Case Number: PSES 297/08/09GP
Applicant: Ollof Abraham Esterhuizen
Respondent: Department of Education, Gauteng
Issue: Unfair Dismissal - Misconduct
Award Date: 13 November 2011
Arbitrator: KC Moodley
IN THE EDUCATION LABOUR RELATIONS COUNCIL
In the matter between:
OLLOF ABRAHAM ESTERHUIZEN (Applicant)
DEPARTMENT OF EDUCATION - GAUTENG (Respondent)
Case Number: PSES 297/08/09GP
Date of Award 13 NOVEMBER 2011
Education Labour Relations Council
261 West Avenue, Centurion, 0046
Tel: 012 663 7446
Fax: 012 663 1601
1. DETAILS OF THE HEARING AND REPRESENTATION
The Applicant was represented by Ms. A Groenewald, an attorney. The Respondent
was represented by it’s Labour Relations Officer, Mr. J Oliphant. The dispute was set down for hearing on 19 September 2011. By consent it was agreed that the matter would be determined on the basis of written argument without the need for oral evidence. The parties subsequently filed written submissions.
2. ISSUE TO BE DETERMINED
The issue to be determined is whether the Applicant was dismissed, and if so, whether the dismissal was procedurally and substantively fair. If I find that the Applicant was unfairly dismissed, I must determine the appropriate relief.
3.1. The Applicant was employed by the Respondent as an educator on 10 October
3.2. As at 28 August 2008, the Applicant was employed as a Principal and was on
salary notch Code 128.
3.3. On 18 January 2006, the Applicant was issued with a notice to attend a
disciplinary enquiry. The charges levelled against him was as follows:
3.3.1 It is alleged that during the following period you committed an act of misconduct in that you failed to carry out lawful order or routine instruction without just or reasonable cause when: during the period 1 April 2004 to 24 February 2005, after numerous instruction, you failed to submit the audited financial statement of Braun’s Estate Primary School;
3.3.2 It is alleged that during the month of December 2004, without authorization, you removed financial records of Braun’s Estate Primary School for the financial year 2003 and 2004 from the school premises and failed to return such records after being instructed to do so. You are charged of misconduct as defined in Section 18(1) (i) of the Employment of Educator’s Act.
3.4. The disciplinary hearing was held on 24 April 2007, 16 months after the Applicant was charged at which hearing the Applicant pleaded guilty to charge 1 and was found guilty on charge 2.
3.5. On 1 November 2007, while still awaiting the outcome of his disciplinary hearing, the Applicant tendered his resignation in writing to the Respondent, his last day of service being 31 December 2007.
3.6. On 28 November 2007 the Respondent notified the Applicant in writing that his resignation was not accepted as the disciplinary action against him was not yet disposed of.
3.7. On 9 November 2007, after receiving the Applicant’s letter of 1 November 2007, the Respondent provided the Applicant with an undated letter, informing him that since he had been found guilty of the charges leveled against him on 18 January 2006, that he was dismissed in terms of Section 18(3) (i) of the Employment of Educators Act, 1998 (Act 76 of 1998) (the Act).
3.8. The Applicant duly completed an appeal form on 16 November 2007.
3.9. The Applicant continued to report for duty, until the schools closed for the December holidays in 2007.
3.10. On 7 and 8 January 2008, the Applicant reported for duty as usual, since he had been informed that the Respondent did not accept his resignation, he consented to the revocation of his resignation and further because he was awaiting the outcome of his appeal that was submitted after his resignation.
3.11. In April 2008, the appeal was decided and the sanction of dismissal was reduced to demotion to Deputy Principal. Upon receipt of the appeal outcome the Respondent terminated the Applicants services on account of resignation.
3.12.The Applicant contends that he was dismissed and that the dismissal was procedurally and substantively unfair. He seeks retrospective reinstatement without loss of benefits as relief.
4. SURVEY OF EVIDENCE AND ARGUMENT
4.1. On 8 January 2008, two members of IDSO visited the school and introduced Mr.
H Muller as the new principal of Republiek Primary School, the position then
occupied by the Applicant.
