Case Number: ELRC289 – 25/26EC
Commissioner: MBULELO SAFA
Date of Award: 28 October 2025

In the ARBITRATION between: –

EASTERN CAPE DEPARTMENT OF EDUCATION
Applicant/EMPLOYER

And

LUTHANDO BALAN
Respondent/EMPLOYEE

   DETAILS OF THE HEARING AND REPRESENTATION

1. The matter was set down for Arbitration on the 08 August 2025 and concluded on the 06 October 2025 at the offices of the Employer in KD Matanzima Building in Mthatha.
2. The employer was represented by Mr Siyabonga Gashi, who is the Labour Relations Officer of the Employer and the employee was represented by Mr Lungile Fazi from the union, SADTU.
3. Mr Siya Duma was the interpreter and Ms Nolulamo Nxala was the intermediary, and both were appointed by the ELRC and only appeared on the 18 August 2025.
4. The proceedings were recorded in an audio recorder.

ISSUES TO BE DECIDED

5. Whether or not the employee is guilty of the charges proffered against him, and if he is guilty impose an appropriate sanction in terms of the Employment of Educators Act.

BACKGROUND TO THE ISSUE

6. The employee is employed by the employer in terms of the Employment of Educators Act 76 of 1998 (as amended) as an educator at Sinolwazi Senior Secondary School (the school) in the OR Tambo Inland (formerly Mthatha) district in the Eastern Cape.
7. He was charged in terms of section 17(1)(b) of the Employment of Educators Act in that he is alleged to have had a sexual relationship with a learner at his school.
8. The proceedings were conducted in terms of ELRC Collective Agreement 3 of 2018 which provides that it is mandatory that in misconduct cases where the allegations against the educator relate to alleged sexual misconduct against a learner the disciplinary hearing must be dealt with as an inquiry by arbitrator in terms of section 188A of the Labour Relations Act 66 of 1995 (as amended).
   SUMMARY OF EVIDENCE AND ARGUMENT
9. The employer led oral evidence through three witnesses and submitted one bundle of documents.
10. The employee led oral evidence through two witnesses. EMPLOYER ’S EVIDENCE
11. The first witness of the employer was a minor child who at the time of the arbitration and the time the incident started was 16 years of age and was doing grade 11 at the school. To ensure that she did not come face to face with the employee she testified in camera and her name will not be disclosed in this award. She will just be called the complainant. The other witnesses of the employer are also related to the minor witness and as such their true identities will also not be disclosed in the award.
12. She testified that the employee was her History teacher in 2024 when she was doing grade 11.
13. She said she and the employee were in a romantic relationship which started in early 2024 till about April 2025. Referring to page paragraph 3.1 she confirmed what was recorded there about her during investigation.
14. Referring to page 10 of the bundle she said the cell number written there belonged to the employee. She said what was contained in the page was her WhatsApp chats with the employee. She said the name ‘Tar Yam’ in the chats referred to her as that was the name she was going with on social media and used by her friends at school.
15. Referring to the chats she said the employee suggested to her that since they were active in sex she must use contraceptives, but she felt scarred as she was not used to such conversations.
16. She said the WhatsApp chats were exported by her sister from her (complainant) cellphone to her sister’s cellphone, but she could not explain why there was Facebook written on the top. She said her sister got to know about the messages when she was using the cell phone of the complainant to assist the complainant with her schoolwork. She confirmed that the chats were the original chats and could not say if the chats may have been tempered with, but she said she did not know how her sister would temper with them.
17. Referring to page 6 of the bundle where it was recorded that she denied the relationship with the employee and asked what should be believed, she said she was in a sexual relationship with the employee. She confirmed that she earlier did not speak the truth to everybody changed when she noticed that it was wrong. She said that at the arbitration she was speaking only the truth.
18. She also confirmed that her sister had a relationship with the employee, but she could not say if the relationship was still going on. She however disputed that the chats on pages 10 and 11 were between the employee and her sister. She disputed the version of the employee when it was put to her that the employee only had a relationship with her sister, she said the employee had a relationship with both.
19. She also said her parents were aware of the relationship but against it. She said the parents got to know about the relationship when her sister reported it to them.
20. When asked what it meant by ‘media omitted’ in the chats she said it meant there was something that was removed from the message. When it was put to her that by having some portions of the chats removed it meant the messages were tempered with, she said she may agree. She, however, insisted that the chats on pages 10 and 11 were her chats with the employee. She did not recall if she ever sent a picture to the employee.
21. The second witness of the employer was the father of the complainant who testified that the complainant was his last born. He said he knew the employee as one of the educators at the school and that he used to teach his daughter.
