Case Number: PSES 06/2000/0667 NW
Province: North West
Applicant: G MOGAJANE
Respondent: Department of Education
Issue: Unfair Dismissal - Constructive Dismissal
Award Date: 14 December 2000
Arbitrator: MAHOMED JAJBHAY
EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER : PSES 06/2000 0667 NW
In the arbitration between:
G MOGAJANE APPLICANT
DEPARTMENT OF EDUCATION :NORTH WEST RESPONDENT
1 . HEARING AND REPRESENTATION
1.1 In this matter I have been called upon to determine whether the dismissal of Mr Mogajane constituted an unfair labour practice.
1.2 At the outset I wish to express my gratitude to Mr Vilakazi of Tholi Vilakazi and Associates who appeared on behalf of Mr Moganjane as well as Mr Meje who appeared on behalf of the Department of Education. The competent and careful manner in which they approached the present matter facilitated my task for which I am grateful.
1.3 The facts in this matter are essentially common cause and can be summarised as follows :
1.3.1 Mr Mogajane commenced his employment as an educator during or about October 1993. At all material times, he was employed at the Polonia Primary School.
1.3.2 During the period 1995 to 1998, consequent to certain concerns within the parent as well as the educators’ group, Mr Mogajane and another educator were suspended. However for the purposes of the present arbitration, it is noted that both Mr Mogajane and the other educator were found “not guilty. It was recommended that Mr Mogajane be transferred to a different educational institution. However certain attempts were made to transfer Mr Mogajane, but an agreement could not be reached.
1.3.3 The relationship between Mr Mogajane and the principal at the Polonia Primary School can be described as dysfunctional and one that has been irretrievably broken down.
1.3.4 As a result of the stress at the workplace, Mr Mogajane was absent on several occasions. During October and November 1999, Mr Mogajane produced medical certificates from his doctor, i.e. Dr P Malanga which stated that Mr Mogajane was diagnosed for major depression.
1.3.5 The acrimonious relationship between Mr Mogajane and the principal at the school is evidenced in a letter dated 23 November 1999 communicated to the district manager by Mr Mogajane. This letter reads inter alia :
“I was informed by the school principal Malewa that I was on the list to be redeployed. This had boosted my hopes for leaving the school but it did not seem to materialise sooner than I expected.
At the moment the conditions at the school have deteriorated to zero-tolerance as there is loss for respect between me and Malewa and his lurkies on the staff (sic).
Communication has also broken down as a result I am not consulted with decisions that effect me as an educator. We are consequently on a collision path with Malewa and its heading for the worst. ...
I want to obviate this situation as I see there (sic) shall be a blood-bath. If you want to avoid a blood-bath one of us between me and Malewa must be out and I offer myself to be out of the school come first school day of the year 2000".
1.3.6 During June 1999, the Circuit Manager Mr Motama had discussed the issue around rationalisation with Mr Mogajane. He realised that the relationship between Mr Mogajane and the principal was precariously placed, however nothing constructive was done.
1.3.7 According to Mr Motama, the relationship between the persons referred to was fairly good. However a proper evaluation of the evidence has shown that the contrary was in fact the case.
1.3.8 When school re-opened in January 2000, the evidence was that Mr Mogajane attended school, informed the principal that he has some problems and he will return the next day. He did not return to school the next day. In fact he did not resume his teaching duties for the year 2000.
1.3.9 There was some confusion as to whether the principal was approached by Mr Mogajane during April 2000. The principal stated in evidence that he could not recall, but he was not able to confidently describe the fact that Mr Mogajane had in fact approached him.
1.3.10 Mr Mogajane did not submit any leave forms or medical certificates for the period that he was not at school.
1.3.11 Mr Mogajane received a letter during April 2000 which reads as follows :
“Notice of discharge
You are hereby discharged in terms of section 14(1)(a) of the Employment of Educators’ Act, 1998, with effect from 8 December 1999. (The day preceding the last day you reported for duty). The reason hereto been your failure to report for duty since the schools re-opened on 10 January 2000".
1.4 Whilst I have not summarised all of the facts, I must impress that I have applied my mind to all the material that is before me. In the event that I am required to set out additional reasons, then I will utilise that opportunity to set out the facts in greater detail :
1.5 Section 14 of the Employment of Educators Act 76 of 1998 (the Act) sets out the following :
“14. Certain educators deemed to be discharged
(1) An educator appointed in a permanent capacity who -
Is absent from work for a period exceeding 14 consecutive days without permission of
While the educator is absent from work without permission of the employer,
assumes employment in another position”.
