Employer tolerance with educator misconduct versus learners' rights

The disciplinary aspects in labour and education legislation have moved away from a punitive approach to one that can be called progressive discipline. A corrective approach has been adopted by employers, according to which efforts are made to correct employees' behaviour through a system of graduated disciplinary measures, such as counselling and warnings. Based on the Code of Good Practice in the Labour Relations Act 66 of 1995, the Employment of Educators Act 76 of 1998 includes detailed guidelines to principals and departmental officials who are required to conduct investigations in cases of alleged misconduct. To ensure fairness in the disciplinary procedure, labour legislation determines that dismissal should be reserved for cases of serious misconduct or repeated offences. The important question, however, is how much tolerance must the employer of an educator show? The constitutional principle, that the best interests of the child are always paramount, must certainly come into play in all matters regarding labour relations in education. How many warnings must the educator receive? How serious must an offence be before the educator can be barred from contact with learners? If continuing acts of misconduct by an educator hamper and even endanger the educational process, serious questions arise regarding whether the disciplinary procedure against an educator is "lawful, reasonable and ... fair". It may be fair towards the employer, but is it fair to the learner? In this article we attempt to weigh the fundamental rights of learners against certain labour rights of educators. South African Journal of Education Vol.24(4) 2004: 284-28