Commissioner: VEESLA SONI
Case No.: ELRC 422-24/25 KZN Date of Award: 10 December 2025

In the ARBITRATION between:

PSA OBO NISHA SEWPERSAD APPLICANT
and

DEPARTMENT OF EDUCATION – KWAZULU NATAL RESPONDENT

Union/Applicant’s representative: Mr Sewpersad

PSA

Respondent’s representative: Mr S T Daniso
Respondent Department of Education

DETAILS OF HEARING AND REPRESENTATION

1. The dispute was referred to the Education Labour Relations Council (hereinafter referred to as the “ELRC”) in terms of Section 186 (2) of the Labour Relations Act, No. 66 of 1995 (hereinafter referred to as the LRA). The matter was scheduled for arbitration on 27 and 28 March 2025, in Pietermaritzburg. The matter was part heard and was finalized on 24 November 2025.
2. The Applicant, Nisha Sewpersad was represented by the PSA, Mr B Sewpersad. The Respondent was represented by Mr S T Daniso.
3. Both parties delivered written closing arguments and the Respondent delivered their argument only on 9 December 2025.

ISSUE TO BE DECIDED

4. The main issue in dispute was whether the Respondent committed an unfair labour practice, in respect of disciplinary action taken against the Applicant. The issue to be arbitrated was whether the sanction of a suspension of two months without pay and the precautionary transfer was fair and justified.

BACKGROUND AND SURVEY OF EVIDENCE

5. The dispute relates to an unfair labour practice wherein the Applicant was charged for misconduct in respect:

CHARGE 1: It is alleged that in July 2023 you misused your position in that you used the school information without the permission of your own personal again thereby contravened Section 18 (1) (g) of the Employment of Educators Act

ALTERNATIVELY: that in July 2023, without permission (sic) possesses or wrongfully used the school information in the court of law, thereby contravened section 18 (1) (c ) of the Employment of Educators Act.

6. It was agreed that that the Applicant was disciplined in November 2023. The outcome of the disciplinary hearing was issued on 29 April 2024. The Applicant was found guilty of the alternative charge and sanctioned to: 2 months’ suspension without pay. It was common cause that the main charge was withdrawn, hence the alternative charge was challenged.
7. The Applicant stated that she was not guilty of the charge. She attended a disciplinary hearing and was found guilty of the alternative charge and sanctioned to a two-month suspension without pay. The Applicant’s case was that the charge did not exist in the handbook and further that she was charged out of time. In addition, there was tampering of evidence and no investigation. The relief sought was a not guilty finding and for the sanction to be set aside. The Applicant further requested for compensation.
8. The Respondent’s case was that the Applicant was charged as per the Employment of Educators Act 76 of 1998 (hereinafter referred to as the EEA), schedule 2. Witnesses were called to testify and the Applicant was found guilty. It was submitted that the sanction was justified.
9. It was common cause that the Applicant was departmental head, post level 2 at Newhome Primary School, Northdale. At the time of the charge the Applicant was on a precautionary transfer.

