Case Number: PSES 04/99 0256 KZN
Applicant: P ZAMA
Respondent: Department of Education
Issue: Unfair Dismissal - Misconduct
Award Date: 8 January 2001
Arbitrator: BENITA WHITCHER
EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER : PSES 04/99 0256 KZN
In the arbitration between:
P ZAMA APPLICANT
DEPARTMENT OF EDUCATION AND
1 . HEARING AND REPRESENTATION
The arbitration was conducted in Durban on 18 December 2000. The Applicant was represented by an attorney, Mr Kingdom Mthetwa. The Department was represented by Mr P Jenkins from the Port Shepstone region.
2 . ISSUE TO BE DECIDED
Whether the dismissal of the Applicant was lawful.
3 . EVIDENCE AND ARGUMENT
.1 The Applicant was employed as a teacher since 1993. She was absent from duty from 27 February 1997 to the date of her termination, namely 28 February 1998. The Applicant became aware that her services had been terminated when her salary was stopped on 28 February 1998 and she attended the district office, Port Shepstone, in March 1998 to inquire about her salary. She was informed by a district official that her services had been terminated and that there was a letter to the effect. However the letter could not be found in the district office file. A copy thereof, dated 25 March 1998was handed in at the arbitration and it reads as follows :
“You have been absent from duty without authorisation since 27 February 1997 and therefore you are deemed to have been discharged on grounds of misconduct with effect from this date in terms of Section 19 (1) (a) of the Educator’s Employment Act, 1994".
.2 The Applicant says that she wrote to the Department requesting the letter but did not receive any response. She instructed an attorney in September 1999. In response to a letter from them, the Department sent the following response:
“Please note your client was absent from duty since 28 February 1997 without the necessary authority. Moreover several attempts were made to locate her with a view to ascertain the reasons for her absence but to no avail. It was against this background that her services were terminated on account of abscondment in terms of Section 19 (1) (a) of the Educators Employment Act, 1994, with effect from the close of duty on 27 February 1997. I must also point out that the termination was a result of her own fault. As such I am not in a position to assist her at this late stage.”
.3 The principal testified that when the Applicant did not report for work from 28 February 1997 he attempted to contact her by leaving messages with friends and relatives as he did not have a direct contact number or address as she had left her former address. She failed to contact him or to submit a doctor’s certificate or an application for leave. He next heard from her on 15 September 1997 when her husband phoned and asked for a meeting. When he met them on 19 September 1997 she indicated no intention to return to the school but asked him to assist her in obtaining a transfer to a school in Enseleni/Empangeni. She did not explain fully but cited family problems as the reason for wanting the transfer. The school in Empangeni had offered her a post but needed a letter of release or transfer letter. He advised her that he did not have the authority to do such but that he would speak to the SEM. He arranged to see them on 19 September 1997 to give his response but the husband phoned and cancelled the meeting. The Applicant’s pupils, numbering about 50, were divided amongst the remaining teachers who already had overloaded classes and this remained the situation throughout her absence of one year.
.4 The Applicant’s excuse for being absent, but paid for a whole year until she was eventually dismissed was that she had been sick for the period 28 February 1997 to 31 May 1997, the schools were thereafter closed for the winter/June holidays and form July 1997 she had been waiting for the principal to revert to her regarding her request for a transfer or release letter. She contended that she had submitted to the principal, doctor’s certificates together with a formal application for sick leave the period 27 February 1997 to 31 May 1997. She handed up a copy of a document which she said was part of the leave form handed to the principal. It contains the doctor’s details, sick leave dates and a signature in the space designated for the signature of the principal. The principal denied the signature and knowledge of the documents. The circumstances of when and how the documents were handed to him were not put to him during cross-examination The Applicant also handed in a copy of a letter dated 21 August 1997 address to the school requesting a transfer. No evidence was led regarding the submission of this letter. She stated that she wanted a transfer and could not return to the school because of family violence. She never applied for leave during this period.
