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The above question confronted the Labour Court seating at Gqeberha in an Urgent Application brought by Mr Elsworth John O’ Connor against LexisNexis (PTY) LTD under case title of the same name, Elsworth John O’ Connor v/s LexisNexis (PTY) LTD Case no: P18/24 (LC).  Because of urgency of the matter, the Elsworth decision was heard on 19 March 2024 and Judgement delivered on 11 April 2024, and the facts of the case appears hereunder.

THE FACTS:

The Applicant is Mr Elsworth O’Connor, and the Respondent is the well-known publisher of legal and other academic texts, LexisNexis.  At the beginning of 2024 the Respondent offered the Applicant a job but, when it discovered that the Applicant had a criminal history, the Respondent retracted the Offer of Employment.  During December 2023 the Respondent advertised a position it wanted to fill in its taxonomy team.  The position was for a “Senior Data Discovery and Enrichment Expert I” which job entailed, inter alia, organising and classifying the information published in the Respondent’s various legal products.  The Applicant applied for the position.

On 20 January 2024, the Respondent’s company emailed the Applicant saying that his interview had been positive, and that the Respondent required further information from the Applicant to continue processing the Application.  This information included filing out a “RefCheck Consent and Indemnity Form.”

When filing “RefCheck Consent and Indemnity Form,” the Applicant responded “yes” to a question in relation to whether he had ever been criminally charged and again answered “yes” in relation to the details of charge / conviction.  He further stated that the offence for which he was convicted of in 2001 is theft which has since been expunged.  He furthermore provided his fingerprints at a local PostNet for the purposes of the Respondent conducting a criminal background check.

Thereafter the Respondent offered him a Contract of Employment, which he then accepted.  The parties therefore concluded a written Contract of Employment, which they duly signed.

On 6 February 2024, the Respondent emailed the Applicant stating that it was now “retracting” the “conditional” Offer of Employment because the criminal check had revealed six counts of theft, one count of fraud, and two counts of defeating the course of Justice.  The Applicant then approached the CCMA and later the Labour Court.

Although the Applicant raised few issues in the Labour Court, this article will limit itself to the question on whether refusal to employ because of criminal history constitute unfair discrimination based on arbitrary ground.

THE LEGAL QUESTION RAISED IN THE LABOUR COURT:

Although the Applicant raised other issues in the Labour Court, namely, that firstly the parties concluded a valid Contract of Employment and that the Respondent’s conduct constituted an automatically unfair dismissal on the arbitrary ground of past criminal convictions within the meaning of section 187(1)(f) of the LRA, alternatively that the Respondent’s conduct constituted a simple unfair dismissal in terms of Section 188 and secondly that by retracting its Offer the Respondent repudiated the Contract of Employment, this article will only limit itself to the third alternative question raised by the Applicant, namely whether refusal to employ because of criminal history constitute unfair discrimination based on arbitrary ground?

THE DECISION OF THE LABOUR COURT:

It was the Applicant claim that by retracting its offer the Respondent unfairly discriminated against him on the arbitrary ground of past criminal convictions within the meaning of Section 6 of the Employment Equity Act (“EEA”).

Section 6 of the EEA provides that;

(1)     of the EEA provides that no person may unfairly discriminate, directly or indirectly, against an employee in any employment policy or practice on one or more grounds. Including race, gender, sex, pregnancy, marital status, family responsibility, ethnic or social origin, colour, sexual orientation, age, disability, religion, HIV status, conscience, belief, political opinion, culture, language and birth.

(2)     It is not unfair discrimination to-

(a)     take affirmative action measures consistent with the purpose of this Act: or

(b)     distinguish. exclude or prefer any person on the basis of an inherent requirement of a job.

(3)     Harassment of an employee is a form of unfair discrimination and is prohibited on any one, or a combination of grounds of unfair discrimination listed in subsection (I).

The Court per acting Labour Court Judge Mark Meyerowitz examined several authorities on the subject-matter, which included amongst others paragraph 7.3.32 of the Code of Good Practice on the Integration of Employment Equity into Human Resource Policies and Practices (the Code). The Code states that:

”An employer should only conduct integrity checks, such as verifying the qualifications of an applicant, contacting credit references and investigating whether the applicant has a criminal record, if this is relevant to the requirements of the job.”