APPLICANT’S CASE

10. Applicant: She stated that she was a permanent educator employed in 1990 and was a departmental head from 2008. Her permanent place of employment was Newhome Primary School. She was currently at Union Park Primary as she was placed on a precautionary transfer on 12 September 2023. It was alleged that she unjustifiably prejudiced the department. The transfer occurred pending the disciplinary investigation. She received the notice of the disciplinary hearing on 15 November 2023, at 3.30pm. She was not contacted by any investigator from the time of her transfer to the date of the disciplinary notice. The hearing was scheduled for 17 November 2023 and it continued till April 2024. The hearing was finalised on 18 March 2024 and the sanction was delivered on 29 April 2024.
11. The notice to the disciplinary hearing contained attachments. She stated that her hearing took about 230 days to finalize, which was outside The provisions of the EEA. The Applicant stated that she raised a jurisdictional point at her hearing that it was conducted out of time. It was conducted beyond a month after her precautionary suspension/transfer. No ruling was issued on the preliminary points raised at the hearing. The presiding officer was on a virtual platform and the Applicant said it was unfair as she was unaware that the hearing was going to be virtual. The matter was adjourned for 5 days, which the Applicant claimed was unfair as she was ready to proceed.
12. The Applicant challenged the procedure on the basis that the notice of the disciplinary hearing was undated. She claimed that the charge was vague and imprecise. It was absent of details and information which resulted in her lack of understanding of the alleged offence. There was no evidence led on the charge but she was found guilty.
13. The Applicant stated that from March 2023 there was a parent that harassed her. The parent claimed that the Applicant defaced the learner’s book and pulled the test paper away. The principal of the school supported the parent in her allegations. The Applicant lodged a grievance against the principal for putting her in front of the parent. This form of harassment continued for some time until the circuit manager decided that all issues would be addressed via him or the school principal.
14. On 2 May 2023 there was an incident with the same learner where the parent claimed that she instructed the child to swallow a bead as medication. This was untrue and disputed by the Applicant. The teacher for the learner confirmed with the principal, Harichand, that the child had the bead in class, and informed the teacher that her mother asked her to consume it. Video footage was accessed and there was no evidence that the child entered the Applicant’s class.
15. The parent of the child then posted on social media that a teacher attempted to murder her child and handed her child a bead. There were 199 views of this post. This was brought to the attention of the principal and the circuit manager but no steps were taken to protect the Applicant. She found that her work environment was unsafe. This resulted in her seeking an interim protection order on 24 May 2023. The parent obtained a counter protection order on or about June 2023. In the counter protection order the parent claimed that the Applicant gave her child a bead to swallow, defaced her book and isolated her from her friends. In her response to the counter order the Applicant furnished documents in support of her claim. This resulted in the parent withdrawing her case at court.
16. The Applicant stated that she handed in more than 200 pages of documents in preparation of the court matter. The documents were handed to her attorney but were never used in court. The Applicant could not recall if the annexures were copies of the leaners book. The documents were not produced at her disciplinary hearing to validate that it was the property of the school and that it was in fact used in a court of law. The principal of the school did not state that the documents were before court of law, hence the charge was not proven.
17. The two statements from the teachers that were part of the charge, were handed to the Applicant by those teachers hence they were not the property of the school. The parent had withdrawn her counter order hence the document in her opposing papers were never sent to court.
18. The Applicant claimed that she did not unlawfully possess any of the documents. The charge spoke of being in possession of documents without permission, which was not the case. The second part of the charge spoke of wrongfully using documents in a court of law, which was again not proven and was untrue.
19. In respect of the sanction; she found it unfair and harsh. She was the victim and had a clean disciplinary record. She was sanctioned to a two months’ suspension without pay. This was unjustified. Her salary per month was R 48 235-75, as at the time of the arbitration. The sanction has not been implemented.
20. The Applicant stated that her disciplinary hearing was held 17 November 2023. She was informed of the hearing on 15 November 2023. On 17 November 2023 the hearing was held on virtual platform and Mr Mabaso was present. The Applicant did not apply for a postponement of the hearing as she needed the matter to be finalized. She challenged the finding of the chairperson in that, as per the disciplinary findings, paragraph 1.7, it was stated that he (the chairperson) perused the charges, when in fact he did not have such charges. She also disputed the comment in the disciplinary findings that she sought an adjournment.
21. The Applicant claimed that the disciplinary hearing was unfair in that she had a list of witnesses but some were not subpoenaed and no satisfactory reasons were furnished. In addition, there was a comprehensive list of documents requested, but same was not made available to the Applicant. The Applicant filed her appeal on 6 May 2024 and only received an acknowledgement on 13 June 2024. To date, the appeal had not been finalized and no feedback was furnished to the Applicant. The Applicant stated that the prolonged disciplinary hearing affected her physical and mental well-being.

