26 February 2026 -ELRC534-25/26GP

IN THE EDUCATION LABOUR RELATIONS COUNCIL ARBITRATION HEARING HELD VIRTUALLY

                                                                                                CASE NUMBER: 534-25/26GP

MASHIANE, HARRY MAKWENA APPLICANT

and

DEPARTMENT OF HIGHER EDUCATION AND TRAINING (DHET) RESPONDENT

Dates of hearing: 29 September 2025; and
11 November 2025; and
11 & 12 February 2026.

Date of submission of heads of argument: 12 February 2026.

Date of award: 24 February 2026.

ARBITRATION AWARD

NAME OF COMMISSIONER: Dr. George Georghiades

Details of hearing and representation

The arbitration hearing between Harry Makwena Mashiane and the Department of Higher Education and Training (DHET), was held under the auspices of the Education Lacour Relations Council (ELRC) virtually over 4 days, being 29 September 2025, 11 November 2025, 11 and 12 February 2026, in terms of section 191(5)(a) of the Labour Relations Act 66 of 1995 (“LRA”), relating to an alleged unfair dismissal related to misconduct.
The applicant was represented by Mr. Bongane Qankase, PSA trade union official, while the respondent was represented by its Labour Relations Manager, Mr. Sifiso Ubisi.
The respondent submitted its bundle of evidence, marked as Bundle “R” and relied on the testimony of 2 witnesses to prove its case. The applicant submitted its bundle of evidence, marked as Bundle “A” and relied on the testimony of the applicant, to disprove the respondent’s case.
At the proceedings on 29 September 2025, the parties were ordered to hold a pre-arbitration meeting and compile a joint, signed minute, which was required to be submitted prior to the subsequent sitting, which was duly done.
Upon conclusion of the arbitration hearing, the parties addressed me orally, submitting a copy of their submissions in writing, in respect of their closing arguments. I have considered the submissions and arguments of parties in this award.
BACKGROUND TO THE DISPUTE
Common Cause Issues
The applicant was employed at the Ekurhuleni West TVET College as a lecturer, having commenced his employment with the respondent on 01 January 2009, until his dismissal on 30 July 2025. He earned R 35 753.25 per month at the time of his dismissal.
The applicant was charged with one count of misconduct, relating to—
“Putting the name of the Institution into disrepute / Tarnishing the College’s name: The said charge is in relations to sexual abuse allegations charges you are failing before the Palm Ridge Magistrate’s Court in which you are charged with being involved in sexual activities with an under-age minor girl.”
The procedural fairness of the dismissal was not in dispute. The applicant disputed the substantive fairness of the dispute relating to the breach of the rule and the appropriateness of the sanction of dismissal.
The applicant requested that should I find in his favour, that he be reinstated in terms of section 193(1)(a) of the LRA and that he further be compensated in the amount equal to eight months’ remuneration, in line with section 194(1) of the LRA.
Issues in dispute
The applicant challenged the substantive fairness of the dismissal, disputing the breach of the rule and the appropriateness of the sanction, while the respondent argued that the dismissal was fair in all aspects.
ISSUE/S TO BE DECIDED
The purpose of this arbitration was to determine whether the dismissal related to section 191(5)(a) of the LRA, in respect of the applicant was fair, measured against the provisions of schedule 8 of the Code of Good Practice, as provided for in the LRA and if found to be unfair, to apply the appropriate relief in terms thereof.
PRELIMINARY ISSUES
No preliminary issues were raised during the arbitration hearing.
PARTIES’ CASE AND SUBMISSIONS
The respondent’s submissions
The employer called two witnesses in support of its case, being Ms. Masego Motshele (“Motshele”) and Mr. Mathibela Tema (“TEMA”). Motshele investigated the matter internally, relating to the allegations against the applicant. Tema was appointed as the appointed chairperson of the internal disciplinary inquiry of Mr. Mashiane.
Motshele testified that the respondent’s investigation into the allegations against the applicant were based on allegations made in a letter of complaint that was submitted to the DHET by one of the parents of a 14-year-old girl. The parent alleged that the applicant was involved in the rape of the girl.
Motshele was not the main investigator in the matter; she was assisting a certain Mr. Mpobedi, a Labour Relations Specialist, with whom she worked very closely.
Motshele stated that no SAPS report was relied upon during her investigation, since the SAPS were not permitted to release a report relating to an ongoing criminal charge.
Motshele confirmed that the alleged 14-year-old victim and her mother did not testify at the internal disciplinary inquiry, as they were both too traumatised to do so.
Under cross-examination, Motshele conceded that no successful conviction was achieved against the applicant in the criminal matter, with the State having withdrawn the matter.
Motshele confirmed that no medical records were evident to confirm that the child was sexually abused.
Motshele conceded that no radio reports, press releases or social media posts were issued in respect of any charges against a minor, or where the applicant was implicated in any way. The summons used by the Courts did not refer to the applicant or the EWTVET College.
The applicant was not arrested at the workplace and the alleged victim was not a learner at the EWTVET College. Motshele was not aware of whether the members of the community were aware of charges that were levelled against the applicant.
Tema testified that he relied on the testimony of a Ms. Nofke and the letter of complaint that was submitted by the 14-yeear-old girl’s parent during the disciplinary inquiry. Ms. Nofke confirmed that a criminal case was opened at the SAPS and that the applicant was arrested shortly thereafter.
Tema confirmed that the applicant’s arrest was not in dispute and as such, based on a balance of probabilities, Mashiane brought the name of the TVET College into disrepute.
