A teacher who resigned after being accused of having a sexual relationship with a pupil attempted to evade accountability by arguing that the Northern Cape education department no longer had jurisdiction to discipline him.
However, the department rejected his resignation and ordered him to appear before a disciplinary panel. When he failed to attend, the Education Labour Relations Council (ELRC) proceeded in his absence, ultimately finding him guilty of misconduct and dismissing him.
In its ruling, the council relied on Labour Court and Labour Appeal Court precedents confirming that an employer retains the power to discipline an employee who resigns immediately after being served with notice of a disciplinary hearing.
The courts have also held that a resignation with immediate effect does not automatically end the employment relationship when a contractual notice period applies.
“In following the legal principles set out in the above precedents, I find that the employer had the right not to accept the employee’s immediate resignation and repudiation of his employment contract and the notice period contained therein,” ELRC commissioner David Pietersen said in his award issued last week.
He found that the department was entitled to continue with the inquiry against teacher Luyolo Mdze.
The employee’s resignation with immediate effect did not terminate the employment relationship in the absence of acceptance thereof by the employer.
— David Pietersen, ELRC commissioner
“The employee’s resignation with immediate effect did not terminate the employment relationship in the absence of acceptance thereof by the employer,” he said.
Pietersen was tasked with determining whether Mdze had committed the misconduct alleged against him, and if so, to impose an appropriate sanction.
Mdze was based at a high school in Galeshewe, Kimberley.
Following the alleged acts of sexual misconduct that were revealed on May 22, the teacher was suspended and the employer referred the matter to the council for a formal inquiry. It was alleged that Mdze had engaged in a sexual relationship with the 19-year-old pupil, despite knowing he was prohibited from doing so.
“It appears that the alleged incidents took place at the employee’s private residence,” Pietersen said.
The employee did not attend the proceedings and Pietersen entered a plea of not guilty on his behalf.
“Evidence was provided by the employer that the employee was adequately served with a notice to appear at the inquiry and provided sufficient time to prepare,” Pietersen noted.
He added that Mdze’s rights were explained to him when the charge sheet was served.
The department led evidence from the school principal, the pupil allegedly involved, and another pupil who witnessed aspects of the relationship.
Principal Samuel Myo testified that four grade 12 girls had reported the allegations to him in May 2020. They told him that Mdze had been in a romantic relationship with a pupil referred to as TRL and that the relationship had been going on for some time.
The principal testified that the girls did not want Mdze or a colleague, whom they accused of similar conduct, to lose their jobs, but they wanted the behaviour to stop.
TRL denied having had a sexual relationship with Mdze, claiming instead that they had a boyfriend–girlfriend relationship. She admitted that they had dated for about three weeks before she ended the relationship after learning that he accused her of telling others about their affair.
Another witness, Ms EM, also a 19-year-old grade 12 pupil, testified that Mdze and a colleague had relationships with some of the girls and would smoke hookah with them at nightclubs.
“Ms EM stated that she saw Mdze and TRL kissing at the after-party of their matric dance, and that Mdze and his colleague took TRL and another girl to a hotel and spent the night with them,” Pietersen said in summarising her testimony.
Though TRL denied any sexual activity, Pietersen said the department’s evidence suggested otherwise.
“Ms EM appears as a credible eyewitness who once saw the two making love. Uncontested evidence was led by TRL herself that she had a love affair with the employee without sex. However, TRL’s WhatsApp communication with Mdze shows that their relationship was sexual in nature, due to the sexual innuendos used,” he said.
Based on the evidence before him, Pietersen found Mdze guilty of contravening the Employment of Educators Act by engaging in a sexual relationship with a pupil.
“The mandatory sanction of dismissal is imposed with immediate effect on the employee,” he ruled.
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