Case No: ELRC 150-26/27EC

In the matter between:

VUYISA NDAWULE APPLICANT

and

EASTERN MIDLANDS CAPE TVET COLLEGE RESPONDENT

PANELIST: YOLISA NDZUTA
LAST HEARD: 18 September 2026
DATE OF AWARD: 27 October 2026

SUMMARY: Labour Relations Act 66 of 1995 – Section 188 – unfair dismissal of an employee
SUMMARY: whether the reason for dismissal is a fair reason – related to the employee’s conduct or capacity – and that the dismissal was effected in accordance with a fair procedure.

ARBITRATION AWARD

PARTICULARS OF PROCEEDINGS

1. This arbitration commenced on the 27th of August 2026 and was concluded on the 18th of September 2026.
2. The Applicant, Mr Vuyisa Ndawule was represented by Mr Mzimkhulu Hote, a union official from NEHAWU.
3. The Respondent was represented by Mr Zizwe Maliwa.
4. The proceedings were digitally recorded. Both parties filed bundles of evidence and written submissions too, these will be further addressed in the award.

THE ISSUES IN DISPUTE

5. I am to determine whether the dismissal of the Applicant was substantively and procedurally fair in terms of Section 188 of the Labour Relations Act 66 of 1995 (the LRA).
6. If not, what appropriate relief can be granted in terms of Section 193 of the LRA.

BACKGROUND

7. The Applicant was employed as a Lecturer at the Respondent institution and dismissed on the 13th of May 2026. In these proceedings the Applicant referred a dispute pertaining to the alleged unfair dismissal following disciplinary proceedings against him.
8. The Applicant dispute the charge of sexual assault and sought that he be re-instated retrospectively with full benefits and damages. The Respondent contended that the dismissal was substantively and procedurally fair.

SURVEY OF EVIDENCE AND ARGUMENT

9. Due to the dispute being one of an unfair dismissal, the Respondent (employer) bears the onus to prove on a balance of probabilities that the dismissal was fair. On account of the latter, the Respondent shall lead its case first then the Applicant shall follow in opposition.
10. The Respondent called two (2) witnesses and filed a bundle. There was no dispute raised against the contents of the bundle such that the Applicant elected to use the same bundle. The summary of the aforementioned witnesses is enclosed herein below.

Respondent’s case:
11. The Respondent first called Ms Adelia Adams, the chief witness whose evidence can be summarized as follows:
11.1. Ms Adelia Adams is the personal assistant to the Principal of the Respondent.

11.2. She testified that she had lodged a grievance against Mr Ndawule for a sexual assault that occurred on the 24th of May 2024 at Mphekweni Beach Resort.

11.3. Ms Adams was tasked with arranging the SRC induction programme. After the event Ms Adams stated that she was invited by one of the colleagues, Ms Mabhece to join her after dinner to have wine at another colleague’s room. At the time Ms Adams was unaware of whose room they were going to until they arrived which she found out it was Mr Ndawule’s room. Upon arriving at Mr Ndawule’s room they found that there was a gathering including Deputy Principal Mr Hewana and Deputy Principal Ms Dlamini, Assistant Director and SSS Manager, Governance Officer and Disability Officer were in attendance. A few drivers including Mr Ndawule and the creative designer of the college were also present.

11.4. Ms Adams recalled that she had five glasses of wine and enjoyed herself at the gathering. There was an agreement between herself and Ms Mabhece that around 22h00 they would retire to bed since the next day the Principal would be arriving, who is her direct superior and so they needed to be presentable and prepared. However, she recalled that they left after 22h00, roughly around to 23h00.

11.5. Mr Ndawule and Ms Mabhece offered to accompany Ms Adams to her room to see to her safety. Ms Adams indicated that Mr Ndawule was situated on the second floor while her room was on the third floor. Once they arrived at her room she said goodnight to her colleagues and they left. She entered the room and closed the door. She proceeded to change into pyjamas and went to bed.