4.2. The Applicant was not provided with any further instructions on reporting and he
went home, awaiting his appeal outcome. The Applicant duly received his salary
for the period January 2008 to May 2008, however no appeal outcome was
4.3. When the Applicant did not receive his salary at the end of June 2008 his wife
made enquiries on his behalf. She was informed that the Applicant should make
contact with Mr. Oliphant of the Respondent.
4.4. The Applicant duly attended at the office of Mr. Oliphant on 7 July 2008, but the
Applicant was informed that Mr. Oliphant was on leave. The Applicant then
continued to the personnel administration office where he was informed that Mr.
Oliphant had written a letter to Mr. T P Moekena in May 2008 already, informing
him that since the Applicant failed to report for duty since 9 January 2008, that
the Applicant should be dismissed. The Applicant requested a copy of the letter,
but the request was refused.
4.5. The Applicant subsequently met with Mr. Oliphant on 15 July 2008, at which
point in time the Applicant was presented with a copy of the appeal outcome
dated 4 March 2008. The Applicant duly signed receipt for the appeal outcome
and indicated to Mr. Oliphant that he accepts the outcome of the appeal. This
was the first time that the Applicant was provided with the outcome of his
4.6. On making enquiries as to where he should report for duty, the Applicant was
informed by Mr. Oliphant that he was dismissed from the employment of the
Respondent. Mr. Oliphant then indicated that he would arrange a meeting to
clarify the matter. The Applicant provided him with his contact details and
reiterated that he accepted the outcome of the appeal and that he was awaiting
4.7. A meeting was eventually convened on 28 August 2008. Mr. Oliphant, Mr.
Khantsi and Ms Monametsi were present at the meeting. The Applicant was
asked whether he reported his whereabouts to the Respondent after 8 January
2008, whether he received instructions from either Mr. Khantsi or Ms
Monametsi to stay at home and whether anybody else from the district office
instructed him to stay at home. The Applicant answered “No” to all three
questions, upon which Mr. Oliphant indicated that he would write a letter to the
District Director (Ms J Tucker) informing her that the dismissal was justified.
4.8. The Applicant duly referred an unfair dismissal dispute on 19 September 2008;
5. SURVEY OF EVIDENCE AND ARGUMENT
The Applicant tendered his resignation with effect from 31 December 2007 whilst the appeal was still outstanding. After the expiry of the notice of resignation the Applicant did not tender his service other than to effect the handover on 8 January 2008.
The Applicant did not retract or advise the Respondent of the status of his resignation after being informed that it was not accepted as the disciplinary enquiry was not yet disposed of.
The Applicant did not respond to the letter informing him that this resignation was not accepted in view of the fact that the disciplinary enquiry was not yet disposed of. The appeal against the sanction of dismissal was still pending. He was advised of the implication flowing from the resignation pending the conclusion of the disciplinary process.
The Applicant did not respond to the letter nor report for duty after the notice period of resignation, that is, 31 December 2007. The Applicant’s conduct after 31 December 2007 confirmed his resignation by not reporting for duty. The Applicant was not on sick leave nor did he have permission to be absent from work. He had clearly resigned as per his notice of resignation dated 01 November 2011.
The issue of demotion by the MEC is only applicable when an employee consents to it, but the Applicant had resigned before the appeal outcome which rendered the appeal null and void due to the fact that the Applicant had resigned.
The Applicant showed a clear intention to resign and this was also supported by his conduct after the notice period wherein he never reported for duty. His notice of resignation clearly stated that “your assistance in this regard will be highly appreciated as we wish to open the school without any interruption in January 2008”. The Applicant, in line with the spirit of his letter of resignation, reported for duty on 8 January 2008 to do official handover to the appointed caretaker principal. The issue of whether the Respondent accepted the resignation or not becomes irrelevant. The test to determine whether the Applicant has resigned is based on whether the employee has shown a clear intention to resign not whether the employer has accepted the resignation or not.
