IN THE EDUCATION LABOUR RELATIONS COUNCIL ARBITRATION HEARING HELD VIRTUALLY

Case Ref No: ELRC170/24-25GP
Commissioner: Moraka Abel Makgaa
Date: 21 January 2025

In the matter between:
Motaung Aaron Mathang Applicant
And
Gauteng Department of Education Respondent

ARBITRATION AWARD

DETAILS OF THE HEARING AND REPRESENTATION
1 This matter was heard virtually on 29 July 2024, 01 August 2024, 29 August 2024, 12 September 2024, 08 October 2024 and concluded on 27 November 2024. The applicant was always present and represented by ThiIivhali Isaih Mokhuswani, who introduced himself as the Branch Secretary of the South African Democratic Teachers Union (“SADTU”), whereas the respondent was represented by Mr Frank Moloto, employed by the respondent as the Senior Education Specialist: Labour Relations.
2 The proceedings were conducted in English, and were digitally recorded.

ISSUE TO BE DECIDED
3 I am required to determine whether the applicant’s resignation constituted constructive dismissal within the ambit of section 186(1)(e) of the Labour Relations Act 66 of 1995. Should I find that the applicant was constructively dismissed, I am required to determine the appropriate remedy.

BACKGROUND TO THE DISPUTE
4 The applicant was appointed as an educator at Blue Eagle High School in the Johannesburg North District from 01 January 2011. At the point of his resignation on 29 April 2024, the Applicant was appointed as a Departmental Head: Home Languages. He was earning a basic salary of R34 765.75 per month.
5 During April 2024 the applicant was served with an audi letter in which it was alleged that during January 2024 to March 2024 the Applicant committed acts of misconduct relating to sexual assault of four (4) Grade 8 learners at the same school. The Applicant was alleged to have touched the said learners on their breasts and bums, hugging them, addressing them as “babes” and “biscuit”, and by pinching their inner thighs.
6 The applicant was called upon to respond to the allegations by no later than 29 April 2024.The applicant submitted a letter of resignation to the school principal, Ms P Ndlala, on 29 April 2024 stating that he was resigning with immediate effect.
7 The applicant referred a dispute of alleged constructive dismissal to the ELRC, which could not be resolved at the conciliation stage. The matter was ultimately set down for arbitration, and it served before me. I facilitated the drawing up of pre-arbitration minute, which was later signed by the parties. The parties agreed to use a joint evidence bundle which was submitted by the respondent. The evidence bundle was made up of 27 pages.
7 The parties were given until 06 December 2024 to submit their written closing arguments. I wish to confirm receipt of the parties’ written closing arguments, which were taken into account.

