Case Number:    
ELRC27-24/25NC
Commissioner: Simon Beesnaar
Date of Award: 27 June 2025

In the ARBITRATION between

Gayronese Webb
(Union/Applicant)

and

Department of Education – Northern Cape
(Respondent)

Union/Applicant’s representative: Ms. Gayronese Webb – Self-represented
Union/Applicant’s address:

Telephone: 074 013 3039
Telefax:
E-mail: gayronesewebb@gmail.com

Respondent’s representative: Mr. Ferdinand Bitterbosch – Manager: Labour Relations.
Respondent’s address:

Telephone: 082 041 7262
Telefax:
E-mail: fdbitterbosch@gmail.com

DETAILS OF THE HEARING AND REPRESENTATION

1. This is the award in the arbitration between Gayronese Webb, the employee and the Northern Cape Department of Education, the employer.
2. The inquiry was conducted under the auspices of the Education Labour Relations Council (ELRC) in terms of section 188A of the Labour Relations Act, 66 of 1995 as amended (herein referred to as “the LRA”) and the award is issued in terms of section 138(7) of the LRA.
3. The arbitration was scheduled on 27 and 28 May 2025 at the Colesburg Magistrates’ Office.
4. The employee appeared in person and she was not represented. The employer was represented by Mr. Ferdinand Bitterbosch in his capacity as Manager – Labour Relations. He was accompanied by Messrs Dambo and Mali as observers.
5. Mr Bitterbosch submitted into evidence bundles of documents referred to herein as Annexure “A1-56”.
6. The proceedings were conducted in English and were manually and digitally recorded. Mr. Banga assisted the parties in Afrikaans as Interpreter, while Ms Tyebela assisted the minor child as Intermediary. The name of the learner (minor witness) will be concealed to protect his identity.

ISSUES TO BE DECIDED

7. The issue/s is whether the employee, Ms. Webb committed alleged misconduct as per the disciplinary notice dated 8 April 2024. She was charged on two (2) counts of misconduct and alternatives (see A1-2 and paragraph 12 below).
8. It is the employee’s contention that she did not breach any rule as alleged by the employer.
9. The consistency in the application of the rule alleged to have been breached is also in dispute.
10. The procedural challenge related to the allegations by the applicant that she was not given a hearing on the alleged misconduct.
11. If I find Ms. Webb guilty of the charges proffered against her by her Employer, I must determine the appropriate sanction.

BACKGROUND TO THE DISPUTE

12. The employee was an Educator at Gariep High School. She started on 1 January 2017, Post level 1 Educator. She earned R 18 095,00 per month. She was charged on two counts of misconduct and alternatives (see A1-2) –
    Ms. G.E. Webb
    Gariep High School
    P O Box 300
    PRIESKA
    8940

SUBECT: DISCIPLINARY HEARING – YOURSELF
This is a notice to attend a disciplinary enquiry in terms of item 5 of Schedule 2 (Disciplinary Code and Procedure) of the Employment of Educators Act 76 of 1998.
COUNT 1
On or about January 2024 and February 2024 at or near Gariep High School (the school) in Prieska you committed an act of misconduct in terms of section 17 (1)(c) of the EEA in that you, inter alia, had sexual relationship with a learner MB (15 years of age and in grade 9C) at the school where you are teaching, while you knew or ought to have known that you were not allowed to do so.
ALTERNATIVE COUNT 1
On or about January 2024 and February 2024 at or near Gariep High School (the school) in Prieska you committed an act of misconduct in terms of section 18(1)(ee) of the Employment of Educators act of 1998 in that you, inter alia, committed an act of dishonesty when you were interviewed by the manager of labour relations of the employer (Mr. FD. Bitterbosch) on the allegations that you had a sexual relationship with learner MB (15 years of age and in grade 9C) at the school where you are a teacher, while you knew or ought to have known that you were not allowed to do so.
COUNT 2
On or about January 2024 and February 2024 at or near Gariep High School (the school) in Prieska you committed an act of misconduct in terms of section 18 (1)(dd) of the Employment of Educators Act 76 of 1998 in that you, inter alia, statutory raped learner MB (15 years of age and in grade 9C) at the school where you are teaching, while you knew or ought to have known that you were not allowed to do so.
ALTERNATIVE COUNT 2
On or about January 2024 and February 2024at or near Gariep High School (the school) in Prieska you committed an act of misconduct in terms of section 18(1)(ee) of the Employment of Educators Act 76 of 1998 in that you, inter alia, committed an act of dishonesty when you were interviewed by the manager of labour relations of the employer (Mr. FD. Bitterbosch) on the allegations of statutory rape of learner MB (15 years of age and in grade 9C) at the school where you are teaching, while you knew or ought to have known that you were not allowed to do so.

