He sent her nude pictures twice in March 2023, and he further sent other ones in June 2023. Those pictures were in her old cell-phone that was not working anymore. The educator said that she had beautiful thighs, and she must continue wearing short skirt. She told him that it was against the school to wear short skirt, and he stops sending the nude pictures. He did not reply to the educator after sending her the nude picture, but she showed them to her friend, who advised her to block the educator’s number, and she blocked it. THE EDUCATOR’S EVIDENCE
12. The educator did not attend the inquiry; therefore, no evidence was led on behalf of the educator.

Summary of Argument

THE EMPLOYER’S ARGUMENT

13. The employer’s representative stated that they prove their case on balance of probabilities. The learner was clear on how and when the incident occurred. The educator’s conduct was unacceptable, and his conduct brought the educators’ profession in dispute. The educator’s conduct amounted to sexual harassment.

Analysis of evidence and argument
Introduction

14. Section 28(1)(d) of the Constitution of the Republic of South Africa provides, among other things, that: “Every child has a right –
    “to be protected from maltreatment, neglect, abuse or degradation”. Furthermore, this Section also provides that “A child’s best interests are of paramount importance in every matter concerning the child”. The above provisions are therefore important consideration in deciding the issue before me.
15. The allegations against the educator are that he committed an act of sexual assault on a learner when he sends her nude pictures, and says she had beautiful thighs and she must continue wearing short skirt. A false claim of sexual relationship has very serious implications for the person against whom the allegations are made. Not only could such a person lose his job with very little hope of finding similar employment, but his family, and community standing can be negatively affected. The arbitrator has a duty to determine if the educator is fit to work with children. Once declared unsuitable the Council has a duty to submit a report to the Director-General of Social Development to be added to the National Register for sex offenders.
16. The plea of not guilty was entered on behalf of the educator. The standard of proof was that of a balance of probabilities. Proof that the employee actually committed the offence charged presupposes a proper investigation of the allegation against the employee, and the presentation of evidence that links the employee with the offence. Proof on a balance of probabilities means that the evidence points more probably to the conclusion that the employee committed the alleged misconduct, than to his innocence. However, a mere suspicion of guilt does not satisfy the test of proof on a balance of probabilities. The question that need to be ask is whether the employer produced evidence to support the charges of misconduct for which the educator disciplined for. Procedure Delay in instituting disciplinary action
17. The incidents giving rise to the charges occurred in March 2023 and June 2023, whereas the matter was only reported and pursued in 2025. This constitutes a delay that requires consideration in determining the overall fairness of the proceedings. It is accepted that, in terms of the LRA, there is no prescribed time period within which an employer must institute disciplinary action. The test is whether the delay was unreasonable and whether it resulted in prejudice to the employee. In matters involving allegations of sexual misconduct, particularly where the complainant is a learner, delays in reporting are not uncommon. Learners may be reluctant to report such conduct due to fear, intimidation, embarrassment, or lack of understanding of appropriate reporting mechanisms. In this context, a delay in reporting does not necessarily render the subsequent disciplinary action unfair.
18. In the present matter, there is no evidence before me to suggest that the delay was deliberate or intended to prejudice the educator. Importantly, the educator did not attend the proceedings and accordingly did not place any version before me regarding prejudice suffered as a result of the delay. There is similarly no indication that the delay impaired the educator’s ability to respond to the allegations. The central evidence relates to the direct testimony of the learner, which remained available and was presented at the proceedings. While the educator remained in employment during the period between the alleged incidents and the institution of proceedings, this factor is not decisive. In the absence of evidence that the employer was aware of the misconduct at an earlier stage and failed to act, the continued employment of the educator does not render the disciplinary action unfair. Having regard to the serious nature of the allegations, the constitutional imperative to protect children as envisaged in section 28 of the Constitution of the Republic of South Africa, 1996, and the absence of demonstrated prejudice, I find that the delay does not render the disciplinary action or the outcome unfair. Substance
19. Reading of these allegations against the educator, the employer is alleging that the educator sent nude pictures to the learner’s cell-phone, and he uttered the words “you had a beautiful thighs and you must continue wearing short skirt”. The employer was required to prove that the educator had sent the nude pictures and he uttered the words “you had a beautiful thighs and you must continue to wear short skirt”.
20. During the proceedings, I specifically ensured that the learner understood the concept of telling the truth. It is the learner’s evidence that the educator sent her nude pictures to her cell phone, and he made commends to the effect that she had “beautiful thighs” and that she should continue wearing short skirt. The learner’s evidence was clear, coherent and consistent. She was not evasive and answered questions directly. Although the nude images were not produced during the proceedings, the learner’s testimony regarding their existence and the educator’s conduct remained unchallenged, as the educator failed to attend the proceedings and did not present any version in response.
21. The evidence presented by the learners was unchallenged. There is no competing version before me. I find no reason to reject the learner’s evidence. Her version was credible and internally consistent, and there was no indication of fabrication or ulterior motive. While the absence of the actual images is noted, this does not, in the circumstances, render the learner’s evidence unreliable. Her direct testimony regarding the educator’s conduct constitutes sufficient evidence. Having regarding to the totality of the evidence and the absence of any contradictory version, the probabilities favour the employer’s version. Conclusion
22. I, accordingly find, on a balance of probabilities, that the educator sent nude images to the learner and he made inappropriate sexualized comments towards the learner. The educator committed misconduct as per the main two charges in terms of section 17(1)(b) of the Employment of Educators Act 76 of 1998.

