IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD VIA DIGITAL ZOOM CONFERENCE

Case No: ELRC9-25/26WC

In the matter between

Abraham Daniel Louis Applicant

and

Education Department of Western Cape Respondent

PANELLIST: Dr. GC. van der Berg.
Award: 22 September 2025

ARBITRATION AWARD

Details of hearing and representation

1. The arbitration hearing took place at the venue of the Western Cape Department of Education at 1 North Wharf Square in Cape Town on 06 June 2025, 05 August 2025, and 05 September 2025 at 10:00 and 9:00 respectively. The proceedings were both digitally and manually recorded. The applicant, Abraham Daniel Louis, was represented by Brendan Guy, from Guy & Associates. The respondent, Western Cape Education Department, was represented by Zuziwe Ngqokombe, from the Department of Education. Legal representation for the applicant was requested in writing on 23 May 2025, and the respondent did not oppose this application within five (5) days of the delivery of this application. However, the representative did not object to legal representation, and it was granted by the Commissioner. Issue to be decided.
2. The dispute was referred to the CCMA as a dismissal for misconduct under section 191(1) [191(5(a)] of the Labour Relations Act 66 of 1995 as amended (“the LRA”). I must decide whether the applicant was dismissed and if he was dismissed, whether the dismissal was substantively and procedurally fair and thereafter determine the appropriate remedy. The applicant sought retrospective reinstatement. Background to the Dispute
3. The applicant is an educator with 32 years of experience, and he was employed by the respondent from 1993 to 2002. Between the years 2003 and 2011, the School Governing Body (SGB) of Grove Primary School employed the applicant. He was re-employed by the respondent from 2011 until 2025 and he was specifically posted to SACS Junior School (hereinafter “the school”) from 01 July 2023 until 31 March 2025, in which he held the post of Vice Principal. On 09 October 2024, the applicant was charged and ultimately found guilty of the following charge: “It is alleged that you are guilty of misconduct in terms od section 17(1)(b) of the Employment of Educators Act 76 of 1998 in that during the 2nd and 4th term of 2024, you sexually assaulted Ms Mvandaba, an educator during a staff function of SA College Junior School by pressing your genital organ against her buttocks”. The applicant was subject to a disciplinary hearing process that took place on 02 and 03 December 2024. According to a report dated 11 December 2024, and as recommended by the chairperson, the applicant was to be dismissed summarily.
4. The complainant, Ms Mvandaba, complained about two incidents, one in April 2024 and the second in October 2024, and she did not raise the April 2024 allegation until October 2024. The applicant had a clean disciplinary record and an excellent career as an educator aside from these allegations. He filed an appeal on 13 December 2024, which was dismissed on 30 March 2025 and communicated to the applicant on 01 April 2025.
5. The dispute was referred to the ELRC and a conciliation process took place on 23 April 2025, and it was not resolved. Then the dispute was set down for arbitration on 06 June 2025 and the representative of the applicant requested an inspection in logo that was approved and must be scheduled at 09:00 during the next scheduled date to be announced. After three (3) witnesses of the respondent testified, the representative of the applicant requested the transcript of the disciplinary process, and it will be typed and presented during the next arbitration session as a new bundle of documents. The arbitration was then postponed and re-scheduled for 05 August 2025. A further two (2) witnesses of the respondent testified as well as the applicant after an inspection in logo of the Bar at the SACS Primary School. Thereafter the arbitration was again postponed and rescheduled for 05 September 2025 when it was concluded.
6. The parties presented opening statements and the representative of the respondent, and the representative of the applicant presented written closing statements, as agreed on or before 15 September 2025. The representatives of the parties were allowed to cross-examine and re-examine the witnesses and the applicant during the presentation of their evidence. For the sake of brevity, the details of this will not all be repeated in the award, but it should not be construed that it was not considered.
7. On 05 September 2025 the representative of the applicant handed in a copy of an Interim Protection Order from Nokulunga Mvandaba against the applicant to show cause on 07 October 2025 in the Wynberg Magistrate Court. The detail of the harassment appears in her sworn statement on pages 3 and 4 and the order is dated 28 August 2025. Survey of evidence and argument Documentary evidence.
8. Both parties submitted a bundle of documents, and the bundle of the respondent was marked as “R” pages 1-20, and the bundle of the applicant was marked as “A” pages 1 to 126. The representatives of the respondent and applicant did not dispute the authenticity of the content of the bundles submitted by the parties.
   Respondent’s evidence and arguments
   The 1st witness, Gary Skeels, Headmaster of SACS Junior School, after having been sworn in, testified as follows:
9. He was employed about four (4) years ago and the applicant was appointed in July 2023 as Deputy Principal at the school. The applicant was a Grade 6 teacher, and he was employed about three (3) years at the school, and she was an intern before. The role of the applicant at the school was a Deputy Head and he taught Afrikaans and further apply department procedures, estate management and maintenance responsibilities. The charge on page 15 of bundle “R” was again read and it states: “It is alleged that you are guilty of misconduct in terms of section 17(1)(b) of the Employment of Educators Act 76 of 1998 in that during 2nd and 4th term of 2024, you sexually assaulted Ms Mvandaba, an educator during a staff function of SA College Junior School by pressing your genital organ against her buttocks”. The witness became aware of the allegations after the second incident when it was reported to him by Mrs James as the complainant reported it to her. On the Thursday, 03 October 2024, Mandy James verbally told him that the complainant wanted to lodge a complaint.
10. He contacted the SGB chairperson and seek advice and the chairperson suggested that he get legal advice, and he did. The legal person informed him to immediately inform the Circuit Manager and not to engage the applicant. The witness contacted the Circuit Manager, Mr Mouton, and informed him about the complaint. He only spoke to the complainant after she lodged the complaint, and it was passed on to the Department of Education. She stated that the applicant pressed against her buttocks in the pavilion during the October 2024 function. He was shocked and disappointed, and he was informed about a similar incident in April 2024, and this was handled informally. The October 2024 incident was the second time, and it was formally taken to the WCED. He attended the function in April 2024, and he saw the applicant as he sat behind the bar area next to the microwave, but he did not know why he was behind the bar. He also attended the function on 02 October 2024, and he saw the applicant behind the bar, and he had no role behind the bar. The other senior members were involved with the guests.
11. The applicant had no mandate to be behind the bar, and it was not the first time as he was also behind the bar in April 2024 when he touched the first complainant (Ms Mjali) inappropriately and it was addressed and resolved. There was no problem in the relationship between the applicant and the second complainant (Ms Mvandaba) as he was a senior member and she was an educator, and the complainant was not fabricating a story about a colleague. When the applicant said this incident in October 2024 never occurred, he was lying about it as the complainant has no reason to lie about the Deputy Principal at school.
12. He and Mrs James were aware, and the applicant was not engaged, and the complaint was handled by the WCED sensitively as they were colleagues and the son of the applicant was in the class of the complainant. The son was upset in class, and the two parties never need to be together as the process took a long time. The trust issue became important as the witness heard of more staff who experienced similar incidents (about 6). The applicant was in a senior role, and he worked with other staff members. The witness stated that if the applicant would return to this school, it would affect the safety of staff members and children, and other staff members could open previous similar cases. The witness stated that if such an offence is committed it is incredibly serious as one must be mindful of their roles of space and female staff feels the same.
13. Under cross-examination he confirmed that he was the principal at a school in Stellenbosch as well but never dealt with an issue of sexual harassment before. On page 58 of bundle “A” dated 08 August 2024 the witness was shown two cases of sexual harassment. The witness stated that he did not deal with the issues as one of them resigned and during the exit interview it was indicated that the person did not want to take it any further. The witness stated that if a complainant did not want to take it any further there is no way it can be taken further without their consent. He again confirmed the role of the Deputy Principal and further stated that he was also responsible for Health and Safety. He was not concern about the driving of the applicant, but other staff members were concerned. He agreed that the evening of 02 October 2024 was busy as there were 25 teams with managers and staff and the area is not very big, and the size can be seen on page 125 of bundle “A” which is the bar and entertainment area.
14. The witness confirmed that three (3) staff members were in the bar area, and the complainant was one of them and the applicant was occasionally behind the bar as he was driving the bus for staff as well. He was close to the complainant in the bar on the photo on page 124. On page 125 the applicant was standing there alone, and he needed no mandate to be behind the bar. During the disciplinary hearing the applicant said that he stepped back from the crowd to avoid small talk, and this was confirmed by the witness. The event was completely sponsored and there was no need for stock control according to the principal and he had no knowledge about the two incidents in April and October 2024. The first report the witness received about the incident in October 2024 was that the applicant pressed himself against the complainant and the details followed later. The complainant reported in writing on 07 October 2024 that when Mr Louis came into the bar area he stood behind Ms Mvandaba. When she was serving guests, he pressed his lower body into her buttocks (See page 72 of “A”). The witness stated that he met with the applicant after the incident was reported by the complainant and after he was notified by WCED. Under re-examination he stated that the alcohol was sponsored and there was no need to control it in the bar, and he saw the applicant in the bar area.
    The 2nd witness, Sally James, Deputy Principal SGB, after having been sworn in, testified as follows:
15. The second witness testified that she is in her present position since 2017. The applicant is a tall man and get on well with people and he is a good educator. She read the charge 1 again as it appears on page 15 of bundle “R” and she became aware of the incident on 02 October 2024 when the complainant approached her and mentioned the incident to her. The complainant was in a state of shock and upset and said the applicant pressed his lower body on her buttocks. The witness was also shocked and the complainant said that it was of a sexual nature. She asked the complainant what she wants to do, and she must come and talk to the witness the nest morning. She was prepared to go back behind the bar and speak to the witness the next morning. The applicant was behind the bar as he normally stood behind the bar and when she told the witness the applicant was behind the bar.