SURVEY OF THE APPLICANT’S EVIDENCE AND ARGUMENT
8 Aaron Mathang Motaung, who is the applicant in this matter, testified under oath, and his evidence can be summarised as follows. He testified that his constructive dismissal claim was based on the allegations of sexual assault of learners and the unfair treatment he was subjected to by the principal and other members of the School Management Team (“the SMT”).
9 He denied that he had committed the allegations of misconduct he was accused of. He further testified that even some of the learners who came to him in order to enquire as to why he had resigned from work, told him that they did not believe that the allegations made against him were correct.
10 The principal and the deputy principals were alleged to have, since 2020, sidelined him, especially when it came to the activities involving the teaching of Setswana. He was, for instance, not allowed to allocate subjects to teachers reporting to him as the Departmental Head.
11 During 2023 and 2024 the school management made an arrangement with the former deputy principal, Ms Madumo (who was promoted to the position of a facilitator at the District Office), to come and teach learners Setswana. This arrangement was done without his concern and consent. He raised an objection to the arrangement with the principal in the presence of the deputy principal, Mr Muguwelele, without success.
12 There was once an incident where Mr Muguwelele decided to reduce the performance assessment scores, he had obtained in connection with extra-curricular activities. There was no valid justification for doing that.
13 Under cross examination, he insisted that he resigned because of the allegations of sexual harassment and a belief that he was unfairly treated or being sabotaged, particularly by the school principal.
14 He further testified that he was, in addition to the responsibilities of being a Departmental Head, allocated to teach three (3) classes of Grade 8 and six (6) classes of Grade 9, which resulted with him being expected to mark more than 700 scripts. He further testified that he did not know as to whether there were other educators who were also expected to mark such a number of scripts. He was also not sure as to whether he was the only Departmental Head with such a high workload.
15 In 2022 he was, unceremoniously, removed from teaching Setswana in Grades 11 and 12, and was informed that it was the Facilitator, viz Ms Madumo, who made a recommendation for his removal.
16 He insisted that he did not call learners “biscuit” but instead called them as “miskiet”, which is made up of two Afrikaans words, i.e “mis” and “kiet”. He testified that he did not know whether the learners understood what was meant by “miskiet”. He conceded that it was wrong for him to call learners by such a label if they did not understand as what such a label meant.
17 Ntebaleng Hendrina Mamabolo testified under oath and her evidence can be summarised as follows. During 2007 and 2008 she worked as a Facilitator for Mathematics at Tshwane South District. She worked at Blue Eagle High School as a teacher since January 2016. Ms Madumo was once the deputy principal of Blue Eagle High School and was also teaching Setswana. During 2017 Ms Madumo was seconded to the District Office as a Facilitator.
18 It was once announced during the briefing session that Ms Madumo said that Mr Motung should no longer teach Setswana in the FET band. The Applicant was indeed removed from teaching Setswana in Grade 12. A new time table was drawn in terms of which the Applicant was replaced by Mam Stayi from Tirisano Primary School. This decision did not go well with Mr Motaung.
19 She corroborated the Applicant’s evidence with regard to the subjects that were taught by the applicant as well as the number of classes which were allocated by the Applicant. She also corroborated the Applicant’s evidence that other Departmental Heads had fewer classes.
20 Under cross examination she testified that she was not part of the SMT meeting where the recommendation that the Applicant should be removed from teaching Setswana in Grade 12 was discussed. She also conceded that she did not play any role in the actual evaluation of the Applicant’s performance except that she played a role in the compilation of the summaries of the scores which were obtained by different educators.
21 She also conceded that a Facilitator could make recommendations about the Grades that a particular educator could be allocated to teach. In the instant case, she did not know whether the Applicant’s removal from teaching Setswana in Grade 12 was the result of the recommendation of the Facilitator.
22 She conceded that the audi letter written to the applicant was only meant to inform or alert the applicant about the allegations made against him, but insisted that it became too much for the Applicant to be expected to go to class and face the same learners who had accused him of acts of sexual misconduct. She also conceded that by making the applicant aware of the learners’ allegations against him, the respondent may not be accused of having made the applicant’s continued employment unbearable.
23 Under re-examination she testified that the working relationship between the Applicant, the principal and the two (2) deputy principals, viz Mr Muguwelele and Ms Mosana, and Ms Madumo was strained to the extent that the Applicant was emotionally drained and ultimately resigned.
24 Nomawethu Patricia Gxagxama testified under oath and her evidence can be summarised as follows. She was employed by the respondent as an educator and was based at Blue Eagle High School. She further testified that the Time Table Committee was made up of Mr Muguwelele, Mr Mathebula, Mr Mpati and Ms Mamabolo.
25 She corroborated the evidence of the other witnesses regarding the role which was alleged to have been played by Ms Madumo in the removal of the Applicant from teaching Setswana in Grades 10 and 11.
26 It was testified that the Applicant was disliked and victimised by the principal because of the fact that he was vocal on a number of issues which were understood to be wrong, which included the introduction of a class attendance register for educators, which was controlled by learners. The Applicant did not like this practice, and as such he was not signing the class attendance register. He was the only educator who was not taking part in extra lessons.
27 Under cross examination, she testified that the Applicant was allocated more classes so as to frustrate him. She conceded that she did not have personal knowledge of the engagements between Ms Madumo and the Applicant regarding the teaching of Setswana in the FET phase.
28 She further testified that the class representatives told her that they were told by other learners that the Applicant used to pad those learners on their shoulders saying “well done baby”.