He confirmed that he did not make an inquiry to determine whether the allegations made against Mashiane were proven. He also did not determine the basis, origin or existence of any alleged “gossip” and/or “talks at the TVET College” relating to the charges against the applicant.
The Applicant’s Submissions
The applicant, Harry Mashiane, testified that during the time that he rented a room from the Mnisi family, with whom he was good friends, he received a SMS of a criminal case that was lodged against him. He was subsequently arrested and incarcerated for two days for allegedly having sexual contact with a minor, being the 14-year-old daughter of the Mnisi’s.
After his release from jail, he moved out of the room that he was renting to a room approximately 1 km away. The reason for this was because his release conditions provided that he should not have any contact with the complainants (Mnisi parents) and to avoid any potential acts from the community in terms of their potential understanding of the allegations against him.
He did not know whether or how the community became aware of his arrest and/or the allegations levelled against him.
The criminal charges/allegations against him were withdrawn by the State on 08 March 2021. He was not asked to plead to any charges and no judgement was ordered against him. There were no media reports evident relating to his case. He was not aware of any “gossiping” or talks at the College in respect of his withdrawn case.
He was not charged with or found guilty of any of the types of misconduct referred to in the Employment of Educators Act 76 of 1998 or the Collective Agreement 1 of 2013. In the absence of him not having breached any rules or having been found guilty of the transgression of any statute, he could not have been charged and dismissed for such.
He believed that the Mnisi family lodged a complaint with the DHET due to the criminal matter having been withdrawn by the State and the Mnisi’s wishing to pursue the matter outside the jurisdiction of the Courts.
ANALYSIS OF EVIDENCE AND ARGUMENT
I considered all relevant evidence and arguments raised by the parties and in line with section 138(7) of the LRA requiring me to provide brief reasons, I have therefore only referred to evidence and arguments that I regard necessary to substantiate my findings and resolve the dispute.
Section 188 of the LRA provides that a dismissal is deemed to be unfair if the employer fails to prove that the reason for dismissal is for a fair reason, related to the employee’s conduct.
Dismissal was not in dispute and as per the provisions of section 192 of the LRA, the onus of proof was on the respondent to prove on a balance of probabilities that the applicant’s dismissal was substantively fair.
Section 188 of the LRA provides that a dismissal that is not automatically unfair (in terms of section 187) is unfair if the employer fails to prove that the reason for the dismissal is a fair reason based on the misconduct or incapacity of the employee, or is based on the employer’s operational requirements, and that the dismissal was effected in accordance with a fair procedure.
Any person considering whether the reason for dismissal is a fair reason or whether or not the dismissal was affected in accordance with a fair procedure, must consider any relevant items contained in schedule 8 of the Code of Good Practice, issued in terms of the LRA.
The applicant was dismissed for having tarnished the name of the College / putting the name of the institution into disrepute. For the respondent, who bears the onus, on a balance of probabilities, to succeed in this case, it is required to prove that the applicant breached the rule, that the breach brought the institution into actual disrepute, and that dismissal was an appropriate sanction.
In casu, the arrest of the applicant is not in dispute, however, it is common cause that the applicant was never found guilty of the allegations in the criminal case laid against him. The criminal charges against the applicant were withdrawn.
The applicant was not required to plead to any charges, nor was any judgment issued against him. It follows that the applicant cannot be considered to have been guilty in respect of having been involved in sexual activities with an under-age minor girl.
The charge for which the applicant was dismissed however, was not for having been involved in sexual activities with an under-age minor girl, but for tarnishing the name of the College and/or putting the name of the institution into disrepute in relation to sexual abuse allegations charges before a criminal court, wherein the applicant was charged for being involved in sexual activities with an under-age minor girl (underlining my own emphasis).
For the respondent’s case to succeed in respect of the fairness of the dispute, relating to the breach of the rule, the respondent would be required to prove that the criminal charge was proven and if so, whether the workplace rule was breached. Thereafter, if both are proven, an inquiry would need to be made into the existence of a legal nexus between the two proven breaches.
It is therefore required that in this instance, that a two-legged inquiry be conducted. The first leg of the inquiry would be to establish whether the criminal case, related to the workplace rule, was proven.
As it is common cause that the applicant was not found guilty of any sexual misconduct relating to a minor and as such, in as far as whether the applicant can be held guilty thereof, the first charge stands to fail.
In as far as whether the workplace rule of tarnishing the College’s name was breached, the chairperson of the internal disciplinary inquiry, Tema, confirmed that he relied on three aspects, being the untested allegations contained in the parent’s letter of complaint, the hearsay evidence of Ms Nofke and the applicant’s failure to have challenged the contents of the Mnisi’s letter of complaint and Ms. Nofke’s testimony.
The chairperson’s reliance on hearsay evidence in the form of a letter of complaint, the author of which, did not testify at the internal disciplinary inquiry, appears to have fallen short of the required standard of proof in a disciplinary hearing in the determination of whether the applicant was guilty of the charge of tarnishing the College’s name / disrepute.
