ARBITRATION
AWARD


Arbitrator: Firgil Philips
Case Number PSES423-19/20WC

Date of award: 25 February 2026

In the dispute between:

In the matter between:

NEHAWU obo Anthony Lionel Damons Applicant

And

Western Cape Education Department Respondent

Details of Hearing and RepresentationThis matter was scheduled for arbitration held over multiple days on 03,04, March 2025, 11, 29 and 30 September 2025, 27 January 2026 and on 02 February 2026. During the initial stages of the Applicant represented by Candidate Attorney Mr Rashaad Goliath. Subsequently Mr Hans Malgas took over and for unknown reasons withdrew from the matter. A third representative Mrs S Kwazi the Provincial Organiser for the trade union SADTU took over. Finally, Mr John De Laan resumed as the representative on record towards the end of the arbitration hearing. The Respondent was throughout the arbitration hearing represented by one Mr Frederick Scholtz its Labour Relations Practitioner.

Issue to be decided

2. The issue to be decided is whether the Applicant is guilty of assault on a learner who at the time was a minor. The Applicant is challenging both substantive and procedural fairness of his dismissal. He is seeking reinstatement as a form of relief.

Background to the Issue in Dispute

3. The Applicant commenced employment on 01 January 1992 at De Rust Primary School. He was promoted to departmental head on 01 January 2015. On 23 July 2019 the Applicant was dismissed for a charge of assault. At the time of his dismissal, he earned R31277.23 per month.
4. This matter has a protracted litigation history where through an arbitration award issued on 28 June 2021 my Colleague Commissioner Alta Reynolds held that the Applicant’s dismissal was substantively unfair. Aggrieved by the order of reinstatement the Respondent took the matter on review to the Labour Court attacking the arbitration award on various grounds. The Labour Court upheld the review application in an order issued on 26 September 2024.
5. Part of the Court order included that the matter be remitted back to the Education Labour Relations Council when the matter came before me. It was decided at the commencement during application for legal representation that the matter be heard in person.
6. The Applicant argued that his dismissal was both substantively and procedurally unfair in that he did not breach the rule. The Respondent argued that the dismissal was fair in all respects. Part of the Applicant’s dissatisfaction related to an alleged procedural defect which included that one charge was altered of which the Applicant became aware of during cross-examination.
7. What follows is a brief exposition of the facts which were tendered at arbitration. This matter was characterized by a number of postponements and sat over several days. What is recorded here is not an exhaustive account of what was testified during the proceedings. I have considered all the evidence and argument relevant to the dispute and in totality delivered a finding as can be gleaned from my analysis below. It was also agreed due to the unavailability of witnesses for a number of reasons that the transcripts were used in the determination of this dispute. It should be noted that at the time of the first arbitration hearing that all the learners involved testified through the means of an intermediary. Only one witness (no longer a minor) appeared in person before me.