11.6. Ms Adams stated that after some time after she had fallen asleep she heard a knock on the door and to her dismay it was Mr Ndawule. The fact that Mr Ndawule was at her door at that hour of the night with a bottle of wine was a shock to her however she did not feel threatened at the time because it was one of her colleagues. He asked if she would like to have a night cap and she responded that she had enough to drink as the Principal was coming in the morning and they needed to be on point. He then asked if he could have a drink which she did not take issue to.

11.7. She had no reason not to trust him because he had been nothing other than a nice working colleague. He came in and sat on the sofa while she sat on the bed and drank his wine while making small talk. Once he realised that she wasn’t going to join him in the night cap he got up as if he was about to leave. Ms Adams proceeded to stand up with him to see him out. However, while they were standing, instead of Mr Ndawule walking towards the door he came towards Ms Adams who was standing at the edge of the bed and gave her a hug which she thought was a goodnight and/or goodbye hug but instead he used his body weight to push her onto the bed and in the process he fell on top of her.

11.8. She did not have underwear on and short pyjamas so immediately when he fell on her she felt his erect penis which was in alignment with her vagina and started making grinding gestures. Ms Adams testified that she said, “Ndawule get off me, this is never going to happen get off me” but he continued with the actions and he said the words, “AD please” twice. As he did that her pyjama bottoms rolled up due to it being wide legged shorts and her vagina was exposed. He took his hand and touched inappropriately without her consent. She objected and commanded that he get off her and told him to leave. He was reluctant but he left. She slammed the door shut and sat on the bed very confused, agitated and scared.

11.9. Ms Adams then called Mr Mike Sdeba to report the incident, she told him exactly what happened and asked for help. He unfortunately went and knocked on the wrong room and asked that she come to his room however she was not comfortable doing that due to what had happened. Ms Adams then phoned Mr Twane but he did not respond.

11.10. The morning of the 25th of May 2026, her first encounter was with Mr Ndawule. When she saw him she went into complete shock and said, “Ndawule what happened last night will never happen again because it was wrong.” He responded by saying, “My choma, I’m sorry but did I hurt you last night?”. He came in and tried to embrace her but she pushed him away. At that point she knew she was going to report the matter. Ms Adams states that she did not go to breakfast but went straight to Mr Twane and told him that she had called him the night before to report the incident. After explaining to him in detail he suggested that they have a meeting after the conference with Mr Ndawule, himself and Mr Hewana as the highest line manager on site at the time. She did not want to be part of the meeting because she was too traumatised. By tea time Ms Adams requested that she go home from Ms Dlamini after explaining what happened in great detail. Ms Dlamini indicated that she will deal with it.

11.11. Ms Adams testified that Mr Ndawule’s statement of page 56 of the bundle conflicts with the version that she has placed because when they had first accompanied her they never entered her room. The only time Mr Ndawule entered the room is when he returned alone.

11.12. Mr Ndawule’s statement on page 58 of the bundle goes on to say that he was on Ms Adams’ bed comforting her during a conversation about her marriage which she denied and said that her and Mr Ndawule do not have a personal relationship but are just colleagues.

11.13. Ms Adams refuted the claim that she is a heavy drinker, while the appeal refers to Ms Mabece’s statement alleging that they were in a partying mood and had a lot to drink according to paragraph 6.2.3 of the appeal on page 29. Ms Adams refuted that after they left the room with the gathering they continued drinking. She further refuted that she colluded with her colleagues when making statements. According to the change of the statement, Ms Adams testified that the only thing she changed in her statement was the date and grammatical errors and that there weren’t different versions of her statement.

11.14. Ms Adams testified that her and Mr Ndawule’s working relationship was a cordial one and denied that she had called him a stranger in her statement and goes as far as saying she did have his contact number for professional reasons.