SURVEY OF THE RESPONDENT’S EVIDENCE AND ARGUMENT
29 Lorato Loretta Madumo’s testimony, which was given under oath, can be summarised as follows. She started working with the Applicant at Blue Eagle School since 2011. In May 2013 she was promoted to the position of a Departmental Head for Languages, and was ultimately promoted to the position of Deputy Principal in 2017.
30 After being promoted to the position of Departmental Head her working relationship with the Applicant became unstable and complex. The Applicant was uncooperative, aggressive and defiant. He would either refuse to attend departmental meetings, stand up during meeting and sometimes leave before conclusion of the business of the meeting.
31 She testified that she was the one who recommended the Applicant’s promotion to the position of Departmental Head for Languages. When she left the school following her appointment as the Facilitator, she also recommended that the Applicant be allocated to teach Setswana in Grade 12, even though the idea was not supported by the school principal.
32 After being appointed as the Facilitator she visited the school for monitoring and support. She found out that there were a number of things which the Applicant was not doing correctly. He was, for instance, unable to use the relevant rubric correctly. Another challenge was that in 2019 the Applicant could only give her a copy of the question paper of the Grade 11 final examination, but could not give her a memorandum of that question paper. The scripts were also not correctly marked.
33 She went through the Applicant’s profile and found out that the Applicant was only in possession of a Primary School Teachers qualification. The Applicant was also not qualified to teach in the FET Phase. She wrote a report about her findings and recommended, amongst others, that the Applicant should be removed from teaching Setswana in the FET Phase. She disputed the allegation that she was the one who removed the Applicant from teaching Setswana in Grade 12.
34 Under cross examination, she insisted that during her time at Blue Eagle High School, the Applicant was treated the same way as other Departmental Heads. When she left the school in January 2021 the Applicant was positive and showed an interest that he was willing to be developed, hence she recommended that he be allowed to teach Setswana in Grade 12.
35 She further testified that she had only recommended that the Applicant be completely removed from teaching Grades 10, 11 and 12 based on the findings she made during the process of monitoring and support, and not because of any other thing.
36 Muguwelele Mmbi Edward’s testimony, which was also given under oath, can be summarised as follows. He was promoted to the position of deputy principal of Blue Eagle High School since 01 February 2022. His duties and responsibilities included overseeing the drawing up of the School Time Table and intervening in situations where there are differences or disputes between a Departmental Head and a particular teacher. Such situations may include where there are differences pertaining to the scores allocated to an educator as regards to the process of Quality Management System (“QMS”).
37 He described the Applicant as a good educator who used to go to class. He further described the Applicant as someone who becomes angry if something does not favour or suit him. The incident involving the reduction of scores obtained by educators in relation to some performance standards of the QMS was cited as an example where the Applicant took an issue with something that did not favour him.
38 He further testified that the principal once directed that the scores allocated in connection with sporting activities should be reduced for all educators, including in respect of the Applicant and other Departmental Heads. The decision was based on the fact that since COVID-19 there were no sporting activities at the school.
39 He denied the allegations that the Applicant was treated differently or unfairly by the principal and deputy principals. He testified that the allocation of duties and responsibilities to the Applicant was done in accordance with the provisions of the PAM document. He specifically testified that the workload in respect of the Departmental Heads, including the Applicant, never exceeded the 85% prescribed by the PAM document.
