Case Number: PSES 187-17/18KZN
Applicant: MS PP SOKHELA
Respondent: DEPARTMENT OF EDUCATION – KZN
Issue: Unfair Dismissal - Constructive Dismissal
Award Date: 7 December 2017
Arbitrator: P. JAIRAJH
CASE NO.: PSES 187-17/18KZN
IN THE MATTER BETWEEN :-
MS PP SOKHELA APPLICANT
KZN DEPARTMENT OF EDUCATION RESPONDENT
ARBITRATOR : P. JAIRAJH
DATE OF AWARD : 7 DECEMBER 2017
Applicant’s representative : MR K. CHETTY
Telephone : 034 315 2588/9
Fax : 034 312 2426
Email : firstname.lastname@example.org
Respondent’s representative : MR B. N. MDLALOSE
Telephone : 034 328 4510
Email : email@example.com
DETAILS OF HEARING AND REPRESENTATION
 Mr K Chetty, an attorney represented the applicant (employee) and Mr B. N. Mdlalose represented the respondent (employer).
 This matter was scheduled for arbitration hearing on the 31st October 2017. The matter commenced with the applicant making an oral application for legal representation which was unopposed. It was my finding the dispute was of a serious nature concerning dismissal and based on the comparative abilities of the parties, the applicant required representation as she was not familiar with the labour disputes. I issued an oral ruling granting Legal representation.
 Both parties entered into a written agreement confirming that they did not want to lead viva voce evidence and that they will submit written Heads of Arguments.
 The parties agreed that the respondent/employer will serve its Heads of Arguments on the commissioner and the respondent on or before 7 November 2017. The Applicant/employee will serve its Heads of Argument (answering) on the commissioner and applicant on or before the 14 November 2017. The respondent/employer will serve its replying Heads of Arguments on 21 November 2017.
BACKGROUND TO THE DISPUTE
 The applicant retired in 2005 on grounds of ill health. In 2011 she was re-appointed by the respondent as an educator. The respondent after an investigation terminated the services of the applicant. The applicant contends that fair procedure was not followed and no substantive reasons furnished by the respondent to dismiss the applicant.
ISSUE TO BE DECIDED
 Whether the dismissal/termination of the applicant was fair and in accordance with the law.
SURVEY OF EVIDENCE AND ARGUMENT
 The applicant submitted a Bundle of documents which was marked as Bundle A and used as a common bundle.
COMMON CAUSE ISSUES
 The common cause issues were agreed as follows:-
[8.1] The applicant was employed by the respondent as educator on 11 January 1994.
[8.2] The applicant retired on ground of ill-health on 31 January 2005.
[8.3] In or around the year 2011 she applied for and had her name put on the Department’s database for educators.
[8.4] Pursuant to her name being put on the database, she was re-employed by the respondent as an educator at Isabelosethu Secondary School with effect from March 2011.
[8.5] On February 2017, the applicant submitted the representations as required. (Page 8 of the Bundle)
[8.6] The respondent terminated the applicant’s service on 30 April 2017. (Page 7 of the bundle).
SUMMARY OF EVIDENCE AND ARGUMENTS
The salient points are recorded as follows:-
 The applicant was employed by the respondent as an educator prior to November 1995. On 31 December 2005 she retired prematurely on grounds of ill-health. All retirement benefits including leave gratuity, lump sum Pension benefits and monthly pension benefit were paid to her. To date she still receives the pension monthly benefit.
 In or around the 2011 she applied and had her name included in the database for educators. She was appointed at Isabelosethu Secondary School as a post level one educator as from 1 April 2017. The database for educators is the primary source from which the Department draws educators to be placed in various schools.
 The database is open to newly qualified individuals as well as those who have exited the system and wish to return to the profession.
 To apply to be included to the database for educators, one is required to complete a prescribed form (annexure A ) and to be attached to this form are individual’s academic qualifications, professional qualifications, Identity documents, a Curriculum Vitae (cv) and proof of registration with the South African Council for Educators (SACE) .
 The prescribed form requires each applicant to disclose if she has been part of the system before and that she possesses the necessary qualifications to be considered for appointment as an educator.