12. The above witness was subject to cross-examination by the Applicant and the following was ascertained therefrom:

12.1. Ms Adams confirmed the date of the incident as the 25th of May 2024, a Friday which was the first day of their stay at Mphekweni.

12.2. Ms Adams reiterated that upon arrival at about 10h00 with Ms Masoka and Ms Mabhece they went straight to the venue where the conference was underway. The SRC and induction went according to the programme and there was nothing out of the ordinary during that time. She repeated the happenings of the evening and the incident.

12.3. Ms Adams clarified that after dinner Ms Mabece requested that they go via her room before they went to Mr Ndawule’s room around 20h00. When they arrived at the room there was a double bed and two chairs, a sliding door and a balcony. Mr Hewana and Ms Dlamini were standing, there was a mounted TV area and a table with drinks. On the bed was Ms Frolick, Ms Mabhece and Ms Adams who eventually sat on the floor. Mr Ndawule and Mr Jonas was with the other drivers. The room was not big but it was spacious enough to accommodate everyone who was there.

12.4. Ms Adams testified that she had moved to the balcony where she had a conversation with Ms Mabece and Mr Ndawule was standing by the opening of the sliding door. She also testified that Mr Ndawule was not part of the conversation on the balcony even though he was physically there. Ms Adams denied that Mr Ndawule was part of the balcony conversation or that they were a group there. Ms Adams recalled that the conversation was a personal one about her family and that is why they did not include Mr Ndawule in the conversation.

12.5. Ms Adams recalled that she drank a dry red wine that Mr Twane brought and that was all she drank for the evening and that she did not drink the Tanqueray Gin.

12.6. Ms Adams stated that she left Mr Ndawule’s room to go to her room just before 23h00.

12.7. Ms Adams maintained that on the night in question, she only engaged in a conversation with Ms Mabhece and had not had any conversation during the after-supper meeting with Mr Ndawule.

12.8. Ms Adams maintained that Mr Ndawule and Ms Mabhece did not enter her hotel room on the day in question except when Mr Ndawule returned later in the evening before he allegedly sexually assaulted her.

12.9. She testified that following the sexual assault, she reported the incident to her immediate supervisor Mr Twane.

12.10. When asked why she didn’t leave the venue following the incident, she maintained that she elected to focus on her duties and she had arranged for her son to travel to the hotel for emotional support.

13. The Respondent also called Mr Raymond Rhulani Shope who was the presiding officer of the disciplinary hearing and he testified as follows:
    13.1 He found Mr Ndawule guilty of sexual harassment/ sexual assault which was the main charge and exonerated him of the charge of intimidation.

13.2 He explained that in reaching his verdict, he considered the evidence of the employer’s witness vis a vis the evidence of the employee and found the case of the employer more probable.

13.3 He explained that given that the parties each called one (1) witness, he as the presiding officer was faced with the single witness evidence and as such he applied the test of various case law, namely Northam Platinum Mines v Shai N.O. and Others 2012 33 ILJ 942(LC).

13.4 He explained that he considered Mr Ndawule’s conduct as predatory following what he had overheard when eavesdropping on the conversation of Ms Adams and Ms Mabhece.

13.5 He explained that the various versions testified to lead one to consider that Mr Ndawule’s account was less probable and even on consideration of their relationship prior to the incident it led to the conclusion that Mr Ndawule’s intention was to pursue a sexual encounter with Ms Adams but it was not reciprocated.

13.6 He testified that he is happy with the verdict and sanction more so on account of the applicable case law namely McGgregor v PHSDBC (2021) 42 ILJ 1643 (CC).

14. The above witness was subjected to cross examination and the following was learned therefrom:
    14.1 When asked about the evidentiary shortcomings of Ms Adams, he testified that he considered everything and when confronted with the two conflicting versions, he applied the single witness cautionary rule while considering which version was most probable.

14.2 Also one of the determining factors is the information Mr Ndawule enjoyed owing to his eavesdropping and his conduct played a role to establish his conduct.