40 He also testified that the Applicant was not the only educator in respect of whom it was recommended that they should be removed from teaching Grade 12 because of poor performance. During 2023 a team from the District Office recommended that Mr Diphoko should be removed from teaching Grade 12 due to learners’ poor performance. He denied ever being given an instruction by the principal to write reports intended to destroy the Applicant.
41 Under cross examination, he testified that he was the Head of the Time Table Committee which was made up of Mr Mpati, Mr Mathebula, Ms Mashiloane and Ms Lamola. During the time when the Applicant was teaching Grade 12 it was the other deputy principal, viz Ms Mosana, who was responsible for the drawing up of the School Time Table.
42 The procedure relating to the drawing up of the Time Table, he testified that all the Departmental Heads, including the Applicant, do allocations in their respective departments, and thereafter submit such allocations to the Time Table Committee which captures them on the computer. The Time Table will thereafter be printed and given back to the respective Departmental Heads for inputs. If the Departmental Heads are satisfied, the Committee will then finalise the School Time Table.
43 He conceded that the Applicant had the highest number of periods as compared to other Departmental Heads, but insisted that the Applicant’s workload did not exceed the 85% contemplated in the PAM document.
44 He testified that there was a situation where the Applicant used a wrong template, and when requested to use the correct template, the Applicant refused. There was another incident where the Applicant refused to moderate a question paper for Setswana. He (Mr Muguwelele) was forced to ask another educator to moderate the question paper, which was done.
45 Patricia Keemekae Ndlala’s testimony, which was also given under oath, can be summarised as follows. She is the principal of Blue Eagle School. She worked with the Applicant since 2011. They had a good working relationship since then until 2022. Things started to change since 2022 and 2023. The Applicant was no longer cooperative. He was rebellious. He was no longer prepared to carry out instructions. He ceased to moderate question papers for Setswana.
46 She, for instance, gave an instruction that any teacher who was absent from work must report to her as the principal. The Applicant refused to obey this instruction. There were instances where she would write an internal memo either to the whole staff or members of the SMT. The Applicant would only read the memo, but refused to sign the memo as a confirmation that he had indeed read the memo. There were instances where the Applicant would attend meetings of the SMT but refused to sign the attendance register.
47 She disagreed with the proposition that she made the Applicant’s continued employment unbearable. She was in fact surprised to hear about such an allegation. She also denied the allegation that the Applicant was targeted by the school management. She testified that the Applicant was the one who was bullying members of the SMT.
48 She further testified that when she was hospitalised during 2022, she recommended the Applicant to act as the deputy principal. A different person, viz Mr Muguwelele, and not the Applicant, was the one who was ultimately appointed as the deputy principal. The Applicant may have been aggrieved by the fact that a different person was appointed to the post of deputy principal.
49 She confirmed that she had indeed questioned scores which were given to educators, including the Applicant, in connection with performance standard number 5 (i.e extra-curricular activities). The Applicant was allocated a score of 3. She ultimately decided to leave the Applicant’s score of 3 unchanged and also signed the Applicant’s performance reports because she was of the view that refusing to do so could create an impression that she was being personal towards the Applicant.
50 The Applicant had never complained to her about issues relating to the workload, neither had she ever received anything either from the Applicant or his union complaining about unfair treatment of the Applicant.
51 Under cross examination, she insisted that there was no campaign from her and the deputy principals to destroy the Applicant. She corroborated the versions of Ms Madumo and Mr Muguwelele as regards the facts and circumstances which resulted with the Applicant being removed from teaching Setswana in Grades 10, 11 and 12. She insisted that Ms Madumo had never come to school and demanded to go to class and teach Setswana.
52 She also confirmed that Ms Madumo was the one who recommended that the Applicant be allowed to teach Setswana in Grade 12.