Survey of Evidence and Arguments

Respondent’s case

8. The Respondent’s first witness Keith Jones (Jones) testified under oath: Jones the principal at De Rust Primary School at the time of the incident, stated that he became aware of an assault against a learner which will be referred to as Learner D. Learner D came to him and informed him that the Applicant hit him. Learner D’s version was that the Applicant pushed a desk against him. Jones then took Learner D outside to walk the pain off. Learner D’s mother first went to the police station then approached the school. His mother further approached the Applicant directly at school and they spoke at length. The Applicant was the class teacher of the affected learner.
9. Learner D’s mother was very upset and questioned why her child had been assaulted. The Applicant’s last final written warning along with a fine was within three weeks of the final infringement. Because it was so close to each other in his view there was no rehabilitation. As a head of department, you are responsible for certain teachers, management, discipline as well as the academics. Because of situations like these teachers after a while do not even want to talk to children, which makes it difficult. Anything is assault towards a child and it creates confusion on how to apply discipline. When Mr. Daniels started taking over as circuit manager he even asked him to address staff issues around dealing with learners.
10. Under cross-examination Jones stated that Learner D informed him that the Applicant had hit him and pushed him against the desk. He was not there so he assumed that Learner D came straight from the Applicant. It was the first time he realized that Learner D’s scrotum had been injured. The Applicant was one of those people who’s supposed to keep the boat afloat. There were no major bruises or bleeding or anything of that sort. He has a vague memory of a female learner who said that the Applicant hit her over the arm.
11. Marissa Lindeque (Lindeque) the school social worker testified under oath: Lindeque stated that she is the school social worker at her office. She knows both Learner D and Hendrina Campher his mother. Learner D came to her during December 2018 with a complaints form. They could not get hold of him to have him testify in the matter for the second arbitration hearing. Learner D’s mother indicated when she visited Lindeque that she would not want to put her child through this traumatic process again. Upon finding out about the matter starting again her son started having problems sleeping and his behaviour changed. He became anxious at the thought of what he might have to be put through again.
12. The cellular network where they live provides very poor network coverage. Upon her visit she explained to Learner D’s mother that they would have to accept the subpoenas. Mrs Campher refused to sign it and stated that she would first need to acquire legal advice. Learner A is a learner who was with Learner D in the class and who had previously testified in this matter. During 2025 they could not get hold of Learner A but she requested from Ms Ilse Africa at the school if she would give the subpoena to her. They have been to several houses looking for Learner A but could not locate her anywhere, not even in nearby townships. Learner A regularly moves between houses and has no fixed address.
13. Mr Anton Gunther testified under oath: Gunther with experience of over twenty years was appointed as the Chairperson by the Labour Relations Unit. Gunther explained all the procedural requirements in detail of what is required to ensure a fair hearing. The initiator present at the disciplinary hearing was Vanessa Modlock. The Applicant’s rights were read out and his right to appeal. He pleaded not guilty to all 3 charges. He picked up inconsistencies in the testimony of the minor witnesses on both sides. He therefore graded the testimony according to the level of probability. He felt that two touches on the shoulder were the more probable version. The version of the defense was not tested and therefore it was concluded that the testicle injury did not take place as alleged. He was assaulted at school by the men as alleged which made the Applicant not guilty but guilty on charge 1.
14. Gunther considered the following in concluding the matter. Whether the Applicant was aware that assault was not allowed. Whether he showed remorse. He also considered whether he was previously guilty. He looked at if he was dismissed whether the school would operate better without him. He considered that the accused had 26 years’ experience and he knew what was expected of him as an educator. There should never have been in a pipe in the classroom unless for educational purposes. Several learners testified that he regularly uses corporal punishment. The Applicant showed no remorse. He pleaded not guilty yet he knew he did that. He tried to justify his actions. On 30 November 2018 he was found guilty of the same offence. He agreed to pay a fine of R3000.00
15. The R3000 according to Gunther was paid to have it go away. The first option was to give him a warning letter without a fine. He considered and decided that it was unrealistic as the Applicant less than 6 months ago made himself guilty of a similar charge which showed a habit of applying corporal punishment. He is unlikely to stop doing it. The mitigation was overshadowed by the seriousness of the offence. The idea of this plea agreement was that he would not do it again so how would it have worked if he said he would not do it again.
16. Under cross-examination Gunther stated that he recalled an objection of some sort on the day. Modlock informed him that the Applicant’s charge sheet was amended. Ms Modlock presented a second charge sheet and she asked him and the Applicant whether they accepted it and as far as he can remember the answer was yes. The charge sheet was amended to where he was hit on his shoulder instead of his hand. The union rep was satisfied and it was accepted and proceeded. Mrs Modlock’s input would have been very helpful. It was testified that there were different colours but that was not the issue. The point is that the pipes were used. Tapping on the shoulder with the pipe amounts to assault. Any part of the body would have qualified for assault it does not matter hence the changes in the charge sheet is irrelevant. The main issue there was an assault on a child. There is no difference between tapping and hitting someone excessively.
17. There were many other ways to have gotten his attention. He could have been sent to the principal they could have called the parents. Whether it is a hug or touch it is unacceptable. In other cases, there was a person who touched children behind a closed door not with the intention to hurt them but to groom them. He was subsequently dismissed as a school principal. Teachers are even being told not to be alone in a room with a child. The rule is you should not touch a child. If you shake a child’s hand it must be done in front of other people. Sometimes a teacher might want to congratulate a child but there is a fine line between corporal punishment and honest touching. A child can get a warning or be sent to the principal. He can also remain in detention. His wife has a way of calming children down by just going quiet and wait until the noise dies down which is a very effective way of getting someone’s attention.