13. The hearing was held on 24 and 25 October 2024 in her absence and she was dismissed on 11 November 2024. While the employee was not present at the hearing, it is common cause that she made no attempt to apply for postponement.
14. The matter was then referred to the ELRC to be resolved in terms of section 188A of the LRA. The employee applied for legal representation and the application was granted. Arbitration was scheduled on 10 June 2024. Neither the applicant nor her Legal Representative was present.
15. The hearing proceeded in their absence and a Default Award was rendered on 25 October 2024. That was followed by a rescission application and was granted.
16. The relief sought by the employee in the circumstances is retrospective reinstatement.

PRELIMINARY ISSUE
Applicant’s submissions –

17. At the outset of the arbitration proceedings there was an application for postponement by the employee, Ms. Webb. The reason for the application was that her Legal Representative (Legal Rep) was not available. She requested that the arbitration hearing be rescheduled to a later date.
18. It was her submission that her Legal Rep was dealing with another criminal matter at the court and could not make it to the inquiry. Further that it would be unreason to expect her to deal with the matter of that magnitude without being assisted by someone with legal background.

Respondent’s opposition –

19. Mr Bitterbosch vehemently opposed the application for postponement. He submitted that the applicant and her Legal Rep are making a mockery of the Council proceedings. That was based on the fact that it had now become a pattern on their part to stall the proceedings with unnecessary postponement applications.
20. This has happened before according to him. The same reasons were submitted when they failed to attend the inquiry on 10 June 2024 after which a Default Award was rendered.
21. He maintained that the parties were notified timeously of the set down. The applicant and her Legal Rep had ample time to make proper arrangements. Further that the applicant failed to make a case for postponement of the arbitration matter, and therefore arbitration should proceed as scheduled.
22. Mr. Bitterbosch maintained that the applicant’s submission that she has no knowledge on labour dispute was without merits. She applied for Legal representative and was granted. Failure by her Legal Rep to attend the inquiry because of other commitments at the court should not be accepted to justify postponement.