 The disclosure that is required through the prescribed form is required in order to ensure that a suitable qualified educator is appointed to the position that matches the academic requirements of the school. It is also required to ensure that the provision of Chapter B Section 2.3 (a)(b)(f)(g)of the Personnel Administrative measures (PAM) issued in terms of the Employment of educators Act , 78 of 1998 as amended (annexure B)
 The Department has also developed policies to deal with the appointment of educators who have a break in service. All of these polices place an emphasis on giving preference to other applicants and newly qualified educators when there are vacancies in schools.
 The Departmental Policy (Annexure C) stipulates conditions under which consideration to appoint educators who have retired as a result of ill-health could be made. This includes the fact that such appointments must be approved by the head of department prior to the educator resuming duties.
 The requirements above could not have been complied with because the applicant did not disclose that she was a returning educator who is earning a monthly pension benefit. Paragraph 6.10 of ANNEXURE C, it is stated that “persons who obtained employment by failing to disclose their reason/s for the exiting the service previously would be doing so on the grounds of misrepresentations and there is no obligation on the part of the department to appoint such persons and effect any payments for the services that may have been rendered”.
 In or around the year 2008 up to including 2011, the Department experienced shortage of educator personnel such that even those who were not qualified as educators were appointed with an understanding that the Department was going to fund their studies towards attaining an educator’s qualification. It is suspected that the applicant made use of that window (of shortage of educators) to apply to return to the teaching profession.
 It is prudent that we mention that the shortage of educator personnel did not relax any appointment requirement in as far as returning educators are concerned.
 In or around the year 2016, they noticed that the principal of Isabelosethu Secondary School submitted sick leave forms in respect of the applicant indicating that she has been sick for 35 days during the year. The number of sick leave days prompted us to reflect on her sick leave record and we found: in 2014 she was sick for 34 days; in 2015 she was sick for 17 days.
 It is a standard Department’s practice that the record of employees on extended long sick leave will be scrutinized in order to determine whether a second opinion on the status of the employee’s health is required. It was at that point where a discovery was made that the applicant was appointed as a returning educator without satisfying the requirements. In addition, we found that after securing the second appointment as an educator she failed to disclose that she was receiving state pension benefits on monthly basis.
 The issue of her dishonest conduct or misrepresentation was not pursued; instead we notified her of the Department’s intention to terminate her service and invited her to make representations. It would appear from her representations (which are part of the common bundle) that she did not have sufficient reasons for the Department not to terminate her services.
 The applicant taught English and Isizulu at Isabelosethu Secondary School. At the time of her termination of service, the database for educators was overflowing with newly qualified English and Isizulu educators whose appointments should be prioritized as prescribed in terms annexure B.
 The applicant seeks reinstatement as primary relief in this case. It is not possible to consider reinstatement or reappointment on grounds that the database is over-flawing with newly qualified graduates who are qualified to teach English and IsiZulu. Also her health status is in question in that on her admission as it will show below, she seems not fit enough to withstand the physical demand of the educator post. At time of her dismissal, it is important to state that she was on sick leave from January 2017 until 27 July 2017 (Annexure D). It is equally important to indicate, in terms of her own submission, through Annexure E, she states that she cannot stand for longer than 15 minutes and cannot write on the board for a long time. Standing and writing on the board are essential elements of the teaching profession.
 The dismissal of the applicant did not prejudice her interest in any way. She continued to draw the monthly pension benefits and is entitled to claim the pension benefits that she had accrued between 2011 to April 2017.
 It is important to state that the Department is constant in dismissing employees in similar situations like the applicant. Mrs M S Mazibuko Persal no: 61023949 who taught History and IsiZulu at Amazulu Secondary School also had her services terminated when she was found to have returned to the system without the approval of the Head of Department and without disclosing that she was receiving monthly pension benefits from the State.
 The applicant’s dismissal was effected following a fair procedure in that the Department is required to give thirty (30) day notice if service termination is contemplated. The applicant was notified in February 2017 that her services were to be terminated and such termination was effected on 30 April 2017. This means that she was given a two month notice.
 The applicant’s dismissal was both substantively and procedurally fair and she is not entitled to any relief prescribed in terms of sections 193 and 194 of the Labour Relations Act.
 It is my prayer that her application is dismissed.
The salient points are recorded as follows:-
 On the 20 February 2017 the Applicant received a letter from the Employer
signifying its intention to terminate her employment and inviting her to submit
reasons why such action should not be taken. (Page 5 of the bundle)
 The grounds for termination may be summarised as follows:-
[31.1] The Employer has not found approval from the HOD.
