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Chapter 12

PERSONNEL MATTERS

12.8 EDUCATORS: INCAPACITY AND MISCONDUCT

12.8.1Legislative and Policy Framework

ACTS

  • The South African Schools Act, No. 84 of 1996 [SASA]
  • The National Education Policy Act, 1996 (Act No. 27 of 1996) [NEPA]
  • Employment of Educators Act 76 of 1998, Chapter 5 [EEA]
  • Compensation for Occupational Injuries and Diseases Act, 1993 (Amendment of Schedule 4 of Act 130 of 1993) [COID SCH4]

 

GUIDELINES

KwaZulu-Natal

POLICIES

  • KZN Policy On The Employee Assistance Programme  [See Reference B4 KZN ASSIST]

WesternCape

GUIDELINES

  • WCED Labour Relations Minutes DLR 0001/2005:  Important procedures to be followed when an employee is suspended as a precautionary measure [See Reference B9 0001/2005]

12.8.2Framework for the Development of School Policy on Educators: Incapacity and Misconduct

(Employment of Educators Act Schedule 2 [EEA])

Also see also Reference List C [PRINCIPALS]

  1. Incapable educators
    If it is alleged that an educator is unfit for the duties attached to the educator’s post or incapable of carrying out those duties efficiently, the employer must assess the capacity of the educator and may take action against the educator in accordance with the incapacity code and procedures for poor work performance.
  2. Serious misconduct
    An educator must be dismissed if he or she is found guilty of –

    • theft, bribery, fraud or an act of corruption in regard to examinations or promotional reports;
    • committing an act of sexual assault on a learner, student or other employee;
    • having a sexual relationship with a learner of the school where he or she is employed;
    • seriously assaulting, with the intention to cause grievous bodily harm to, a learner, student or other employee;
    • illegal possession of an intoxicating, illegal or stupefying substance; or
    • causing a learner or a student to perform any of the acts above.
      If it is alleged that an educator committed a serious misconduct, the employer must institute disciplinary proceedings in accordance with the disciplinary code and procedures provided for in Schedule 2.
  3. Misconduct
    Misconduct refers to a breakdown in the employment relationship and an educator commits misconduct if he or she –

    • fails to comply with or contravenes this Act or any other statute, regulation or legal obligation relating to education and the employment relationship;
    • wilfully or negligently mismanages the finances of the State, a school, a further education and training institution or an adult learning centre;
    • without permission possesses or wrongfully uses the property of the State, a school, a further education and training institution, an adult learning centre, another employee or a visitor;
    • wilfully, intentionally or negligently damages or causes loss to the property of the State, a school, a further education and training institution or an adult learning centre;
    • in the course of duty endangers the lives of himself or herself or others by disregarding set safety rules or regulations;
    • unjustifiably prejudices the administration, discipline or efficiency of the Department of Education, an office of the State or a school, further education and training institution or adult learning centre;
    • misuses his or her position in the Department of Education or a school, further education and training institution or adult learning centre to promote or to prejudice the interests of any person;
    • accepts any compensation in cash or otherwise from a member of the public or another employee for performing his or her duties without written approval from the employer;
    • fails to carry out a lawful order or routine instruction without just or reasonable cause;
    • absents himself or herself from work without a valid reason or permission;
    • unfairly discriminates against other persons on the basis of race, gender, disability, sex, pregnancy, marital status, ethnic and social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language, birth, family responsibility, HIV status, political opinion or other grounds prohibited by the Constitution;
    • performs poorly or inadequately for reasons other than incapacity;
    • without the written approval of the employer, performs work for compensation for another person or organisation either during or outside working hours;
    • without prior permission of the employer accepts or demands in respect of the carrying out of or the failure to carry out the educator’s duties, any commission, fee, pecuniary or other reward to which the educator is not entitled by virtue of the educator’s office, or fails to report to the employer the offer of any such commission, fee or reward;
    • without authorisation, sleeps on duty;
    • while on duty, is under the influence of an intoxicating, illegal, unauthorised or stupefying substance, including alcohol;
    • while on duty, conducts himself or herself in an improper, disgraceful or unacceptable manner;
    • assaults, or attempts to or threatens to assault, another employee or another person;
    • incites other personnel to unprocedural and unlawful conduct;
    • displays disrespect towards others in the work-place or demonstrates abusive or insolent behaviour;
    • intimidates or victimises fellow employees, learners or students;
    • prevents other employees from exercising their rights to freely associate with trade unions in terms of any labour legislation;
    • operates any money-lending scheme for employees for his or her own benefit during working hours or from the premises of the educational institution or office where he or she is employed;
    • carries or keeps firearms or other dangerous weapons on State premises, without the written authorisation of the employer;
    • refuses to obey security regulations;
    • gives false statements or evidence in the execution of his or her duties;
    • falsifies records or any other documentation;
    • participates in unprocedural, unprotected or unlawful industrial action;
    • fails or refuses to –
      • follow a formal programme of counselling as contemplated in Schedule 1;
      • subject himself or herself to a medical examination as contemplated in Schedule 1 and in accordance with section 7 of the Employment Equity Act, 1998 (Act No. 55 of 1998); or
      • attend rehabilitation or follow a formal rehabilitation programme as contemplated in Schedule 1;
    • commits a common law or statutory offence;
    • commits an act of dishonesty; or
    • victimises an employee for, amongst others, his or her association with a trade union.
      If it is alleged that an educator committed misconduct, the employer must institute disciplinary proceedings in accordance with the disciplinary code and procedures contained in Schedule 2. If, after having followed the procedures, a finding is made that the educator committed misconduct, the employer may, in accordance with the disciplinary code and procedures contained in Schedule 2, impose a sanction of –
    • counselling;
    • a verbal warning;
    • a written warning;
    • a final written warning;
    • a fine not exceeding one month’s salary;
    • suspension without pay for a period not exceeding three months;
    • demotion;
    • a combination of the sanctions referred to in paragraphs (a) to (f); or
    • dismissal, if the nature or extent of the misconduct warrants dismissal.
      Any sanction may be suspended for a specified period on conditions determined by the employer.
      An educator may be dismissed if he or she is found guilty of –
    • dishonesty;
    • victimising an employee for, amongst others, his or her association with a trade union;
    • unfair discrimination;
    • rape;
    • murder;
    • contravening section 10 of the South African Schools Act.
  4. Appeals
    • An educator may appeal to the Minister or the Member of the Executive Council, as the case may be, against a decision to demote, transfer or terminate the services of the educator on the grounds of incapacity.
    • An educator has a right to appeal to the Minister or the Member of the Executive Council, as the case may be, against the finding by the presiding officer of a disciplinary hearing that the educator has committed misconduct and against the sanction imposed.
    • In lodging an appeal, the educator must comply with the procedure laid down in Schedule 2.
  5. Furnishing South African Council for Educators with records
    In each case where steps were taken against any educator, other than the cautioning or reprimanding of the educator, the employer shall furnish the South African Council for Educators with the record of the proceedings at the inquiry and all other documents relating thereto.
    NB: Educators may only appeal against the finding and resultant sanction of –

    • suspension without pay for a period not exceeding three months;
    • demotion;
    • a fine;
    • a combination of the above sanctions together with warnings; or
    • dismissal.