ANALYSIS OF THE SUBMISSIONS

23. In deciding whether to grant postponement of the arbitration or not, I am guided by the Rules for the Conduct of proceedings before the ELRC (the ELRC Rules) that regulates how to postpone an arbitration and/or how to bring such an application before the Council.
24. An application for postponement must be made timeously and as soon as the circumstances which may justify an application become known to the applicant. However in cases where fundamental fairness and justice justify a postponement, the Council / the Commissioner may in appropriate cases allow a postponement even though the application was not made on time.
25. The application must always be bona fide and not used simply as a tactical manoeuvre for the purpose of obtaining an advantage to which the applicant is not legitimately entitled. The Council / Commissioner has a discretion whether an application for postponement should be granted or refused. The discretion must always be exercised judicially and for substantiated reasons and should never be exercised capriciously or on incorrect principles.
26. An application brought on the scheduled date of the arbitration should only be considered if it is shown that good cause exists for treating it as urgent application in respect of which the requirements of Rule 31 may be dispensed with in terms of Rule 31 (8). I have considered the submissions made by the applicant and the respondent’s opposition and make a determination here after.
27. In an urgent application, the Commissioner or the Council may dispense with the requirements of the Rules and may determine an application in any manner it deems fit, provided that the Commissioner or the Council informs the parties on how the process will be conducted and gives the parties an opportunity to be heard.
28. Both the applicant and the respondent were indeed given an opportunity to make their representations which were thoroughly considered when a determination on the matter was made. I noted that the application for postponement was opposed.
29. In Carephone (Pty) Ltd v Marcus NO and others (JA 52/98) [1998] ZALAC 11; (1998) 19 ILJ 1425 (LAC) (handed down on 1 September 1998), it was held that the granting of an application for postponement is not a right. It is an indulgence granted by the Court in the exercise of a judicial discretion (it is submitted that this also applies to proceedings before the CCMA).
30. It is important to note that arbitration proceedings must be structured to deal with the dispute fairly and quickly (section 138(1)) of the LRA. Further that the proceedings must be conducted with the minimum of legal formalities. The ability to make costs orders to counter prejudice in good faith postponements is severely restricted.
31. When it comes to considering a request for a postponement, considerations for prejudice will ordinarily constitute the dominant component of the total structure in terms of which the discretion will be exercised. I should weigh the prejudice which will be caused to the Respondent in such an application if the postponement is granted against the prejudice which will be caused to the Applicant if it is not.
32. The records show that the same/similar application was made before as submitted by the Employer Rep. After a lengthy process of a Default Award and a rescission application we are apparently back to square one. That in my view, defeats the purpose of expeditious resolution of labour disputes. I also considered that expeditious resolution should be balanced with fairness.
33. The victim in the circumstances of this inquiry is a minor child who is expected from time to time to come and testify. This is taking much of his school time. I am of the opinion that his constitutional right to education is being infringed (see Chapter 2 of the Constitution, Act 108 of 1996). While it is expected of him to put much focus on his school work and future, further postponements on this matter is a damning distraction that cannot be taken lightly.
34. While the employee’s Legal Rep was not present as she submitted, she was reassured that it is not unprecedented to proceed with arbitration when one or the other party is unrepresented. The important aspect of the ‘helping hand’ principle was explained to ensure that the issues in dispute are properly ventilated (see Nkomati Joint Venture v CCMA & others (2019) 40 ILJ 819 (LAC).
35. In light of the foregoing, I am not persuaded that the employee made a case for postponement and I am of the view that it is not in the interest of justice to grant the application. In the circumstances I make the ruling here after –