And paragraph 17.3.6 states that:

“An employer may not collect personal data regarding an employee’s sex life, political, religious or other beliefs, or criminal convictions, except in exceptional circumstances where such information may be directly relevant to an employment decision.”

The Court reasoned (without making any finding) that convictions for which the Applicant was convicted off, might preclude him from taking up positions that require trust and honesty.  The Court further noted that on the papers before it, there is no indication that the position of Senior Data Discovery and Enrichment Expert I requires any significant amount of trust and honesty, and simultaneously cautioned that Applicant’s rehabilitation should not be completely disregarded.

The Court noted and ruled further that, the Applicant will conduct his work from his home in Komani (previously Queenstown), whereas the Respondent’s main offices are in Durban, and as a result he will do his job over the internet using his own resources.  It is therefore unlikely that he will sit at home and maliciously miscategorise legal information for his own benefit.

In essence the Court found that the Applicant’s criminal history is not relevant to the job which the Respondent has denied him.

In conclusion and handing judgement in favour of the Applicant the Court ruled that the Respondent’s decision to deny the Applicant the job of Senior Data Discovery and Enrichment Expert I on the sole basis of his criminal history, constitutes unfair discrimination within the meaning of section 6 of the EEA.

CONCLUSION:

It must therefore be noted that not every position advertised in the job market with a criminal verification checks as a prerequisite will automatically disqualify incumbents from the advertised posts upon positive criminal backgrounds checks returns.  Generally each case must be treated according to its own merits with due regard being given to the incumbents criminal history relevancy to the advertised posts. This position is in line with section 6 (2) (b) of the EEA.

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In the case of Minister of Justice and Constitutional Development and Others v Prince (Clarke and Others Intervening); National Director of Public Prosecutions and Others v Rubin; National Director of Public Prosecutions and Others v Acton (Prince) [2018] ZACC 30; 2018 (10) BCLR 1220 (CC); 2018 (6) SA 393 (CC); 2019 (1) SACR 14 (CC), the cultivation and possession of cannabis for personal use by adults has been legalized.¹ Despite this position, companies are not prevented by law to have ‘zero-tolerance’ policies against the use and/or testing positive for alcohol and drugs at the workplace. Part of the reason for this stems from the purpose of The Occupational Health and Safety Act 85 of 1993. In essence the Act caters for the protection of employees from hazards to health and safety whilst on duty.² The legalization of cannabis therefore does not necessarily have a bearing effect on ‘zero-tolerance’ policies in the South African workplace.³

It would further be appropriate to highlight the difficulties faced by employers concerning cannabis and the workplace, especially if the nature of an employees work includes handling dangerous equipment or substances. Where a ‘zero-tolerance’ policy is not properly implemented or adhered to, employers could find themselves facing severe consequences⁴ for not complying with occupational health and safety regulations.⁵

The Labour Appeal Court – Barloworld Judgment & comments:

In the case of Bernadette Enever vs Barloworld Equipment South Africa, a division of Barloworld South Africa (Pty) Ltd (JA86/22) [2024] LAC (Barloworld), Ms Enever was dismissed for testing positive for cannabis whilst on duty, and on several occasions.⁶ She used cannabis for medical purposes prescribed to her by her general practitioner for pain, sleep and anxiety.⁷ She was in terms of the company policy required to undergo medical testing for cannabis by means of a urine test.⁸ As she was a regular user of cannabis who on several accounts tested positive, she was sent home and was required to return after seven days. This same process was repeated several times.⁹

She further did not want to discontinue using cannabis and strongly asserted her right in this regard.¹⁰ A further argument raised by her was that she not impaired at the time she was tested, nor was her work or duties negatively affected, and neither did the nature of her work include handling dangerous equipment.¹¹

In the Labour Court, four questions where raised, and they include:

1. Whether there was a distinction between the appellant and other employees in relation to the workplace policy;
2. Whether there was a causal nexus between the positive test and the dismissal, thus resulting in discrimination against her based on several factors including potential arbitrary grounds;
3. Whether the policies were inherently unfair, unreasonable and discriminated against her right to dignity;
4. Whether the company negatively affected the appellant’s dignity by means of an unfair and degrading approach in the manner the company imposed and approached the sanction.¹²

Ms Enever was unfortunately unsuccessful in challenging her employer’s stance in the Labour Court. It was held that she was reasonably dismissed for misconduct because she willingly breached the company’s ‘zero-tolerance’ policy.¹³

