Case Number: ELRC864-25/26EC
Commissioner: Henk Jacobs
Date of Ruling: 31 March 2026

In the matter between

Education Department Eastern Cape
(Employer)

And

Mr R Oersen
(Employee)

Union/Applicant’s representative:

Telephone:
Telefax:
E-mail:

Respondent’s representative:
Respondent’s address:

Telephone:
Telefax:
E-mail:

Details of hearing and representation

1. The inquiry by arbitrator held in terms of section 188A of the Labour Relations Act 66 of 1995, as amended, (the LRA), was held at the premises of the Employer, Gqeberha, on 24 November 2025, 26 January 2026, and was finalised on 05 March 2026.

2 The Employer was represented by Mr Sandiso Xhalisile, the Labour Relations Officer employed by the Employer, the Employee was represented by Mr Elroy Swart, an official from the South African Democratic Teachers Union (SADTU).

3 The hearing was held in English/Afrikaans and was digitally recorded.

4 Parties agreed to file Heads of Argument by no later than 16 March 2026 and both parties did so.

                 Background to the matter

5. The Employee was charged on 21 October 2025, the allegations against the Employee reads as follows: “It is alleged that you have contravened Section 17(1)(b) of the Employment of Educators Act 75 of 1998, as amended (EEA) which inter alia reads as follows: “An Educator must be dismissed if he or she is found guilty of committing an act of sexual assault on a learner.”
   “On or during the 14 December 2024 at Champion High School, you allegedly committed an act of sexually harassment to a Grade 12 learner by the name of MB.
   It is also reported that you allegedly requested her via WhatsApp when you said the learner must send a nude picture of herself in exchange for Mathematics exam script.”
6. The charges were amended after the first sitting limited to the description of the offence as follows: “In that, on or during November 2024, you are alleged to have sexually harassed MB, a grade 11 learner at Chapman High School. It is further alleged that you requested her via WhatsApp to send you a nude picture of herself in exchange for a Mathematic exam script.”
7. The Employee pleaded not guilty to the allegations.
8. The parties submitted documents into record which were accepted into record to the extent that they are what they purport to be. It must be noted that none of the parties relied on documentary evidence during the proceedings.