.5 In my view the Applicant’s dismissal was lawful for the reasons set out below.
.6 The Department’s case is that it never took a decision to dismiss the Applicant. At all relevant times there existed between the Department and the Applicant an employee-employer relationship within the definition of “employer” and “employee” contained in S213 of the LRA, as well as the definition of employee and educator contained in the Educator’s Employment Act, 1994. In consequence thereof the provisions of Section 10(1) (a) were at all relevant times applicable to the Applicant. Section 10 (1) (a) stipulates that:
“An educator employed in a permanent capacity at a public educational institution who is absent from work for a period exceeding 14 consecutive days without the consent of the employer shall, unless the employer directs otherwise, be deemed to have been discharged on account of misconduct with effect from the date following immediately upon the last day on which he/she was present to render services”.
.7 Section 10 (2) stipulates that if the educator reports for duty at any time, the employer may, notwithstanding the discharge, reinstate him or her.
.8 The Department correctly contended that upon a proper interpretation of S10 an officer/educator is at once deemed to have been discharged for misconduct as soon as he or she has absented herself or herself from his/her duties without permission for more than 14 consecutive days and that such discharge (or dismissal) does not depend on any decision on the part of the department. Under these circumstances an employee is dismissed by operation of law and not by the exercise of any discretion and this effectively results in an automatic dismissal which the Department is legally obliged to implement. The Department does not have a choice as to whether these provisions are to be implemented or not, and are in terms of their public responsibility obliged to implement those provisions (see Public Servants Association of SA & Another vs Premier of Gauteng & Others (1999) 20 ILJ 2106 (LCL)).
.9 The one power which the Department does have is set out in S10 (2) in terms whereof a possible reinstatement of the Applicant can be considered when and if she/he resumes duty or reports for duty and applies for such.
.10 In this case, although there was a dispute as to whether the Applicant was absent without permission during the period 28 February 1997 to 31 May 1997 and the June holidays in 1997, it was common cause that she was absent without permission in the remaining periods, namely about 8 months, a period far exceeding 14 days. There is therefore no need to make a finding regarding the disputed dates. Further the reason for the absence in my view is irrelevant because it is a deeming provision and the only enquiry is whether she had permission or not, which she did not have.
.11 Further she did not report for work and/or invoke the possible reinstatement procedure provided in Section 10 (2), so any decision to reinstate or not has not yet been taken, so in my view there is no decision as envisaged by S10 to be adjudicated upon.
.12 On a policy level I find the conduct of the Applicant to be disgraceful. She stays away from school for one year on full pay. She claims to have been unfit for work due to illness from 28 February ro 31 May 1997, a full 3 months. Yet the certificate is suspiciously vague, referring to an undefined illness like pelvic pain. She claimed that she also had a “running stomach, headaches and mental disturbance”. In my view common sense tells me that this cannot be serious enough to keep a person away continuously for 3 whole months - even if she did have these alleged ailments.
.13 Even after her alleged sick period was over, she remained absent. Her excuse is the June holidays whose dates she did not prove and thereafter family violence and waiting for a transfer. The letter to the school asking for a transfer is dated 23 August 1997. I cannot understand how a person can, in the absence of permission to be absent, just sit around for months waiting for a response to a letter (or meeting that occurred in mid September 1997) without realising that one should account for one’s absence and that she was running the risk of dismissal. How can you presume to stay away for one year on full pay and not expect to be dismissed.
4 . AWARD
Date : 8 January 2001
EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER PSES 04/99 0256 KZN
APPLICANT P ZAMA
RESPONDENT DEPARTMENT OF EDUCATION
NATURE UNFAIR DISMISSAL
ARBITRATOR BENITA WHITCHER
DATE OF ARBITRATION 18 DECEMBER 2000
APPLICANT MR KINGDOM MTHETWA
RESPONDENT MR P JENKINS
DATE OF AWARD 8 JANUARY 2001