ANALYSIS OF EVIDENCE AND ARGUMENT
53 Section 186(1)(e) of the Labour Relations Act 66 of 1995 (“LRA”) defines dismissal as including a situation where “an employee terminated employment with or without notice because the employer made continued employment intolerable for the employee”. In as far as “onus in dismissal disputes” is concerned, section 192 of the LRA provides that “in any proceedings concerning any dismissal, the employee must establish the existence of the dismissal”.
54 In Murray v Minister of Defence , the Supreme Court of Appeal, making reference with approval to the cases of Pretoria Society for the Care of the Retarded v Loots [1997] 6 BLLR 721 (LAC) and other similar authorities said the following:
“… These cases established that the onus rest on the employee to prove that the resignation constitutes a constructive dismissal: in other word, the employee must prove that resignation was not voluntary, and that it was not intended to terminate the employment relationship. Once this is established, the enquiry is whether the employer (irrespective of any intention to repudiate the contract of employment) had without reasonable and proper cause conducted itself in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust with the employee. Looking at the employer’s conduct as a whole and its cumulative impact, the courts have asked in such cases whether its effect, judged reasonably and sensibly, was such that the employee could not be expected to keep up with it”.
55 The Applicant’s claim of constructive dismissal, as I understand it, is in the first instance, based on what the Applicant described as an unfair treatment by the school principal, the deputy principals (viz Ms Ndlala, Mr Muguwelele and Ms Mosana), and Ms Madumo. The alleged unfair treatment was said to have had everything to do with the applicant’s duties and responsibilities, both as the Departmental Head or a member of the SMT, and as an educator for the subject “Setswana”.
56 The parties appeared to have been in agreement that the working relationship between the Applicant and members of what Ms Madumo described as the Executive Management (i.e the Principal and the Deputy Principals) was characterised by tensions and disagreements. The pertinent questions that may have to be answered include what is it that may or may not have happened between the Applicant and members of the Executive Management which could have strained the working relationship with the Applicant.
57 The criticism against members of the Executive Management included alleging that the Applicant’s workload was more than the workload of other Departmental Heads. Though accepting the correctness of this allegation, Mr Muguwelele insisted that the workload complained about fell within the threshold prescribed by the relevant provisions of the Personnel Administrative Measures. This assertion was not disputed or contradicted by the Applicant.
58 It is also not clear as to why a person who complained about workload was aggrieved by the fact that he was ultimately removed from teaching Grades 10, 11 and 12. In any event, the undisputed evidence of all the three (3) witnesses of the respondent suggest that the Applicant was removed from teaching the FET phase for legitimate and educationally sound reasons.
59 The allegation relating to the Applicant’s score being reduced from 3 to 2 was rendered completely unmeritorious by the undisputed evidence of Ms Ndlala that she had ultimately decided to leave the Applicant’s score unchanged, and have it processed as such.
60 The sum total of the evidence of the respondent’s witnesses was to the effect that the Applicant’s attitude changed from being that of a good educator and colleague to that of a difficult and bitter person. Firstly, after Ms Madumo was promoted the position of a Departmental Head, and later to that of a deputy principal. Secondly, after promotion of Mr Muguwelele to the position of deputy principal. Most of the factual allegations which sought to suggest that the applicant ended up degenerating into a bitter and miserable person who was, generally, defiant of instructions and school activities he did not like or did not agree with, were not disputed by the Applicant.
61 Even one of the witnesses of the Applicant, viz Ms Nomawethu Patricia Gxagxama, testified that the Applicant was, for instance, not signing the class attendance register. She further testified that the Applicant was the only educator who was not taking part in extra lessons.
62 In emphasizing the importance of an employee exhausting reasonable alternatives to resignation, the Labour Appeal Court, in Albany Bakeries Ltd v Van Wyk & Others , said the following:
“How will an employee ever prove that [the employment had been made intolerable] if he has not adopted other suitable remedies available to him? It is, firstly, also desirable that any solution falling short of resignation be attempted as it preserves the working relationship, which is clearly what both parties presumably desire. Secondly, from the very concept of intolerability one must conclude that it does not exist if there is a practical or legal solution to the allegedly oppressive conduct. Finally, it might well smack of opportunism for an employee to leave when he alleges that life is intolerable but there is a perfectly legitimate avenue open to alleviate his distress and solve his problem”.
63 Chapter G of the Personnel Administrative Measures outlines, amongst others, the principles and procedures to be followed in the lodging and handling of grievances in public education. According to the grievance procedure, the internal remedies available to an aggrieved educator should be pursued in accordance with the following stages:
63.1 Oral interview at the school level, which involves the making of a sincere attempt to resolve the grievance by oral interview between an aggrieved educator and the head of school and/or the educator’s supervisor the grievance before differences could become formalised grievances;
63.2 Formal written grievance at the school level, involving an aggrieved educator lodging a written grievance with the head of school or his or her supervisor within 90 calendar days following on the time and date on which the grievance occurred.
