GAG v Education Labour Relations Council (CA12/2014) [2015] ZALAC 50 (2016) ILJ 379 (LAC) (23 October 2015) per Savage AJA [Waglay JP and Coppin JA concurring]

The Labour Appeal Court disallowed the appeal and upheld the finding that the reason for dismissal was valid and fair, although compensation was awarded for unfair procedure.  It was not disputed that if the employee was found to have had a carnal relationship with a learner, s17(1)(c) of the Employment of Educators Act (EEA) requires dismissal.  The arbitrator considered mitigating factors, including length of service and ‘clean’ disciplinary record but concluded that the nature and consequences of the misconduct warranted dismissal.  The educator destroyed the trust relationship and as employment required on-going interaction with and exposure to children, dismissal was the only sensible operational response to risk management in the school.

LAC summary [edited]:

Appellant, a high school educator for 28 years, was dismissed on grounds of unprofessional conduct for having had sexual relationship with a 17-year old learner in contravention of s17(1)(c) of the EEA.  Arbitrator found dismissal substantively fair but awarded three months’ compensation for procedural unfairness.  Labour Court upheld arbitration award on review. On appeal held that arbitrator’s decision fell within the bounds of reasonableness required. Conduct constituted breach of s17(1)(c) and dismissal appropriate. Appeal dismissed with costs.