Issue to be decided

9. The issue to be decided is whether the Applicant was guilty of sexual misconduct as defined in terms of section 17 (1)(b) of the EEA. Employers evidence
10. Mr Syce testified that he is employed at the Principal at Chapman High School, during 2024 or 2025, he was approached by a teacher who showed him a WhatsApp message, the teacher threatened him that should he not do anything about it, he will be reported. The teacher forwarded the message to him which was a verbal report.
11. He then took it upon himself to speak to the learners, MB explained that Mr Oersen was sending her text messages, one day she was sitting with friends when he sent a message asking for an explicit photo, she showed the message to her friends. Mr Oersen then sent other messages whereafter she blocked him.
12. MB said that she could not show the message because her phone broke, he then called Mr Adriaan Bosman who confirmed the same story as well as another friend. MB was not nervous when he asked her questions, the issue was discussed with the SGB whereafter he called the mother of MB, he asked MB if she wants to be removed from Mr Oersen’s class to which she answer in the negative, she indicated that she was comfortable in the class and Mr Oersen did not make any further contact with her.
13. He approached Mr Oersen on the 3rd of February 2025 and Mr Oersen denied the allegations whereafter he called a meeting.
14. Under cross-examination, Mr Cyse confirmed that Mr Oersen teaches mathematics literacy and life science, MB was taking mathematics literacy. He became aware of the incident on 17 January 2025 and reported it to the Department of Education on 03 March 2025. There was no message presented, the only message he saw was one from Mr Kettledas, he never saw the original message.
15. The message Mr Kettledas received came from a family member of MB who was an ex-scholar, the message just asks if this is what is happening at your school. During his meeting with Mr Oersen, he told Mr Oersen that he has proof on his phone, Mr Oersen asked him to show the proof which he refused. Mr Cyse also confirmed that he did not submit the message as it is on his old phone and thus not available.
16. MB testified that she was a learner at Chapman Hight School, she completed school during 2025 and attended school there since grade 8. During 2024, she would text Mr Oersen when she was going to be late for school, they were sitting in a backyard when she sent a text Mr Oersen saying sorry for handing in work so late, he then wrote her a message asking for a photo in exchange for help with Mathematics. She showed the message to the others who said he did the same with other learners.
17. She felt comfortable to speak to Mr Oersen, she opened up to him and told him what was happening at her home, he wanted to arrange someone for her to speak to and she declined. She was always sitting at the back of the classroom, and she does not know how he looked at her, she would always walk in groups, and she would never go to his class alone.
18. The message that Mr Oersen send was that he told her that she has a nice body and boobs and that she must send photos of her private parts, she testified that she wondered how he looked at her in class if he asked things like that.
19. MB also testified that she was called in by the principal, she told the principal she did not want to take the matter further and even today she does not wish to take it further. Other teachers called her out as a problem child, and she does not want Mr Oersen to lose his job. She never reported the incident to the principal, someone else did.
20. She lost her phone in a Taxi during December 2025, and she does not have the message, she got a new phone during March 2025. MB testified that she was shocked when she received the message, she could not sleep at night, and she did not tell her father.
21. Under cross-examination, MB confirmed that she cannot remember what the message was, save that Mr Oersen said she has a nice body and boobs, and he used the closed eye emoji. She got Mr Oersen’s number from a group as he was her class teacher, and she would text him in the morning if she was going to be late.
22. On 22 January 2025 she went to Mr Oersen as she had anxiety, and she never visit Mr Oersen alone.
23. Mr Bosman testified that they were all sitting in the backyard when MB received a message from Mr Oersen that he can give her the memo for maths if she comes to him or sends a photo of her vagina, he then advised MB to block Mr Oersen.
24. After she received the message, MB felt angry and surprised at the same time, they laughed about it and they went to report it to the principal. They also told her mother, they took screenshots of the message and was looking for the memory card. MB only moved class when she was in grade 12.
25. Mr Bosman further testified that the reason they don’t have the message was that MB’s phone broke and she took out the memory card, and now they cannot find the memory card. MB was very nervous and she told him everything, she went to the principal to ask to be changed from that class to another class.
26. Under cross-examination, Mr Bosman confirmed that he noticed a change in MBs behaviour and that he never said he went to report the matter to the principal, but that MB reported the matter to the principal.
27. Ms Jeggels testified that during November 2024, they were all sitting together at her house, she does not know the content of the messages or the conversations, she just saw the emoji’s. They all grew up together and are good friends. MB looked off after receiving the message, MB showed her the message, she cannot recall the message, but it was freaky. MB insisted to be removed to a different class as she was scared.
28. Ms Jeggels further testified that MB told her that she lost her phone in a taxi.