RULING

36. The application for postponement is not granted.

SURVEY OF EVIDENCE AND ARGUMENT
Respondent’s evidence –

37. Mr. Aron Gumede is a Warrant Officer (WO) at the South African Police Service (SAPS). He has been a Detective for twenty (20) years. He works at Prieska within the Family, Child Protection & Sexual Offenses Unit (FCS). He investigates cases against women and children (GBV) and sexual offences/assaults.
38. He stated that he was aware that the employee, Ms. Webb was charged in terms of the Department’s disciplinary code as per the notice of the hearing in A1-2. He was also made aware of the statement made by the parents of the minor. He appended his signature at the bottom thereof and read it into the records (see A3). He further testified that A4-7 which he also signed correlated with A3 he just read.
39. Further that A4-7 is a statement of MB, the learner at Gariep High School. This statement was brought under his attention by the Learner himself and he understood his version. It was further his testimony that a case of statutory rape against the employee was under SAPS investigation.
40. MB is a learner at Prieska High School. He was a learner at Gariep High School in 2024 and is currently 17 years of age. He submitted that he understood why he was at the inquiry and that he knew the employee Ms. Webb. They were in a romantic relationship.
41. He further stated that he was aware that Ms. Webb was charged for sexual assault on him at the school while he was 15 years. He confirmed that he wrote a statement as per A4-7 that he signed. It was made in the presence of a Police Officer, his mother and his class teacher Mr. Dick. He read paragraphs 1 and 2 of A4 into the records. He confirmed that he had a crush on her.
42. He went to Ms. Webb’s place of residence several times as per paragraph 3 of A4. He was again made to read paragraphs 5 and V/V to the records and 6-9 in A5. He confirmed having had sexual intercourse that night with her and without a condom. She then gave him money to buy the morning after pills. It was his testimony that he had a romantic sexual relationship with Ms. Webb and had sex more than once.
43. He was again made to read paragraph 12 in A6 into the records. He confirmed that he slapped her on the face because of jealousy that she was speaking to another man over the phone in his presence. Further that Cleo-Jay was his former girlfriend and Ms. Webb was upset about the fact that her name appeared on his face-book page. He confirmed that he was chatting on WhatsApp with her regularly. He referred to her on WhatsApp as “baby” and she responded positively. He told her that he was in love with her and that she was his “baby” and she did not have a problem with that.
44. He further stated that he did not want to see her in any troubles regarding their affair and wanted to protect her. He confirmed that A37-42 depicted the school hostel where Ms. Webb was staying. He could see the bedroom and the bed they slept on when they had sexual intercourse.
45. Mr. Hyne Dick was an Educator at Gariep High School. He is currently retired after he worked as a temporary teacher from 2023 to 2024. He worked with Ms. Webb at the same school. He also knew the learner, MB. He was his subject and class teacher.
46. He stated that A4-7 was the learner’s statement and he was familiar with its contents. He also signed it. He was asked by the child’s parents to assist and gave him support when he made the statement in the presence of a Police Officer. He further confirmed that he was present when the minor made his statement before a Police Officer.
47. He made his own statement (A35-36) and read it into the records. That confirmed what the learner testified on and that was what he told him. That was after some of the learners asked him to speak to MB because he was apparently in a romantic relationship with the Educator, Ms. Webb. He called the learner to see him. He asked him about his relationship with the teacher and he denied everything.
48. Later, on 30 January 2024, the learner came to him and confessed about the romantic relationship with Ms. Webb. While they held that conversation, he recorded everything that was said on his daughter’s phone. He stated that MB further confessed to have had sexual intercourse with the teacher. He felt duty bound as an Educator to protect the minor child. He advised him to tell his parents about the affair but he was reluctant to do that.
49. He also stated that on 31 January 2024 he visited the learner’s parents at home. They wanted him to help them remove the child to another school. On his arrival, he found the learner’s mother in tears. She told him that MB’s nephew informed her about his romantic affair with Ms. Webb. He confirmed to her that MB confessed to him too about his love affair with the teacher.
50. Ms. L. Boks is a Social Worker in the Department. She was aware of the investigations against Ms. Webb on allegations of statutory rape on a minor / learner. Further that she was charged and dismissed for misconduct on allegations of sexual assault on a learner. During the investigations, she was approached by Labour Relations Unit to do the emotional stability of the learner in relations to what he went through.
51. She then made an appointment with the learner and his parents to investigate. She also made an investigation on how the learner was coping at school and in the community. A33-34 is a report she compiled after she engaged the learner and his mother. She confirmed that the learner mentioned the teacher’s name as Ms. Webb and that they were in love.
52. Further that the learner felt guilty that he betrayed her lover because he wanted the affair to be kept secret. She concluded that this relationship affected the learner emotionally.
53. Ms. Bernedette Botha is the learner’s mother. She testified that MB was born in April 2008 and is still a learner. Further that he is currently attending school at Prieska High. He was moved from Gariep High after he had a romantic affair with a teacher. He did not want to go back to that school and he was assisted with a remove to Prieska High.
54. She confirmed that the teacher in question was known to her, and further that she had a romantic affair with a child of school going age. On 27 January 2024 she came home from Cape Town around 05:00. On her arrival, she observed that MB was not home while everyone was still asleep. She maintained that it was so strange because he never used to sleep out.
55. Later on, during the early hours of the day, she confronted him and he would not tell the truth. MB left thereafter and went to his grandma’s place. He then went to town with his nephew from there. At around 12:00 his cousin Nicole came to her. She informed her that MB came to her early hours of the morning and told her that he slept with Ms. Webb. Further that Ms. Webb gave him money to buy morning after pills.
56. She stated that morning after pills are known for their use in preventing HIV/AIDS and pregnancy. She concluded that they had unprotected sex. She also found out later that MB went to the hospital to test for HIV and he was given Prep/tablets to take for the whole month. She testified further that his attitude changed completely. He was disrespectful towards them like never before. She also learned from the teacher, Mr. Dick that he was having a romantic affair with Ms. Webb.
57. She went to the school and informed the School Principal and the SGB about the affair and her unhappiness. She lamented that she sent her child to school to learn and not to get romantically involved with the teacher. Further that her child was emotionally affected by this affair and her heart was broken. She maintained that this matter needed to be investigated thoroughly and consequences must follow. It was her wish not to have this happening again to any parent or learner.