The Applicant’s services was terminated as of 31 December 2011 as per his letter of resignation. The letter dated 06 May 2008 instructing the Assistant Director: HRA to terminate the service of the Applicant as of 31 December 2011 was in line with his letter of resignation. The fact that the department delayed in processing his resignation cannot be used as an argument that the Applicant did not resign based on the overwhelming evidence that the Applicant resigned.
The argument as to whether the Applicant was dismissed on 28 August 2008, becomes irrelevant once is found that the Applicant had resigned. “However, we need to state that the Applicant’s service was terminated on 31 December 2007 based on his resignation”.
5. ANALYSIS OF EVIDENCE AND ARGUMENT
The crisp issue for determination in this matter is whether the Applicant was dismissed by the Respondent or whether the Applicant had terminated the employment relationship by having resigned. It is the Applicant’s version that he had been dismissed by the Respondent whilst it is the Respondent’s contention that the Applicant had freely and voluntarily resigned.
Section 14 of the Employment of Educators Act 76 of 1998 provides as follows:
“(1) An educator appointed in a permanent capacity who-
(a) is absent from work for a period exceeding 14 consecutive days without permission of the employer;
(b) while the educator is absent from work without permission of the employer, assumes employment in another position;
(c) while suspended from duty, resigns or without permission of the employer assumes employment in another position; or
(d) while disciplinary steps taken against the educator have not yet been disposed of, resigns or without permission of the employer assumes employment in another position, shall, unless the employer directs otherwise, be deemed to have been discharged from service on account of misconduct, in the circumstances where-
(i) paragraph (a) or (b) is applicable, with effect from the day following immediately after the last day on which the educator was present at work; or
(ii) paragraph (c) or (d) is applicable, with effect from the day on which the educator resigns or assumes employment in another position, as the case may be.
At the heart of the dispute lies the Applicant’s letter of resignation and the Respondent’s letter refusing to accept the resignation. On 1 September 2007, whilst in the middle of a disciplinary hearing, where the Applicant faced charges of misconduct, he gave notice of his intention to resign in writing with effect from 31 December 2007. In spite of the Respondent having received the Applicant’s letter of resignation, it proceeded with the disciplinary hearing. On 9 November 2007 the Applicant received the finding of the disciplinary hearing in writing. The letter advised that the Applicant was found guilty on the charges and that the Respondent had decided to dismiss him in terms of Section 18(3) of the Act. The letter further advised the Applicant of his right of Appeal. The Applicant lodged an appeal against the dismissal on 16 November 2007
On the 28 November 2007, after notifying the Applicant of his dismissal and accepting the Applicants Notice of Appeal, the Respondent, citing the provisions of Section 14(1)(d) of the Act, notified the Applicant in writing as follows: “Please be informed that your request for resignation is not accepted for the following reason:
You are aware that the disciplinary process against you has not been completed as your appeal is still pending”.
The Respondent by, directing otherwise, in terms of Section 14(1) (d) of the Act exercised its discretion and rejected the Applicant’s resignation. Acting on the rejection of the resignation, the Respondent continued to process the Applicant’s Appeal. Interestingly, on 15 July 2008 after approximately eight months, the Respondent notified the Applicant that the Appeal was successful. This coincided with the Applicant’s queries concerning the non-payment of his salary at the end of June 2008. The sanction of dismissal was substituted by the sanction of demotion from principal to that of deputy principal. The Applicant accepted the demotion.
From the sequence of events thus far it is clear that the Respondent, acting within its powers in terms of Section 14(1) (d) of the Act unequivocally rejected the Applicant’s letter of resignation. It elected to continue with the disciplinary process. It continued to remunerate the Applicant until May 2008. On 28 August 2008, the Applicant was finally informed that his services were already terminated on 31 December 2007. The termination was said to have been based on his letter of resignation.
The Respondent stands by the fact that the applicant had resigned and that the its response to the letter of resignation was simply to advise the Applicant that should he resign his services would be deemed to have been terminated as a result of misconduct. I reject this argument for the following reasons: the Respondent’s letter clearly conveyed to the Applicant the Respondent’s rejection of the resignation; secondly in keeping with the rejection of the resignation, the Respondent continued with the disciplinary process by continuing with the disciplinary hearing and the Applicant’s appeal; and thirdly the Applicant continued to be remunerated until May 2008, a date well beyond his intended date of resignation, ie, 31 December 2007.