16. The complainant spoke to her in the morning, and they discussed it further and she said the applicant pressed his genitals area against her buttocks and it was not the first time. During April 2024 there was also a function, and another staff member came to her and said that the applicant put his hand on her buttocks, and he did the same with her. The first complainant (Ms Mjali) then made a choice to have informal discussions with the applicant, and he apologised. The first incident was on 23 April 2024, and the second complainant (Ms Mvandada) decided, after options were explained to her to report on Monday morning on 07 October 2024 the incident in writing and she assisted the second complainant to draft the letter as can be seen on page 72 of “A”. It is not acceptable for employees to conduct themselves in this way as the applicant and the second complainant came to her as the SGB representative. The applicant attended both functions at the school and he was behind the bar.
17. Under cross-examination she confirmed that she is also an Occupational Therapist responsible for pastoral care. She had no dealings with sexual harassment cases before. She said that she was not dealing with the sexual harassment incidents as it appears on page 58 and she said that the applicant was pressing with his lower body on her buttocks. She said that in conversation the second complainant mentioned the genital area of the applicant. She was told that there were about five (5) people behind the bar on 02 October 2024. She confirmed that there is a difference in perception between males and females about sexual harassment.
    The 3rd witness, Nokulunga Mvandaba, Teacher in English after having been sworn in, testified as follows:
18. The witness and second complainant stated that she knows the applicant and his son was in her class and they worked together with Water Polo. Initially the applicant was friendly and willing to assist, and she was also referred to the charge against the applicant as it appears on page 15 of bundle “R”. It stated in the charge that he pressed his genitals against her buttocks, and she confirmed. During the function in April 2024, she was working behind the bar with two (2) others, and they were serving visitors. They started with families and gifts and Grade 6 team sport for life was explained and thereafter they were serving drinks again. The applicant was also at the bar and Ms Mjali was also at the bar and herself and Ms Mjali was touched on their buttocks by the applicant. She told the first complainant about her experience, and she told her that he did this with her as well. They were very shocked, and they worked very closely with the supervisor, and she initially thought it was an accident. The complainant thought maybe it was a mistake, and she assumed it happened accidental. The applicant was standing there, and no specific role was allocated to him and the complainant decided to leave it.
19. The event in October 2024 was a Water Polo event for three (3) days. 0n 02 October 2024 there was first a welcome ceremony, and the people ended with platters and drinks, and she was behind the bar, and three (3) other was with her. Mr Ervens was also at a stage behind the bar, and she did not know where the applicant was. Later she was bending down to take out drinks from the second marked fridge and the applicant pressed his genitals area in her buttocks. The other three (3) employees were serving. The complainant then moved to the other side of the bar, and she explained on page 125 of bundle “A” where she was standing at the fridge and where the applicant was standing next to the cooler boxes. Afterwards she spoke with Sisipho Siko as she was uncomfortable with the applicant in the bar and he stood between her and the applicant.
20. She then went and spoke to Sally James, and the next day visit her at her office and gave the details. She was given two options, and she lodged a formal complaint on the following Monday, 07 October 2024. She was not sure but when it happened a second time she was convinced about the intention of the applicant. After the second incident she was very angry and violated and if the applicant denied that he did it, he is lying. She had no issue with him, and they regularly worked together regarding the water polo, and she had no reason to lie about him. Now she is tired and is crying about the process as she was forced to revisit everything about the sexual harassment.
21. Under cross-examination she confirmed that she was officially appointed in 2024 and has in total two years and six months experience. She agreed that she made comments in the social media about gender violence, and she was outspoken in a video recording about gender violence. Regarding the incident in April 2024, she did not formally report it, and he did it to the lady (Ms Mjali) next to her as well. The representative stated that the applicant will testify that his left hand was on the shoulder of the complainant and his right hand on the shoulder of the other employee. It was stated that she must have been very unsure about the incident in April 2024 and she responded that she was taken a backside and uncertain and when it happened a second time in October 2024 it was the same. She denied that she was given insignificant weight to the incident in April 2024.
22. She again explained that there were about four (4) employees plus the applicant in the bar space and when she bends down to get a drink in the second fridge the incident happened. The representative of the applicant stated that he is tall (1.9m) and it is unlikely he would be able to do what she said. The witness said that the applicant pressed his frontal area into her behind and it differ from her statement on page 72 of bundle “A”, and she was told that she is not sure what happened. She could not recall what she said in the disciplinary hearing. She agreed that she spoke twice to Sisipho Siko when the incident happened and later again. She confirmed the incident happened very quickly, but she knew who it was as she saw the applicant arrived in the bar before the speeches. The witness is not sensitive to touching but what the applicant did was not a mistake in October 2024. Under re-examination she indicated that she has no problems with the applicant and has nothing to gain by reporting him. If the applicant had to be reinstated the justice system has failed. The witness knows the difference between a bum and touching her with his front part and his front area was behind her in the incident in October 2024.
    The 4th witness, Siyolise Mjali, Teacher, after having been sworn in, testified as follows:
23. The witness testified that the charge and alternative charge appears on page 15 of bundle “R”, and it boils down to sexually assaulting a colleague during the second and fourth term of 2024. She attended the function during April 2024 at the pavilion. The headmaster and the applicant were also attending the function at the school. She was behind the bar with the second complainant and the applicant. She was not aware why the applicant was behind the counter. Herself and the complainant were serving at the bar and when the applicant arrived, they were standing ready to service cooldrink and beers and he was standing behind them. When they started with the speeches the witness moved, and she and the complainant went closer to the entrance side, and they were talking. They listened to the speeches, and the applicant asked her whether she was okay. When speeches were done, she moved back to the counter where she was originally standing, and the applicant was standing between her and the complainant, and he said that he is going to leave and greeted her.
24. When he was about to leave, he grabbed her buttocks with his hand. There was objection from the representative of the applicant as he was concerned about her testimony on record whilst it has nothing to do with the charges and the complainant. The objection was noted. The witness continued and said that she moved away from the applicant, and he left. The second complainant was looking at her and said that the witness looked shocked and asked what happened and she said that he grabbed her buttocks before he left. The second complainant looked shocked and said the same happened to her, and the witness reported the incident about what happened the next morning. She is not aware whether the second complainant reported her incident the next morning.
25. After she discussed the detail of the incident with Mrs James, she was told that the applicant could be charged, or she could talk to the applicant about the incident. The witness decided to talk to the applicant and Mrs James spoke to the applicant and then he came to her and apologised to her, and she said if it is not going to happen again and then he left. It was put to the witness that the applicant said that he went behind the bar to check up. The witness replied that the headmaster and the deputy headmaster was still there. She confirmed that the applicant told her he is leaving and asked her whether she was still okay. He also said that his forearm hit her from behind on her buttocks and the witness said no he was grabbing her buttocks. She confirmed that the second complainant saw her in the state of shock and then she told the complainant about the incident. The applicant said that he never put his private parts against the buttocks of the second complainant and the witness said that she heard about it and the second complainant never told lies and there would be no reason for her to tell lies.
26. Under cross-examination the witness confirmed that she is teaching in the foundation phase, and she started as an intern in 2021 and started at the school since 2022. She said that she knows the second complainant since 2023 when she started and they are colleagues and friends at work. She confirmed that the incident with the applicant happened in April 2024 and there was no bar service during the duration of the speeches. The applicant was standing behind her and the second complainant was standing next to her. The back of the witness was turned on the applicant and she did not see him sitting on the counter. The applicant was close to her and the second complainant, and they were about one metre apart. She did not commend when she was told by the applicant that it is time to go and the reason he was behind the counter was as Deputy Principal, he felt more comfortable behind the bar.
27. It was further told to the witness that the applicant slipped of the counter and his forearm hit against her buttocks. She replied that he indeed grabbed her buttocks. She did not ask that the applicant be charged for the incident, and she understood when he apologised. The witness stated that he never put his hand on her shoulder. She also did not see that the applicant pushes his private parts against the buttocks of the second complainant, and she was only told about it. The second complainant was aware she made later a complaint against the applicant as she told the second complainant about it later at the bar. She confirmed that she had a meeting with Mrs James, and she said the applicant would come and apologised to her. He however never said it was an accident, and she accepted the apology. Under re-examination she confirmed that the applicant was standing between her and the second complainant, and he did not put his hand on her shoulder, and she also did not see his hand on the shoulder of the second complainant.