22. He also said he got to know the employee when there was tension between his two daughters, the complainant and her older sister who is studying at the Walter Sisulu University (WSU), and was doing practical teaching at the school.
23. When he enquired about the tension, he was told by the complainant that the employee proposed love to her. His older daughter, who had a relationship with the employee, was not happy that the complainant was now involved with the employee. He said he then asked his wife to address the problem.
24. When the wife met someone at the school and the employee was called, he denied the relationship with the complainant.
25. The witness said one night he woke up at about 02h00 and noticed that the front door was not locked and the wind pushed it open. When he looked at the complainant’s room she discovered that she was not in her bed. Together with his wife they waited for the complainant to come back.
26. He said the complainant only came at about 04h00 and refused to tell them where she came from. As they were questioning the complainant about where she came from, they took her cell phone and a message popped up which asked if she arrived safely at home. When the cellphone was checked his wife could tell that the cell number belonged to the employee.
27. The witness then called the number, but the employee picked up the call and immediately dropped it.
28. He said the other day (sometime in 2024) the complainant did not come back from evening classes and together with his wife they went out to look for her. They went behind the house where they spotted a white VW Polo car which drove away before they could arrive at it. He said apparently the car went around and dropped the complainant at her home. When the witness confronted the complainant, she did not give a straight answer, and he decided to go and confront the employee. He said the employee admitted that he had a relationship with the complainant, saying it was caused by his lust.
29. The witness said he decided to report to the principal of the school who said he was going to approach the employee. The principal later reported that the employee admitted to the relationship and offered to send his elders to apologize on his behalf.
30. Indeed, the employee came with his delegation of elders and met the witness at the school. At the meeting they discussed this problem and the employee again admitted to the relationship and the witness advised him to stop it to which the employee agreed. He said he told the employee that if the relationship started again, he(witness) was going to report it to the authorities of the employer.
31. The witness said in 2025 it was discovered through the messages in the cellphone of the complainant that the relationship was still on. He said the elder sister of the complainant discovered the messages when she was assisting the complainant with applications to the university.
32. When referred to page 9 of the bundle he confirmed that he wrote the statement on about April/May 2025.
33. In the messages discovered in May 2025 the employee and the complainant communicated and arranged to meet and stopped communication at about 18h00 and again started the communication with messages after 21h00. In all the messages the two were chatting as lovers with the employee advising the complainant about contraceptives. He said he believed the messages restarted after 21h00 which was after the complainant had come back from the meeting they were arranging at about 18h00.
34. When asked about his relationship with the employee, he said he had no relationship and that the person who was in constant communication with the employee was his (Witness) wife as they were together in the school WhatsApp group.
35. The third witness of the employer was the sister of the complainant who testified that she was a student teacher at Walter Sisulu University and got to know the employee when she was doing practical teaching at the school. She said the employee was her ex-boyfriend, their relationship had started in about mid-year of 2023 when she was doing practical teaching at the school.
36. Referring to pages 10 and 11 she said the document contained WhatsApp chats which were exported from the cellphone of the complainant to the cell phone of the witness. She said the cell phone number on the chats belonged to the employee.
37. She said she exported the chats because in July 2024 she found the employee had a relationship with the complainant. She told her parents, and they went to the school to report the matter. At the school the principal suggested that the matter be dealt with by the families. She said the families met and the employee promised to end the relationship, but the relationship did not end.
38. She said the chats occurred on the 29 April 2025 and were exported on the 02 May 2025. She said that as the chats were exported, they were not tempered with.
39. Referring to the chat at 22h32 she said it was written “media omitted” because when she exported the chats, she chose the option that said, “without media”. She said she chose that option because it would have taken long to export the messages if he used another option. She said if there was doubt that she tempered with the chats she could open the chats on her cellphone. Referring to the message at 21h28 she said it was written “edited” because the complainant edited the message after she sent it. She also said the exported message reflected the cell phone number of the employee and not the name his cell phone was saved with because the two cellphones used in the exportation of the messages were not the same type.