Similarly, in this case, the respondent relied on the testimony of Ms. Motshele, who could bring no probative evidence relating to a letter of complaint for which she was not the author, nor was she, by her own admission, the lead investigator during the investigation into both allegations against the applicant.
She was not present when the alleged events occurred, she was unable to confirm whether the community was aware of the criminal charges levelled against the applicant and she was unable to confirm whether, or what the community knew, regarding the criminal charges. By her own admission, Motshele confirmed that there was no media reporting or social media posts relating to the criminal charges.
A respondent who seeks to raise a bona fide material dispute of fact must do so through admissible evidence. Inadmissible evidence cannot form the bedrock of a factual dispute where admissible evidence is readily available. This was clarified in Minister of Land Affairs and Agriculture & others v O&F Wevell Trust 2008 (2) SA 184 (SCA) para 56 and Wightman t/a JW Construction v Headfour (Pty) Ltd & another [2008] ZASCA 6; 2008 (3) SA 371 (SCA) para 13.
In the LAC judgement of Exxaro Coal (Pty) Ltd v Chipana and Others (LAC) (unreported case no JA161/17, 27-6-2019), Coppin JA, Murphy and Savage AJJA concurring, in adapting the provisions of section 3 of the Law of Evidence Amendment Act 45 of 1988, to the labour law context, held that the principles must be adhered to in terms of the legislation in respect of the wholesale admission of hearsay evidence in the arbitration proceedings.
Both Motshele and the chairperson of the disciplinary inquiry’s testimony confirmed that there was no evidence of any reputational damage to the employer – no social media posts, no press releases, radio reports or any proof that there was a causal nexus between the charge of bringing the institution into disrepute and the applicant’s conduct.
For the respondent to show a causal nexus, it would be required to prove that it suffered actual harm and that there was a clear and demonstrable link between the employee’s conduct and damage to the employer’s standing. On a balance of probability, the respondent has failed to meet this threshold.
In Daymon Worldwide SA Inc v CCMA and others (JR 184/07)[2008] ZALC 111; (2009) 30 ILJ 575 (LC) (handed down on 20 August 2008) [Paras 36, 40 and 41], it was held that where a Commissioner uses a factual finding for which there’s no support in evidence to develop a conclusion, the actions of the Commissioner constitute gross irregularity, in such an instance, according to the Court, the Commissioner cannot be said to have applied his/her mind to evidence before him/her and this could lead to unfair consequences for the parties.
In in the case of Saal v De Beers Consolidated Ltd (2000, 2 BALR 171), it was alleged that the employee who worked for the mine had assaulted and raped a woman at a mine village and the employee was therefore dismissed. Although the rape was not proven at CCMA, the commissioner agreed that the employee was guilty of assault.
The employee claimed that his dismissal was unfair because a criminal case had been laid against him, the alleged assault had taken place outside the workplace and the incident had occurred outside normal working hours.
However, the CCMA decided that the criminal case had no bearing on the labour law matter and that, despite the time and place it happened, the employee’s misconduct still fell under the employer’s jurisdiction.
This was because the employment relationship and the business of the employer had been affected by the assault, the employer had a direct interest in the wellbeing of the residents of the mine village, and the employee knew that even assaulting a non-employee in the town infringed the mine’s rules. The CCMA therefore upheld the dismissal.
In this case however, other than mere allegations, the respondent led no evidence to prove that the employer was adversely affected by the applicant’s conduct relating to the unproven charges of sexual misconduct.
No inference was made as to the connection of the applicant, as a lecturer, and the institution or College, and no workplace misconduct was proven in as far as the unfounded allegations of the applicant’s conduct towards a student at the College, or a member of the community.
Turning to the argument of the respondent that the workplace relationship had broken down irreparably, it would have been required that the misconduct would first be required to have been proven. The respondent failed to do so on a balance of probabilities.
Furthermore, in Edcon Ltd v Pillemer NO and Others [2010] 1 BLLR 1 (CC) the Constitutional Court held that dismissal cannot be justified by mere assertion or subjective belief that the employment relationship has broken down. The employer must place evidence before the tribunal demonstrating the factual basis for intolerability. This principle applies equally in “disrepute” cases: reputational damage cannot be presumed from allegations alone but must be proven by objective evidence.
Having considered the aforementioned, the respondent has failed on a balance of probabilities, to prove that the applicant was guilty of putting the name of the institution int disrepute and/or tarnishing the name of the College.
In labour law, reinstatement is an order that restores a wrongfully dismissed employee to their previous job or position, effectively making the employment contract continuous with no break. The employee returns to work on the same terms and conditions they had before the dismissal, and the goal is to return them to the status quo as if the termination never occurred. This remedy is a primary solution for unfair dismissals. (underlining my own emphasis).
The principle that reinstatement is the primary remedy available to employees who have been found to have been substantively unfairly dismissed, unless a recognised exception is found to be present, is provided for in section 193 of the LRA.
In the case of Sibiya v South African Police Service [2022] 9 BLLR 822 (LAC), in determining what relief should have been awarded to Sibiya, the LAC considered section 193 (2) of the Labour Relations Act 66 of 1995 (LRA), which provides that:
“The Labour Court or the arbitrator must require the employer to reinstate or reemploy the employee unless–
(a) the employee does not wish to be reinstated or re-employed;