The 5th witness, Reon Jacobs, SMT Head of Music, after having been sworn in, testified as follows:

28. The witness looked at the charges of the applicant and reads it silently and stated that the issue is about sexual assaulting a colleague in the second and fourth term of 2024. He started in education in 2001 about 25 years ago and the applicant joined the school the third term of 2023. When he was working with the applicant he heard about similar other incidents that he read in the charges of the applicant. He testified before the Panel on request regarding the 4th term incident with the second complainant. He was requested by the applicant to make a statement. He knew who the victim was. She said that she does not want to be in the same room with the applicant as he was touching her and press himself against her when he heard from the applicant about it. There were other complainants, and she could look after herself and she mentioned another female’s name and Ms Mvandaba was not the only complainant as the other one was Susan Riekert. He heard everything from her (hearsay).
29. Under cross-examination he confirmed that he had no personal knowledge of the incidents as he just heard about it and he has no list of names. He is not aware of other sexual harassment cases at the school.
    Applicant’s evidence and arguments
    The applicant, Abraham Daniel Louis, former Deputy Principal, after having been sworn in, testified as follows:
30. The applicant stated that he has more than 30 years of experience in education. He explained in detail his education career and stated that he was Deputy Principal at Growth Primary School and he became acting Principal at the same school. His wife passed away and he was left with his two sons, and he decided to move to SACS with his two sons in July 2023. He was employed by the SGB but most of the time he was employed by WCED, and he was dismissed in March 2025. He had no previous disciplinary hearings over 30 years. He was vetted by WCED every time he applied for permanent positions. His sons are now in Wynberg Primary School in grade 7 and 9 as he moved them there because of the incident and one of the sons was in the class of the complainant. He started as Deputy Principal in the middle of 2023, and he also taught Grade 4 Afrikaans, and he was earmarked to teach Robotics.
31. He mentioned that his functions were that he was responsible for the safety committee as he was Head of Safety since August 2024. He was further responsible for the Quality Management System (QMS) of all educators regarding the 1% increase over and above normal increases from the WCED. He was further on the financial committee and the executive committee, and it includes himself, Mr Skeels and Mrs James. He was also in charge of operations and support staff as well. Regarding sport involvement he was coaching the under 9 rugby as well as water polo, and the complainant was also involved in water polo. He and coach Riley were coaching water polo, and the complainant was not reporting to him directly and the situation became unbearable after the incident in October 2024.
32. He testified that Mr Skeels was his direct supervisor, and, in his absence, he became the accountable officer. There were issues for the WCED about the previous Principal, and they were doing things differently and he was told to observe the SACS way of doing things. It was mentioned at a Senior Management meeting that there was a culture of drinking at the functions at the school and the alcohol issue was raised by parents as well as the culture of drinking around events which is freely available like wine and beers. After water polo and rugby games players and educators and parents go to the pavilion as the beers are for free and there is limited control over the process.
33. Regarding the incident in April 2024 during a sport function where it was a platform where schools can assist other schools and players. It was the first time it was launched for Grade 6 only and one of his sons was in Grade 6. All the parents were invited to listen to Mr Vos. There were a lot of people waiting to hear his speech and pitched for trying to make money and used it for Grade 6 in schools and players in Grade 6. Present also were Grade 6 parents and teachers and he was present as a parent and Deputy Principal. He did not know the parents at that stage, and he went behind the bar, listened to the speech, and looked at the parents. He was sitting next to the pillar in the bar as the presentation took 45 minutes to an hour. In the bar were two female teachers on that day and he had no engagement with Ms Mjazi. The two females were talking with each other, and his sons were on the field. He saw them running towards the bar and he slight of the counter and he knocked her with his forearm on her bum. He put his hand on both ladies’ shoulders and said that he is going to leave and then he stepped out and left. He had no contact with the complainant except for his hand on her shoulder. Then he left and took his sons and went home. The next day he was called in the office by Mrs James, and she indicated to him Ms Mjali felt uncomfortable, and they discussed the incident, and it was suggested that he apologised to her. He went to her, and he apologised, and she said it is okay if it does not happen again. He told her it was an accident. He mentioned that there were alcohol related issues as a student, and his mate fell in a drain, and the claim was R1.2 million. He mentioned that alcohol became an issue if students drink after a function and get into vehicles after getting drunk.
34. Regarding the second incident the applicant testified that he was at a SACS water polo festival from 02 October 2025 up to the Saturday. There were more than 25 teams, and he decided to be involved in the transport of the teams to fetched them at the airport bring them to the school. He had to ensure that everybody is safe before the event. In October 2024 in executive meetings, they discussed security and alcohol. The applicant had to be at the event from the Wednesday up to the Saturday. He arrived late on the Wednesday, 02 October 2024, as he had issues with his children and he first took them home and then came to the event. The place was packed in the bar, and the place was very busy. He was standing at the sink, and the ice buckets were behind the bar with beers and cooldrink and the cooler boxes close to the door. The sink area was open and the steal bins to the right of him and the dishwasher was at that stage not used.
35. When he walked in the bar he received a coke from Mr Ervens, and he had no other drinks that evening. He had no excess to the fridges as there were five (5) people behind the bar serving the people. He stood there and observed what they were doing. He and Mr Ervens left the bar at the same time. It was put to the applicant that the second complainant said that he put his genitals into the buttocks of the complainant. The applicant stated it did not happen, and he was so shocked when he was told about it, as he was not close to the complainant. There was no space to move closer to the complainant and he had no conversation with her that evening as he was there for about one hour and thirty minutes. There were still games on when he left. He was standing at the sink area, and he would not have step into her buckets. If anyone opened the door of the fridge, the buckets were right behind the person. The applicant was formally involved in the events.
36. He stated that he apologised to Mrs Mjali as he does not mind apologizing to the colleagues. He became so much more aware not to go close to people in the bar. He stated that the fridges were only one half of the bar and some of the employees serving had to move from the one end to the other end to get a cooldrink or beer and walked back to the other end. In October 2024 there were four (4) males and one (1) female serving behind the counter of the bar. He is 1.9 metres tall, and the second complainant is much shorter. For him to have doing what he was accused off, he had to drop his knees and bend down to her level. He needed to go down at least 20 cm and bend his knees. He was the tallest person in the bar as all others were shorter than him. He knew that the complainant was not close to him, and he did not do what she accused him off. He needed to step in the ice bucket to be behind the complainant. The second complainant is the only witness, and it was extremely packed in the bar and before the counter. The second complainant testified that the incident took about three (3) seconds, and it was a long time not to be noticed by anybody else.
37. He is aware of the charge sheet regarding the incident on 02 October 2024 and he was called in by Mr Skeels and Mrs James on 31 October 2024 when he received the charge sheet. The pre-hearing was on 07 November 2024, and he kept on working in-between. Regarding the first incident in April 2024, he only knew about it when he was given the charge sheet on 31 October 2024, but no specific dates were given, and he only received the dates at the disciplinary hearing. He further stated that Mr Jacobs was not present at any of the two events and he asked him for a statement. Mr Skeels spoke to him before the pre-hearing, and he was then told that the second complainant was making a complaint against him. He mentioned that Mr Siko was standing at the right-hand side of the complainant in conversation with her. Then Mr Siko denied it at the disciplinary hearing.
38. The decision of the disciplinary hearing was made on 12 December 2024, and he appealed against it. He only received his dismissal letter on 17 March 2025 and before that he was instructed to work from home. NAPTOSE said that he must report for duty and not worked from hone. He called Mr Jacobs as witness and he brough the hearsay stuff to the hearing. His family is 100% supportive of him and he is a people person and is fighting for his life. He commended on 05 September 2025 that the Interim Protection Order that he received on 28 August 2025 was served at his home and he was intimidated by that. The content is not correct as on 05 August 2025 during the inspection in logo that he was invited to, he was asked to leave the bar and stay in another room. It was prior to the arrival of N Mvandaba, and he left on the request made by the WCED. His brother was also in the bar as invited by himself and his representative.
39. Under cross-examination the applicant confirmed that he started at the school in 2023 and he described N Mvandaba as a colleague. The relationship between them was professional and in 2024 she became his son’s class teacher. He said that she had not fabricated stories about other colleagues as well, but she mentioned other sexual relationships. The other incidents were handled at Principal level, and he did not deal with it. He admitted that he attended a function in April 2024 at the school and he was sitting on the counter to have a view from what is happening in the bar and lunch area. He is an introvert, and he did not want to mix with the other people. The representative of the respondent told him that was an opportunity to get to know them by sitting with them and he said that he was instructed by the principal to observe the SACS way of things. She further put it to him that it was strange as Deputy Principal and parent of a Grade 6 child to sit behind the bar, and he commended that there were other people standing there as well. He was told that he had an ulterior motive to position himself behind the bar and he had nothing to say.
40. He confirmed that he was sitting on the counter in April 2024 and scanned other and he was jumping of when he was seeing his son approaching and hit Ms Mjali with his forearm on her buttocks. He tried to fix it by asking her if everything is OK and she said yes while he was standing between her and N Mvandaba. He stated that he hit her buttocks accidentally and he apologised to her the next day when she laid a complaint, and he was addressed to make it right. He further denied that he grabbed her buttocks and/or pushed his front area against the buttocks of N Mvandaba. He was asked as an introvert why did he placed his hands on their shoulders, and he said that Ms Mjali step back and he asked her questions, and she was chatting to him. He never engaged with her before she was stepping back. He repeated that when he knocked her bum he asked if she was OK and he apologised the next day.
41. Regarding the second incident on 02 October 2024, he positioned himself at the sink as he came in late and he was offered a coke by Mr Ervens and was drinking it at the sink area close to the entrance of the bar area. He was asked if he was still shy in October 2024 and he still does not know a lot of people. The applicant stated he was standing there after he was given the coke, and he did not move from there. He was again behind the bar as Mr Ervens was closest to him. He was late as he first took his children home and there was no space and there were a lot of people in the venue. He said that he was not close to the second complainant, and it is highly improbable that he was pressing his private parts against her buttocks, and she was lying for a second time. His role was to assist with operations, and he was also there as Head of the Safety Committee. It was also the first time he was part of such a massive event. The function was still on when he left with Mr Ervens. The representative told him that he went into the bar that evening with ulterior motives. He agreed that the people serving was moving between the different serving points and the complainant was standing at F1 on the graph presented.
42. The representative said the complainant was bending down to get the drinks and he said there was no way that Mr Siko could see it anything happened. It was for a third time put to the applicant that he put his private parts against the buttocks of the second complainant and he disagreed. The applicant stated that the second complainant had experience similar to this in the past. He said that the second complainant should have come forward in April already, but she did not and only put in a complaint in October 2024. This incident destroyed his career. It was put to the applicant that Ms Mvandaba would not be in such a state in October 2024 and during the inspection in logo on 05 August 2025 if nothing happened to her. He lastly said that he is not lying, and he is speaking the truth, and the complainant portrays herself as a victim.