The Labour Appeal Court however had a different outcome. Section 6(1) of The Employment Equity Act 55 of 1998,¹⁴ protects employees from unfair discrimination in the working environment. In addition to this, there is a test that can be applied for discrimination as brought forth by Harksen v Lane NO and Others [1997] ZACC 12; 1997 (11) BCLR 1489; 1998 (1) SA 300¹⁵ (Harsken Judgment), and this test has three components, namely the following:

1. To determine whether a workplace policy differentiates between employees;
2. To determine whether the differentiation discriminates against an employee and their rights;
3. To determine whether this discrimination would be unfair.¹⁶

In the Labour Appeal Court, it was held that the employer’s ‘zero-tolerance’ policy violated the employee’s right to privacy and that it was irrational as this policy also was discriminatory. As a result the court was of the view that Ms Evever’s dismissal was automatically unfair as in accordance with section 187(1)(f) of the Labour Relations Act.¹⁷

An evaluation of workplace policies with reference to Barloworld and other case law:

Where an individual tests positive for cannabis but is no longer impaired raises a large debate as to the fairness of workplace ‘zero-tolerance’ policies. Fairness may further be an issue where a workplace policy provides that an employee may be denied access to the workplace based on a positive cannabis test in itself. The reason for this is that there is a differentiation between cannabis and alcohol users.¹⁸ A further argument that could be raised is that a ‘zero-tolerance’ policy infringes upon an individual’s right to privacy¹⁹ as one would have to either not use the substance at all or substantially reduce the use thereof in order to prevent a positive test at work.

With regards to the cannabis and the workplace, employers could further apply a circumstantial evidence based approach to determine if an individual is in fact impaired. This approach on face value by taking into account behavioural or physical changes can confirm if the use cannabis in fact resulted in decreased work performance or a hazard to other employees.²⁰ On the other hand it would not be feasible for companies to lower the bar so to speak. The reason for ‘zero-tolerance’ policies in the workplace are to cater for a professional and safe working environment, as this is also in the general interests of the employment sector. Whilst an employer cannot disregard an employee’s right to privacy when it comes to ‘zero-tolerance’ workplace policies, such policies are nonetheless standard and in line what the Occupational Health and Safety Act provides.²¹ When looked at from this angle, one could be of the view that this is a reasonable limitation on an employee’s right to use cannabis in private. The Labour Appeal Court in Barloworld however did not deem this to be a justifiable reason.²² This Court looked at the right to privacy and how it linked with the right to dignity, and highlighted that an invasion of the right to privacy directly or indirectly may affect an individual’s right to dignity.²³

In many instances workplace policies are applied in the same manner when it comes to both alcohol and the consumption of other drugs, and as long as this is applied consistently and equally, it cannot be said that such a policy is unfair. The approach for discipline and the manner a policy is set up or enforced will however need proper consideration when deciding upon the appropriate sanction as punishment.

Employers would also have to apply fairness in the manner testing is conducted. As highlighted by the Barloworld case, the use of a blood test by itself without physical proof of impairment can be seen as a direct infringement upon an employee’s right to privacy and dignity when an employee is dismissed or punished as a result.²⁴ In Shoprite Checkers (Pty) Ltd v Tokiso Dispute Settlement and Others[2015] ZALAC 23; [2015] 9 BLLR 887 (LAC); (2015) 36 ILJ 2273 (LAC)²⁵, it was stated that the foundation of a dismissal stems from the fairness thereof, and a where a ‘zero-tolerance’ policy is applied, the reasonableness thereof should be considered.

The outcome of the Labour Appeal Court’s judgment in Barloworld, is a rather worrying outcome for employers. What we can see from this judgment is that the issue in question is discrimination versus an employer’s right to implement discipline. Furthermore if a ‘zero-tolerance’ policy is to be adopted, impairment or intoxication needs to be evident, unless there is a reasonable ground that such a policy ought to be applied when taking into account the nature of an employee’s work.²⁶ As per the Barloword case, and in line with what section 6(1) of the Employment Equity Act²⁷ provides, employers need to pay careful consideration in formulating such policies and how they are applied.