Applicant’s Case

18. The Applicant Mr Anthony Lionel Damons testified under oath: Damons stated that at the time of his dismissal he was the department head. Learner D was a learner in his class. He stated that he did not assault Learner D on 28 November 2018. The technician was busy in the class fixing some wiring and learners waited outside. Six learners then disappeared from the line after interval. He then went inside and continued with the remaining children. He handed out the questionnaires to the learners. He was just done reading out the questions when Learner D entered the room. Damons already under pressure asked Learner D where he came from. He then said Mr Jones the principal called him to come and explain about the assault the previous Friday. Learner A then intervened and said that he was lying. The two of them then started arguing and he informed them to keep quiet or they had to leave the class as he was under pressure with the other learners.
19. He then removed the question paper from the desk and took it to Learner D to finish. He then called him and pressed him against his arm for him to go sit. He walked back to the front of the class when Learner D said something. Damons told him to get up and go sit at the back of the class which he did. Damons read him the questions again to go through with him. He asked Damons for a pen to write with. Afterwards he asked Damons if he could leave the class to which Damons said no. Learner D nevertheless got up and left the room. He was more upset with Mr Jones at the time since Jones knew that the children had to write examinations. He at no stage threatened Learner D.
20. There were six pipes on the cupboard in his class. The children became naughty and broke off pipes in a dilapidated garden. When they chased each other with the pipes, he confiscated it. It was also convenient for him to use it to instruct when lessons were presented on the blackboard. There were no corrective measures put in place as a sanction after he was alleged to have assaulted Learner D. He did not use the pipe to hit Learner D. He could not have any remorse for something that he did not do. There was no pushing or hitting he just tapped him on the shoulder.
21. Under cross-examination the Applicant stated that the table which Gunther used to categorize the testimony of the learners was indeed correct. He never said that he hit Learner D. He was responsible for staff and had to give guidance to new teachers. He acted wrongly and he has never disputed it from the beginning. They have spoken a lot about it and even his staff told him that what he did was wrong. He does not deny what he did in the past in respect of his previous convictions. That whole situation ruined what he had with his parents and other colleagues. This was in respect of his previous offences. He told people that he slapped the learner behind the head which related to two weeks before the last incident on 28 November 2018. In 2016 there was another situation where a girl at a sports day did something and then he assaulted her. He did not want to go into the detail. There he received a final written warning with a fine of R1500.00 for the offence. Then he received another final written warning and a fine of R3000 for the offence in November 2018. Two weeks later after this on 28 November 2018 he was charged with assault again this time for Learner D. The previous two offences he was guilty of.
22. Ricardo Draai testified under oath: Draai stated that on the day in question in 2018 Learner D left the line. Learner D arrived late in class while they wrote exams. Learner D walked in and Damons asked him where he came from. Learner D stated that he came from the principal’s office. Learner A then said that it was not the case. She instead said that Learner D was walking around on the premises. Damons informed him to go sit as he was disrupting the class. Damons then used the pipe to push him against his shoulders at which point he then went to go and sit. Damons informed him to go sit at the back of the class. He then asked for a pen which Damons handed to him. Damons then continued with work on the blackboard.
23. Learner D then asked if he could leave the class to which Damons replied no as he already arrived late. He then got up and left the room out of his own. The pipes in the class were used by Damons to use to point on the blackboard. Damons did not hit Learner D with the pipe. He just pressed against him and said he needed to calm down. At the time of the incident, he sat at the back of the class and Learner D sat in front of him. He then got up and moved right to the back of the class. He remained where he was seated.
24. Under cross-examination he stated that he was 22. He was 14 at the time of the incident. He got along very well with Damons and described him as a lovely person and very funny. Learner D was in the class when Damons gave the information on the board. Damons just asked him where he was coming from and he said from the principal’s office. Learner A argued with him in front of Damons. Damons told him to become “rustig” and he then pressed him with the pipe. He knows that Learner D was lying and that Damons never hurt Learner D.
    Closing arguments
25. In arriving at this decision, I have extensively considered the closing arguments. Both parties are commended for having submitted them well within the times frames. For the sake of brevity and unnecessary repetition of evidence I am not going to record them here. They are, however, available on file for scrutiny for any subsequent proceedings, if any.