The 1st witness of the applicant, Sisipho Siko, Intern, after having been sworn in, testified as follows:

43. The witness stated that he was behind the bar on 02 October 2024 and he was given a diagram that he explained. He was standing at F3 as marked and the complainant at F1 and the applicant was standing next to the sink at the entrance of the bar. He was standing there to give instructions, and he did nothing major. He noticed the applicant during the speeches further down in the venue. After the speeches, the witness ran to get behind the bar and the applicant got there after him. The complainant, N Mvandaba told him that the applicant was standing behind them at the sink. They were serving the people, and the applicant was standing behind them and the witness was busy serving at F3 and another person at F4. There was nobody at F2 on the diagram. He stated that it was difficult to move around to get different drinks due to the limited space in the bar. He stated that the complainant standing at F1 was opening the fridge no 2 and bended down when wanted to take out something there. They reached for the drinks took it out and closed again. If something were at the bottom of the fridge you had to bend over the open door as a person could pass the ice buckets. He further stated that if the ice bucket is behind you there was no way to step back. He stated that the applicant made no contact with the complainant of which he was aware.
44. Under cross-examination he said the second complainant told him that the applicant was trying to press his private parts against her buttocks and he told her that they must change positions, and she move to F3, and he moved to F1. The complainant did not look happy at all as there was panic in her face. From F1 and F3 you can take one step back due to the positions of the ice buckets. He also indicated that the people behind the bar could move around. Under-re-examination he confirmed that if moving around it was possible to make physical contact and he confirmed that Mr Ervens was nor serving drinks in the bar.

The 2nd witness, Gary Louis, Medical Professional, after having been sworn in, testified as follows:

45. The second witness gave his qualifications and experience in detail and handed in two other graphs, and he is the brother of the applicant, and he was present during the inspection in logo. He stated that he is an expert in measurements, and he was not present when the incident happened. He explained F1 to F4 and he measured the ice buckets that was not there during the inspection in logo. He stated that the complainant had to bend to get the drinks out of the fridges after she opened it and due to the ice bucket’s location, she was bending sideways.
46. Under cross-examination he confirmed that if you are behind the fridge door you could not move back and due to the high of the applicant he had to bend also down and there was no space for that. He further explained the different body shapes and confirmed due to his graphs the applicant could not be behind the complainant due to the allocation of the ice buckets. He was told that the complainant was at F1 when the incident happened and she had to bent down but the witness stated that a body could not stand behind her at F1. This was disputed by the representative of the respondent.
    Closing arguments
47. The representative of the applicant and respondent sent written closing arguments by 15 September 2025, as agreed on 05 September 2025. Both parties’ submissions and arguments were perused and incorporated into the decisions made in the award. Analysis of evidence and argument
48. This is a summary of the relevant evidence and does not reflect all the evidence and arguments heard and considered in reaching my decision on this matter. In this arbitration I am firstly going to refer to the Employment of Educators Act 76 of 1998. Dismissal is not in dispute as agreed by the parties. I must therefore decide whether the dismissal for sexual harassment was substantively and procedurally fair or unfair. Procedure was also put into dispute as the appeal hearing took long to be concluded. The applicant also claims substantive unfairness in that he did not break the rules and policy regarding sexual harassment and there was no intention to sexually harassed the complainant and he never touched her buttock, and therefore the penalty of dismissal was too harsh.
49. Section 138 (6) of the LRA further provides that a Commissioner conducting an arbitration must consider any code of good practice issued by NEDLAC and any guidelines published by the ELRC that are relevant to the matter being considered in the arbitration proceedings. This included the Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace of 18 March 2022. Section 192(1) of the LRA, as amended, states that the applicant has a duty to prove that he was dismissed and once that has been proven, the respondent must prove that the dismissal was fair in terms of section 192(2).
50. The applicant was employed as a Deputy Principal at he was specifically posted to SACS Junior School (hereinafter “the school”) from 01 July 2023 until 31 March 2025. On 09 October 2024, the applicant was charged and ultimately found guilty of the following charge: “It is alleged that you are guilty of misconduct in terms of section 17(1)(b) of the Employment of Educators Act 76 of 1998 in that during the 2nd and 4th term of 2024, you sexually assaulted Ms Mvandaba, an educator during a staff function of SA College Junior School by pressing your genital organ against her buttocks”. The applicant was subject to a disciplinary hearing process that took place on 02 and 03 December 2024. According to a report dated 11 December 2024, and as recommended by the chairperson, the applicant was to be dismissed summarily.
51. This enquiry evolved from the principles set out in Sidumo and another v Rustenburg Platinum Mines Ltd & others (2007) 28 ILJ 2405 (CC) where the Constitutional Court per Navsa AJ [at para 78] held that: “In approaching the dismissal dispute impartially a commissioner will consider the totality of circumstances. He or she will necessarily consider the importance of the rule that had been breached. The commissioner must of course consider the reason the employer imposed the sanction of dismissal, as he or she must consider the basis of the employee’s challenge to the dismissal. There are other factors that will require consideration. For example, the harm caused by the employee’s conduct, whether additional training and instruction may result in the employee not repeating the misconduct, the effect of dismissal on the employee and his or her long-service record. This is not an exhaustive list.”
52. 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 dire not only for the respondent but also for its other employees. However, in considering the appropriate sanction for any breach, the employer is required to do so dispassionately and fairly.
53. The existence, knowledge, and reasonableness of the rules regarding sexual harassment were not in dispute. The contravention of the rules and policy regarding sexual harassment as claimed by the complainant and whether dismissal was an appropriate sanction, were issues placed in dispute and on which I am required to decide. Substantive fairness
54. Section 185 of the LRA, as amended, stipulates that every employee has the right not to be unfairly dismissed or to be subjected to an unfair labour practice. Section 186 (1) (a) of the LRA, stipulates that dismissal means an employer has terminated employment with or without notice. Section 188 of the LRA, stipulates that a dismissal that is not automatically unfair, is unfair if the employer fails to prove that the reason for dismissal is a fair reason related to the employee’s conduct and that the dismissal was affected in accordance with a fair procedure.
55. In determining whether the dismissal was substantively fair, I considered the LRA Code of Good Practice: Dismissal in Schedule 8, Item 7. It states that any person who is determining whether a dismissal for misconduct is unfair should consider-(1) Whether or not the employee contravened a rule or standard regulating conduct in, or relevant to, the workplace; (2) If a rule or standard was contravened , whether or not- (a) the rule was a valid or reasonable rule or standard; (b) the employee was aware or could reasonably be aware of the rule or standard; (c) the rule or standard was consistently applied by the employer; and (d) dismissal was the appropriate sanction for the contravention of the rule or standard. Did the applicant contravene the policy and rules?
56. This is a purely factual question. Unless the employee concedes to contravention of the rule, evidence must be led from both points of view. That evidence must be carefully analyzed and determined based on credibility and on balance of probability. The applicant disputes that he broke the rules regarding sexual harassment as he had no intention to sexually harass the complainant, and he never put his private parts (genitals) into the buttocks of the complainant on either 23 April and/or 02 October 2024. 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. In other words, even in cases of misconduct that constitute crimes, the onus of proof on the employer alleging this misconduct is that of the civil onus, or a balance of probabilities. See also SACCAWU & Another v The Click’s Organization (Pty) Ltd (1997) 2 BLLR 164 (IC).
57. Labour Appeal Court Judgment: Motsamai v Everite Building Products (Pty) Ltd (JA21.08) [2010] ZALAC In the above matter, the Labour Appeal Court dealt with similar allegations of sexual misconduct in the workplace. The Court affirmed the principle that sexual harassment is a grave transgression that undermines the dignity of the victim and the integrity of the workplace. The Court held that a sanction less than dismissal, such as re-employment or counselling, was not appropriate under the circumstances. The Labour Court and subsequently the Labour Appeal Court found that dismissal was substantively and procedurally fair. “Sexual harassment is the most heinous misconduct that plagues a workplace, and it must therefore be viewed from the point of view of the victim: how does he/she perceive it, and whether or not the perception is reasonable.” This authoritative case directly supports the respondent’s position that dismissal is the only reasonable and legally appropriate sanction in instances of unrepented sexual misconduct, especially where power underlying forces are involved.
58. The representative of the respondent submitted that the evidence of the witnesses proves that the applicant had the intention, opportunity, and by virtue of his position sexually harassed the complainant. Ms Mvandaba, an educator, claimed that he placed his genitals organ against her buttocks. Mr. Louis has pleaded not guilty to the above allegations. WCED, the department would like to confidentially submit that its witnesses were consistent in leading the evidence throughout this arbitration proceedings.
59. Mr. Skeels indicated that he is the Headmaster of SACS Primary School, and he knows Mr Louis the deputy principal of the said school since July 2023. He also indicated that he knows Mvandaba, she is a post level 1 educator at the school employed by the SGB. He stated that he became aware of the allegations on Monday 7 October 2024, when Mrs James, deputy principal, went to him and reported that Ms Mvandaba has reported to her that Mr Louis was inappropriately towards her. Mrs James informed him that she asked Ms Mvandaba how she liked the school to deal with the matter and Mvandaba informed her that she wanted to lay a formal complaint.
60. According to Mr Skeels, during the first week of October 2024, the school had a Water Polo function which took about 3 to 4 days, where a lot of schools from different countries were at the school. He was then made aware of these allegations after that function. He indicated that when he first heard of these allegations, he was shocked and concerned as there was a previous matter that was brought to his attention in April 2024, which was of a similar nature involving Mr. Louis but Mrs James dealt with it. Mr. Skeels indicated that the previous matter involved Ms Mjali who is also a post one educator at the school. Mrs James dealt with her matter at the school level, and Mr Louis had apologized to Ms Mjali for his inappropriate physical contact with her.
61. Mr Skeels stated that he also attended the two functions at the school, one that was held in April 2024 and the other one that was in October 2024, and Mr. Louis also attended both functions. Mr. Louis positioned himself behind the bar on both functions. He further testified that Mr Louis had absolutely no role behind the bar. In April 2024 the only people that were mandated to be behind the bar was Ms Mvandaba and Ms Mjali and in October 2024 there were only four (4) staff members namely Ms Mvandaba, Mr Siko, Mr Thuswa, and Mr Naidoo who were appointed to be serving the audience behind the bar. He stated that Ms Mvandaba was the class teacher of Mr Louis’s son and both Mr Louis and Ms Mvandaba were coaching water polo. He indicated that he does not see any reason why Ms Mvandaba would make up a story about Mr. Louis and say he has sexually assaulted her and for all the years that he has been working with Ms Mvandaba she does not have any history of fabricating stories against your colleagues.