RESPONDENT’S CASE

22. Venesh Harichand: was the principal of Newhome Primary. At the time of the dispute he was the acting principal of the same school. The Applicant requested for the use of certain documents from the school, namely the school management teams (SMT) minutes. The minutes emanated from a closed meeting and could not be used in a public domain. He advised the Applicant that he was to obtain clarity on whether the documents could be used. He advised the Applicant to obtain permission from employee relations. The Applicant replied to him and stated that she had no time to follow the process and would use the information at hand.
23. Harichand said he received an email from Attorneys Viren Naidoo and Associates, the attorney for the learner’s mother. He sent a letter to the Applicant, dated 25 July 2023, setting out the concerns raised by Attorneys Viren Naidoo, namely the submission of private and confidential documents, being
    • Document relating to the learner’s parent
    • Documents relating to the learner
    • Minutes of the SMT meetings
24. He gave the Applicant 7 days to respond and but received no feedback. He telephoned her and she said she would revert the following day. The Applicant communicated a letter, dated 10 August 2023, stating that the matter was sub judice and was an issue of evidence and further that the SGB had no authority to question legal proceedings. He found the Applicant’s response undermining. He received a complaint from a parent and it was his duty to investigate the merits of the complaint. He found that the Applicant, as his subordinate, was not willing to negotiate. He stated further that he acted in the role of her superior, being the acting principal. The matter should have remained internal and not proceeded in terms of a court process.
25. Harichand said that any reasonable person would have requested permission for the use of information. He specifically advised her that she was required to obtain permission from the department. Her response, in writing, was that she did not have time for processes and she would proceed to use the information. All minutes from meeting were internal and permission was required for external use.
26. All books of the learner belonged to the learner and such information could not be used outside the school, without the parent’s permission. He went on to state that any document used outside the school required his signature, and if he did not sign such consent, then he was undermined.
27. Harichand described the Applicant as a person that did not respect authority. She should have complied with authority, as he was her superior, but she failed to do so. He said the Applicant had reported him to SACE (South African Council of Educators). She made more than one hundred allegations against him and he was questioned by SACE and had to exonerate himself. This complaint emanated after the commencement of the hearing.
28. The Applicant used the learners profile, which contained all the details of the learner and the parents. This was housed in the office. No permission was sought for the use of such a document. The process required that the educator request permission from the administrative clerk to access the profile. This was not done. The parent of the learner was upset by the use of privileged information being exposed by the Applicant.
29. The matter was conveyed to the SGB and a decision was made to report the matter to the Department of Education. The Applicant was served with a disciplinary transfer while the matter was investigated. He said that the internal proceedings were correct and the sanction was justified, namely the two months’ suspension without pay and the precautionary transfer.

ANALYSIS OF EVIDENCE

30. The matter was referred as an unfair Labour Practice: In terms of section 186(2) (b) of the Labour Relations Act:
    S186 (2) (b) of the Labour Relations Act provides: ‘Unfair Labour Practice’ means any unfair act or omission that arises between an Employer and Employee involving, (b) the unfair suspension of an employee or any other disciplinary action short of dismissal in respect of an employee’.
31. The Applicant bore the onus to establish that the Respondent committed an unfair labour practice. In this matter disciplinary action had been taken. The Applicant was charged and was found guilty of the alternative charge as listed above. The Applicant challenged the finding of guilt and the sanction.
32. In making a determination of whether there was an unfair labour practice, in respect of disciplinary action, short of dismissal, the overall test is one of fairness. This has now been confirmed in Gcaba v Minister for Safety & Security & others (2010) 31 ILJ 296 (CC). The issue was whether the disciplinary action taken by the Respondent, the finding of the chairperson and the sanction was fair.
33. A Commissioner is required to have regard to the conspectus of the material presented, including but not limited to the nature and seriousness of the misconduct, the importance of the rule, the extent of similarity between the employee’s misconduct and other incidents of a similar nature, the consistent application of the rule, the harm caused by the employees conduct, her knowledge of and training about the rule, the reason the employer imposed the sanction, the employee’s disciplinary record and relevant mitigating factors.
34. At the outset I wish to state that both parties delivered written closing arguments. The argument by the Applicant was extremely lengthy and for the sake of brevity I have not summarised same. The crux of the argument is considered in my analysis below. The Respondent elected to stand by my decision.

