Panelist: Jonathan Gruss
Case No.: ELRC165-21/22GP
Date of Award: 15 December 2021
In the ARBITRATION between:
Department of Education: Gauteng
Applicant’s representative: In person
Respondent’s representative: Ms Motalib
DETAILS OF HEARING AND REPRESENTATION
1. This dispute was scheduled for arbitration in terms of Section 191(5)(a) of the Labour Relations Act 66 of 1995 as amended (“the LRA”) read with Clause 7.2 of the ELRC Constitution : ELRC Dispute Resolution Procedures. The hearing was held via Zoom (virtual) on 10 September 2021, 8 November 2021 and 1 December 2021 and the proceedings were electronically recorded. The applicant, Zandile Mhlongo referred a dismissal dispute to the ELRC. The applicant conducted her own case. The respondent, Department of Education: Gauteng was represented by Ms Motalib, Deputy Chief Educational Specialist: Labour Relations. The parties submitted written closing arguments on 8 December 2021.
ISSUE TO BE DECIDED
2. I am required to determine whether the applicant was dismissed and should I find she was dismissed I must then determine whether the dismissal was procedurally and substantively fair.
BACKGROUND TO THE ISSUES
3. The respondent disputes the existence of a dismissal and claims that the applicant absconded as contemplated in terms of Section 14(1) of the Employment of Educators Act, 76 of 1998 in that she had been absent from work without permission for more than 14 consecutive days and therefore she was dismissed due to operations of law. The respondent claims that the applicant was absent from her place of work from January 2020 to March 2021.
4. The applicant claims that she was dismissed as contemplated in terms of Section 186(1)(a) of the LRA in that she was told of her dismissal on 15 March 2021 and she was only provided with the necessary dismissal documentation after she referred a case to the ELRC.
5. It was common cause that the applicant commenced employment with the respondent in 2012 and prior thereto, she was employed by Department of Education: Kwazulu Natal. She earned prior to the alleged dismissal R36 989-47 per month and the last position she held was that of Deputy Principal.
SURVEY OF EVIDENCE
6. This is a brief summary of evidence considered as provided for in terms of Section 138(7)(a) of the Act relevant to the dispute at hand and does not reflect all the evidence and arguments heard and considered in deciding this matter.
7. The applicant gave evidence under oath to the following effect.
7.1 She admits that she was away from work in that the employer is the reason that led to her staying at home. December 2019 was the last time that she was physically at school working.
7.2 The Chief Director victimized her, he took action to have her removed from the school where she was officially appointed to, she was appointed at Freedom Park Secondary School situated in Freedom Park, Devland, Johannesburg. On 22 July 2019 she was moved to Pakamani Primary School, situated at Zondi Location in Soweto, situated next to Jabulani Mall. .The Chief Director moved her in that there were challenges at the school. She was told by the Chief Director that a lot had been said by the community and that the community was attacking her. It was further alleged that she was fighting with the other deputy principal. She was verbally attacked by the community.
7.3 At Pakamani Primary School there was corruption. She was the acting principal at Pakamani although when she was transferred to Pakamani Primary School from Freedom Park Secondary School she was not given an appointment letter or any direction as to what was expected of her. However, when she reported the corruption involving the SGB chairperson and the official Principal who was not at school, none of the district office official engaged with her. To protect herself since she was the acting principal, she reported this to her union.
7.4 They as the SGB invited the chief director and in December the district office came to her at the school. She was told that they would bring back the original principal and she needed to communicate with the chief director. When she was introduced to Pakamani, the chief director sent Mr Mokoena who informed her that he was the chief director’s adviser. Mr Mokoena told her not to worry in that he would speak to the chief director and he would revert to her. She was also told by circuit manager Mr Maila of the district office to contact the office of the chief director.
7.5 She is concerned and offended over Facebook posting claiming that she had absconded and felt aggrieved.
7.6 While she was at Pakamani she was told as it relates to wanting to claim compensation for acting in the position of principal that she should ask the relevant senior to assist her in getting the relevant documentation to claim. She was played by her seniors in that she was not paid an acting allowance. By the time of the 14 days had already elapsed, the chief director had told her father that she should go back to Freedom Park.
7.7 She requested from the district director for Freedom Park for safe place to report for duty. She was told on 29 January 2020 that the district director did not entertain individuals and that she had no challenges. She should go back to Freedom Park. She was told that she had an immediate senior to report to. Unfortunately, this was the same person who posted personal information concerning her on Facebook claiming that she had absconded. She stayed at home in that she had no safe place to work. The same principal who was previously at Freedom Park threatened her with his bare hands. This was prior to her removal from Freedom Park School. The same principal’s behaviour was the reason behind the employer removing her from Freedom Park.