62. He was asked should Mr Louis be found not guilty of these allegations, which he still trusts him to work at the school, and he gave a clear response that now he would have a major issue if Mr Louis returned to school. He stated that there are trust issues that come up during the process and subsequent to this day are most staff members who have come up and reported incidents of similar nature against Mr Louis. He stated that now he does not only have Ms Mjali and Ms Mvandaba as complainants, but there are other colleagues as well that come forth and reported Mr Louis inappropriate conduct against them.
63. On Monday, 7 October 2024, Mrs James reported the matter to Mr. Skeels because Ms Mvandaba informed her that she wants the matter to be dealt with formally as it was not the first time that Mr Louis had pressed his genitals on her buttocks. Mrs James indicated that she was concerned about Ms Mvandaba because in April 2024 it was reported to her by Ms Mjali that Mr Louis touched her on her behind in an unappropriated manner. Mrs James indicated that she thought Ms. Mjali’s incident was an accident. She explained that she informed Mr Louis about the allegations of Ms Mjali and Mr. Louis went to apologize to Ms Mjali for the inappropriate conduct. Mrs James further stated that when Ms Mjali went to report her incident, she mentioned that there was another colleague that was also violated by Mr Louis, but she did not disclose the colleague’s name. Mrs James testified that when Ms Mvandaba informed her that it was not the first time that Mr Louis pressed his lower body into her buttocks she realized that Ms Mvandaba could be the colleague that Ms Mjali was referred to. She also testified that Mr Louis alleged inappropriate conduct is not acceptable and it is against the values of the WCED as well as the ones of the school.
64. Ms Mvandaba, the complainant, stated the following with regards to her allegations. She is an educator at Saint College Junior School, and she knows Mr Louis as he was her superior and his son was in her class in 2024. They were also coaching together water polo, and she stated that initially Mr Louis was friendly, willing to assist when one needs assistance. She stated that the first incident occurred in April 2024 when the school had a Sport for Life function for Grade 6. She testified that she was working behind the bar with Ms Mjali and behind them it was Mr Louis, and he was standing facing them. She claimed that she was facing forwards with Ms. Mjali. Mr Louis came behind them and placed his hand on her left shoulder. She further felt him pressing his genitals on her buttocks and then he left.
65. She testified that she was shocked at what was happening, she had mixed emotions, and she felt very violated yet also thought that it could have been an accident. She looked at Ms Mjali with shock and Ms Mjali also looked at her with the same facial expression. Ms Mjali told her that she could not believe what just happened and she informed her that Mr Louis grabbed her buttocks. Then Ms Mvandaba indicated that she also told Ms Mjali that the reason that she looked at her in that state is because Mr. Louis just pressed his private parts on her buttocks. According to Ms Mvandaba, Ms Mjali informed her that she would speak to Mrs James about the incident. Ms Mvandaba indicated that she did not report the incident because she was not sure whether it was an accident or whether it was deliberately done. She, however, mentioned that there was enough space for Mr Louis to move without bumping into them and even if he had bumped into them that is not something that typically occurred without one apologizing.
66. With regards to the second incident, Ms Mvandaba testified that the incident occurred in the first week of October 2024 during the school event. She stated that it was on a Wednesday evening, and she was working behind the bar with Mr Siko, Mr Naidoo and Mr Thuswa. She stated that she oversaw catering and others were also placed behind the bar to assist her. She testified that the School Management Team was mingling with the audience. She noticed Mr Louis coming behind the bar and he stood next to the sink. She testified that she was stationed to serve from the first fridge. She claimed that as she was bending, taking drinks out of number 2 fridge, she felt Mr Louis pressing his genitals on her buttocks in the same manner that he was doing it the first time.
67. Ms Mvandaba testified that she had moved to the other side and went to tell Mr Siko about what had happened, and Mr Siko said for the duration of the evening he would place himself between the two of them. They swapped rolls, Mr. Siko went to serve fridge 1 and Ms Mvandaba was serving fridge 3. After that she went to Mrs James and reported what happened, Mrs James said they would have to discuss the matter the next morning which they did. Ms Mvandaba testified that she informed Mrs James that she would like to lay a formal complaint against Mr. Louis as she felt extremely violated and very angry and it was not the first time, he had pressed his lower body on her buttocks. She further testified that when the second incident occurred, she realized that even the first incident was not an accident. She stated that the reason she reported the matter is because she does not want to be Mr Louis victim in a workplace. She further testified that she does not have any issues with Mr Louis, and she does not have any reason to lie about him. She indicated that Mr Louis needs to be held accountable for his actions as he is not setting a good example to his subordinates and she indicated that the superiors are supposed to look after them and not take advantage of them.
68. Ms. Mjali educator stated the following regarding the allegations, and she indicated that she attended the function in April 2024, and she stood behind the bar with Ms Mvandaba. She testified that Mr Louis standing behind them and he came from behind and said something like goodbye. She stated that in that process Mr Louis placed his hand on Ms Mvandaba shoulder and he was standing slightly in between them. She said that he grabbed her buttocks with his other hand. The witness indicated that she did not know what he was doing to Ms Mvandaba as her focus was on what was happening to her and afterwards Mr Louis left. She stated that she was shocked and disbelieved and she looked at Ms Mvandaba and she also seemed shocked, and she told Ms Mvandaba about what happened to her and then Ms Mvandaba also told her that Mr Louis pressed his tools on her buttocks.
69. Mr. Siko in turn stated the following regarding the allegations and he confirmed that he attended the function in October 2024, and he was there during the first day of the function. He confirmed that he was serving behind the bar with Ms Mvandaba and other colleagues. He indicated that Mr Louis was also behind the bar standing between the sink and the microwave. He stated that whilst they were serving Ms Mvandaba approached him, and she was not looking happy at all and there was panic on her face. She told him that she was bending trying to get a drink out of the fridge then Mr Louis pressed his private parts into her buttocks. They swapped rolls and he moved to Fridge 1, and she moved to Fridge 3. He further informed Ms Mvandaba that he would stand between the two of them. Mr. Siko said it was difficult to move around behind the bar, but they were able to take a step back before hitting or knocking the ice buckets. He further mentioned that they were also able to go around one another and go to the fridges. He further testified that it was the first time that he saw Ms. Mvandaba in that state.
70. Mrs James, deputy principal, stated the following regarding the allegations, and said that in October 2024 during the evening of the Water Polo event one of her colleagues, Ms Mvandaba, approached her and she looked shocked and upset and reported that Mr Louis pressed his lower body onto her buttocks. She asked Ms Mvandaba if she would be able to finish the shift and she said yes, she will be able because she had already spoken to Mr. Siko about the incident. Mr Siko said he will keep an eye on the applicant. The next morning Mrs James had a discussion with Ms Mvandaba about the allegations where Ms Mvandaba explained to her that Mr Louis pressed his genitals on her buttocks while she was bending down taking drinks out of the fridge.
71. The representative of the applicant submitted that the allegations against the applicant involve charges of sexual misconduct, which are serious, career ending and stigmatizing. Commissioners dealing with cases of sexual harassment and misconduct had been warned to avoid ‘latent gender’ bias, and to treat such cases with exceptional sensitivity. This bias is not simply what is directed at a complainant but what is directed at the accused. The applicant had been charged with sexual assault in terms of section 17(1)(b) of the Employment of Educators Act, alternatively with improper conduct in terms of section 18(1)(q). The charges related to alleged incidents that took place during school functions in April 2024 and October 24.
72. During April 2024 there was a Sports for Life Function and the applicant’s version that during this school event in April 2024, he had positioned himself behind the bar due to various reasons. In particular, he was new to the school and, being introverted by nature, he found it more comfortable being removed from the parents and in a position where he could observe. He also felt obligated to observe the function of the bar and the distribution of the alcohol, as this way a concern for him carrying his health and safety responsibility seriously. The applicant, during the speeches, sat on the back counter of the bar near the bell. Headmaster Skeels who testified for the respondent confirmed that the applicant was sitting on the counter. The complainant Ms Mvandaba and a colleague Ms Mjali were working at the bar.
73. At the end of the speeches the applicant noticing his son approaching, elected to leave and, in the process, accidentally bumped Mjali. He then positioned himself between Mjali and Mvandaba, who were a meter apart, placing his hand on their shoulders asking words to the effect “if they were OK” and “that he was leaving for the evening.” Mjali in her evidence, indicated that she and Mvandaba were standing approximately a meter from each other. The next day the applicant was approached by the Deputy Principal, Mrs James, who informed him that Mjali had complained about the bumping incident and asked that the applicant addressed the compliant with Mjali. He duly did this, explained it was an accident, and she accepted the apology. The evidence of Mvandaba was that she claimed that the applicant, when he approached her and Mjali at the bar counter, pushed his genitals quickly into her rear end, placed his hand on her left shoulder and told them he was leaving. The applicant strongly denies that he pushed his genitals into her rear end, and his only contact with her was the hand on her shoulder.
74. Mvandaba was aware that Mjali planned to speak to Mrs James, but Mvandaba elected not to make a complaint as she was not certain. More specifically she testified she only became certain when she allegedly experienced a similar incident in October 2024, six months later. It was drawn to her attention under cross-examination that she had a history of being a victim of gender-based violence and had appeared in the media advocating the problem. It was put to her that it was, therefore, surprising that she had not raised this immediately and simultaneously when Mjali had addressed this as Mvandaba was aware that Mjali had reported her concerns. More specifically the allegations were raised by Mvandaba for the first time six months later.