40. She said that her understanding of the messages was that the employee was sexually grooming the complainant. She said she could see that the complainant was not ready to take contraceptives, but the employee was pushing her until she conceded. She also said the chats were confirmation that there was a sexual relationship between the employee and the complainant.
41. She said that between 2024 and 2025 they (she and employee) were no longer in a relationship as their relationship ended at the beginning of 2024 but were talking as just friends.
42. She said she became bitter when she found out that the employee had a relationship with her sister. She first noticed the relationship on the 27 July 2024 when she was doing laundry with the complainant, and she saw a pop-up message on the complainant’s cell phone. The message had the number of the employee. She said she immediately identified the cell number because she was familiar with the profile picture of the employee which had his daughter. The pop-up message said “baby”. The witness said she did not talk to the complainant about this message but instead went to confront the employee about dating her sister who was then sixteen (16) years. She said the employee did not deny the relationship but said it was just a fling. She told him she was going to report to her parents.
43. After that the witness went to confront the complainant. Whilst she was speaking to the complainant the employee called the complainant and told her that they must stop what they were doing because it was going to cause them problems.
44. Referring to page six (06) paragraph 3.2 she said she lied during the investigation because the complainant came crying to her in 2024 and said she did not want to be the girl in a relationship with the teacher. She said she then lied to the principal because she did not want her sister to go with the stigma that she was dating the teacher. She said she was not protecting the employee but the complainant. When asked if she could be believed seeing that she was capable of lying she said she swore to God to speak the truth at the arbitration.
45. When asked about the name “Facebook” at the top of the chats she said it showed that when she received the messages on her phone her Facebook was opened, and it got minimized when it received the exported messages. She said she was sure that the messages were between the employee and the complainant because she exported them herself. She said the name ‘Tar Yam’ was the nick name the complainant was using and was usually called by.
46. When it was put to her that the employee was going to dispute that the chats belonged to him and the complainant, she said she would recommend that the employer must organize a specialist to analyze the messages and that the employee would then have to produce the chats he had with the complainant.
47. When it was put to her that the messages may be tempered with, she challenged the employee representative to identify the area where they were tempered with.
48. When asked about the time gap in the messages between 18h39 to 21h21, she said the message at 18h39 was referring to them going to meet as the previous message had said the employee must meet the complainant on the way. She said the time gap showed that they were going to meet and they met. From the last message at 18h39 to the other message at 21h21 they were together.
49. She also said she heard from her father the other day the complainant came in the early hours of the morning and when she arrived home a message came on her cell phone from the employee asking if she arrived safely at home.
50. When it was put to her that the employee was going to testify that the only relationship he had was with the witness, she said the employee was then going to explain why did he apologize in the meeting between his parents and those of the complainant, why did he plead with her not to post about him on TikTok and why did he ask her not to call Mr Majola .
51. When it was put to her that the employee was going to dispute that there was a meeting between the families at the school, she insisted that a meeting was held between the two families at school and that another elder from the family of the employee came to the home of the witness to plead with her to drop the case at the Department of Education.
52. When asked if she was making the allegations against the employee because she was bitter because their relationship ended, she said she would not be bitter because she was the one who ended the relationship. She also said sometime in 2024 she received a phone call from the employee saying he had messed up as he was caught red handed with the complainant by her father and that her father ended up beating the employee. She said the employee asked her to apologize on his behalf to her father. She said the following day she received a call from her mother telling her about the beating of the employee.
53. She also said this was not the first time the employee was involved in relationships with learners and that he always got away with it. She mentioned the learners whose cases with the employee did not go far with the employer. She said she then posted on TikTok about the incident without mentioning the name of the employee. After that the employee called her and asked her to stop what she was doing. The employee told the witness that he loved the complainant and that she could even lay charges against him. She said in May 2025 the employee repeated what he said in 2024 that the witness must ‘name her price’ and that is when the witness decided to report to Mr Majola.