[31.2] The Employer has not found declaration that Applicant had been
[31.3] The Employee was receiving two monthly payments from the state
which is not allowed.
 The Employer chose not to convene a hearing to resolve the issue set out in
its letter but simply attempted to resolve the matter via correspondence.
 It must be emphasized that the Employer does not alleges that there was no
approval of the H.O.D nor no declaration in respect of medical boarding but
that they were unable to find same.
 The database process is a creation of the Employer and it must be assumed
that such process is empowered with the necessary checks and balance to
ensure that returning educators provide the necessary documentation and
have the necessary approval before their names are included.
 No rules that prevents an employee from necessary two monthly payments
from the state was ever brought to the attention of the Applicant that as if such
rate actually exists. In any event pension benefit is not a salary.
 It is, submitted that the Employers attempt to resolve its misgivings as set out
in its aforementioned letter by correspondence does not consult fair
procedure and the Employee ought to have been called for a hearing where
the allegations set out in the said letter could have been responded to by the
 The Applicant in her response to the Employer adequately addressed the
issues of the approval of the H.O.D and her previous medical boarding. The
reason she sets out are fair and reasonable and leaves no room for doubt.
 The fact that the Employer cannot find those requirements is no indication
that same was not furnished.
 It is submitted that fair procedure was not followed, that no substantive
reasons were furnished by the Employer to dismiss the Applicant.
 The applicant seeks reinstatement with full benefits and according to the terms and conditions prevailing at the time of her dismissed.
RESPONDENT’S REPLYING SUBMISSIONS
The salient points are recorded as follows:-
 The respondent wishes to clarify that the fact that it was unable to find the approval of the Head of Department approving the reappointment of the applicant in her personal file means that it (approval) was never secured and does not exist.
 The respondent contends that the applicant did not declare that she was medically boarded before securing the reappointment in 2011. If the applicant had made such a declaration, it would have been found in her personal file.
 It is a standard practice that all correspondence (of this nature) pertaining to all employees are filed in each employees’ personal file and there are no alternative files where correspondence of each employee is filed.
 The approval and the declaration by the applicant were not found in her personal file means that the two documents do not exist. In her head of arguments the applicant also does not mention that she declared that she was medically boarded prior to her reappointment in 2011.
 The applicant states that the pension benefit is not a salary and she sees nothing wrong in receiving two incomes from the State. I disagree.
 The applicant is receiving a monthly pension benefit means that she was an employee of Government who retired and is receiving pension benefit because during her period of employment she contributed towards a Government Pension Scheme. Such an income is payable to retired persons not serving employees unless retired persons have been reappointed after securing a special permission from the relevant authorities.
 The applicant’s reappointment was not authorised by the relevant authority so it stands to reason that she was not entitled to reappointment and additional income.
 It is true that the systems of exit and entry into Department’s employ are the creatures of the Department and should be talking to one another. The Department of education in the Province of KwaZulu- Natal is the largest education department in the country. It employs more than 100 000 employees and as much as care is taken to ensure the systems communications, a slip-up in the organisation of such a magnitude is always a possibility.
 To cater for the possibility of electronic system slip-up, the department has designed other means to avert such, that the employees are expected to declare certain things that may impact on their employability is a clear indication that the Department has intentions that only deserving people get employed.
 The applicant failed to full-fill this requirement in that she failed to declare her medical boarding status prior to her 2011 reappointment. As it is common practice across spectrum of industries, when an error is found it gets remedied in a manner that ensures that the industry operates within its laws and regulations. It would be unthinkable that such a glaring error, as in the case of the applicant, would be left unattended.
 At no stage the applicant raised objection to our means of communication or informed the respondent of her preferred mode of communication. In fact, in her response she did not object to the department writing to her. She also did not object to the findings made (by the respondent) against her.
 The procedure to terminate employees’ services with the Department calls for one month notice and we reiterate that we followed this procedure and more.
ANALYSIS OF EVIDENCE AND ARGUMENT
I have considered all the arguments of the parties as well as the documentary evidence submitted.
 The applicant contends that she was unfairly dismissed by the respondent and seeks the relief that she be reinstated with full benefits and according to terms and conditions that prevailed at the time of her dismissal.
 The respondent opposed the application and prays for the dismissal of the application.