Sanction

23. Having found that the educator did commit misconduct in terms of sections 17(1)(b) of the Employment of Educators Act 76 of 1998, the sanction of dismissal is mandatory. For the sake of completeness, I have also considered the total circumstances in order to decide whether dismissal would be a fair, and appropriate sanction if it were not mandatory. This kind of conduct is not acceptable within an educator, and learner context. Educators have a positive duty to ensure that learners are educated in a safe environment. Parents entrust their children for safe keeping at school.
24. Educators take the role, and responsibilities of parents while at school. Viewed against this background, the educator’s conduct is viewed in an extremely serious light, and is in contradiction of relevant legislation. Legislation prohibits such conduct. I have particularly considered the Employment of Educators Act as well as the SACE Code of Professional Ethics for educators (South African Council for Educators, as intended in the South African Council for Educators Act, 31 of 2000). The protection of learners, and consideration of their interests is paramount, particularly as educators are leaders within the school environment as well as leaders within the community environment. Such conduct serves to destroy the relationship of trust between the employer, and educator.
25. Section 120(1)(c) of the Children’s Act 38 of 2005 (“the Act”) provides that a finding that a person is unsuitable to work with children may be made by “any forum established or recognized by law in any disciplinary proceedings concerning the conduct of that person relating to a child”. Section 121 provides that where such a finding is made, the person against whom such a finding was made, may have the finding reviewed by a court of law. Section 120(2) of the Act provides that a finding that a person is unsuitable to work with children may be made by such a forum on its own volition, or on application by an organ of state, or any other person having sufficient interest in the protection of children. The arbitrator may also make the finding on his/her own accord.
26. The fact that this incident occurred in March 2023 and June 2023, there are no previous incidents on record, does not necessarily mean that his conduct will not be repeated. In view of my finding of the serious nature of the educator’s conduct, and the priority to protect the rights of children, I find that the educator is unsuitable to work with children. In tribunals of this nature, consideration of the best interests of children, is paramount. My finding is aimed at the protection of children. Award
27. I find the educator, Mr. Modisaotsile Samuel Moitsi, guilty of the charges that preferred against him, and I, as a consequence, impose a sanction of a dismissal effective from 01 May 2026.
28. Mr. Modisaotsile Samuel Moitsi is found unsuitable to work with children in terms of section 120(4) of the Act.
29. The General Secretary of the Council must, within 14 days of receipt of this award, report, or refer the award to the educators’ professional body, SACE.
30. The General Secretary of the Council must, in terms of section 122(1) of the Act, notify the Director General: Department of Social Development in writing of the findings of this forum made in terms of section 120(4) of the Act, that Mr. Modisaotsile Samuel Moitsi is unsuitable to work with children, for the Director General to enter his name as contemplated in section 120 in part B of the register.
31. The educator, Mr. Modisaotsile Samuel Moitsi, has the right to take this award on review to the Labour Court as envisaged in Section 145 of the LRA, and to do so within the prescribed time-frame.

Signature: _________
Commissioner: Khuduga Tlale
Sector: Education