14.3 He testified that although there were contradictions on account of Ms Adams vis a vis testimony of Mr Ndawule, same contradictions of Ms Adams were immaterial whereas those of Mr Ndawule were significant.

14.4 He testified that there also wasn’t any corroborating evidence from Mr Ndawule which could dispute that his visit to Ms Adams room was not predatory response to the knowledge he came across per eavesdropping.

14.5 When asked whether his verdict did not criminalise flirting between colleagues and whether he did not consider or given the flirting he did not doubt Ms Adams’ testimony, he responded that any argument that sexual harassment was invited is disappointing. Flirting doesn’t invite sexual harassment more so if we consider Campbell Scientific Africa (Pty) v Simmers & Others [2015] 1 BLLR 1 LAC you learn that regardless of frequency even once off act of sexual harassment is enough to justify a dismissal.

14.6 Most important, the law directs that disciplinary hearings are determined on a balance of probabilities.

Applicant’s case:
15. The Applicant testified as one of three witnesses on his behalf. His testimony can be summarised as follows:

15.1 He was a Lecturer working with the Respondent for more than thirteen (13) years and had assisted in the employer’s development and growth. He lectured Graphic Design, Advertising, Marketing amongst other subjects.

15.2 He testified that he had on occasion assisted the Respondent as a driver to transport colleagues and students wherein said service was required.

15.3 The Respondent implemented its QCTO using his qualification.

15.4 He is also a shopsteward for NEHAWU and helped in growing the union’s membership within the Respondent’s institution.

15.5 Regarding the event of 23 May 2024 to 25 May 2024, he was invited to assist as a driver and attended in that capacity.

15.6 On the 24th of May 2024, he was requested by Mr Yamke to purchase some alcoholic beverages for an after-supper meet up which was planned for the colleagues. He obtained the alcoholic beverages and placed them in his hotel room and gave Mr Yamke his. (Mr Ndawule’s) room key as that is where the alcoholic beverages were stored.

15.7 Around 20:00 upon his return to his room after supper, he learned his room was the venue of the after-supper meet-up and saw that his colleagues were socialising which included his senior executives. He then elected to isolate to the balcony as he did not want to be overly social with his seniors while he also identified the balcony as the best place to enjoy his smoking. Whilst smoking at the balcony, he was joined by Ms Mabhece then a conversation ensued which was later joined by Ms Adams.

15.8 He had a conversation with Ms Mabhece and Ms Adams wherein they shared experiences. Ms Adams’ conversation contribution was mainly about her marital problems as such she would cry and he (Mr Ndawule) would have to console her together with Ms Mabhece.

15.9 Later he together with Ms Mabhece accompanied Ms Adams to her room. Then after Ms Adams sought to sleep (after changing) he left to accompany Ms Mabhece to her room. He later returned to Ms Adams room because he couldn’t find his room key and while waiting at Ms Adams’ room he had some wine. While enjoying a glass of wine, he was confronted with Ms Adams’ breaking down again wherein he had to comfort her again. He admitted that while comforting Ms Adams he gave her a kiss on the forehead and then left her to sleep. He then went to reception to get a copy of his room key.

15.10 He testified that he and Ms Adams had a professional relationship as colleagues and had somewhat of a friendship or acquaintance relationship because he had been chatting with her since 2023 when she had borrowed money from him. Also whenever he had assisted the Respondent with any overtime or extra work and had to claim, she would assist him in processing the claim.

15.11 He testified that on the 25th of May 2024, he had first attended church in Port Alfred as a result he didn’t attend the full service as he was called by Mr Yonke to kindly transport two (2) student back to Gqeberha as they had fallen ill.

15.12 He testified that upon his return to the hotel, he saw Ms Adams who had some shoe problems and has accompanied her to her room to help her.

15.13 He testified that a bit later he met Ms Adams and Ms Mabhece wherein Ms Mabhece asked for any leftover alcohol wherein he left them there to enjoy.