PROCEDURAL FAIRNESS

35. The Applicant testified that she received the notice of the disciplinary hearing on 15 November 2023, at 3.30pm. The hearing was scheduled for 17 November 2023 and it continued till April 2024. The sanction was delivered on 29 April 2024. She submitted that her disciplinary hearing was not held within 1 month of being transferred nor did the hearing conclude within that time. It took approximately 230 days to finalise and the adjournments were occasioned by her employer.
36. The hearing first sat on 17 November 2023, and was adjourned for 5 days, due to short notice. She said the adjournment was unfair as she was prepared to proceed. I find no unfairness in this regard, as the adjournment was complying with rules. In terms of the Act, the educator must be given written notice, at least 5 days before the hearing. In this regard the hearing was adjourned to ensure she had sufficient time. There was no prejudice to the Applicant nor did it disfavour her.
37. There was immense time spent on technical issues, in that it was argued that the charge sheet made reference to “charges”, when it was a charge. I will not spend time dealing with these immaterial contentions as it did not create unfairness. The contentions were technical in nature and fairness, even in terms of procedure, had to be decided holistically.
38. The Applicant stated that the disciplinary hearing notice was undated. She claimed that the charge was vague and imprecise. She also stated the absence of details and information resulted in her lack of understanding of the alleged offence. She further testified that there was no evidence led on the charge and permission was required which was not granted.
39. I accept that the hearing took time to finalise but I find no unfairness on the part of the Respondent. One must bear in mind that the LRA together with the ELRC constitution requires swiftness in the finalisation of matters, but delays did not automatically equate to unfairness. The Applicant was placed on a precautionary transfer, which resulted in the hearing proceeding 30 days after that transfer. The issue before me is not one of unfair suspension but whether the disciplinary action, short of dismissal, was unfair. The precautionary transfer was part of the disciplinary action taken by the Respondent. The two months’ suspension was the sanction imposed by the Respondent, which has to date not been implemented. In this regard the time period and delay in the finalisation of the disciplinary hearing did not create unfairness.
40. The Applicant challenged the disciplinary findings on that basis that some of the submissions by the chairperson were factually incorrect. For instance, the findings recorded that the Applicant requested for an adjournment, which she verily denied. This was an error and certainly untrue. In addition, it referred to a charge, when actually two charges were put to the Applicant. She also submitted that a request for documents was made prior to the hearing, but none was supplied. The Applicant also requested a list of witnesses to be subpoenaed but again, not all were subpoenaed and no proper reasons were furnished.
41. The Applicant spent considerable time on the chairperson’s comments in the disciplinary finding, on the basis of inaccuracy, incorrectness, hearsay or untrue. Under cross examination the Applicant said that despite the challenges during the hearing she was given an opportunity to present her case, submit mitigation and closing arguments. She received the outcome and the sanction. She further confirmed that she was informed of her rights to appeal.
42. The Applicant claimed that several in limine points were raised at the hearing, namely that she was charged and disciplined outside the prescribed time period, clarity of charges and the details of witnesses but none were addressed by the chairperson. This conjecture was apparent in the report by the chairperson. I have no evidence before me to support the assumption that points were indeed not considered. The finding by the chairperson was a summary and not every submission or contention would have been recorded.
43. The Respondent, via Mr Harichand, was vague. He boldly claimed that the Applicant was afforded a fair hearing. He was not a convincing witness as he could not substantiate some of his averments. For instance, he was asked why the hearing took so long to finalise and Harichand could not elaborate. He was questioned about the application for disclosure and yet again, his response was nebulous.
44. In assessing the evidence of the Applicant I find that the Applicant was afforded the opportunity to present her case, cross examine witnesses, present arguments for mitigation as well closing arguments. Be that as it may, the Respondent fell short on other aspects. There were a number of inaccuracies in the finding. There were subpoenas issued but witnesses did not attend the hearing and this aspect was not addressed by the presiding officer.
45. I accept that procedural fairness centers on ensuring that employees are given an adequate opportunity to state their case, that they know the charges against them, and that the process followed by the employer is transparent, unbiased, and consistent with legal standards. Procedural fairness in disciplinary hearings forms a bedrock of fair labour practices and upholds the constitutional principle of fairness. The requirement of procedural fairness demands that an employer must conduct an investigation, inform the employee of the charges in a language they understand, grant the employee sufficient time to prepare, allow the employee representation, and ensure an impartial hearing. These principles collectively define what procedural fairness in disciplinary hearings should look like in a South African context. Even when certain procedural steps are absent, a commissioner may still find the entire process fair if it meets the minimum standards of fairness.
46. In this instance I am not entirely convinced that there was a fair procedure, even when the facts are considered holistically. There was no evidence adduced against the Applicant regarding the alternative charge. The Applicant requested for documents, which were never supplied. The Applicant raised points in limine, which I must admit was numerous, but there was no explanation by the chairperson as to why those points were dismissed or overruled. As such, I find that the procedure was unfair.