7.8 Under cross-examination, the applicant was asked whether she received a letter of intention to terminate her services in December 2020 and she confirmed that she received such a letter. She further confirmed that she did not return back to work after receiving the letter. She also confirmed that she was told by the chief director as well as district director that should she not want to return to Freedom Park she would have to apply for transfer. As to allegations made by the applicant that her life was in danger, she confirmed that she never laid charges with the South African Police Service. When asked whether she returned back to work after her salary was reinstated after it was frozen because she had not been at work she confirmed that she did not return in that the situation was still the same.
8. Ms Zanele Mhlongo testified under oath to the following effect.
8.1 She is the sister of the applicant and confirms that the applicant when returning home informed her that she had a meeting with the chief director and the chief director in the meeting removed her from Pakamisa. Having said that the chief director had told her that she must consult with her family first so that she could speak to her father.
8.2 From communication with her father, her father indicated that the chief director told the father that he had to remove the applicant because of challenges the applicant had experience at school. The applicant had told her that she had experienced conflict at the school. In February 2020, the cluster leader came to the house with the administrator and enquired about the whereabouts of the applicant. She informed the cluster leader that the applicant was in KwaZulu-Natal. She was told that the applicant had absconded. This meeting was held at the gate. She was told that the applicant was supposed to report to Freedom Park and that the applicant should not prejudice the job in that the applicant had a disabled child. She then gave him her father’s contact details.
8.3 From her communication with the father, her father had informed the applicant that she should ask the chief director in that it was him who removed her from Freedom Park. The cluster leader had told her father that the chief director had not involved her when the applicant was removed from Freedom Park.
8.4 Mr Buthlezi came to their house and at the gate shouted that he wanted to talk to the applicant. He had said that he would not leave until the applicant came out they refused to come out and that only came out after he had left.
8.5 On 28 January 2031, Mr Buthlezi tried to message her on social media (Facebook messenger) although not on her timeline and he said he wants to help the applicant. She did not respond to him he then called her using an office number and he told her that people were talking about the applicant’s issues and he wanted to help the applicant.
9. Ms Rebecca Mthembu testified under oath to the following effect.
9.1 She is employed by the respondent as the Circuit Cluster Leader for the Freedom Park, Eldorado Park and part of the south of Johannesburg. The applicant informed her that she was approached by the Chief Director to be developed at another school. The applicant went to serve in that school. She was not provided with the necessary documentation but it was agreed that the applicant agreed to the move. The post according to the applicant was going to be the acting principal’s post at the school. Her understanding was that the applicant would go to the school to be developed and taught how to manage a school. The applicant never told her how long she would be going to the school. What the applicant knew was that this would be a temporary move in that the other deputy principal had also to be developed.
9.2 She was approached by Mr Majola the Labour Relations Officer who wanted to know as to the whereabouts of the applicant. When enquiries were made, she did not know the whereabouts of the applicant and this led to her sending the applicant WhatsApp messages but unfortunately the applicant did not read these messages. She also went to the applicant Facebook wall and sent the applicant a message. Mr Majola had informed her that the applicant had absconded and that is why she sent the applicant a message to return to work. She told the applicant to report to her office.
9.3 She was informed by the applicant’s father that the applicant had been badly treated at Freedom Park. She could not understand this in that everybody loved the applicant and she was unaware of any threats. Considering that the applicant was not responding she even went to the applicant’s residence and took with her the deputy principal, Mr Mbengu and the secretary, Ms Sutyisi in that they had a good relationship with the applicant. When they arrived at the applicant’s residence, the applicant’s youngest sister told them that the applicant was not there. She requested from the applicant sister to be provided with the applicant’s contact telephone number and was provided with applicant’s contact number. She then phoned the applicant’s father and requested him to get hold of the applicant and to request the applicant to report to the district office to speak to her. The applicant’s father undertook to intervene and get the applicant to revert to her. The applicant’s sister had told her that the applicant was in KwaZulu-Natal. She did not believe the applicant’s sister in that the applicant’s motor vehicle was parked in the garage.
9.4 The applicant did not ask permission to be absent from work. She started trying to get hold of the applicant, 6 months later after she was approached. The applicant was supposed to return to Freedom Park in the beginning of the year and she even phoned the applicant’s father to assist her in getting the applicant to return back to work. She is aware that there was a principal at the school where the applicant worked and that principal had to go work at another school. The principal’s post was therefore not vacant.
9.5 Under cross-examination she confirmed that when Mr Tulani approached her she requested to see the letter issued to the applicant and the letter made it clear that this contract would expire at the end of 2019. The applicant told her that the other deputy would replace her at the end of the period. It was suggested by the applicant that whilst at Pakamani she, the applicant contacted her telephonically and told her that Mr Buthlezi had threatened to kill her. The response given by the witness was that she told the applicant to be careful in that you have friends and you have friends who are agents.