ANALYSIS OF EVIDENCE AND ARGUMENT

58. This is an inquiry in terms of section 188A of the LRA. The employee seeks retrospective reinstatement should I find in her favour. In determining the dispute between the parties, I considered the provisions of the LRA and the Code of Good Practice: Dismissal (herein referred to as “the Code”) and came to the following findings.
59. Section 185 of the LRA stipulates that every employee has the right not to be unfairly dismissed or to be subjected to an unfair labour practice.
60. It is acknowledged that given the nature of the respondent’s business and the risks involved, it is crucial that it should have rules, policies, codes and procedures in place. A breach of such rules and policies should obviously not be treated lightly as the consequences could be so dire. However, in considering the appropriate sanction for any breach, the employer is required to do so dispassionately and fairly. Where the employer has consistently ensured that the rules and policies are adhered to at all times and has consistently dealt with any breaches, any disciplinary action it takes pertaining to similar breaches would obviously pass the test of fairness.
61. The substantive fairness of a dismissal for misconduct is assessed according to a number of criteria. These are set out in item 7 of the Code of Good Conduct: Dismissal.
62. Paragraph (a) of item 7 requires the employer to prove, on a balance of probabilities, that the employee was actually guilty of misconduct. This involves proving that a rule existed, and that the employee actually broke that rule. The existence of a rule may be proved by reference to the employee’s contract, or to an applicable collective agreement or disciplinary code. However, the rule need not exist in written form; it is generally assumed that certain conduct is calculated to destroy the employment relationship, whether or not it is expressly prohibited in a contract or disciplinary code, and that the employee knew or should have known that this conduct could lead to dismissal.
63. For example in Early Bird Farms (Pty) Ltd v Mlambo (1997) 5 BLLR 541 (LAC) at 544, it was held that the employer did not have to prove with absolute certainty that the employee was guilty of the alleged misconduct but that proof on a balance of probabilities was sufficient.
64. The employee is charged on two counts of misconduct and alternatives in terms of schedule 2 of the Employment of Educators Act 76 of 1998 (the EEA) (see paragraph 12 supra).
65. While the employee submitted that she did not breach any rule, it is important to note that she did not lead evidence to prove that she was not guilty nor cross examine witnesses of the employer. The employee was present and heard the testimony of the employer’s first witness, W/O Gumede and submitted that there was nothing to cross examine on after the process was extensively explained.
66. After lunch when the learner took the witness stand, the employee did not return as expected. After 15 minutes or so I called to find out about her whereabouts. She indicated that she was at the hospital but did not explain the reason for being there. I directed that she will be given another 15 minutes to make her way back to the proceedings and the conversation was ended on that note.
67. The employee did not come back and without any plausible explanation, the proceedings resumed at 14:30. The hearing of the employer’s second witness continued in her absence and the learner’s testimony concluded. The proceedings were adjourned for the day and continued the following day, 28 May 2025 as scheduled by the Council. The employee was a no show without a reason. The employer led evidence through three witnesses on the second day of the arbitration and concluded their case.
68. The employer requested to do written closing heads of arguments on 3 June 2025 and the request was granted. I was also made aware through an email from the Council on 3 June 2025 that the employee submitted a sick note that she was seen by the doctor on 27 May 2025 and declared unfit for work as from 27 May 2025 until 30 May 2025. While the employee was declared unfit for work, it did not say she would not be able to give testimony at the arbitration.
69. In my view unfit for work does not mean that one cannot testify, unless it is specified that she took some medication that could lead to poor concentration or drowsiness. If the sick note was needed for the purpose of stalling the arbitration proceedings, she should have explained that to her doctor. She was not expected to be at work. I am also puzzled as to why the sick note is only shared eight (8) days post arbitration hearing.
70. It is the employer’s unchallenged case that the employee committed a misconduct in contravention of section 17(1) (c) and 18 (1) (dd) of the EEA. The employer led evidence through five (5) witnesses who testified and confirmed that indeed she had sexual relationship with a learner or that she committed statutory rape on him.
71. That is in terms of Count 1 and 2 (see A1-2). The testimony of all 5 witnesses remained unchallenged. I have no reason not to accept their testimony as truthful. While the employee also stated that she was not given an opportunity to state her case, I find differently. She was afforded an opportunity more than once and she blew it. The ‘helping hand’ principle was explained thoroughly from the outset and she did not salvage the opportunity.
72. While she alleged that she did not breach any rule, I fail to understand why she would not allow anyone to hear her own testimony and evidence on the allegations against her.
73. Statutory rape refers to a legal term that defines sexual activity between two individuals, of which one is below the age of consent. In South Africa, the legal age of consent is 16. It is common cause that in or around January and February 2024, the learner Marlin Botha was 15 years old. It was his mother’s uncontested testimony that he was born in April 2008. Statutory rape focuses on the age difference between the participants rather than the presence of coercion or lack of consent.
74. The core premise is that individuals under the age of consent are considered legally incapable of providing informed consent to engage in sexual activity with an older partner, even if they may agree to it. This legal concept was created to protect minors from potential exploitation by adults in position of authority or trust.
75. The nature of the misconduct is undeniably serious and is prevalent in society. It is the learner’s mother and that of the Social Worker that this conduct by the teacher changed the behaviour of the learner and left him with an emotional scar that will take time to heal. He felt guilty and blamed himself for what has befallen the teacher. That is overwhelming in my view on a minor child. The impact is devastating to learn that at some stage they had unprotected sex and without being circumspect, the teacher sent the learner off to go buy the morning after pills. That is degrading and dehumanising.
76. If as the learner stated that he had a crush on her, she should have admonished him and reported that to his parents and the authorities (School Principal) instead of entertaining it in secrecy. Secrets have their own way of rearing their ugly heads. She should have known better. Her conduct constitutes misconduct justifying a dismissal. On the alternative charges, I find that there was no evidence led to substantiate the allegations of dishonesty on the part of the employee.
77. In Numsa and another v Tokiso Dispute Settlement and others JR 2049/09 [2014] ZALCJHB 237 (handed down on 17 June 2014) it was held that the employer bears the overall onus at the end of the arbitration of proving that the dismissal was procedurally and substantively fair on the evidence presented. However, there is no reason in principle why an employee, who after all is claiming the dismissal is unfair, should not present evidence in support of that contention, which the employer must successfully rebut in order to succeed.
78. On the inconsistent application of the rule, there was no evidence led as alleged. It is highly notable that over the years the Courts have exercised caution when dealing with cases where inconsistent application of discipline happened to be an issue. It further held that it is trite that a plea of inconsistency should to a large extent be sparingly upheld by Arbitrators and with or without invitation, an Arbitrator is required to apply a discretion that is upon a consideration of all facts placed before him/her. The reason being that the raising of inconsistency cannot automatically constitute a bar to the imposition of dismissal.
79. For this reason I find that the employer discharged the onus of showing that the employee was guilty as charged. The above evidence supports the charges.
80. Having said this I am now required to consider the appropriate sanction in this case. The employee is convicted for a serious misconduct in terms of section 17 and 18 of the EEA. In terms of the said section, dismissal is mandatory.
81. Finally, the employee is also disputing procedural irregularity. She alleged that she was denied an opportunity to be heard. The issue was not substantiated and I am not persuaded.
82. In light of the above I find that the employee is guilty as charged and make the award herein after –