 In terms of the Labour Relations Act, General provisions for arbitration proceedings, section 138(1) reads as follows:
The commissioner may conduct the arbitration in a manner that the commissioner considers appropriate in order to determine the dispute fairly and quickly, but must deal with the substantial merits of the dispute with the minimum of legal formalities
 In Sidumo & another v Rustenburg Platinum Mines Ltd & others (2007) 28 ILJ 2405 (CC) the court held at par  “A commissioner is not given the power to consider afresh what he or she would do, but simply to decide whether what the employer did was fair. In arriving at a decision a commissioner is not required to defer to the decision of the employer. What is required is that he or she must consider all relevant circumstances.”
 There was no dispute about the existence of a dismissal. According to Section 192 read with Section 188 of the Labour Relations Act (the Act), the onus was, therefore, on the Employer to justify the dismissal on both substantive and procedural grounds.
 It is common cause that the applicant was employed as an educator and medically boarded in or around January 2005. It is also common cause that the applicant was re-employed with the respondent in or around March 2011.
 The respondent contends that the applicant did not follow all the requirements and comply with the necessary disclosures in respect of re-employment of educators medically boarded and returning to the system. Further there was no approval by the head of department which was required for such educators to be re-employed.
 The applicant, in her heads of argument simply states, “The Applicant in her response to the Employer adequately addressed the issues of the approval of the H.O.D and her previous medical boarding. The reason she sets out are fair and reasonable and leaves no room for doubt.” The applicant does not aver that she did indeed comply with the necessary requirements and procedures. Further she has not provided any certificates of fitness from her doctor.
 It is also noted that the applicant does not challenge the respondent’s assertions when the applicant is compared to another employee found to have returned to the system without the necessary disclosures and approval of the Head of Department and whose services were terminated.
 The respondent succinctly sets out requirements in terms of the Respondent’s policies and the non-compliance of the applicant in respect of the necessary compulsory disclosures.
 The applicant does not at any stage assert that she had approval of the Head of Department.
 In County Fair Foods (Pty) Ltd v CCMA & others  11 BLLR 1117 (LAC) the court at par  stated “It remains part of our law that it lies in the first place within the province of the employer to set the standard of conduct to be observed by its employees and determine the sanction with which noncompliance with the standard will be visited, interference therewith is only justified in the case of unreasonableness and unfairness.”
 The applicant argues that the respondent attempt to resolve its misgivings by correspondent does not constitute fair procedure.
 In Avril Elizabeth Home for the Mentally Handicapped v CCMA & Others (2006) 27 ILJ 1644 (LC), the court held that “It follows that the conception of procedural fairness incorporated into the LRA is one that requires an investigation into any alleged misconduct by the employer, an opportunity by any employee against whom any allegation of misconduct is made, to respond after a reasonable period with the assistance of a representative, a decision by the employer, and notice of that decision.”
 Judge van Niekerk further held, “When the Code refers to an opportunity that must be given by the employer to the employee to state a case in response to any allegations made against that employee, which need not be a formal enquiry, it means no more than that there should be dialogue and an opportunity for reflection before any decision is taken to dismiss.”
 It is clear that the respondent had informed the applicant of the allegations against her and afforded her an opportunity to state her case.
 In Nitrophoska (Pty) Ltd v CCMA  8 BLLR 765 (LC), the judge remarked at par , “The Code of Good Practice: Dismissal (Schedule 7 to the Labour Relations Act 66 of 1995 (“the LRA”) (“the code”) sets out the guidelines for a fair pre-dismissal procedure. In essence, the employee should be given an opportunity to state his case. The employer should conduct a form of investigation; however, this need not be formal inquiry.  The code was intended to do away with the rigid “criminal procedure style” provisions that had proliferated under the previous dispensation. Regrettably, the flexibility introduced by the code has not always been recognised by arbitrating commissioners.”
 It is noted that in the applicant’s response to the respondent, on page 8 of Bundle A, she stated that she was not prepared to argue the facts concerning what was not found in her personal file and what she knew is that she included a certificate of fitness. She further stated that it had already been her intention to exit the department and she requested the respondent to allow her to give a three months’ notice to the pensions Department so that she will be able to get her full benefits.
 As a consequence of the above it is therefore my finding that the relevant evidence and arguments of the Respondent is more probable than that of the applicant and therefore find no reason to interfere with the sanction imposed by the respondent.
 The applicant’s application is dismissed.
 There is no order as to costs.
ELRC Commissioner : P. Jairajh
DATED : 11 December 2017