PSES 81-15/16
PSES 81-15/16
Award Date:
26 October 2015
Case Number: PSES 81-15/16
Applicant: KOENA ANDRIES ELLIOT MOKHEMISA
Respondent: Department of Education Free State
Issue: Unfair Dismissal - Constructive Dismissal
Award Date: 26 October 2015
Arbitrator: Jerome Mthembu
Commissioner: Jerome Mthembu
Case no: PSES 81-15/16
Date: 26 October 2015
In the matter between:
KOENA ANDRIES ELLIOT MOKHEMISA
and
DEPARTMENT OF EDUCATOIN –
FREE STATE Applicant
Respondent
ARBITRATION AWARD
DETAILS OF HEARING AND REPRESENTATION:
1. The hearing was held on 29 September 2015.
2. The Applicant conducted his own case and the Respondent was represented by Mr Tladi.
3. The parties agreed to file closing arguments as follows:-
3.1 The Respondent on 7 October 2015;
3.2 The Applicant on 15 October 2015;
3.3 The Respondent to reply on 19 October 2015.
THE ISSUE TO BE DECIDED:
4. Whether or not the Applicant’s dismissal was procedurally and substantively fair.
BACKGROUND TO THE ISSUE:
5. The Applicant was employed as an educator at Seqhobong Secondary School in Odendaalsrus.
6. It was alleged that the Applicant did not report for duty from 16 October 2014 to 12 November 2014. He did not have the consent of the employer to be so absent.
7. The Applicant was then deemed to have absconded and his services were terminated.
SURVEY OF THE EVIDENCE AND ARGUMENTS:
RESPONDENT’S CASE:
The Respondent called only one witness Tseko Thys Nyama, who was the principal at Seqhobong Secondary School.
8. Mr Nyama stated that he is the principal at Seqhobong Secondary School where the Applicant was an educator. He had a good relationship with the Applicant.
9. He testified that on 15 October 2014, the Applicant reported that he was not feeling well and was then excused.
10. He referred to a book called the permission book. This book was used to record the leave of people who were allowed to ask for leave for a particular day, if they could not be at school for seven (7) hours.
11. On 15 October 2014 the Applicant is marked sick at 12H45 in the permission book.
12. He averred that he could not remember when the Applicant came back as the original attendance register just disappeared.
13. He testified that the Applicant did not submit a medical certificate upon his return. However, from 20 October 2014 to 24 October 2014 he is marked “sick”.
14. He stated that on the following dates the Applicant is marked “absent”:
• 16 October 2014 to 17 October 2014;
• 27 October 2014 to 31 October 2014;
• 3 November 2014 to 7 November 2014.
15. He did not receive any report on the days that the Applicant is marked absent.
16. He stated that on 31 October 2014 he wrote a letter to the Applicant bringing it to his attention that should he be absent for a period exceeding fourteen (14) consecutive days without a valid reason or permission from his supervisor he will be regarded as absconded from work. He sent this letter through Postnet on a door to door delivery.
17. At the time of dispatching the letter the Applicant was absent for eleven (11) days without permission.
18. Neither one of his two deputies or anyone for that matter informed him that the Applicant was sick on the days that he was marked absent.
During cross-examination he stated that:-
19. It is the absentee’s responsibility to report his absence from work.
20. The Applicant would normally send him an SMS message and also tell someone else that he sent him an SMS message.
21. He did not get a message from Mrs Moledi on 27 October 2014.
22. He was not charging the Applicant when he wrote to him on 31 October 2015, but was merely bringing it to his attention that he was not at work for eleven (11) consecutive days.
23. He wrote to the Applicant’s union and informed it that the Applicant was absent at work. Union members went to the Applicant’s wife and came back with nothing.
APPLICANT’S CASE:
The Applicant testified in person and called Salmon Thomas Mahlaku and Elizabeth Moledi as witnesses.
KWENA ANDRIES ELLIOT MOKHEMISA:
24. Mr Mokhemisa stated that he is the Applicant in this matter.
25. He stated that the 15th October 2014 was his last day at work. He was recused from work by Deputy Principal Matlaku that day.