EMPLOYEE’S EVIDENCE AND ARGUMENT

54. The first witness of the employee was himself who confirmed that he was an educator at the school having joined it in 2018.
55. He testified that the charge against him was false, fabricated and had no basis. He said he never had a sexual relationship with the complainant, who he knew as a learner he taught History while she was in grade 11. He could not tell why he was accused of being in a relationship with the complainant as even in class they had a normal teacher-learner relationship and her attitude towards him was just like any other learner in the class.
56. He said he was maybe accused of having a relationship with her because he once had a relationship with her sister.
57. Referring to page 10 and 11, he denied that the chats were his, even though he could see that the cell number displayed on them was his number. He said he thought his number was in the chats through fabrication or that someone put his number. He also denied that he knew a person called ‘Tar Yam’.
58. Referring to page 6 paragraph 3.2, he said he recalled being summoned by the Deputy Principal of the school to his office where he met the mother of the complainant. He said he was asked about the relationship with the complainant. He said he denied the relationship and when the complainant was called on her cell phone, she denied the relationship. The sister of the complainant was also invited to the meeting, and she also denied the relationship.
59. He said he knew the father of the complainant and that he once beat him in the evening and attempted to murder him in 2024. He said it was in July 2024 when the father of the complainant came to his(witness’s) place thinking he was dating the complainant. He said they met at about 20h00 at the gate and the father of the complainant pointed a gun at the witness and assaulted him and asked what he was doing with his (complainant father’s) daughters. He said he responded and said he did not know what the father of the complainant was talking about. He said because a gun was pointed at him, and he feared for his life he admitted and apologized.
60. He said he did not open the case at the police because he took the incident lightly and felt that since the father of the complainant was a policeman he could have influenced the case to disappear. Referred to paragraph 2 of page 9 he said he had no knowledge about the incident of 2024 referred to.
61. He said there was another incident on 01 June 2025 at about 18h05 when he was with his friends and they were about to go out. He said he saw a bakkie which blocked the road for their car. He said the father of the complainant came out of the bakkie and pointed the gun at the employee asking where the complainant was. The witness denied knowing the whereabout of the complainant after which her father ordered other occupants out of the vehicle and started to assault the employee, drew out a gun and shot at him at the forehead. He said he started to bleed from the gun wound and he took the cartridges, and his friends drove him to central police station in Mthatha where he opened a case.
62. Referring to pages 12 to 13 of the bundle, which is the letter written by the principal of the school, he denied the knowledge of the meeting between the families. He denied that he ever sexually groomed the complainant. He admitted that he had a relationship with the sister of the complainant, but the relationship ended as she had another relationship.
63. He said when the sister of the complainant she mentioned that he was going to die which was an indication that they were planning to kill him.
64. Referring to page seven of the bundle he said in 2021 he was charged but could not recall if he was charged for rape or for having a sexual relationship with a learner.
65. When referred to paragraph 3.1 of page 6 he denied what was recorded there and what the father of the complainant wrote in his statement. He admitted that he was summoned to the office by the Deputy Principal because the mother of the complainant came to report that she was suspecting that there was a sexual relationship between employee and the complainant.
66. Referring to pages 12 and 13, he said the author of the document was Mr Labane who is the principal of the school. He said the principal lied in the letter when he said the employee asked to talk to the family of the complainant in order and apologize. He denied that he sent a delegation of parents to apologize on his behalf. He said he was requested to change the place he was staying at because his family wanted him to stay away from the family that wanted to kill him.
67. He said that in the letter written by the principal on page 12 and 13 the principal further lied when he said something about giving the word of wisdom to the employee, when he said the employee agreed that he had a relationship with the complainant and when he said the complainant was found in the employee’s car. He could not say why the principal lied in the letter.
68. The last witness of the employee was Mr Isaac Labane who is the principal of the school since December 2024 and was previously the Deputy Principal. He said he knew the employee, and they had a professional relationship.
69. Referring to paragraph 3.2 of page 6, he said he knew the statement there. He said on the day he was going to attend a meeting, and a student teacher came to his office and informed him that her parents were suspecting that there was a relationship between the employee and the complainant. The student teacher further informed him that there was no such relationship.
70. He said after he had left the school for the meeting the parent of the complainant came to the school and met the Deputy Principal. It was reported to him that when the complainant and her sister were called, they denied the alleged relationship.
71. He said the reference in the letter about him calling the meeting of the School Governing Body and School Management Team was not accurate. He said he reported to the normal meetings of these structures.
72. Referring to the letter on pages 12 and 13 he said the letter was written and signed by him. He, however, said he did not know the second last paragraph of page 12. He said according to his findings there was no relationship between the employee and the complainant, the only relationship was between the employee and the sister of the complainant. He also denied knowledge of the meeting between the family of the employee and that of the complainant.
