Case Number: PSES956-18/19EC
Province: Eastern Cape
Applicant: Tembinkosi Tshika
Respondent: Department of Education Eastern Cape
Issue: Unfair Dismissal - Constructive Dismissal
Venue: Idutywa District Office
Award Date: 26 June 2019
Arbitrator: Mxolisi Alex Nozigqwaba
Case Number: PSES956-18/19EC
In the matter between
Tembinkosi Tshika Applicant
Eastern Cape Department of Education Respondent
Appearances: For the applicant: Mr Y. Tshika (Ntamo and Tshika Attorneys);
For the first respondent: Mr N. Mgidlana;
Arbitrator: M.A. Nozigqwaba
Heard: 24 June 2019
Delivered: 26 June 2019
Summary: Labour Relations Act 66 of 1995, as amended, section 186(1)(a)-
DETAILS OF HEARING AND REPRESENTATION
1. This arbitration held in Idutywa District Office on 24 June 2019. Mr T. Tshika (applicant) was represented by Mr Y. Tshika from Ntamo and Tshika Attorneys. Eastern Department of Education (respondent) was represented by its official, Mr N. Mgidlana.
ISSUE TO BE DECIDED
2. I have to determine whether the applicant’s dismissal was substantively and procedurally fair. Should I find that the dismissal was unfair I will issue an appropriate relief.
BACKGROUND TO THE ISSUE
3. The applicant started to work for the respondent on 11 March 1990. He was dismissed on 31 January 2019. At the time of his dismissal he was a principal at Fort Bowker School and earning a gross salary of R43 196.22 per month.
4. The applicant is challenging the substantive and procedural fairness of his dismissal and is seeking re-instatement.
SURVEY OF THE EVIDENCE AND ARGUMENTS
5. The respondent’s representative conceded that the applicant’s dismissal was unfair and that he should be re-instated. He went further to say that he did not have a mandate as to when the back-pay resultant from re-instatement should be paid. He also asked that the Department be given 60 days to quantify and pay the back-pay due to the applicant.
6. The applicant’s representative submitted that the period within which the respondent should be given to pay the applicant’s back-pay should be 15 days after the School opening date, 9th of July 2019.
ANALYSIS OF EVIDENCE AND ARGUMENTS
7. The applicant’s dismissal was indeed substantively and procedurally unfair as conceded by the respondent.
8. On the issue of relief, re-instatement is agreed by parties as appropriate relief. What is in dispute is the quantification and the date of payment of the back-pay resultant from the re-instatement. In calculating the back-pay resultant from the re-instatement I will ensure that the applicant is reimbursed all salary lost from the date of dismissal to the date of re-instatement. Also, the payment of the back-pay should be done without any delay as the applicant has been without income for a significant number of months.
9. I therefore make the following award:
9.1. The applicant's dismissal was substantively and procedurally unfair.
9.2. The respondent is ordered to re-instate the applicant to its employment with effect from 31 January 2019. As a result of re-instatement the respondent is ordered to pay the applicant R228 798.54 (R43 196.22 x 5 month + R1 424.16 x 9 days), minus all the deductions (statutory or otherwise) the respondent is supposed to make in terms of the law, by not later than 31 July 2019.
9.3. The applicant is to report for duty in the respondent's premises (last place of employment) by not later than 09 July 2019
Commissioner: Mxolisi Alex Nozigqwaba