15.14 Later, while speaking with his cousin and Mr Sive Gumenge who while consuming some alcohol antagonized him stating that he (Mr Ndawule) wanted to have sex with Ms Adams and went on to state that Ms Adams was having an affair with Mr Mike Steba and Mr Asanda Baartman. When he tried to confront Ms Adams about what Mr Gumenge said, she was in Mr Mike Steba’s room.

15.15 During the last day of the conference of 26 May 2024, he had not seen her except when he submitted his travel claim to her prior to departing.

15.16 On the 27th of May 2024, he was called into a meeting by Mr Chiliwe for a statement regarding the incident wherein he (Mr Ndawule) stated that he would file same statement after consulting.

15.17 He later bumped into Mr Steba who sought that he (Mr Ndawule) return the institution cell phone.

15.18 When asked why he had sought his hotel room from Ms Adams’ hotel room as opposed to seeking a copy from reception, he responded to state that reception was a considerable distance from his room, also he reiterated that Ms Adams’ room was the only room that he had visited besides his own room.

15.19 He testified that his level intoxication was that of tipsy however he was only consuming wine that evening while Ms Adams and Ms Mabhece had consumed a range of alcoholic beverages. He maintained that his judgement was not impaired.

15.20 He testified that Ms Adams was being used by other colleagues whom had sought to remove him from the institution since 2015 when he was involved in a whistleblowing incident.

15.21 When asked why he had not called any corroborating witnesses during the hearing, he testified that the chairperson had been alerted of a subpoena however same was ignored.

15.22 He testified that as a shop steward the employer complied with Schedule 8 as such even during his suspension he honoured the suspension conditions however there was an incident at the Caledon Hotel wherein he mistakenly bumped into Ms Adams and although he tried to avoid such, it happened and he was later alleged to have tried to intimidate her. He testified that even his suspension extended to all premises of the Respondent as such even his return from suspension was not following written correspondence.

15.23 He testified that this entire ordeal had affected him and his family immensely as he felt that even the Vice Principal of Corporate Service had an intention of his dismissal. During the disciplinary hearing he was also charged with intimidation which same charge did not succeed.

16. The above witness was subjected to cross examination and the following was learned the has therefrom:
    16.1 He was the chief lobbyist who grew NEHAWU within the Respondent which he believed made him an enemy to certain officials.

16.2 During the date of 24 May 2024 at Mpekweni resort, wherein the after-supper meet-up Ms Mabhece and him (Mr Ndawule) had a conversation about the institution and opportunities within the tertiary education sector. It was Ms Adams who brought the discussion that related to personal problems.

16.3 He and Ms Adams had grown close since 2023 however he had no intention of an intimate relationship with Ms Adams.

16.4 When Ms Adams was sharing about her marital problems he understood it as she was overwhelmed by the alcohol.

16.5 When he and Ms Mabhece accompanied Ms Adams to her hotel room, they all entered the room and while Ms Adams was changing into her pyjamas, he enjoyed a glass of wine with Ms Mabhece.

16.6 When asked why he did not call Mr Yonke or any other colleague to get his ‘lost’ room key, he responded to state that he thought his room key was in Ms Adams’s room.

16.7 He confirmed that upon entering Ms Adams’s room for the second time (when looking for his room key) he did not ask for his key.

16.8 He testified that when Ms Adams was crying, he consoled her and ended up kissing her on her forehead to calm her down.

17 The Applicant also called Mr Sive Gumenge who testified as follows:
17.1 He attended the SRC capacity-buidling weekend of 24 May 2024 to 26 May 2026, and recalled the after-supper meet-up that occurred.

17.2 He met Mr Ndawule and Ms Adams at the lobby of the hotel enroute to the dining-hall for breakfast around 7:00.

17.3 He did not recall the broken shoe incident as testified of Mr Ndawule.

17.4 He remembered enquiring from Mr Ndawule if he tried to have sexual relations with Ms Adams as it was something that was mentioned to him by another colleague.