AWARD

83. The employee, Ms. Gayronese Webb is unsuitable for corrective discipline as she never showed remorse for her unacceptable conduct. She was entrusted with the care of children. It was expected of her to be more circumspect in her conduct towards learners. The society must be able to trust her unconditionally as an educator.
84. Due to the serious nature of the misconduct committed on or around January and February 2024, the employee is summarily dismissed from the employ of the Department of Education – Northern Cape. Dismissal is mandatory under the circumstances.
85. Further that I find Ms. Webb unsuitable to work with children in terms of section 120(4) of the Children’s Act 38 of 2005 as amended (Children’s Act). The General Secretary of the Council must, in terms of section 120(1) of the Children’s Act, notify the Director-General: Department of Social Development in writing of the finding of this forum made in terms of section 120(4) of the Children’s Act that Ms. Webb is unsuitable to work with children, and for the Director-General to enter her name as contemplated in section 120 in Part B of the register.
86. I also find that Ms. Webb is in breach of the South African Council of Educators’ (SACE) Code of Professional Ethics as prescribed in terms of the South African Council of Educators Act 31 of 2000 (SACEA). In terms of clause 5.4 of the ELRC Collective Agreement 3 of 2018, the General Secretary shall send a copy of this award to the SACE.

Name: SM. Beesnaar

(ELRC) Arbitrator