SUBSTANTIVE FAIRNESS

47. The Applicant impressed me. She was honest and forthright and gave her evidence in a simplistic manner. I must pause to note that she was emotional at times. At this juncture I must also mention that her union representative was also her husband. This resulted in a significant amount of leading questions and numerous objections. I do not find that his leading questions affected the authenticity and truthfulness of her evidence. Rather, his leading questions was due to a lack of experience coupled with emotion. The Applicant personally felt violated and unprotected in her work environment which led to intermittent emotional breakdowns.
48. The Applicant set out the background of the matter that led to the charge. From March 2023 she was harassed by a parent of a learner who claimed that she defaced the learner’s book and pulled the test paper away. The principal of the school supported the parent in their allegations. She said the principal did not follow procedure in that he placed her before the parent, which was unprocedural. This resulted in her lodging a grievance against the principal. She explained that the harassment persisted and the circuit manager intervened and suggested that all issues be addressed via him to the school principal.
49. Harichand confirmed under cross examination that the parent of the learner lodged several complaints against the Applicant. He further admitted that the parent came to the school with the police on several occasions. This was a daunting experience as the Applicant felt victimized and violated. It was conceded by Harichand that he did not offer support to the Applicant as she laid a grievance against him. It was evident that the parent of the learner harassed and hassled the Applicant with unfounded allegations, which resulted in the latter seeking legal protection.
50. On 2 May 2023 there was a serious allegation against her involving the same learner when the parent claimed that she instructed the child to swallow a bead as medication. The class teacher for the learner confirmed with Harichand that the learner had the bead in class, and when questioned, the learner said her mother asked her to consume it. Video footage was accessed and there was no evidence that the learner entered the Applicant’s class. The footage was not made available at arbitration.
51. The parent of the learner became vocal and accusatory and posted on social media that a teacher attempted to murder her child by handing her a bead to swallow. This post had 199 views. It was brought to the attention of the principal and the circuit manager but no steps were taken to protect the Applicant.
52. The Applicant felt humiliated and disgraced which resulted in her seeking an interim protection order on 24 May 2023. The parent obtained a counter protection order on or about June 2023, which again stated that the Applicant gave her child a bead to swallow, defaced the learners book and isolated her from her friends. The Applicant responded to the counter protection order and provided documents to her attorney, disproving the allegations against her. The parent then withdrew the counter order.
53. At that point the Applicant handed some 200 pages of documents in preparation of the counter order. The documents were handed to her attorney but were never used in court. She could not confirm if the annexures to her affidavit contained copies of the leaners book as her affidavit was prepared by her attorney. I accept that legal intervention was warranted to protect the Applicant’s dignity and reputation.
54. Now I must pause to note that none of the documents produced at the hearing demonstrated it was the property of the school or that it was in fact used in a court of law. The principal of the school, Harichand, further could not confirm if the documents were indeed used in a court of law. The charge related to two statements from the teachers, which were considered to be the property of the school.
55. It was common cause that the parent withdrew her counter order, hence the documents annexed to the Applicant’s opposing affidavit, were were never sent to court. The Applicant emphatically stated she did not unlawfully possess any document. The charge spoke of being in possession of documents without permission, which was not the case. The second part of the charge spoke of wrongfully using documents in a court of law, which was again untrue.
56. Under cross examination the Applicant verified that she did not take any school documents or that it was used at court. The information used for the court proceedings were not the property of the school. The documents used were the work of the learner, which she had in her possession. This was not prohibited by Harichand or the Respondent. Over the years she collected samples of leaners work for growth and mentoring. She supplied this information to her attorney to substantiate her version that it was a style of marking. There was no rule prohibiting her from defending herself, which included samples of learner’s work. She was publically humiliated by the learner’s mother and it was understandable that she had to defend her integrity.