17.5 He refuted having spread a rumour about the incident between Ms Adams and Mr Ndawule.

18. The above witness was subject to cross-examination and the following was learned therefrom:
    18.1 The purpose of the after-supper meet-up in Mr Ndawule’s room was for the colleagues to socialise as such the various individuals left the room individually.

18.2 During the socialising, the various colleagues were scattered throughout the room, some sitting on the bed some used chairs while some were standing on the balcony.

18.3 He confronted Mr Ndawule of the incident between him and Ms Adams as he had heard about the incident from Mr Mike Sdeba.

19. The Applicant also called Ms Phindi Mabhece who testified as follows:
    19.1 She is an employee of the Respondent and was one of the colleagues who attended the after-supper meet-up social which was held at Mr Ndawule’s Hotel room.

19.2 She explained that it was a social meeting of colleagues wherein some alcoholic beverages had been arranged for the colleagues to enjoy.

19.3 She testified that at her arrival, she noticed while colleagues were conversing some were sitting inside the room while Mr Ndawule was standing at the balcony. Therein (at the balcony) she and Mr Ndawule shared a cigarette while she also had a chat with Ms Adams. She doesn’t recall the conversation she had with Ms Adams. She didn’t recall Ms Adams being emotional or such during the evening.

19.4 She testified that she had some cider and wine.

19.5 She testified that after sometime Ms Adams had indicated that she wanted to leave and they (together with Mr Ndawule) accompanied her to her room. She then decided to also leave however because Ms Adams’ room was closer, they first went to her (Ms Adams’ room).

19.6 When they arrived at Ms Adams’ room, they entered and Mr Ndawule (& her) had a glass of wine while Ms Adams changed into her pyjamas. When Ms Adams indicated that she wanted to sleep, she left and while walking to her room, she caught a shuttle.

19.7 While at breakfast on the 25th of May 2024, a colleague (Mr Sive Gumenge) asked if she had any idea of what happened between Ms Adams and Mr Ndawule to which she responded that she had no idea except Mr Ndawule was intoxicated. During the day, she did see Mr Ndawule.

20. The above witness was subjected to cross-examination and the following was learned therefrom:
    20.1 She couldn’t recall much about the evening.