1.6 Section 35 of the Act deals with leave application forms, granting and withdrawal of leave. Subsection (2) sets out the following :
“An educator, except an educator who has ben suspended from duty or who is by sudden illness or other unavoidable circumstances prevented from remaining on or reporting for duty, shall not leave or stay away from work until he or she has applied for leave in writing and has been advised that his or her application has been approved”.
1.7 Of great importance for this award is the comments of Joey M Moloisane, a clinical psychologist who was attending to Mr Mogajane. The clinical psychologist sets out the following :
“The above mentioned has been my patient since 30 November 1999 to date, suffering from Major Depression with Psychotic features.
Clinically, he was presenting with Insomnia, Irritability, Fatigue, Lack of appetite and poor concentration span and memory loss. He also complained of hearing strange voices and sounds which leaves him with headaches.
Gordon alleges that he has been having a work related problem since 1995, and the situation went completely out of control when other teachers (sic) signed petitions where parents were also involved. People started toy-toying for his expulsion together with his colleague Charles.
He (Gordon) hated the system, used strong words to verbalise his anger towards the system. His friend and confidante Charles got a space at another school.
... When he consulted un on 30 November 1999 for the 1st time, he was totally out of control. I even advised him to be admitted as he was not functional at all. The reason for admission was to aggressively manage his depression before it moved to another level of psychoses, but he felt that he would like to take medication at home.
I agreed as long as there was a proper supervision. Indeed he responded well to medication and kept his appointment for review.
But already there was a strong indication of progressive memory loss, decreased concentration span and suppressed aggression which would surface most of the time in session. He would forget to bring his sick leave forms. I assessed that he was going to need Psychotherapy for a long time to help him deal with issue which were now Super-imposing on his personal lefe. As he was now drinking too much not caring any more about important issues around his life.
Dismissal of a person with mental instability aggravates the condition. At the moment he is suicidal, as he feels that the system has failed him. He has the potential and the need to be a teacher but the system has failed to utilise this potential to be a good teacher.
I would humbly request that he be reinstated and given a transfer to another school, as the old school will trigger traumatic experiences of the past, and still be encouraged to attend Psychotherapy on a frequent basis, till he is stable enough to manage his work and personal responsibilities ...”
The above was prepared by the clinical psychologist.
1.8 This document was admitted by the representative on behalf of the Department of Education, and the parties agreed that the contents of this document are in fact what they purport to be.
1.9 It is correct that Mr Mogajane did not furnish any leave forms that were required of him.
1.10 The most important part of the evidence was that the Department of Education did not bother to enquire about the whereabouts or the health or condition of Mr Mogajane. The principal admitted that no attempts were made by either him or the Department of Education to enquire about the reasons for Mr Mogajane’s absence.
1.11 Section 14(1)(a) refers to educators “deemed” to be discharged. This in my view means that the educator is not automatically discharged. Something has to be done before the educator can be finally discharged. This the Department failed to do before it communicated the letter to Mr Mogajane indicating that he has been discharged.
1.12 When a person is to be dismissed, then our law requires procedural fairness to be implemented at all material times. Employees are protected against dismissal that can be considered to be arbitrary or without just cause. Whilst the Act empowers the Department to discharge individuals who absent themselves from work for a period exceeding 14 consecutive days without permission of the employer, in my view the Act also requires that the individual who is being considered to be discharged will be afforded an opportunity to explain his or her absence. This is more so in circumstances such as the present one where the Department of Education at all material times knew about the exact whereabouts of Mr Magojane.
1.13 In deciding whether the actions of the Department were fair in the imposition of the particular form of discipline that it had selected, I must assess the seriousness of the misconduct in the context of the existing circumstances. These circumstances include, where appropriate, such matters as the sensitivity of the educational setting and ensure that a person who is clearly incapable of adequately fulfilling the duties of an educator both inside and outside the classroom is not returned to the classroom Both the vulnerability of the learners and the need for public confidence in the education system demand such caution. In the present matter, the Department of Education as not shown on a balance of probability that Mr Mogajane is not a fit and proper person to commence and continue his duties as an educator. The report of the clinical psychologist emphasises that Mr Mogajane was not able to resume his duties during the period January to December 2000. Perhaps Mr Mogajane should have went the extra mile and communicate this to the Department of Education. This would have obviate the necessity of the present dispute.