Employee’s evidence

29. Mr Oersen testified that he was informed initially by Ms Smith about the allegations, when he was called to the office by the principal with other colleagues, the principal had three different versions how he was informed about the incident. During the meeting the principal refuse to show him the screenshots of the messages and said he will inform the Department of Education.
30. He has a very bad relationship with the principal, the principal belittles him in front of learners, colleagues as well as parents, he forced him to teach subjects he was not qualified to teach and was treated poorly with regards to sports. He lodged a grievance against the principal.
31. He has a fostering relationship with learners, he does not spend time alone with learners, he avails his classroom during breaktimes to all learners who struggle academically, he teaches on Saturdays as well as Sundays.
32. These allegations broke his teaching career, he is not sure whether he can trust management of the school, he questions himself when he engaged learners, he has learned to reflect and to be more careful when he engages learners.
33. Under cross-examination, Mr Oersen confirmed that he had MB’s phone number and cannot remember when it was given to him, he usually communicates with the parents of learners and with learners.
34. MB was struggling academically, his class has a friendly atmosphere, MB felt comfortable to approach him to talk about issues at home as well as the curriculum. She had a soft personality which changed to become more confrontational because she had a bad circle of friends, Mr Bosman had a good relationship with the principal and MB would do anything that Mr Bosman asked.
35. MB approached him after she was called by the principal and informed him that Mr Bosman reported the matter to the principal and that she was feeling very uncomfortable. Mr Oersen also confirmed that he would never request a nude photo from anyone and does not have any messages that he sent to parents because he has a new phone.
36. He lodged a grievance against the principal after he was made aware of the incident.
37. Ms Smith testified that Mr Oersen is her colleague, she was informed about the incident by Mr Afrikaner from the SGB prior to the principal informing her. During the meeting with the principal, he started the meeting as if he has seen the messages and later state that he never saw the messages.
38. During the meeting, she told Mr Oersen to show his phone to clear his name, it will clear the issue of whether the message was sent or not, Mr Oersen did not show his phone to clear his name.
39. Mr Lewis testified that he was a learner at the school and knows Mr Oersen for two years, and that he would never ask a nude photo from a learner. He knows Ms and Mr Bosman; MB has no interest in school and Mr Bosman takes medication that does not belong to him and they both have a tendency to stay away from school.
40. He met MB at school while she was arguing with another learner about the issue of the message. He asked her for proof which she did not provide, instead she started arguing with him. Analysis
41. Item 7 of Schedule 8 of the Code of Good practice to the Labour Relations Act, no 66 of 1995 (as amended) (LRA) indicates the following:

Any person who is determining whether a dismissal for misconduct is unfair should consider-
(i) Whether or not the employee contravened a rule or standard regulating conduct in, or of relevance to, the workplace; and
(ii) If a rule or standard was contravened, whether or not-
(iii) The rule was a valid or reasonable rule or standard;
(iv) The employee was aware, or could reasonably be expected to have been aware, of the rule or standard;
(v) The rule or standard has been consistently applied by the employer; and
(vi) Dismissal was an appropriate sanction for the contravention of the rule or standard.

The Employees pleaded not guilty to all the charges; the first step would be to determine whether the Employees contravened a rule. The Employees were charged with ‘sexual assault’.