20.2 She did not use a glass at Ms Adams’ room during the brief time they had been there.

20.3 Mr Ndawule although tipsy, he seemed fine.

20.4 She didn’t know Ms Adams very well as they were merely colleagues.

ANALYSIS OF THE SUBMISSIONS

21. In this denovo hearing, I am required to determine the fairness of the Mr Ndawule’s dismissal.
22. Mr Ndawule was dismissed following a disciplinary hearing for allegations of sexual harassment. In his referral to this council, he challenged both substantive and procedural fairness. His substantive fairness challenge related to his knowledge of the Respondent’s Sexual Harassment Policy and stated (in the pre-arbitration) that he was also not aware of PSCBC Resolution 1 of 2003. The last point of his challenge to substantive fairness was inconsistency as he compared himself to Mr Apools van Royen.
23. Mr Ndawule’s challenge to procedural fairness related to the impartiality of the chairperson as he (Mr Ndawule) claimed there was a relationship between the chairperson of the disciplinary hearing and the complainant.
24. During the hearing of testimony and presentation of viva voce evidence, Mr Ndawule did not raise his inconsistency argument, nor was the bias argument pursued or placed to the Respondent’s witnesses.
25. During the hearing of testimony and presentation of viva voce evidence the only arguments pursued were the credibility of Ms Adams regarding her account of the incident and the appropriateness of the sanction imposed. The latter is stated as it is a consideration that was placed when the closing submissions filed were ruminated upon.
26. In terms of Item 2 of Schedule 8 of the Code of Good Practice: Dismissal, and Item 5.3 of the Code of Good Practice on Handling of Sexual Harassment Cases (2005), sexual harassment is defined as unwelcome conduct of a sexual nature that violates the rights of an employee and constitutes a barrier to equity. The Code states that sexual harassment is a form of serious misconduct.
27. The onus to prove substantive and procedural fairness rests on the employer on a balance of probabilities which was accepted by the Respondent and echoed by the Respondent’s witnesses.
28. During the testimony of Mr Shope, he emphasised that upon his consideration of the facts and the applicable legal framework, his sanction was fair given that Mr Ndawule’s conduct constituted as defined hereinabove. He went on to emphasised that in terms of the case law he considered, at the advent of same conduct been rejected and the absence of consent, he (Mr Ndawule) ought to have known that his conduct constituted sexual harassment.
29. On assessment of credibility, I found Ms Adams to be a credible, consistent and reliable witness. She gave direct evidence, and have not contradicted herself under cross-examination and reported the incident at the first reasonable opportunity. On the other hand, the Applicant’s version of the incident was improbable more so considering that his intention for entering Ms Adams’ room and how he conducted himself were a clear incongruity.
30. It is common cause that the Respondent has a Sexual Harassment Policy and the Applicant is (during his employment) subject thereto. Correspondingly, the Respondent and the Applicant are also subject to the Code of Good Practice on Handling of Sexual Harassment Cases (2005) which the Applicant ought to have knowledge of considering that he was a shopsteward. The aforementioned code expressly prohibits unwelcome sexual comments, gestures and physical contact. Furthermore, the Employment Equity Act 55 of 1998 expands on sexual harassment in the workplace by emphasising that such unwanted conduct of a sexual nature violates an employee’s dignity and acts as a barrier to workplace equity.
31. The various case law goes on to classify sexual harassment conduct as a dismissible offence. In the matter Amathole District Municipality v Commission for Conciliation, Mediation and Arbitration and Others (PA9/2018) [2022] ZALAC 119 the legal complexities of sexual harassment in the workplace were scrutinized in detail to the extent wherein the complainant’s conduct was examined juxtaposed to her claim. Similarly in the matter of McGregor v Public Health and Social Development Sectoral Bargaining Council and Others (CCT 270/20) [2021] ZACC 14; (2021) 42 ILJ 1643 (CC); [2021] 9 BLLR 861 (CC); 2021 (5) SA 425 (CC); 2021 (10) BCLR 1131 (CC) (17 June 2021), the court found that sexual harassment is a reflection of broader power dynamics both in society and the workplace. Also it was held that sexual harassment is the most heinous misconduct that plagues a workplace, its persistence and prevalence pose a barrier to the achievement of substantive equality.
32. The conduct as proven constitutes both sexual harassment and a serious breach of trust. The employment relationship, particularly in an education environment where colleagues deal with students, is rendered intolerable.
33. I have considered progressive discipline. Given the gravity of sexual harassment/assault, dismissal is appropriate for a first offence where the misconduct is serious and of a sexual nature. No evidence was led of mitigating factors sufficient to warrant a lesser sanction. Long service does not in itself excuse such conduct.
34. I therefore find that the dismissal was substantively fair.
35. The requirements of procedural fairness are set out in Item 4 of Schedule 8. The employee must be notified of the allegations, given reasonable time to prepare, afforded the right to state a case, and be assisted by a representative.
36. The evidence shows the applicant’s hearing was chaired by an impartial chairperson and his rights (as an accused employee) were upheld. The allegation of bias is unsubstantiated. The fact that the chairperson found against him does not in itself indicate bias.
37. I therefore find that the dismissal was also procedurally fair.

AWARD

38. The dismissal of the Applicant, Mr Vuyisa Ndawule, by the Respondent, Eastern Midlands Cape TVET College was both substantively and procedurally fair.
39. The Applicant’s unfair dismissal claim is hereby dismissed.

Yolisa Ndzuta
Panellist: ELRC