1.14 In circumstances such as the present, where educators are deemed to be discharged, prior to exercising its prerogative, the Act and the regulations that regulate the harmonious functioning of the Act, call for some sort of consultation, and investigation, with the educator, when the Department of Education contemplates implementing the provisions of Section 14 of the Act.
1.15 Every person has a fundamental right to fair labour practices (Section 23(1)(a) of the Constitution of the Republic of South Africa). Inasmuch as in the present context, expression must be given to the prevailing employer/employee relationship, the educator as employee, must be given the right not to be unfairly dismissed. However, the employer has the right to dismiss an employee for a fair reason, and in accordance with a fair procedure.
1.16 A school is a communication centre for a whole range of values and aspirations of a society. In large part, it defines the values that transcend society through the educational medium. The school is an area for the exchange of ideas and must, therefore, be premised upon principles of tolerance and impartiality so that all persons within the school environment feel equally free to participate. The principal as well as the educators at a particular school by their conduct, must be perceived to uphold the values, beliefs and knowledge sought to be transmitted by the school system. The manner in which Mr Mogajane, and other educators, as well as the principal to a certain extent presented themselves and dealt with their disputes can only be described as deplorable. Thus, I have indicated at the beginning of this award that the relationship between these individuals has irretrievably broken down.
1.17 The Code of Practice to the Labour Relations Act of 1995 sets out the key principle in that employers and employees should treat one another with mutual respect. A premium is placed on both employment justice and the efficient operation of business. While employees should be protected from arbitrary action, employers are entitled to satisfactory conduct and work performance from their employees. These important values in my view, were absent in the relationship between Mr Mogajane and the principal. This is evidenced by the letter that Mr Mogajane communicated to the district manager setting out the “blood-bath” that would follow if something was not done.
1.18 The process by which a decision is reached, especially in circumstances such as the present, and above all, where the decision is a discretionary one, serves itself to legitimise the outcome, which because it is not itself justiciable, cannot be evaluated in any other way. This is the notion of procedural justice and it is important to understand that decision-making within the Department of Education is heavily dependent upon procedural justice to which the principles of natural justice contribute significantly, for its legitimacy. In the present circumstances, a fair procedure dictated a proper investigation on the Department’s part for the reasons for Mr Mogajane’s absence. Had this been undertaken, it would have become clear that Mr Mogajane was suffering from major depression with psychotic features.
1.19 During the closing argument stage, Mr Meje conceded that if the Department of Education were informed earlier regarding Mr Mogajane’s depressive and psychotic features, a different decision would have been reached, indicating that he would not have been dismissed.
1.20 Mr Vilakazi conceded that Mr Mogajane should not be remunerated for the period that he was absent. This includes the period 1 January 2000 up to the end of December 2000. I believe that both the above concessions were correctly made.
1.21 In all of the above circumstances, I make the following determination:
1.21.1 The dismissal of Mr Mogajane by the Department of Education North West was substantively and procedurally unfair.
1.21.2 Mr Mogajane is re-employed in his capacity as an educator with the North West Department of Education.
1.21.3 Mr Mogajane is not entitled to any salary or benefits between the period 1 January 2000 until 31 December 2000.
1.21.4 Mr Mogajane and the Department of Education North West must consult in order to determine the school at which Mr Mogajane will be required to perform his services in terms of his contract of employment with the Department of Education North West.
1.21.5 Mr Mogajane must not be requested to the Polonia Primary School.
Date : 14 December 2000
EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER PSES 06/2000/0667 NW
APPLICANT G MOGAJANE
RESPONDENT DEPARTMENT OF EDUCATION
NATURE UNFAIR LABOUR PRACTICE
ARBITRATOR MAHOMED JAJBHAY
DATE OF ARBITRATION
APPLICANT MR VILAKAZI OF THOLI VILAKAZI
RESPONDENT MR MEJE
The dismissal of Mr Mogajane by the Department of Education North West was substantively and procedurally unfair.
Mr Mogajane is re-employed in his capacity as an educator with the North West Department of Education.
Mr Mogajane is not entitled to any salary or benefits between the period 1 January 2000 until 31 December 2000.
Mr Mogajane and the Department of Education North West must consult in order to determine the school at which Mr Mogajane will be required to perform his services in terms of his contract of employment with the Department of Education North West.
Mr Mogajane must not be requested to the Polonia Primary School.
DATE OF AWARD 14 DECEMBER 2000