¹ [2018] ZACC 30; 2018 (10) BCLR 1220 (CC); 2018 (6) SA 393 (CC); 2019 (1) SACR 14 (CC).
² Act 85 of 1993, at the preamble.
³ Bernadette Enver vs Barloworld Equipment South Africa, a division of Barloworld South Africa (Pty) Ltd (JA86/22) [2024] LAC, at paragraph 8.
⁴ Smuts, ‘The South African Law: What should you know’, (2013), First Edition, Tafelberg Publishers, at page 214.
⁵ Act 85 of 1993.
⁶ (JA86/22) [2024] LAC, at paragraph 2 & 10.
⁷ (JA86/22) [2024] LAC, at paragraph 9.
⁸ (JA86/22) [2024] LAC, at paragraph 10.
⁹ (JA86/22) [2024] LAC, at paragraph 10.
¹⁰ (JA86/22) [2024] LAC, at paragraph 12.
¹¹ (JA86/22) [2024] LAC, at paragraph 12.
¹² (JA86/22) [2024] LAC, at paragraph 14.
¹³ (JA86/22) [2024] LAC, at paragraph 19.
¹⁴ Act 55 of 1998.
¹⁵ [1997] ZACC 12; 1997 (11) BCLR 1489; 1998 (1) SA 300.
¹⁶ [1997] ZACC 12; 1997 (11) BCLR 1489; 1998 (1) SA 300, at para 26.
¹⁷ Act 66 of 1995.
¹⁸ (JA86/22) [2024] LAC, at paragraph 11.
¹⁹ Section 14 (a) – (d) of The Constitution of the Republic of South Africa 1996.
²⁰ Grogan, Dismissal, (2017), Third Edition, Juta, 277.
²¹ Act 85 of 1993,
²² (JA86/22) [2024] LAC, at paragraph 35.
²³ (JA86/22) [2024] LAC, at paragraph 37.
²⁴ (JA86/22) [2024] LAC, at paragraph 38.
²⁵ [2015] ZALAC 23; [2015] 9 BLLR 887 (LAC); (2015) 36 ILJ 2273 (LAC).
²⁶ S Machado & S Dube, ‘South Africa: LAC finds that an employee who was dismissed for recreational cannabis use at home was unfairly discriminated against’, bowmanslaw.com, 25 April 2024.
²⁷ Act 55 of 1998.

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A recent ruling by the Labour Court held that an employee violated her fiduciary duty to her employer by not disclosing her concurrent full-time employment.

This case amplifies loyalty to one’s primary employer and compliance with both the law and policies in the workplace which enables a transparent and conflict free working relationship.

The employee had full time employment with one employer (the first employer) and then took up further full-time employment with another employer (second employer) with the same working hours and a higher salary.

The first employer became aware of the concurrent employment with the second employer and charged the employee with gross misconduct for taking up concurrent full-time employment without the knowledge or the authority of the first employer. The employee was found guilty and was dismissed.

The employee referred an unfair dismissal to the CCMA who found that the dismissal was both procedurally and substantively fair. The employee then filed a review of this award with the Labour Court. The Labour Court confirmed the dismissal.

The Labour Court held that an employee is expected to act with good faith to their employer and to serve an employer honestly and with integrity in the best interests of the employer. An employee has a fiduciary duty not to engage in conduct that conflicts with their employer’s interests. Employees have a duty to disclose any other employment interests. The employee did not disclose this interest and therefore breached her duty of good faith to the employer.

This Judgment highlights key principles, as follows:

1. Employees have a contractual duty to disclose secondary employment;

2. It is deemed impossible for an employee to fulfil both full time responsibilities effectively;

3. Employees have an inherent duty to act in the best interest of their employer and avoid conflicts of interest;

4. The primary commitment must be with the principal employer and secondary employment should not compromise this commitment;

5. It is important to comply with both the legal framework and workplace policies of the primary employer.

Conclusion:

Employees have a duty to uphold the integrity and responsibilities of their primary employment in good faith.

Authored by Ms Ntokozo Ndlovu, a Candidate Attorney in the employment of RW Attorneys, with Ms Faathima Asmall providing oversight.

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INTRODUCTION

In a competitive business industry, for an entrepreneurs’ ship to sail in a sea of economic challenges, it is important to protect covenant of confidentiality and proprietary business interests (trade secrets). The question that is often asked is whether an employer can exclusively rely on covenant of confidentiality and Restraint of Trade to protect its trade secrets and what effect it has on public policy. In the recent judgment in the Western Cape High Court in the matter of Checkers (Pty) Ltd v Kgatle and Another (4996/(2023) [2023] ZAWCHC 159 (4 July 2023) the Court had to balance enforcing a Restraint of Trade against public policy.