Analysis of Evidence and Argument
26 The Code at the time which the Applicant’s dismissal was measures against is not the Amended Code of 2025. Therefore, I will refer to the “previous Code”. In deciding the substantive fairness of the applicant’s dismissal, I must consider item 5 of the 2025 Amended Code of Good Practice on Dismissal. In this regard the Code states that an arbitrator must consider,
In deciding the substantive fairness I must consider item 7 of the Code of Good Practice on Dismissal. In this regard the following guidelines are applicable:

Whether or not the employee contravened a rule or standard regulating conduct in, or of relevance to the workplace; and if a rule or standard was contravened, whether or not –
• the rule was a valid or reasonable rule or standard;
• the employee was aware, or could reasonably be expected to have been aware, of the rule or standard;
• the rule or standard has been consistently applied by the employer and
• Dismissal was an appropriate sanction for the contravention of the rule or standard.

27. It is common cause that the Applicant was charged with three allegations of which he was found guilty of one and acquitted of two. I will expound below on the relevance of the charges vis-à-vis the testimony that was led by the witnesses at this arbitration hearing. In Charge 2 the Applicant was accused of having assaulted Learner D by having pushed him against a desk (“the desk incident”) which resulted in having his testicle being damaged or removed. On Charge 3 it was alleged that the Applicant conducted himself in an improper manner by having instructed a grade 7 learner to lie about the injury sustained on the alleged victim in exchange for R100 (“the alleged bribery charge”).
28. On both these charges the Applicant was found not guilty. Therefore, the testimony of the Respondent’s first witness Keith Jones actually brought its case to almost naught. Why? The evidence Jones tendered around the desk incident was literally of no assistance whatsoever. In fact, Jones’ contribution had little to offer, verbose and mostly hearsay. Simply because the Applicant was not dismissed for this charge. More on this later.
29. The second charge around the alleged bribery incident Gunther found him not guilty of. Again, any remote attempt at canvassing either of these facts was simply devoid of any logic. This too brought little to the table. Consequently, any conversation about the alleged bribery simply fell outside the range and purview relating to the fairness or otherwise of the Applicant’s dismissal before me. Which brings me to what lies at the heart of the matter. The reason the Applicant was dismissed. And therein lies the rub.
30. Charge 1- It is alleged that you are guilty of misconduct in terms of Section 18 (1) ( r ) of the Employment of Educators Act, 76 of 1998 in that on or 28 November 2018, you assaulted learner A – a grade 7 learner at De Rust Primary School, by hitting him with a pipe.
31. That being so is the question which cries out for an answer. The actual seat of the controversy. Nothing else. The second witness one Marissa Lindeque, in the same manner, could not factually assist this arbitration either. I suspect that it may have been Scholtz’s intention to demonstrate why he was limited to witnesses and used Lindeque to provide context. This then led to the parties agreeing that certain portions of the previous arbitration record be used as evidence in this arbitration more particularly the transcripts. At the time I made a ruling in this regard. Section 138(1) of the LRA states that. 1) The commissioner may conduct the arbitration in a manner that the commissioner considers appropriate in order to determine the dispute fairly and quickly but must deal with the substantial merits of the dispute with the minimum of legal formalities.
32. The Labour Court on occasion held in Mashigo v Safety and Security Sectoral Bargaining Council and Others (JR 269/2020) [2022] ZALCJHB 141; (2022) 43 ILJ 2042 (LC) (1 June 2022) In casu, oral evidence was presented and the transcript of the evidence so adduced was agreed to be evidence before the arbitrator. The effect of this is that, whatever the witnesses testified at the previous arbitration hearing became evidence before the arbitrator. The evidence was adduced under oath, it was based on the facts as presented by the witnesses, and it reflected the versions of the respective parties as evidence which was subjected to the scrutiny of cross-examination. The fact that the matter was remitted for an arbitration de novo, did not mean that the evidence was to be adduced all over again when it was already adduced and recorded.
33. Fast forward. The third witness for the Respondent was Gunther. Here the situation for the Respondent significantly shifted. Reason being, Gunther testified on both the procedural and substantive issues around what the Applicant challenged which came before me. Gunther’s evidence held considerable force and provided an in-depth analysis of what played out in his mind when he approached the matter. Then there were the last two witnesses on the part of the trade union’s side, which was the Applicant and himself followed by Draai.
    The transcripts of the previous arbitration award.