(b) the circumstances surrounding the dismissal are such that a continued employment relationship would be intolerable;

(d) the dismissal is unfair only because the employer did not follow a fair procedure.”

The LAC with reference to section 193(2) of the LRA considered whether the exceptions listed for non-reinstatement contemplated in sections 193(2)(b) and 193(2)(d) could have been the basis for the LC did not ordering reinstatement. The LAC found that sections 193 (2) (d) of the LRA did not find application in this case, because the LC found Sibiya’s dismissal to have been substantively and procedurally unfair and that in respect of section 193(2) (b) no evidence had been led to show that a continued employment relationship between Sibiya and SAPS would be intolerable.
To the contrary, the LC found that Sibiya was an innocent victim of officials who acted in bad faith and lacked integrity and that those officials had since been removed. There were therefore no circumstances which would have made a continued employment relationship intolerable.
In this matter, I find no reason why I should deviate from the guidance of the LAC in the Sibiya matter and find retrospective re-instatement to be the appropriate relief.
The applicant earned R 35 753.25 at the time of his dismissal. I find that back-pay calculated at six (6) months, being in the amount of R 214 519.50 (two hundred and fourteen thousand five hundred and nineteen rand and fifty cents) to be appropriate in this case.
AWARD
The respondent, the Department of Higher Education and Training (DHET)), is ordered to re-instate the applicant, Mr. Harry Makwena Mashiane, into its employ on terms and conditions no less favourable to him than those that governed the employment relationship immediately prior to his dismissal.
The re-instatement in the preceding paragraph is effective from the date of the applicant’s dismissal, being 30 July 2025.
The respondent is ordered to pay to Mr. Harry Makwena Mashiane, as back-pay, the amount of: R 214 519.50 (two hundred and fourteen thousand five hundred and nineteen rand and fifty cents).
The respondent is ordered to pay the amount referred to in paragraph 3 to Mr. Mashiane, not later than 15 March 2026.
Mr. Mashiane is to tender his services of employment to the respondent by no later than 09 March 2026, upon becoming aware of the award.