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Labour Law and South African Schools

The Schools in South Africa are really in a difficult position regarding misconduct of members of staff, as well as misconduct of the learners they teach. The reason for this is not only that Management Teams of Schools, or their Human Resources Officers, are not lawyers, but also the fact that there are so many different rules applicable to the different individuals.

You will be aware of the fact that staff, both teaching staff, general assistants and administrative staff, are either employed by the Department of Education or by the Governing Bodies of Schools. This means that the employers in each case differ, and that misconduct of staff is approached in a different manner, depending on the specific employer of the specific employee.

In case an employee is employed by the Department of Education, the Employment of Educator’s Act No. 76 of 1988 is applicable, and specifically Sections 17 and 18 which distinguish between misconduct and serious misconduct. Furthermore, it is important to take cognizance of Circular 01 of 2016. This Circular provides Schools with Guidelines as to the sanctions that could be appropriate for various types of misconduct, depending of course on the circumstances of each individual case, and also guides Schools as to the different procedures to be followed.

In case and employee is employee is employed by the School Governing Body, it is in fact easier to deal with the misconduct of a staff member, as the Labour Relations Act, No. 66 of 1995 applies. The requirements set forth in the Labour Relations Act are far simpler than those described in the Employment of Educator’s Act.

Regarding learners, we know that a disciplinary hearing is a requirement before suspending or expelling a learner and that the Department of Education has the final say upholding the decision of the Disciplinary Committee of the Governing Body.

That said, it remains a foreign field for most Management Teams, and Management Teams mostly just do not have the time to research the specific requirements and procedures relating to misconduct. Feel free to contact us for professional assistance in dealing with the various aspects of Labour Law in Schools.

Written by Elzahn Bloem
24 January 2018

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