The Respondent could not have at the same time, rejected and accepted the Applicant’s resignation. The Respondent had the choice of accepting the resignation, in which case Section 14 of the Act would have been triggered and the Applicant would have been deemed to have been dismissed on grounds of misconduct, alternatively the Respondent had the option of directing otherwise by rejecting the resignation and holding the Applicant to be bound by the contract of employment. The Respondent clearly chose the latter option.
The Respondent’s decision to direct otherwise is captured in a letter dated 6 May 2008 which reads as follows:
TO: Mr. T.P. Mokoena
:Assistant Director (HRA)
FROM: Mrs. J Tucker
:Acting District Director (D7)
DATE : 06 May 2008
SUBJECT: Termination of services : Mr. O.A Esterhuizen
The above matter refers.
You are requested to terminate the services of Mr. O.A Esterhuizen.
His last day at work is 31 December 2007.
Please take note that Mr. Esterhuizen tendered his resignation after being dismissed for misconduct and while waiting for his appeal outcome.
His request for resignation was not granted as he was waiting for the appeal outcome. However, he did not adhere to the District Director’s refusal to grant him permission to resign.
On the basis of the above, paragraph 6 of the appeal outcome is effective.
You are requested to recover payment from any money due to him for the following period:
1 January 2008 to 31 April 2008
Proof of appeal outcome from head office is attached.
Please provide Labour relations with proof of termination on or before 19 may 2008.
This letter clearly contradicts the Respondent’s version that the Applicant had resigned. To the contrary, it confirms the Respondent’s rejection of the resignation. The Respondent states in the letter that the Applicant should be dismissed in terms of paragraph 6 of the Appeal Outcome which reads as follows:
“Kindly take notice that the aforementioned sanction (demotion- my emphasis) shall be effective upon receipt of this letter. Take further note that should you not agree with the above sanction, the original sanction of dismissal shall be effective”.
The Applicant was only provided with the Appeal outcome at a meeting on 15 July 2008. He acknowledged receipt of the outcome and advised Oliphant that he accepted the demotion. The Notice of the Outcome of Appeal Signed by the MEC on 4 March 2008, advised the Applicant as follows:
“You are hereby demoted from your position to that of a deputy principal.”
Notwithstanding the fact that the applicant had accepted the sanction of demotion he was informed that his services had been already terminated in accordance with his letter of resignation. The Respondent in it’s letter relies on clause 6 of the Appeal Outcome, i.e., non acceptance of demotion will result in the sanction of dismissal standing. At the time when the letter was drafted, i.e., 6 May 2008, the Applicant was not even aware of the outcome of the Appeal and was thus not in a position to accept or reject the demotion. It is difficult to fathom how the Respondent, on 8 May 2008, arrived at the conclusion that the Applicant did not consent to the demotion when he only received the Appeal outcome on 15 July 2008.
The Applicant bears the onus of proving the existence of the dismissal in terms of Section 192 of the Labour Relations Act No 66 of 1995. The Applicant has discharged this onus.
The Respondent’s version is so riddled with inconsistencies and contradictions that no weight can be attached to it. The dismissal is found to be both procedurally and substantively unfair.
6.1. The Applicant was dismissed on 28 August 2008
6.2. The dismissal was procedurally and substantively unfair.
6.3. The Respondent is ordered to retrospectively appoint the Applicant to the post of Deputy Principal, at a school to be determined by the Respondent, on salary notch Code 128, without any loss of benefits or service.
6.4. The appointment shall be effective from 28 August 2008.
6.5. The Respondent shall place the Applicant at a suitable school by
16 January 2012 and the Applicant is ordered to report for duty on the
16 January 2012.
6.6. The Respondent is further ordered to pay to the Applicant his outstanding salary for the period 1 June 2008 to 27 August 2008, and back pay from 28 August 2008 to 15 January 2012.