34. The only relevance in those transcripts is that of Learner D and another witness who was not named at the time. Learner D testified at the previous arbitration hearing that the Applicant hit him over the hand with a pipe. At the disciplinary hearing his testimony was similar in nature. Learner A in the disciplinary hearing also testified that Learner D was hit with a pipe over the hand. The peculiar part of the Applicant’s version as per his statement to the South African Police Service was that he stated that he tapped the learner D with a pen on his shoulder. When having gone through all the testimony of all the other learners there was a glaring disparity between what they had testified on behalf of the Applicant and that of the witnesses for the Respondent. Naturally so with competing interests but it needs to be further evaluated.
35. What actually happened in the classroom? The fact that the arbitration is a hearing de novo does not mean that the disciplinary hearing is of no relevance. It may still be used in the evaluation of the evidence tendered at arbitration. See Ratsibvumo and another v CCMA and others (JR239/16) [2017] ZALCJHB 397. The police statement recorded by the Applicant in relation to his testimony is plainly confusing to say the least. It is inconceivable that the Applicant especially being a person of higher academic learning could have made an error of this nature while under oath. The police statement recorded that he “tapped Learner D on the shoulder with a pen”. In an about turn in the disciplinary hearing he testified that it was a tap on the shoulder with a pipe which was similar to both the first and second arbitration hearing. The Applicant had no qualms in being creative about the truth. Furthermore, it was testified by both Learners A and D in the disciplinary hearing, confirmed by the Applicant and Draai (at the second arbitration hearing) that the two of them had a fallout after he arrived in the class. In doing so the reasonable inference would be that Learner A would not have had any reason to corroborate Learner D’s version if she was at odds about why he arrived late in the first place. All of this should have been considered on the totality of the evidence and not on a piecemeal fragmentation. Here the Chairperson Mr Gunther, in my view, missed the mark. Gunther, although very experienced does not explain why he preferred the defense’s version over that of the State (in his words). Somewhat surprisingly all he recorded and testified was that there were too many inconsistencies and that the witnesses for the Applicant were not cross-examined. I agree with this position but the probabilities cannot be simply dismissed without more forethought. I will outline the test applied by the Courts below in how Gunther should have approached it. I have reason to believe that the witnesses for the Applicant were in all likelihood coached about their testimony since their versions were all the same. Furthermore, it was also testified by Draai and the Applicant as well as the transcripts of Learner D that when he arrived in the class the Applicant first addressed him Learner D on his late coming.
36. Soon afterwards Learner A interfered and the two of them became entangled in some squabble. It is more likely that this upset the Applicant that he, in some form of agitation became upset with Learner D and then with some degree of force hit him somewhere on his arm. This along with the fact that he was on his version already annoyed with Jones as well as having been under pressure due to the technician having taken up time. He was also limited with the learners having to finish their exams. The Applicant was resolute in his denial that he hit Learner D over his hands or anywhere on his body. So even if I were to give the Applicant the benefit of the doubt that he tapped him on the shoulders does the net effect of what he did not diminish his blameworthiness. On his own version he testified that he just tapped him on the shoulder to get him to calm down. Assault remains assault by any other name. Gunther gave a very modest explanation of what his wife (a teacher) employs in situations of this nature.
37. I agree; there were other measures short of using a pipe to restore order or to get compliance. In fact, Learner D was labelled in testimony by several witnesses at the arbitration hearing as a learner who regularly played truant. He appeared to have been a troubled child having gotten himself into difficult situations including the assault which happened at school. For all intents and purposes, the question further lingers over what may have happened if the Applicant provoked Learner D in some way.
38. To answer this conundrum. In the Supreme Court of appeal in Stellenbosch Farmers’ Winery Group Ltd. and Another v Martell & Cie SA and Others (427/01) [2002] ZASCA 98 (6 September 2002) the Court had the following to remark: The technique generally employed by courts in resolving factual disputes of this nature may conveniently be summarized as follows. To come to a conclusion on the disputed issues a court must make findings on (a) the credibility of the various factual witnesses; (b) their reliability; and (c) the probabilities. As to (a), the court’s finding on the credibility of a particular witness will depend on its impression about the veracity of the witness. That in turn will depend on a variety of subsidiary factors, not necessarily in order of importance, such as (I) the witness’s candour and demeanour in the witness-box, (ii) his bias, latent and blatant, (iii) internal contradictions in his evidence, (iv) external contradictions with what was pleaded or put on his behalf, or with established fact or with his own extracurial statements or actions, (v) the probability or improbability of particular aspects of His version, (vi) the calibre and cogency of his performance compared to that of other witnesses testifying about the same incident or events. As to (b), a witness’s reliability will depend, apart from the factors mentioned under (a) (ii), (IV) and (v) above, on (i) the opportunities he had to experience or observe the event in question and (ii) the quality, integrity, and independence of his recall thereof. As to (c), this necessitates an analysis and evaluation of the probability or improbability of each party’s version on each of the disputed issues.