75. The second complaint was on 02 October 2024 during a water polo function. The second complaint stemmed from a water polo event that SACS Primary school was hosting. It is common cause that the event was bustling with people, and they were hardly space to move both before and behind the bar. It is further common cause that the space behind the bar was significantly compromised with ice buckets and cooler boxes. There were four (4) formal bar tenders assigned, who included Mvandaba, Mr Siko, Mr Naidoo, and Mr Tuswa, but also several other people were assisting behind the bar, including Mr Ervens, who, as per his statement, was “serving behind the bar” and that he gave the applicant a Coke. Mvandaba, in her evidence, stated that Ervens was on the left of her during arbitration, as does the applicant. The evidence of the expert witness Gary Louis detailed the space difficulties that resulted in the placement of the two large ice buckets, coupled with the need to access the various refrigerators and dishwasher. Mvandaba stated during the hearing: “When other people are standing at the bar, others can walk around freely at the back unless there is something like a tub or anything like ice buckets or cooler boxes stacked at the back there, where they would need to step into another person’s space”. The evidence of Sisipho Siko supported this very contention, saying that if you needed something from another part of the bar, you would either ask a colleague, or if they were busy, you would have to move around them into their personal space. He conceded that bumping into or touching another person was a realistic possibility.
76. The evidence of Mvandaba at the arbitration was that while she was bending down accessing fridge two, the applicant came from behind, pushed his genitals against her rear end. She then realized that this was similar to the April incident and elected to report the matter to James. On 7 October 2024, Mvandaba made a statement to James, which stated inter alia as follows: “When Mr. Louis came into the bar area, he stood behind Mvandaba. When she was serving guests, he pressed his lower body into her rear end”. We heard that the uncontested evidence of the expert witness, Gary Louis, that the spice limitation would restrict movement in the bar area and make it very difficult for the applicant to be able to move behind the bar and position himself behind somebody, due to his large feet, 30 centimeters in a very narrow space.
77. It was further evidence of Gary Louis that the enormous height differential between the applicant and Mvandaba and the size of his stomach would make it almost impossible that he could have pushed his genitals into her rear end in such circumstances. The evidence of Mvandaba being bending down, which would have lowered her rearend position and height considerably. Mvandaba was bending down as described as it could not have been the applicants’ genitals as claimed. He proposed that someone of equal height as Mvandaba would be able to do this. It was further evidence of Gary Louis that the process of bending down will also result in your body moving backwards in the movement. The applicant testified that he arrived late in the evening, stopped briefly at the fireplace and then stood at the entrance of the bar in front of the sink, and he was given a Coke by Ervens who was working on the far left of the bar. At no stage did he go anywhere near Mvandaba the entire evening and left at approximately 21:30. There were no witnesses to support Mvandaba’s complaint outside of her version.
78. They heard that during the proceedings, Mvandaba acquired an ex parte Interim Protection Order against the applicant which was served on the applicant. The relevance of this order is that the primary basis of the protection order stemmed from an inspection in logo at the SACS Primary premises on 05 August 2025 and a copy of this was handed in during the proceedings. On 05 August 2025, an inspection in logo was facilitated at SACS Primary, requested by the applicant’s legal team but under the auspices of the ELRC, with all parties present. The applicant was asked to remove himself when Mvandaba was present, was called and chaperoned by James, and any enactment was requested and authorized by the Commissioner at the request of the WCED representative. In amplification, Mvandaba’s assistance was not at the request of the applicant or any member of the legal team. During the enactment of the incident, Mvandaba was asked to demonstrate how this happened, and she indicated on her own initiative that she was bending down and assessing the second fridge as presented on the drawing by Gary Louis when the alleged incident occurred.
79. In the arguments of the representative of the applicant he said that Mvandaba is a single witness in a sexually related matter, and cautionary rules in evidence must apply. Mvandaba, in the course of acquiring a protection order, has made dishonest and inflammatory statements to the Magistrates’ Court in Wynberg. These statements regarding the conduct and apparent intimidation of the applicant, his family, and legal team are false and pertain to issues that this commissioner has personal knowledge of. The presence of Gary Louis was for legitimate reasons, as the Commissioner is aware. This aspect must impact the credibility of Mvandaba when she inflates, distorts, and presents a fundamentally untrue version to judicial officer claiming her “safety is at risk.” She is clearly guilty of barefaced perjury and defamatory comments directed at both the applicant, his legal team and specifically Gary Louis.
80. As per the evidence of James she had asked Mvandaba first to consider what she would like to do and then provide a statement. Mvandaba acknowledged that she signed this statement, and this statement had clearly been considered. This description of what she claims then, through the course of her testimony, is different, and this escalates to the applicant pushing her his genitals into her rearend, which forms the basis of the charge against the applicant. The fact is that the applicant now had control over the QMS, but in the mind of Mvandaba, once she elected to make the compliant, she needed to make sure this ended in the applicant’s dismissal. She was concerned as can be seen above, that he could influence her performance assessment and her future. This would explain why her initial version changed and she increased the volume of the allegation, which manifested in the lying under oath evident in the Interim Protection Order. The two incidents in April and October 2024 interestingly coincide exactly with the QMS assessments.
81. Concerning the incident in April 2024, it is common cause that Mvandaba does not report this. It is strange that if this were true or she had any certainty about the matter, she would have accompanied Mjali when she made complaint to James. Mvandaba only achieved personal clarity on the issue after the alleged incident of 02 October 2024, some six months later. She conceded that she was not sure about the April incident at the time. On the version of the applicant as confirmed by Mjali he stood between the two ladies, and that does not support the version of Mvandaba, who would need him to approach her from behind. Mjali, however, can verify none of this, and the applicant categorically denies this happened. The second incident on 02 October 2024 is, on the basis, the incident that catalysis the complaint. There are fundamental concerns about this.
82. The fundamental concern about this is that Mvandaba is bending down and facing forward yet is now able to determine precisely who bumped into her and precisely what part of the body was involved. A fact that could not be identified five days after the incident, when all she could say was that it was the lower part of the body. It was put to Mvandaba during her cross-examination that she made no mention of bending down at all during the disciplinary hearing. In terms of the transcribed records submitted, she makes zero mention of this fact. The bar is incredible busy with limited space and fellow bar people moving into each other’s space regularly.
83. The uncontested expert opinion is that the spatial dynamics do not support the Mvandaba version. During the inspection in logo, placed herself at Fridge 2 when she alleged the event happened, which would have been directly in front of an ice bath with compromised space as described by Gary Louis. The uncontested expert opinion is that the body shape of the applicant and the massive height difference with the bending down person do not lend in themselves to his genitals even being able to pump the rear end of Mvandaba. There is no witness to this act accept again Mvandaba. Gary Louis demonstrated that this was very much in the eyeline of people standing on the other side of the bar, and more so if Mvandaba was on the left-hand side of the bar. It is improbable that the version of Mvandaba of what took place on 2 October 2024 is accurate and true. If that is the case, what informed her complaint regarding the April 2024 incident is equally suspected for all the same reasons and, on their own version, not significant or clear enough to support a complaint. In short, the respondent has failed to satisfy its onus, and its dismissal is substantively unfair.
84. It is the submission of the respondent’s representative regarding charge one. Charge 1 states: “It is alleged that you are guilty of misconduct in terms of section 17(1)(b) of the Employment of Educators Act 76 of 1998, in that during the 2nd and/or the 4th school term of 2024, you sexually assaulted Ms Mvandaba, an educator during a staff function at SACS Junior School, by pressing your genital organ against her buttocks. Ms Mvandaba, an educator, claimed that he placed his genitals organ against her buttocks”. Mr. Louis has pleaded not guilty to the above allegations. WCED, the department would like to confidentially submit that its witnesses were consistent in leading the evidence throughout this arbitration proceedings.
85. In Bandant v De Kock and another (2015) 36 ILJ 979 (LC) the Court reasoned that it is clear from the provisions of the Code that the central issue to the existence of sexual harassment is the “unwelcome” nature of the conduct. Where the conduct is not unwelcome, it cannot be said to constitute sexual harassment. In determining whether the conduct was unwelcome, the dynamic of the work and personal relationship between the applicant and the respondent must be considered. The court went on to state the test to be applied on this determination is an objective one. According to the applicant, the respondent has failed to discharge the burden to prove that the applicant committed sexual harassment misconduct.
86. The submission of the representative of the respondent is finally that sexual assault and harassment is rife in South Africa communities. The WCED does condone the behavior of Mr. Louis and does not have a place for employees like him who do not protect and uphold the WCED image and who put the department and the school into disrepute. His actions are appalling as an employee and a deputy principal he should be ensuring that women and children are safe from dangers of sexual assault and not administering sexual assault on a colleague. He should act professionally and always set an example. Violence and harassment of any form in our communities is a worrying and escalating problem which must be dealt with in the strictest terms. Female educators go to school to work for their families for them to be able to provide for their families and not to be abused groomed sexually, physically, and mentally by their superiors.