26. On 16 October 2014 he reported his absence to Matlaku who confirmed that he did report to the principal.
27. On 27 October 2014 he reported to the HOD Mrs Moledi by WhatsApp, after he could not get hold of the principal.
28. On 31 October 2014 the principal sent him a letter.
29. On 13 November 2014 he reported for work.
30. He averred that during September 2014 his sugar levels were fluctuating. He engaged a certain chief in Ghana, who is a member of his Church.
31. He averred that the principal was not conveying the reports that he was receiving to the employer.
During cross-examination he stated that:-
32. He agreed that every workplace has its rules and employees must talk with superiors before they leave.
33. If you leave the country you must inform your superior and sign the necessary forms.
34. In his arrangement he did not talk to the principal.
35. He acceeded that he was absent for fourteen (14) consecutive days with permission.
36. On 27 October 2014 he made a follow-up with the principal and Mrs Moledi because he was aware that he had exceeded the two (2) days that he initially wanted to be absent for.
37. He did not specify the days that he will be absent for to Deputy Principal Matlaku.
SALMAN THOMAS MAHLAKU:
38. He confirmed that on 15 October 2014, Applicant’s recusal is noted.
39. He averred that he received an SMS message from the Applicant that when he arrived at home, there were arrangements that he must travel to Ghana to receive medical treatment.
40. He could not confirm the date of the SMS message.
41. A few days down the line, he read the SMS message in the school management team when it was enquired if anyone had a report on the Applicant’s whereabouts. He then read the SMS message to the meeting.
During cross-examination he stated that:-
42. He did not record the SMS message as he expected the Applicant to still come and apply for leave.
43. He did not communicate the SMS message to the principal.
ELIZABETH MOLEDI:
44. She stated that she went to the principal based on the Applicant’s WhatsApp message.
ANALYSIS OF THE EVIDENCE AND ARGUMENTS:-
PROCEDURAL FAIRNESS:
45. Save for stating that he was challenging the procedural fairness of his dismissal, the Applicant has not adduced any evidence or argument in this regard.
46. It therefore leaves me with no option but to return a finding that his dismissal was procedurally fair.
SUBSTANTIVE FAIRNESS:
47. Mr Nyama testified that from the 16th October 2014 until the 31st October 2014 he did not know of the Applicant’s whereabouts.
48. The Applicant’s absenteeism then prompted him to write the Applicant a letter on 31 October 2014 delivered door to door and make him aware that should he continue to be absent for fourteen (14) consecutive days he will be regarded as having absconded.
49. Notwithstanding the above letter and efforts by the Applicant’s union members to look for him, the Applicant continued to be absent until 12 November 2014.
50. Mr Nyama cannot be faulted for the efforts that he made to locate the Applicant’s whereabouts.
51. It is indeed so that the Applicant sent Mrs Moledi a WhatsApp message on 27 October 2014.
52. In the WhatsApp message, the Applicant informed Mrs Moledi that he would arrive at O.R. Tambo airport on Thursday. That Thursday would have been 30 October 2014.
53. Mrs Moledi testified that she went to Mr Nyama based on the Applicant’s message. I gather that what Mrs Moledi means is that she informed Mr Nyama about the WhatsApp message.
54. According to Mr Nyama no one reported anything to him regarding the Applicant’s whereabouts which caused him to dispatch a letter to the Applicant on 31 October 2014.
55. This begs the question if Mrs Moledi conveyed the WhatsApp message to Mr Nyama why then would the latter dispatch a letter to the Applicant on 31 October 2014 inquiring about the Applicant’s whereabouts?
56. It was also not put to Mr Nyama that Mrs Moledi will testify that she conveyed the WhatsApp message to him on 27 October 2014.
57. Be that as it may, based on the WhatsApp message, the Applicant would have been in the country on Thursday, 30 October 2014 but returned on 12 November 2014. Therefore, by 12 November 2014 he still had not reported for duty nor been granted the consent by the employer to be away from work. He only returned to work on 13 November 2014.
58. I must accordingly reject the Applicant’s argument that Section 14(1) does not find applicability in this matter.
59. The Applicant’s case therefore falls to be dismissed and must be dismissed as a deemed dismissal by operation of law.
AWARD:-
60. The Applicant was deemed to be dismissed by operation of law in terms of Section 14(1) of the Employment of Educators Act, 76 of 1998.