THE LEGAL FRAMEWORK OF RESTRAINT OF TRADE

Restraint of Trade is a clause in a Contract of Employment with the aim of protecting an employer’s proprietary interests, the implication of a Restraint of Trade arose inter alia when employee terminates employment. The employee is restricted from working for a competitor or establishing a business in competition with the employer post termination of an Employment of Contract with the employer.

Even though every citizen is free to engage in any trade, profession, or occupation of their choice, South African employees are still subject to legal and strictly enforceable restrictions. For a Restraint of Trade to be enforceable it must be reasonable. If restrictions are against public interests and policy, they will deemed unreasonable. The Courts are also reluctant to enforce Conditions of a Contract that have a negative impact on public interests.

The doctrine of restraints of trade flows from common law. Common law recognises the principles of Restraint of Trade and these principles have evolved over years and are instrumental to the Courts to satisfy the reasonable test, namely:

• The clause must be reasonable, such that it indicates the prescribed time in which the Restraint of Trade is effective and specify the geographic area it applies.
• The clause must protect a legitimate interest, aiming to protect the trade secrets of the business.
• The clause must not be contrary to public policy, has nothing to do with the parties involved with Restraint of Trade, but rather the general public which will come to determine its developments and rejection.

In Shoprite Checkers (Pty) Ltd v Kgatle and Another (4996/(2023) [2023] ZAWCHC 159 (4 July 2023) Tebogo Kgatle (herein after ‘First Respondent) was employed by Shoprite ‘applicant’ since 2021, the First Respondent’s Employment Contract with the Applicant contained a Restraint of Trade clause. The first Respondent resigned from employment and stated that he was taking up employment with the Second Respondent who was a competitor of the Applicant, as a result the Applicant launched an urgent Application to enforce a covenant of confidentiality and a Restraint of Trade. The First Respondents’ core defence was that the Restraint of Trade should not be enforced because of reasons of public policy.

The legal question before the Court was whether the Restraint of Trade should be enforced or not. The Court had to consider the balance of convenience. It was evidence before Court that the First Respondent was offered the opportunity to withdraw his resignation by the applicant. Not only was the First Applicant afforded an opportunity to withdraw his resignation, but the Applicant also made an undertaking that he was prepared to accept the withdrawal of such a resignation. An invitation which the First Respondent declined to take. In the premise the Court was called upon to make a pronouncement on issues before it. In establishing whether the Restraint of Trade clause should be enforced the Court considered whether the parties negotiated with equal bargaining power and understood what they agreed to.

It must be borne in mind that ordinarily, the Court may refuse to enforce specific contractual terms of a Contract, especially if such terms would be contrary to public policy. In the current case, the Court ruled in favour of the applicant and based its reasoning on the facts that the relief sought would not affect public policy. As a result, the First Respondent was restraint from disclosing any confidential and proprietary information of the Applicant, and the restraint was valid for a year from the date of resignation and within the geographic area of South Africa.

CONCLUSION

The decision in Shoprite Checkers has once more again demonstrated that our Courts are readily prepared to order Restraint of Trade to safeguards business communities’ protectable interests. However, before, the Courts can order protection of such protectable interest, it will take into consideration factors such as whether there are protectable economic interests of the employer, whether the restraint is reasonable as far as the geographical area is concerned. The Court will also look at the duration of the interest to be protected and whether public policy sanctions it.

Lessons to be drawn from In Shoprite Checkers (Pty) Ltd v Kgatle and Another, is that both parties entering the Agreement should have equal bargaining powers and understanding of the terms of the contract. It is important for an employee to negotiate the terms of the clause before signing the Agreement and the employer must consider that Restraint of Trade is aimed at protecting the proprietary interests concurrently in line with public policy.

Authored by Ms Natalie Marisamhuka, a Candidate Attorney in the employment of RW Attorneys, with Mr Nelson Tjiane providing oversight.

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The Labour Court was recently called to adjudicate on the in loco parentis principle in the case of David Oupa Diholo v/s Gauteng Department of Education and two others JR 1775/19. (not reportable).