87. The failure to give Mr Louis and inappropriate sanction such as this dismissal jeopardizes the safety of the female colleagues and children at the school concerned. This is in direct conflict with Section 28 two of the constitution. Furthermore, the WCED will not allow its staff members to create the impression to external role players that misconduct is allowed within our system and that there are no measures in place to curb such actions. The WCED can under no circumstances condone this kind of behavior. It is logical to presume that as an adult person Mr Louis should have known that there will be consequences for his actions. A sanction of dismissal needs to be imposed on Mr. Louis for him not to get a chance to violate other colleagues even again.
88. According to the Code of Good Practice on the prevention and elimination of harassment in the workplace on 18 March 2022 it states that sexual harassment of an employee is a form of unfair discrimination and is prohibited on the grounds of sex, gender, or social orientation. Factors to establish sexual harassment is unwanted conduct and the nature and extent of the conduct. The fact that the complainant does not indicate that the conduct is unwanted does not entail that there has not been sexual harassment, if the conduct is such that the harasser/perpetrator ought to have known it could be regarded as unwanted. The conduct should constitute an impairment of the employee’s dignity, considering the circumstances of the employee, and the respective positions of the employee and the perpetrator in the workplace.
89. Sexual harassment is unwelcome conduct of a sexual nature, whether direct or indirect, that the perpetrator knows or ought to know is not welcome. Sexual harassment may be offensive to the complainant, make the complainant feel uncomfortable or cause harm or inspire the reasonable belief that the complainant may be harmed. Sexual harassment violates the rights of an employee and constitutes a barrier to equality in the workplace. The test for establishing whether there has been sexual harassment takes into account the following factors: (1) whether the harassment is on the prohibited grounds of sex, and/or gender and/or sexual orientation; (2) whether the sexual conduct was unwanted or unacceptable; (3) the nature and extent of the sexual conduct; and (4) the impact of the sexual conduct on the employee.
90. In University of Cape Town v CCMA and others (C14/2019) the Court upheld the following key principles: (1) Commissioners (and others who interpret and apply the law) must take any relevant Code of Good Practice into consideration; (2) Place focus on whether a reasonable person in the position of the complainant would find the comments and conduct of the alleged perpetrator to be unwanted conduct of a sexual nature. The emphasis is not on how others may see it; (3) Weight may be given to single fact evidence; (4) Context of power differential is important (Deputy Principal versus Level 1 teacher).
91. In Campbell Scientific Africa (Pty) Ltd v Simmers and others (2016) 1 BLLR (LAC) the key principles upheld include-
    • The need to consider power differences (Simmins was 25 years older than the complainant).
    • Context-the workplace need not to be the physical office. Simmins and the complainant were in Botswana for work purposes.
    • Safety considerations-vulnerability of young female employee travelling alone with an older male employee.
    • Single incidents can constitute harassment.
92. In analyzing the evidence presented before me, I find on a balance of probability that the witnesses of the respondent were reliable and credible when they testified. Their evidence convinces the commissioner that the applicant was aware of the rules, policy and consequences of sexual harassment and the procedure to be followed. There were contradictions in the testimony of the applicant, and he was merely in denial about his actions of sexual harassment on 23 April and 02 October 2024 during school functions. On a balance of probabilities, I therefore find it probable, despite the exert evidence of Gary Louis, that the applicant broke the rules and policy on sexual harassment of a subordinate teacher, and he was in a more senior position.
93. I therefore find that the applicant did contravene the rules and policy regarding sexual harassment as stated in the Sexual Harassment Policy and Code of Conduct. Any reasonable person would arrive at the same conclusion on a balance of probabilities having heard and observed the evidence given during the hearing. I therefore find that the decision to find the applicant guilty on the charge as formulated was the correct decision. Is dismissal the appropriate sanction?
94. In Cash Paymaster Services Northwest (Pty) Ltd v Paul Shabanga NO & others [2009] 5 BLLR 415 (LC) it was held that the commissioner must consider if the trust relationship was destroyed in evaluating the appropriateness of the sanction. In Woolworths (Pty) Ltd v Majiba & others (2016) 37 ILJ 1380 (LAC) it was found that it is always better if evidence regarding the breakdown in the trust relationship is led by people who can testify to such breakdown. Even if the relationship of trust is breached, it would be but one of the factors that should be weighed with others to determine whether the sanction of dismissal was fair. Therefore, the commissioner had to consider the nature of the offence, the seriousness of the misconduct, the nature of the job and the position of the employee. The breakdown in the trust relationship could also be inferred from the seriousness of the offence.
95. The Constitutional Court confirmed in Sidumo & another v Rustenburg Platinum Mines Ltd 2008 (2) SA 24 (CC); (2007) 28 ILJ 2405 (CC) that an arbitration under the LRA is a hearing de novo and that commissioners are charged with determining the fairness of a dismissal based on the evidence presented at the arbitration. The arbitrator’s function is to determine if the employer’s decision was fair.
96. It is the submission of the representative of the respondent that regarding the dismissal of the applicant the respondent’s witnesses’ testimonies in terms of the allegations of sexual harassment are credible. In the matter of De Beers Consolidated Mines Ltd versus CCMA and others (2000) 21 ILJ 1051 LAC) at 1058 paragraph 25 per Conradie JA, the following was said: “It would be in my view be difficult for an employer to reemploy an employee who has shown no remorse. Acknowledgement of wrongdoing is the first step towards rehabilitation. In the absence of commitment to the employer’s workplace values, an employee cannot help to be re-establishing the trust which he himself has broken”. Considering the case law and Mr Louis’s serious misconduct, the WCED humbly states that the employment relationship between Mr Louis and the WCED is irretrievable broken down and that the dismissal was procedurally and substantively fair.
97. In accordance with Paragraph 3(4) of Schedule 8 of the Code of Good Practice: Dismissal, while dismissal for a first offence is generally not appropriate, an exception is made when the misconduct is so serious that it renders the employment relationship intolerable. The applicant’s conduct meets this threshold. I find that the sexual harassment of the complainant was indeed unwanted, and the nature of the sexual conduct and serious and it impacted the complainant that she was feeling uncomfortable and emotional. A single incident of unwelcome sexual conduct may constitute sexual harassment.
98. The test to decide whether dismissal is an appropriate sanction is whether the respondent could have imposed the sanction of dismissal in the circumstances, either because the misconduct rendered the continued employment intolerable, or because of the cumulative effect of the misconduct when taken together with other instances of misconduct. Determining whether dismissal was an appropriate sanction involves three enquiries: (1) an enquiry into the gravity of the intervention of the rule; (2) an enquiry into the consistent application of the rule and sanction; and (3) an enquiry into factors that may have justified a different sanction.
99. Item 3(5) of the same code directs that: “When deciding whether to impose the penalty of dismissal, the employer should in addition to the gravity of the misconduct consider factors such as the employee’s circumstances (including length of service, previous disciplinary record and personal circumstances), the nature of the job and the circumstances of the infringement itself. The length of service and the position of the applicant made the psycical sexual harassment even worse as he was aware of the harassment policy and how to conduct himself with a subordinate.
100. In deciding on a sanction after the perpetrator is found guilty of sexual harassment, the serious nature of the offence should be borne in mind by the Chairperson and in arbitration by the Commissioner. The relationship of trust has been broken directly between the applicant and the respondent, and even the applicant may have a clean record, the seriousness of the offence may warrant dismissal, bearing in mind that the Code of Good Practice place a positive duty on respondents to prohibit sexual harassment by anyone under their control. This is also due to the difference in the positions between the applicant (Deputy Principal) and the complainant (Level 1 teacher) in the offence and the nature of the offence.
101. The employment relationship has been broken due to the actions of the applicant regarding sexual harassment against the complainant. The applicant was found guilty of the charge as testified by the witnesses of the respondent. I find that the respondent had discharged the onus of proof by showing on a balance of probability that the applicant was guilty of the formulated charge. According to the respondent, they proved that the offence that the applicant was found guilty on warrant dismissal due to the seriousness of the offence.
102. I find that the dismissal of the applicant was substantively fair. In the light of the above, I further find that the dismissal of the applicant was an appropriate sanction because of the factors and aggravating circumstances mentioned above. There is a range of appropriate sanctions proportionate to the seriousness of the sexual harassment. Where the sexual harassment is serious then summary dismissal may be appropriate.
     Procedural fairness
103. Procedural fairness was put into dispute by the representative of the applicant as the appeal process took too long. According to the representative of the applicant, the procedural unfairness stated that the LRA binds the respondent employer, and his appeal application was submitted on 13 December 2024. The outcome of the appeal was given on 31 March 2025 well outside the 30 statutory days, which is procedurally unfair. This dismissal was procedurally and substantively unfair. The representative of the respondent stated that the disciplinary hearing as well as the appeal process was procedurally fair. I therefore find that the dismissal of the applicant was procedurally fair.

AWARD

104. The dismissal of the applicant, Abraham Daniel Louis, was substantively and procedurally fair.
105. The case of the applicant is dismissed, and both parties must be informed accordingly.

Signature:

Panelist: Gert van der Berg
Sector: Western Cape Education Department