61. There is no order for costs.
Applicant: KOENA ANDRIES ELLIOT MOKHEMISA
Respondent: Department of Education Free State
Issue: Unfair Dismissal - Constructive Dismissal
Award Date: 26 October 2015
Arbitrator: Jerome Mthembu
Commissioner: Jerome Mthembu
Case no: PSES 81-15/16
Date: 26 October 2015
In the matter between:
KOENA ANDRIES ELLIOT MOKHEMISA
and
DEPARTMENT OF EDUCATOIN –
FREE STATE Applicant
Respondent
ARBITRATION AWARD
DETAILS OF HEARING AND REPRESENTATION:
1. The hearing was held on 29 September 2015.
2. The Applicant conducted his own case and the Respondent was represented by Mr Tladi.
3. The parties agreed to file closing arguments as follows:-
3.1 The Respondent on 7 October 2015;
3.2 The Applicant on 15 October 2015;
3.3 The Respondent to reply on 19 October 2015.
THE ISSUE TO BE DECIDED:
4. Whether or not the Applicant’s dismissal was procedurally and substantively fair.
BACKGROUND TO THE ISSUE:
5. The Applicant was employed as an educator at Seqhobong Secondary School in Odendaalsrus.
6. It was alleged that the Applicant did not report for duty from 16 October 2014 to 12 November 2014. He did not have the consent of the employer to be so absent.
7. The Applicant was then deemed to have absconded and his services were terminated.
SURVEY OF THE EVIDENCE AND ARGUMENTS:
RESPONDENT’S CASE:
The Respondent called only one witness Tseko Thys Nyama, who was the principal at Seqhobong Secondary School.
8. Mr Nyama stated that he is the principal at Seqhobong Secondary School where the Applicant was an educator. He had a good relationship with the Applicant.
9. He testified that on 15 October 2014, the Applicant reported that he was not feeling well and was then excused.
10. He referred to a book called the permission book. This book was used to record the leave of people who were allowed to ask for leave for a particular day, if they could not be at school for seven (7) hours.
11. On 15 October 2014 the Applicant is marked sick at 12H45 in the permission book.
12. He averred that he could not remember when the Applicant came back as the original attendance register just disappeared.
13. He testified that the Applicant did not submit a medical certificate upon his return. However, from 20 October 2014 to 24 October 2014 he is marked “sick”.
14. He stated that on the following dates the Applicant is marked “absent”:
• 16 October 2014 to 17 October 2014;
• 27 October 2014 to 31 October 2014;
• 3 November 2014 to 7 November 2014.
15. He did not receive any report on the days that the Applicant is marked absent.
16. He stated that on 31 October 2014 he wrote a letter to the Applicant bringing it to his attention that should he be absent for a period exceeding fourteen (14) consecutive days without a valid reason or permission from his supervisor he will be regarded as absconded from work. He sent this letter through Postnet on a door to door delivery.
17. At the time of dispatching the letter the Applicant was absent for eleven (11) days without permission.
18. Neither one of his two deputies or anyone for that matter informed him that the Applicant was sick on the days that he was marked absent.
During cross-examination he stated that:-
19. It is the absentee’s responsibility to report his absence from work.
20. The Applicant would normally send him an SMS message and also tell someone else that he sent him an SMS message.
21. He did not get a message from Mrs Moledi on 27 October 2014.
22. He was not charging the Applicant when he wrote to him on 31 October 2015, but was merely bringing it to his attention that he was not at work for eleven (11) consecutive days.
23. He wrote to the Applicant’s union and informed it that the Applicant was absent at work. Union members went to the Applicant’s wife and came back with nothing.
APPLICANT’S CASE:
The Applicant testified in person and called Salmon Thomas Mahlaku and Elizabeth Moledi as witnesses.
KWENA ANDRIES ELLIOT MOKHEMISA:
24. Mr Mokhemisa stated that he is the Applicant in this matter.
25. He stated that the 15th October 2014 was his last day at work. He was recused from work by Deputy Principal Matlaku that day.