1. The facts

Although in Diholo, the Applicant’s (David Oupa Diholo) matter concerned late filing of review in the Labour Court, the Presiding Judge (Tlhotlhalemaje, J) having dealt with an Application for Condonation of the late filing of the Applicant Review Application, he (the learned Judge) proceeded to deal with the merits of the case.

The facts of the case in Diholo were that the Applicant, who was an educator employed by Gauteng Department of Education notice of allegations, was found guilty and dismissed by the Department for allegations of sexual misconduct in that he conducted himself in an improper, disgraceful or unacceptable manner whilst on duty, by hugging and kissing a grade 9 learner (Complainant) on her forehead. He is alleged to have called the Complainant ‘baby’ and also told her that he ‘loved her.’

The charges against him were preferred in terms of Section 18(1)(q) of the Employment of Educators Act2 (EE Act).

The Applicant contestation was that there was nothing unusual with his habit of regularly giving his learners ‘high-fives,’ handshakes and hugs, as he considered them to be his children. He further contested that he did not limit his interaction with them (learners) to the prescribed curriculum, especially when counselling them on the ‘general evils of life.’

It was also evidence before the Arbitrator that at some point, the Applicant called the Complainant “to come and see him” into the Educator’s stuff room, uncomfortable about going alone, the Complainant took her friend with her. The Applicant was not pleased with the Complainant bringing the friend with, however, he proceeded to ask them (Complainant and friend as to whether they have boyfriends).

The Arbitration ruled against the Applicant on the basis that had committed misconduct in contravention of Section 17(1)(b)3 and of unbecoming conduct in the form of sexual harassment in terms of section 18(1)(q)4 of the EE Act. The Arbitrator considered the principles related to the offence of sexual harassment, and the fact that under Section 17(1)(b) of the EE Act, an Educator commits a misconduct where he sexually assaults a learner. Against these principles, the Arbitrator concluded inter alia that; It should be accepted that the Applicant had hugged and squeezed the Complainant in an unwelcomed manner, which conduct had morphed into sexual conduct. In this regard, the Applicant’s hugs were not innocent, and the Complainant’s version of events was collaborated by her friend ‘KM’ and was thus acceptable.

2. Legal question

The question that confronted the Labour Court was whether the Arbitrator’s award was reviewable. In other words, was Arbitrator correct in dismissing the applicant.

3. Labour Court

Not satisfied with the decision of the Arbitrator, albeit filing of the Review Application outside the six-period time as prescribed in Section 145 (1) (a) of the Labour Relations Act, the Applicant filed for Condonation and also to challenge his dismissal in the event that Condonation is granted.

As stated above, the Applicant’s Condonation Application was granted, and the Court proceeded to ventilate the matter on merits held as follows:

3.1 That it is apparent that there appeared to be a pattern of inappropriate conduct towards learners in his spell as an Educator;

3.2 That it was satisfied that the evidence against the Applicant demonstrated an individual who had committed misconduct against a learner;

3.3 That the Applicant is a person who totally failed to live to the principles of being a protector and guardian expected of a paterfamilias in his position vis-à-vis the Complainant;

3.4 The evidence points the Applicant as someone who sought to take advantage of the Complainant by prying into her private life and invading her personal space and bodily integrity, in the guise of being caring and fatherly;

The Court concluded by specifying that the Applicant betrayed the trust of the Complainant through his conduct and created an unhealthy, insecure and hostile environment for her.

The review was accordingly dismissed.

4. Conclusion

In Diholo the Court observed that in terms of the Common Law, Educators and Management of our schools have a legal duty to take care of the children entrusted to them. Learners being vulnerable and since the teachers are the closest adults to them during their school lives, teachers ordinarily have a positive duty to provide a safe educational environment to them, free from any form of fear, abuse, intimidation, coercion or physical and/or emotional harm. This is so in that in the education sector in particular, the in loco parentis principle ought to be supreme, as it is meant to protect learners, and accordingly, teachers are at all material times, in a position of diligens paterfamilias.

Considering prevalent nature of Gender Based Violence “GBV” crisis in our country, it is advisable for educators, to be sensible around learners that are placed in their care, especially considering the vertical Educator learner relationship. To cross the boundaries of such a relationship will not only destroy the educator’s career but will also be restrictive for learners as they will not be in a position to achieve their full potential because of the psychological effects that may be brought about by the conduct of their educators.

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