10. Mr Dennis Macuacua testified under oath to the following effect.
10.1 He is employed by the respondent as a Chief Director responsible for the Johannesburg Region. His engagement with Freedom Park Primary commencing 2019 and that there were challenges at the school. There was a recommendation that the principal needed to be removed to establish stability at the school. It was decided that the District Director would not be involved and that is why Head Office got involved. According to the District Director, the culture of learning at that school had collapsed. The two deputy principals were not Seeing Eye to eye, the reason was because they were rotating as acting principal’s and blamed each other. There was a serious of rifts in 2019. The pass rate in 2018 was 75% and in 2019 the pass rate drop to 54%. There was outcry from the community and the MEC got involved, it became evident that there was no leadership and management at the school. This resulted in the respondent having to intervene, they had to appoint service providers to fix damages and they had to fix the pass rate of the Grade 12.
10.2 They then appointed a caretaker principal who had no interest in applying for the post. He himself engaged with Mr Mbegu the first deputy principal who was prepared to move to another school. He engaged with the applicant and invited her to move to Klipspruit West Secondary School whose principal was also to be moved. The movement/transfer was initially for a 3 month period and he told the applicant that she should consult with her family. The applicant gave him feedback and he went to the District Johannesburg West and spoke to the District Director as well as the SGB. He went to the applicant and briefed her of their intention to move her for development purposes. The applicant gave him feedback after consulting her family and it was agreed that she would be there for a period of 6 months.
10.3 He requested his office to go and introduce the applicant to the SGB. At that meeting, the district director as well as the circuit manager was to form part of the meeting. He instructed that the district director of Johannesburg West give the applicant support. The principal’s post at Freedom Park would be advertise and the applicant could apply for the position. The entire staff at Freedom Park knew that the applicant was moving for development purposes.
10.4 On 5 December 2019 there was a meeting with the applicant and others regarding the handing over in that the applicant would be returning to Freedom Park Secondary School in January 2020. The applicant indicated to him that she didn’t want to return in that she claimed to have safety issues. The applicant wrote to him requesting a transfer and sent the district director a copy of the email. The last time that he engaged with the applicant, the applicant was told to engage with the district director. He was never informed that the applicant was refusing to be moved.
10.5 Freedom Park Secondary School is situated in Johannesburg Central and Klipspriuit West Secondary School fell under Johannesburg Central. Eldorado Park and Pakamani Primary School fell under the Soweto Zondi which form part of Johannesburg West District. The applicant was supposed to return to Freedom Park in January 2020.
11. Mr Thulani Majola testified under oath to the following effect.
11.1 He is employed by the respondent as Educational Specialist in the Dispute Resolution Section. He was a caseworker involved in the applicant’s case. It was reported to him after the applicant’s residence was visited the applicant was in Durban and this was the second time that applicant’s residence was visited.
11.2 They sent Ms Ntembu to go look for the applicant and when she returned for the second time, Ms Ntembu left a message for the applicant to report back to work. This was on the applicant’s return from Durban. He then reported this to supervisor and informed his supervisor that they were experiencing difficulties in getting the applicant to return to work. The instructions to Ms Ntembu was that she must phone the applicant and write to the applicant. It was reported to the district director that the instructions communicated to the applicant was that she must report to the district office Johannesburg Central. This was in 2020. He was left with no alternative but to request the applicant’s services to be terminated. They attempted to terminate the applicant’s contract in December 2020 but were only able to implement this in January 2021. The applicant had not been at work for the entire year, 2020. Educators are guided by the Employment Educators Act and should the educator be absent for 14 or more consecutive days from work without permission they then apply in terms of the EEA for the applicant’s termination.
11.3 There was no justifiable reason and no threats were made to the applicant’s life and therefore there was no reason why the applicant could not report to Freedom Park. There was no evidence that her life was in danger. During that period, he received no valid reason such as the medical certificate justifying the applicant’s absence. The applicant could have formally requested a transfer by applying for a transfer and had she felt unsafe she could have also reported District Office but never came to the District Office.
12. Mr Elias Mokoena testified udner oath to the following effect.
12.1 He is employed as a Chief education Specialist in the chief director’s office. As it relates to his involvement in the removal of the applicant from Freedom Park, he was called to a meeting where the movement of the applicant from Freedom Park to Pakamani Primary School was discussed. In that meeting the Chief Director explained that because of the problems at Freedom Park he was moving the applicant because of challenges experienced at the school. There was a lack of capacity as it relates to management of the school. The following day the chief director instructed him to introduce the applicant to the SGB of Pakamani Primary School. This he did and the applicant agreed that she would start at the school from July to December 2019 and that she was thereafter return to the school. The applicant was also introduced to the store.
12.2 At the meeting at Kluipspruit West it was mentioned that the applicant was moved for development purposes and the applicant knew that she would be returning in January 2022 Freedom Park.