26. On 16 October 2014 he reported his absence to Matlaku who confirmed that he did report to the principal.
27. On 27 October 2014 he reported to the HOD Mrs Moledi by WhatsApp, after he could not get hold of the principal.
28. On 31 October 2014 the principal sent him a letter.
29. On 13 November 2014 he reported for work.
30. He averred that during September 2014 his sugar levels were fluctuating. He engaged a certain chief in Ghana, who is a member of his Church.
31. He averred that the principal was not conveying the reports that he was receiving to the employer.
During cross-examination he stated that:-
32. He agreed that every workplace has its rules and employees must talk with superiors before they leave.
33. If you leave the country you must inform your superior and sign the necessary forms.
34. In his arrangement he did not talk to the principal.
35. He acceeded that he was absent for fourteen (14) consecutive days with permission.
36. On 27 October 2014 he made a follow-up with the principal and Mrs Moledi because he was aware that he had exceeded the two (2) days that he initially wanted to be absent for.
37. He did not specify the days that he will be absent for to Deputy Principal Matlaku.
SALMAN THOMAS MAHLAKU:
38. He confirmed that on 15 October 2014, Applicant’s recusal is noted.
39. He averred that he received an SMS message from the Applicant that when he arrived at home, there were arrangements that he must travel to Ghana to receive medical treatment.
40. He could not confirm the date of the SMS message.
41. A few days down the line, he read the SMS message in the school management team when it was enquired if anyone had a report on the Applicant’s whereabouts. He then read the SMS message to the meeting.
During cross-examination he stated that:-
42. He did not record the SMS message as he expected the Applicant to still come and apply for leave.
43. He did not communicate the SMS message to the principal.
ELIZABETH MOLEDI:
44. She stated that she went to the principal based on the Applicant’s WhatsApp message.
ANALYSIS OF THE EVIDENCE AND ARGUMENTS:-
PROCEDURAL FAIRNESS:
45. Save for stating that he was challenging the procedural fairness of his dismissal, the Applicant has not adduced any evidence or argument in this regard.
46. It therefore leaves me with no option but to return a finding that his dismissal was procedurally fair.
SUBSTANTIVE FAIRNESS:
47. Mr Nyama testified that from the 16th October 2014 until the 31st October 2014 he did not know of the Applicant’s whereabouts.
48. The Applicant’s absenteeism then prompted him to write the Applicant a letter on 31 October 2014 delivered door to door and make him aware that should he continue to be absent for fourteen (14) consecutive days he will be regarded as having absconded.
49. Notwithstanding the above letter and efforts by the Applicant’s union members to look for him, the Applicant continued to be absent until 12 November 2014.
50. Mr Nyama cannot be faulted for the efforts that he made to locate the Applicant’s whereabouts.
51. It is indeed so that the Applicant sent Mrs Moledi a WhatsApp message on 27 October 2014.
52. In the WhatsApp message, the Applicant informed Mrs Moledi that he would arrive at O.R. Tambo airport on Thursday. That Thursday would have been 30 October 2014.
53. Mrs Moledi testified that she went to Mr Nyama based on the Applicant’s message. I gather that what Mrs Moledi means is that she informed Mr Nyama about the WhatsApp message.
54. According to Mr Nyama no one reported anything to him regarding the Applicant’s whereabouts which caused him to dispatch a letter to the Applicant on 31 October 2014.
55. This begs the question if Mrs Moledi conveyed the WhatsApp message to Mr Nyama why then would the latter dispatch a letter to the Applicant on 31 October 2014 inquiring about the Applicant’s whereabouts?
56. It was also not put to Mr Nyama that Mrs Moledi will testify that she conveyed the WhatsApp message to him on 27 October 2014.
57. Be that as it may, based on the WhatsApp message, the Applicant would have been in the country on Thursday, 30 October 2014 but returned on 12 November 2014. Therefore, by 12 November 2014 he still had not reported for duty nor been granted the consent by the employer to be away from work. He only returned to work on 13 November 2014.
58. I must accordingly reject the Applicant’s argument that Section 14(1) does not find applicability in this matter.
59. The Applicant’s case therefore falls to be dismissed and must be dismissed as a deemed dismissal by operation of law.
AWARD:-
60. The Applicant was deemed to be dismissed by operation of law in terms of Section 14(1) of the Employment of Educators Act, 76 of 1998.
61. There is no order for costs.