63.3 Formal written grievance at the Regional/District level. If the grievant is not satisfied with the outcome of the grievance process at the school level, he or she may refer the matter in writing, together with the decision of the head or supervisor, to the regional/district head for further handling.
64 There is a Grievance Form referred to as Annexure G.1, which must be completed for purposes of lodging a formal grievance. It is specifically stated that the Grievance Form must be used to lodge a formal grievance when the aggrieved educator is dissatisfied with an act or omission, particularly in instances where such an educator has not been able to resolve such a problem by using informal discussion.
65 In the instant case, there was no evidence proving or suggesting that the Applicant or his union had ever invoked the Chapter G grievance procedure in connection with the issues that the Applicant alleged that they constituted her complaint of unfair treatment. It was only alleged that the Applicant had once submitted a letter to both the District Office and the Office of the MEC complaining about being unfairly treated at school. The Applicant had not been able to either produce a copy or copies of such a letter or letters or to produce any evidence or proof that such a submission was indeed made. This allegation as such remains unsubstantiated.
66 If indeed there could have been some dissatisfactions on the part of the Applicant regarding the conduct of the principal or any of the persons complained about, the Applicant was supposed to have invoked the prescribed grievance procedure either by himself or through his union.
67 I am inclined to accept the versions of the three (3) witnesses of the respondent that they, as opposed to having an ulterior motive against the Applicant, played positive roles in the development and career growth of the Applicant. There is therefore no merit in the allegations relating to the workload and reduction of the Applicant’s QMS scores, and the allegation that the Applicant was sabotaged or targeted for destruction must be rejected as being baseless.
68 It is my finding that there was no credible evidence supporting the allegation that the Applicant was unfairly treated by the principal and the deputy principals, or by Ms Madumo both as the former deputy principal or as the Facilitator. The objective facts, on the contrary, suggest that the principal and the persons accused by the applicant were reasonably tolerant of the Applicant.
69 The second aspect to the applicant’s constructive dismissal claim relates to what I prefer to describe as the trigger event, which involves the allegations of misconduct contained in what was referred to as the audi letter. The Applicant was, as stated in the factual background, alleged to have committed acts of misconduct relating to sexual assault of Grade 8 learners.
70 I am of the view that the Applicant may have been aware of the fact that reliance on the allegations contained in the audi letter was completely unsustainable and ill-fated, hence it was decided, probably for the first time at the arbitration hearing, to try and trace the intolerability of continued employment relationship from what may or may not have happened in the past. This assertion may be supported by what is said in the applicant’s letter of resignation, which in the relevant part, is couched in the following terms:
“Notice of resignation with immediate effect
As you may be aware I have been an educator in Blue Eagle High School since 2011 January to date. I really appreciate the opportunity to contribute as an educator at the school but unfortunately the recent developments have taken a great toll on my health that it’s no longer possible for me to continue. It is with heavy heart that I hereby tender my notice of resignation with immediate effect.
I wish the school, educators and learners all the best.”
71 The Applicant has expressly made reference to the recent developments, which had everything to do with allegations of sexual assault of Grade 8 learners, and the extent to which such developments affected his health. The Applicant did not make any reference to the allegations of unfair treatment by the principal and the deputy principals.
72 I am unable to understand as to what was it that the respondent was expected to have done in the light of such serious allegations of misconduct involving Grade 8 learners, especially in the light of the scourge of gender-based violence against specific groups of people, which include women and the girl children. I do not think there is any reasonable person who could have expected the respondent to have done nothing about such serious allegations because by ignoring such allegations the respondent would have failed to act in the best interest of the learners, the school and, by extension, in the public interest.
73 As correctly pointed out by Mr Moloto, what the respondent did through the audi letter was to alert the Applicant about allegations made against him and to give him the opportunity to state his side of the story. It is clear from paragraphs 2, 3 and 5 of the audi letter that the Applicant was being given the opportunity to make written representations as to why a disciplinary action should not be taken against him in connection with the allegations of misconduct made against him.

74 Section 17(1)(b) of the Employment of Educators Act 76 of 1998 provides as follows:
“Serious misconduct
(1) An educator must be dismissed if he or she is found guilty of-
(b) an act of sexual assault on a learner, student or other employee”.
75 One of the reasonable inferences that may be drawn from the Applicant’s abrupt resignation is that he may have been aware of the fact that he was facing section 17 offences which carry dismissal as a mandatory sanction, and for that reason decided to jump ship before it was too late.
76 In the circumstances, I am of the view that there is no evidence supporting a conclusion that the Applicant was constructively dismissed. There was therefore no dismissal within the contemplation of section 186 of the LRA. The applicant’s claim of constructive dismissal falls to be dismissed.

AWARD
77 The applicants’ claim of constructive dismissal is hereby dismissed.

DATED AND SIGNED AT POLOKWANE ON THIS 21st DAY OF JANUARY 2025

MORAKA ABEL MAKGAA
ELRC PANELIST
ELRC Arbitrator