57. I need to take a moment to discuss the evidence of Harichand who was the acting principal at the time of the incident. He went to great lengths to describe the Applicant as being an insubordinate employee. He repeatedly said that he was her superior and permission should have been sought by her. Undoubtedly he wanted the Applicant to recognize that she was his subordinate. In terms of his evidence he said the Applicant requested for the use of certain documents from the school, namely the SMT minutes. The minutes emanated from a closed meeting and he emphasized that it could not be used in a public domain. I accept he advised the Applicant to obtain permission from employee relations. I further accept that the Applicant’s reply to him was not what I would consider courteous. Clearly that upset him, as he was quick to say that she was unwilling to follow processes. Evidently the Applicant’s response was that she no time to follow the process and would use the information at hand. I have no doubt that this annoyed him as he repeatedly made mention of it.
58. Harichand received an email from Attorneys Viren Naidoo and Associates and he then sent a letter to the Applicant, dated 25 July 2023, setting out the concerns raised by the Attorneys regarding the use of private and confidential documents, which were:
    a. Document relating to the learner’s parent:
    b. Documents relating to the learner
    c. Minutes of the SMT meetings
59. The Applicant’s reply to Harichand was that the matter was sub judice and was an issue of evidence and further that the SGB had no authority to question legal proceedings. Harichand was irate by the response. He found that the Applicant, as his subordinate, was not willing to comply. Harichand did not refer to any policies or protocols but said that any reasonable person would have requested permission for the use of information. At this juncture I find that Harichand was more upset by the fact that the Applicant did not succumb to his authority and proceeded to defend herself.
60. Harichand expressly stated that all books of the learner belonged to the learner and such information could not be used outside the school, without the parent’s permission. He added that any document used outside the school required his signature, and if he did not sign such consent, then he was undermined. At this point I once again find that Harichand was more consumed with the levels of authority than the actual conduct of the Applicant. He specifically stated that the Applicant did not respect authority. He harped on the point that the Applicant should have respected him as her superior, but she failed to do so.
61. It was conceded by Harichand, after vigorous cross examination, that the same parent made more than one complaint against the Applicant. There were at least four complaints. It was obvious that the parent had a personal issue with the Applicant. Harichand as the principal of the school was aware of all the incidents but took no steps to protect the Applicant. At no stage was she found guilty of any offences. There were allegations of removing the script which Harichand claimed the Applicant was found guilty. I must note that there was no evidence in this regard. His evidence was thus untrustworthy and unsupported. There were no records of any form of discipline for any of the four matters. Oddly, Harichand claimed she was guilty but had no record of it. He was an extremely poor witness and I am loath to rely on his evidence.
62. A concerning factor of bias was that the relationship between the Applicant and Harichand which was acrimonious. This was evident from both their testimonies. Harichand was aware of the situation with the learner and the false allegations and took no steps to protect his own educators. To the contrary, he simply expected the Applicant to seek permission for matters that involved her integrity and dignity. I accept that she used the learners book and minutes of meetings. The manner in which the evidence was portrayed was exaggerated. It was as if the Applicant used privileged information about financials of the school. The Applicant simply used the parent information, the learner’s statements and minutes of the SMT. Harichand conceded under cross examination that he did not produce any proof at the disciplinary hearing that the documents were actually property of the school. The parent information and the learners book was not the property of the school and if permission was required, it could only be given by the parent. Permission was not required from Harichand. In so far as the minutes were concerned, that was not privileged information that necessitated approval. Harichand further confirmed that he had no evidence that the documents were before court of law.
63. Unmistakably he was upset that the Applicant had reported him to SACE and he had to exonerate himself. This complaint emanated after the commencement of the hearing. At this point I must note that the complaint was handed prior to the finalization of the disciplinary hearing, which I find impacted on the outcome of the hearing.
64. Harichand was inconsistent and changed his versions. At the disciplinary hearing he stated that the documents came to his attention from the Attorney but under cross examination he said he was unsure. He then claimed that it may have been accessed by Mrs. Magosa.