39. The Applicant became irritated with Learner D and in a knee jerk reaction with the pipe applied some degree of force somewhere on his arm or shoulder. Learner A may have had an axe to grind with Learner D considering her initial comments on the story he gave but she instead confirmed what she saw. She had to have been in close proximity with him considering that they argued. Draai testified that Learner D went to sit right at the back. The probabilities therefore favour Learner D’s version. What the Applicant fails to appreciate is that even if one were to accept that he nudged Learner D to restore some calm to the situation he could not have touched a learner or any learner for that matter. Even Draai testified that the Applicant informed Learner D that he must go sit down since he was disturbing the class. It bears mentioning the most natural inference, consistent with all the proved facts, is that he assaulted Learner D.
    Was dismissal appropriate in the circumstances?
40. Scholtz’ argument was heavily premised on the fact that the Applicant had previous disciplinary offences. A position I fully align myself with. The Applicant testified that in 2016 an incident occurred where he assaulted a schoolgirl at an athletics event. He further stated that he did not wish to go into detail around what occurred but did mention that this girl did something. For this offence he received a final written warning with a fine of R1500.00 In the words of Gunther “Commissioner the incidents were so close to each other”.
41. Gunther’s version about several learners having confided in him that the Applicant regularly used force was never gainsaid in cross-examination. Considering the Applicants conduct for the last incident (28 November 2018) which happened within two weeks of the previous incident (13 November 2018) where he yet again entered a plea agreement and then barely two weeks later committed the same offence, shows a flagrant disregard of the employer’s rules which was committed at every turn. Two years prior to the last incident (2016) he assaulted a girl which even though expired clearly demonstrates the Applicant’s propensity for using force. His endeavours to loosen the laces of the straitjacket he confined himself to were thwarted by the Respondent who proved its case on a balance of probabilities.
42. The Court held in National Union of Mineworkers obo Selemela v Northam Platinum Ltd (JA 25/11) [2013] ZALAC 10; (2013) 34 ILJ 3118 (LAC); [2014] 9 BLLR 870 (LAC) (31 May 2013) In other words, even if it were to be accepted that Selemela’s previous written warning, final or not, had lapsed that fact should not have relieved the commissioner from taking the written warning into account in determining whether or not the dismissal was fair, particularly bearing in mind that the previous transgressions were only five months old and, more importantly, startlingly similar to the present misconducts, namely, failing to obey a lawful instruction and leaving the workplace without permission. Such persistent insubordinate behavioural conduct could justifiably not be tolerated by any employer. In my view, the commissioner’s finding that the insubordination committed by Selemela (on 9 July 2005) was not deliberate and not serious, is simply unreasonable and unsustainable. It is not a decision which a reasonable decision-maker could reach on the evidence presented. Selemela’s insubordination of Liebenberg was sufficiently serious and deliberate and it, therefore, constituted a gross misconduct, justifying his dismissal. In other words, even if he was not guilty of the Monday misconduct it would, in the circumstances, not make any difference on the question of an appropriate sanction.

Is the dismissal procedurally unfair?

43. The argument which the Applicant raised throughout the arbitration in respect of the charges were that the one charge was altered from tapping on the hand to tapping on the shoulders. Therefore, so at least went the argument. As illustrated above the Applicant was certainly guilty of some form of misconduct. Whether it was labelled incorrectly is of no moment. Reason being the fact that the hand was now being referred to as a shoulder makes no impact whatsoever on the relationship it must impede someone else’s bodily integrity. The fact that misconduct was present does not make the offence any less serious.
44. Consider briefly that even if he was now required to testify to a different portion of the same side of the upper body (the hand or shoulder) does not alter the fact that the child was hit. Besides on the day of the disciplinary hearing the Applicant was represented. Whilst the explanation provided is on the edge of being possibly considered acceptable or better known a tactic of ambush, what does not assist the Applicant’s case is that the label he calls it does not change the constituent nature of his conduct. I am unpersuaded that there is any merit in this challenge. Therefore, based on all the available material placed before me is my decision as follow.

Award

45. The dismissal of the applicant, Mr Anthony Lionel Damons, by the respondent, the Western Cape Education Department, is both substantively and procedurally fair.
46. The application is dismissed. There is no order as to costs.

Firgil Philips
ELRC Panellist