n South African Journal of Education - 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 progressivediscipline. A corrective approach has been adopted by employers, according to which efforts are made to correct employees' behaviourthrough a system of graduated disciplinary measures, such as counselling and warnings. Based on the Code of Good Practice in the LabourRelations Act 66 of 1995, the Employment of Educators Act 76 of 1998 includes detailed guidelines to principals and departmental officialswho are required to conduct investigations in cases of alleged misconduct. To ensure fairness in the disciplinary procedure, labour legislationdetermines 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 alwaysparamount, must certainly come into play in all matters regarding labour relations in education. How many warnings must the educatorreceive? How serious must an offence be before the educator can be barred from contact with learners? If continuing acts of misconductby an educator hamper and even endanger the educational process, serious questions arise regarding whether the disciplinary procedureagainst an educator is "lawful, reasonable and ... fair". It may be fair towards the employer, but is it fair to the learner? In this article weattempt to weigh the fundamental rights of learners against certain labour rights of educators.


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