65. Harichand also conceded that there was no investigation but the Applicant still remained on a precautionary transfer, that exceeded 800 days. He deliberately evaded questions, under cross examination, that demonstrated his conduct was unfair. He was elusive and claimed he was not in a position to talk on behalf of the department and its actions. It was eventually conceded that the precautionary transfer in terms of time frames was an unfair labour practice.
66. Harichand reported the matter to the School Governing Body (SGB) for them to decide on what recourse should be taken. In this case it was somewhat concerning why the matter was indeed reported to the SGB. Harichand’s response was that it was a matter of safety. The Applicant utilized privileged information which was considered to be a safety issue. The use of the learner’s book and information cannot, in any reasonable way, be considered to be a safety concern. This was rather far-fetched and I have no doubt that Harichand wanted the Applicant investigated and charged. It was a calculated act based on his personal disputes with her.
67. I must mention that the Applicant was a Departmental Head and supervised a group of educators. At no stage did she believe that her conduct was wrongful or that permission was required. It was challenged by Mr Daniso that the Applicant failed to follow policies, protocol and apply common sense. I find there were no policies nor were there any protocols. The Applicant acted on the advice of her attorney. She verily did not believe, nor was there any rule in place, that permission was indeed required.
68. It must be reiterated that the information was never used at court and it was only submitted to the learner’s attorney and the Applicants attorney. It may have been transmitted outside the school but the Applicant always maintained that permission was never required, as this was never a rule or policy. As such I find that the charge “that in July 2023, without permission possesses or wrongfully used the school information in the court of law, thereby contravened section 18 (1) (c) of the Employment of Educators Act”, could not be proven.
69. There was also a request for additional documents from Harichand. The request was made in July 2025 wherein a subpoena was served on 12 July 2025. The Applicant requested for notices and minutes of the internal disciplinary hearing, minutes of meetings and SMT meetings in 2023, notices and minutes of staff meeting in 2023, minutes of all SGB meetings in relation to the Applicant, interview forms of L C Vincent, meeting and minutes with L C Vincent, classwork books for 2023 for Lisa Hoosen and other documents. These documents were never disclosed by Harichand or the Respondent. As such, in my capacity as an arbitrator, I must draw a negative inference. I am not acknowledging that all the documents are relevant, but there was a formal request and indeed a subpoena, but the Respondent completely failed to abide by same. These documents should have been in Harichand’s possession but he simply did not hand same over for disclosure.
70. Harichand confirmed under cross examination that he personally never found the Applicant in wrongful possession of the documents. He was the sole witness at the disciplinary hearing and at arbitration. The Applicant was charged for wrongful possession of school property but he admitted that it was not the property of the school. He further conceded he did not find the Applicant in possession of the documents.
71. FINDING: Based on the reasons above, I find the Applicant not guilty of the charge. The conclusion arrived at by the chairperson was unfair. As such the finding of guilt is to be set aside.
72. The precautionary transfer is to be uplifted.
73. The Applicant was handed a two months’ suspension without pay. This finding has now been set aside by the MEC, who replaced the sanction with a final written warning. Based on the reasons above and my finding of not guilty, the final written warning will not apply, as this arbitration was a hearing de novo.
74. The Applicant requested for compensation. In this regard I have considered that she was transparent and honest. She was extremely emotional and it was evident that her reputation was tarnished. The Applicant produced medical records that supported her version of her mental and emotional state. She was not eligible for promotion and the finding of guilt had a significant impact on her and her family. In the circumstances I find that an award for compensation is fair and justified. The Applicant earned R 48 235-75 per month and I hereby grant two month’s compensation. Award
    I make the following award:
75. The Respondent committed an unfair labour practice in that the finding of guilty in respect of the alternative charge was unfair.
76. I find the Applicant not guilty of the charge.
77. The precautionary transfer is therefore unfair and the Applicant is to return to school at Newhome Primary and must report for duty on 14 January 2026.
78. The Respondent is ordered to pay the Applicant compensation for their unfair labour practice in respect of disciplinary action, in the sum of R 96 471,50 gross (less any statutory deductions for tax), which is to be paid by no later than 31 January 2026.

ELRC Commissioner : VEESLA SONI
Date : 10 December 2025