73. Referring to paragraphs 1 and 2 of page 13 he said what he wrote in the sentence was not true. He said the information that there was undue influence of gun pointing on the employee which made him fear for his life and admit to the relationship, was missing. He also denied that there was a meeting between the parents of the complainant and those of the employee.
74. He said that after the letter was typed from a handwritten draft by the school clerk, he did not proofread it as there was short notice and pressure from the employer for him to provide the report. He admitted that he made a mistake by not asking for extension of time to submit. He apologized further to the arbitration for the mistake.
75. Asked why he lied about the employee in what he wrote he said he was not aware that he was lying. He said it was a human error that he missed certain information.
76. When he was reminded that one of his roles is to assist the employer in disciplining employees and asked if by misleading at the inquiry he was assisting, he said he did not mislead deliberately. Asked why did he not retract the letter if he felt it had errors, he said he did not know that he could do it.
77. He was asked if by denying the existence of the relationship he was protecting the rights of the learner(complainant), he responded by saying he did not have information that there was a relationship between the two. He further said according to the information at the school the complainant was lying when she said there was a relationship.
78. Referring to page 6 of the bundle, he said he was not aware that the complainant and her sister were lying to him about the relationship. He also said there was no time when the complainant admitted to the relationship with the employee.
79. He said he did not give the employee the words of wisdom because of the relationship but warned him about dangers having one-on-one communication with learners. He also said what the employee apologized for was for the one-on-one communication with the learner. ANALYSIS OF EVIDENCE AND ARGUMENT
80. As stated at paragraph 8, the enquiry is held as per the provisions of ELRC Collective Agreement 3 of 2018 which provides that when an educator is accused of sexual related allegations the enquiry must be held as an inquiry by the arbitrator in terms of section 188A of the Labour Relations Act.
81. The employee was charged in terms of section 17(1)(c) of the Employment of Educators Act ‘in that on or about the period of 2024 to 2025 he had a sexual relationship with the complainant who is currently in grade 12 at Sinolwazi Senior Secondary School.
82. Since this was the disciplinary enquiry, the onus was on the employer to prove the allegations on a balance of probabilities.
83. The complainant testified that she was in love with and had a sexual relationship with the employee. During the cross-examination the employee did not dispute the version of the complainant that they were engaged in a sexual relationship and failed to shake her evidence. Even though the complainant testified that she lied and denied it when first asked about the relationship, her explanation for lying was understandable. The reasons for initially lying and denying the relationship were further clarified by her sister who said they lied because they were protecting the complainant and avoiding that she would be labelled as that schoolgirl who was involved with her educator. Their credibility as witnesses was therefore not affected as their intentions to lie were bona fide.
84. The other witness of the employer, who is the father of the complainant, testified among others that the employee admitted that he had the relationship with the complainant and apologized. The employee did not dispute this evidence when the father of the complainant testified. The father of the complainant further testified that they had a meeting with the parents of the employee at school where the relationship was discussed and the employee admitted it and apologized. The employee did not dispute this evidence when the father of the complainant testified, or put differently, he did not put the opposing version to the father of the complainant.
85. The evidence of the father of the complainant was that he caught the employee and the complainant when the employee came to drop the complainant next to her home after the evening classes and caught them when the complainant did not sleep at home and only came at about 04h00. Again, this evidence was not disputed by the employee when the father of the complainant testified. Even at cross examination the father of the complainant was asked about other things like the drawing of the gun and whether he saw the employee dropping the complainant from his car. These questions and their answers did not shake the version of the witness.
86. On the issue of the gun a version was put to the father of the complainant that the employee admitted to the relationship when confronted by the father of the complainant because he drew a gun and hit him with it thus intimidating him. When the father of the complainant responded that the incident involving a gun was only in June 2025 whereas the other incidents were long before that, the employee representative did not pursue the matter further, meaning the explanation satisfied them.
87. The other witness of the employer was the sister of the complainant who testified that she first noticed the relationship when she saw pop up message from the employee on the cell phone of the complainant. She said she immediately went to confront the employee who did not deny the relationship. At the arbitration the employee did not dispute this piece of evidence, which means it remained unchallenged and a fact. The sister of the complainant further testified that after the meeting between the families at school the relative of the employee came to her and pleaded with her to drop the case at the Department of Education. The employee again did not dispute this evidence.
88. The sister of the complainant further testified that around 2024 she received a call from the employee confessing that he was caught red handed with the complainant by her father and he (employee) apologized. Again, the employee had the opportunity to dispute this evidence but did not.