42. In this instance, the dispute turns on a message that was allegedly send by Mr Oersen to MB requesting a nude photo in exchange for the Mathematics literacy script which the learners were about to write the next day. There were no message produced, or a copies thereof from the onset of the allegation, However, that does not mean that there is no evidence.
43. MB’s evidence was clear and direct, I found her to be a reliable witness, there was no evidence put before me why her evidence should be dismissed, save that it was the principal who influenced Mr Bosman who in turn influenced MB based on an allegation that the principal does not like Mr Oersen and want to get him out. This was the main theme of the employees, closing arguments.
44. There was no evidence that supports the notion that it was the principal who set the stage for Mr Oersen’s dismissal, it might be so that they have a strained relationship, but Ms Smith’s evidence indicates that she heard about the incident from an SGB member. That means, the story was at that time already well travelled.
45. MB’s version was corroborated by her friends who were present and saw the message.
46. Mr Bosmans evidence is riddled with contradictions and opinions, the fact that the message exists is all that was important and the witnesses confirmed same. In argument, Mr Oersen highlighted these contradictions and argued that the witness’s evidence was not credible. It is trite that at some stage there may be contradictions in witnesses’ evidence, that does not on its own dictates that the witness is not a credible and reliable witness. I agree with these contradictions, but what stands out is that there were no contradictions regarding the message. One must also take into consideration that the incident occurred during 2024 and that a long period of time has lapsed between the incident and the proceedings.
47. Mr Oersen’s strategy to transfer the focus away from the message to the principal is called a red herring, this is a tactic employed to divert the intention from the main issue to a subsidiary issue to avoid dealing with the main issue. Furthermore, the Employees witnesses presented evidence regarding Mr Oersen’s character, one must treat such evidence with caution.
48. Character evidence can only be relevant in terms of general reputation of an accused or plaintiff in relation to a specific action or damages. The character of Mr Oersen is only relevant as far as an attempt to mitigate his behaviour. In this instance, one can create a picture or reputation as to that of Mr Oersen being a hard-working, dedicated educator, but no one has access to his other side when he is off and at home as was argued by the Employer. This does not prove that Mr Oersen would not send such a message, the only thing that could exonerate Mr Oersen is to show his phone that such message did not exist, or proof from the network service provider on same.
49. On that basis, on a balance of probabilities, it must be confirmed that Mr Oersen did send MB a message requesting an explicit photo or photos of her in exchange for a Mathematics Literacy script.
50. Evidence was presented that MB did not do well academically, she faced certain challenges at home and confided in Mr Oersen.
51. It was Mr Oersen’s evidence, that even after the principal called MB to enquire about the incident, she still went to confide in Mr Oersen. This made her the perfect subject for someone with ill intentions as she was vulnerable and an easy target.
52. Much was made about how the principal got to know about the incident, the time he took to report the incident to the Department of Education. What is important was that MB did not report the incident; she still protected Mr Oersen. Evidence was presented that the incident came to the principal’s attention via the grapevine. It could thus not have been the principal that orchestrated a strategy to get rid of Mr Oersen as was alleged.
53. In passing, it must be noted that in argument, Mr Oersen relied on new evidence, or evidence that was never placed before me, nor put to any witnesses to respond thereto. Therefore, no reliance can be placed on such argument or evidence as it was never tested. Parties were advised at the onset that they must put their versions to the witnesses for comment.
54. The question then is, does an act of requesting a nude photo from a learner constitute sexual assault as per the charge. The Sexual Offences Act 32 of 2007 (the Sexual Offences Act) defines sexual assault as a person who unlawfully and intentionally sexually violates a complainant without the consent is guilty of the offence of sexual assault.
55. The Sexual Offences Act at section 17(7) states that any person who unlawfully and intentionally in any manner advocates, advertises, encourages or promotes the sexual exploitation of a child, is guilty of an offence. In this instance, the act of Mr Oersen falls squarely within the definition of sexual assault.
56. On a balance of probabilities, I find the Employee guilty of charge 1, ‘sexual assault”.
57. On that basis, I make the following finding: Finding
58. Guilty to charge 1; Sexual Assault.
59. Now turning to the issue of sanction, section 17(1)(b) of the EEA, states that an educator must be dismissed if he or she is found guilty of committing an act of sexual assault on a learner.
60. Parties were requested to argue mitigating and aggravating factors with their closing arguments, the Employee filed a 23-page heads of argument, but failed to deal with factors in mitigation, the Employer made reference to the seriousness of the offence.
61. If one has regard for section 17(1)(b) of the EEA, it can be argued that mitigating factors in this instance would be of no use, since the Act simply requires one to dismiss without any option for a lesser sanction. The purpose of mitigating factors is to look at the Employees circumstances in an attempt to arrive at a lesser sanction.
62. Same for aggravating factors, there is no further persuasion required to arrive at a decision of dismissal. The offence is so serious that it is regulated and justifies dismissal as sanction.
63. The reason is simply to protect the vulnerable children from perpetrators and to provide a safe learning environment for learners. Any sexual offence impacts the dignity and self-worth of the victim and should be eliminated at all costs.
64. On that basis, I issue the following sanction.

Sanction

65. The Employee, Mr Ruaan Oersen, is guilty of committing misconduct as set out in the charge sheet;
66. The Employee is sanctioned to a summary dismissal;
67. Mr. Ruaan Oersen is found UNSUITABLE TO WORK WITH CHILDREN in terms of Section 120(4) of the Children’s Act 38 of 2005;
68. The General Secretary of the ELRC must, in terms of Section 122(1) of the Children’s Act 38 of 2005, notify the Director General: Department of Social Development in writing of the findings of this forum made in terms of Section 120(4) of the Children’s Act 38 of 2005, that Mr Ruaan Oersen is unsuitable to work with children, for the Director General to enter his name as contemplated in section 120 in part B of the register;
69. The General Secretary of the Education Labour Relations Council is directed to serve a copy of this award to the South African Council of Educators (SACE).

Signature:

Commissioner: Henk Jacobs