89. When these witnesses of the employer were testifying the employee failed to challenge their evidence and instead came with his own version and denied the allegations. That amounted to bare denial of the allegations and was not acceptable. The employee never put it to the father of the complainant that he agreed to the relationship because he was intimidated by the gun.
90. It was common cause that the incident of the gun happened at least not once. This was unfortunate and the arbitration is not a relevant platform to adjudicate its correctness. The courts are.
91. My findings regarding the gun incident relate to whether the employee was intimidated into admitting to the relationship. In the evidence led there were several instances where the employee admitted to the relationship without a gun being produced. I am therefore unable to conclude that the employee was intimidated and admitted because he feared for his life.
92. In his evidence and in cross-examination of the witnesses of the employer the employee distanced himself from the WhatsApp chats submitted on page 10 and 11 of the bundle. The employee alleged that the chats were tempered with and hence fabricated. The employee, however, could not identify the exact area or part where the chats were tempered with. When the witness of the employer, the sister of the complainant, was asked to explain in the chats where it was stated that some portions were omitted, she explained that the format of exporting she chose was the one which did not allow media to be sent. Her explanation was not challenged.
93. The chats had the cell number which the employee confirmed was his and he could not explain how the chats were fabricated to have his cell number. My conclusion is therefore that the WhatsApp chats on pages 10 and 11 were between the employee and the complainant and were not tempered with.
94. In the chats the employee and the complainant talk as people who are lovers and address each other as such with the employee even advising the complainant to use contraceptives since they were sexually active and he did not want to make her pregnant. The contents of the WhatsApp chats confirm that the employee and the complainant were in a romantic and sexual relationship.
95. Even if the conclusion about the chats may be wrong, the chats added to the already overwhelming evidence of the existence of the relationship between the two.
96. The principal of the school testified in support of the employee. On the 12 May 2025 he submitted a report about the incident to the employer. He wrote on the letter , “The school called Mr Balan to investigate about these allegations on which he first denied and later agreed to the affair with the learner. The school explained to Mr Balan that he acted wrongly as he knows that what he did was against the law. Mr Balan requested to talk to the ** family to apologize.” The principal further wrote, “According to the report from the **family, families met, and Mr Balan apologized and promised to stop this, and the **family accepted the apology….”.
97. It was surprising that when the principal testified at the arbitration, he distanced himself from what he wrote claiming he did not proofread the letter before it was submitted to the employer. When a letter is typed there may be typing errors, but it is not probable that the error can be two paragraphs of the letter. It also was not probable that the principal who has two university diplomas would write a letter about such a serious matter and send it without proofreading it. What the principal did was to come to the arbitration and give false evidence in his quest to defend the employee. This he did even though it meant sacrificing the protection of the girl child, the complainant. What he did was not only gross dishonest but amounted to lack of professionalism. By being dishonest the principal proved himself to be a witness without credibility.
98. Having argued as above I have come to the conclusion that the employer was able to prove that the employee is guilty of being in a romantic relationship and having a sexual relationship with the complainant, thus breaching section 17(1)(c) of the Employment of Educators Act.
99. In their arguments the employee submitted that in the charges section 17 of the Employment of Educators must be revoked and instead section 18 must be invoked because section 17 does not promote progressive discipline. This argument cannot be sustained because the section on which the employee is charged depends on the misconduct that is alleged by the employer.
100. In terms of section 17(1) of the Employment of Educators Act it is obligatory that an educator be dismissed if found guilty of having a sexual relationship with a learner where the educator is teaching. As I have found the employee guilty of having a sexual relationship with the complainant it is prescriptive that I impose a sanction of dismissal.
101. Section 120(1) of the Children’s Act provides that a children’s court, any court in civil or criminal proceedings or any platform recognized by law in disciplinary proceedings may make a finding that the person is not suitable to work with children. The finding may be made by the court or platform on its own volition or on application by the relevant official of the state involved in the protection of children .
102. In this arbitration no evidence was led by parties on the suitability or not of the employee to work with children. However, the Children’s Act allows the arbitrator to make the finding on his or her own volition. I have therefore decided that I am making the finding that the employee is, in terms of the Children’s Act, not suitable to work with children.

In the circumstances I make the following award;

AWARD

103. The employer has succeeded in proving on a balance of probabilities that the employee, Luthando Balan, is guilty of the charges proffered against him.
104. The appropriate sanction being imposed is summary DISMISSAL. .
105. The Respondent, Luthando Balan, is hereby found unsuitable to work with children in terms of section 120(4) of the Children’s Act . The General Secretary of the ELRC is, in terms of section 122(1) of the Children’s Act is hereby directed to notify the Director-General: Department of Social Development of the findings of this forum so that the Director-General can, in terms of section 122(2) of the Children’s Act enter his (Luthando Balan’s) name as contemplated in section 120 in part B of the register.

Mbulelo Safa: ELRC Panelist