12.3 At a later stage he learnt whilst the chief director was away that the applicant was no longer reporting to Freedom Park. They saw this as abscondment. He was busy with a court case and met with the applicant at the court. He sent the applicant a WhatsApp message to meeting at the court at 08h30 and at the meeting he told her that should she not report at Freedom Park she could be dismissed. The applicant claimed that her life was threatened and he enquired from the applicant whether she had reported this to the police. Applicant indicated that she did not report this to the police. He then advised the applicant that she must then report to the district office and he told her that she cannot stay at home and not come to work.
ANALYSIS OF EVIDENCE AND ARGUMENT
13. It is clear based on evidence that the applicant was moved from Freedom Park Secondary School where she was appointed as a deputy principal. She was acting as principal in the absence of the principal who had been removed. Due to an outcry from the community, the respondent in conjunction with the MEC took a decision to move the applicant as well as the other deputy principal as a temporary measure due to challenges experienced by the school. It is suggested by the respondent that there was conflict between the applicant and the other deputy principal that caused a rift that required intervention by the chief director. The applicant was then moved to Pakamani Primary School to act as the principal in that the principal from that school had to be moved. The respondent viewed the move of the applicant as exercise in developing the applicant so she could learn how to manage school. The applicant disagrees that she was moved for development purposes. Whether she was moved for development purposes or for conduct purposes is immaterial in that the reason for her being taken away from Freedom Park Secondary School was due to conflict that the respondent placed at the hands of the applicant and other deputy principal. They therefore moved her and appointed a caretaker principal. According to the respondent remove to Pakamani Primary School was a temporary movement that was for a period of 6 months and at the end of that period, the applicant was supposed to return to Freedom Park Secondary School. According to the respondent the applicant was supposed to return to Freedom Park in January 2020.
14. It is common cause that the applicant was unhappy about having to return to Freedom Park and instead of doing so stayed away from work and stayed at home earning a salary for 2020. It appears that the respondent involved the applicant’s father who is a circuit manager in the KwaZulu-Natal Education Department in attempting to persuade the applicant to return to work. His involvement appeared not to achieve the desired outcome in that the applicant refused to report to Freedom Park.
15. The applicant claims that she could not return and report for work at Freedom Park in that her life was in danger in that she was threatened by Mr Buthlezi. The applicant conceded under cross-examination that she did not opened a case concerning intimidation with the South African Police Service. It appears that a contributing factor in the applicant’s motivation for not returning to Freedom Park was that she was not paid an acting allowance for acting as the principal at Pakamani Primary School. It was argued by the respondent that firstly the applicant was sent to Pakamani for development purposes and secondly the post was not vacant and therefore she was not entitled to be paid an acting allowance. Nevertheless, the applicant was told that should she not want to return to Freedom Park she would have to apply for transfer to another school. It appears that no formal transfer application was made.
16. Mr Mokoena a Chief Education Specialist in the office of the chief director testified that he met with the applicant at Court and he warned her that she was absconding and that should she not report to Freedom Park she could be dismissed. When the applicant suggested to him that she had been threatened and that is why she was not willing to report to Freedom Park he then told her that she should then report to the district office and that she could not simply stay away from work and stay at home. The applicant did not heed Mr Mokoena’s warning and suggestion to rather report to the district office but continue to withhold her services.
17. It appears further that in December 2020 the respondent froze the applicant’s salary in that she had not been reporting for duty and due to technical reasons they had to reinstate her salary in January 2021 but thereafter issued a termination letter.
18. The applicant views the termination letter in terms of section 14 (1) of the Employment of Educators Act as a dismissal letter. The respondent holds a contrary view that the applicant services were terminated due to operations of law in that she had been absent from work for more than 14 consecutive days without permission. The applicant surprisingly has never suggested that the respondent gave her permission to be absent from work, the applicant’s stance was that her life was threatened and therefore she could not return to Freedom Park. The applicant under these circumstances should one accept that her life was threatened and in danger she should have then reported to the district office and tendered her services there. This she never did.
19. The Labour Court in the matter of Jordaan v Education Labour Relations Council and Others (PR159/17)  ZALCPE 17 (22 June 2018) as reported by SAFLII that dealt with an application to review a condonation ruling made under case number PSES145-17/18EC. The background to the dispute was Ms Jordaan’s termination of employment was in accordance with the provisions of Section 14(2) of the Employment of Educators Act, 76 of 1998. That section provides that if an educator who is deemed to be dismissed in terms of subsection (1) at any time reports for duty, the employer may on good cause shown approve the reinstatement of that educator into the former post or any other post, on such conditions that the employer may determine. The Superintendent-General for Education: Eastern Cape advised Ms Jordaan that her dismissal had been confirmed in terms of Section 14(1) on the basis that he (Head of Department) was not convinced that she had shown cause for her unauthorised absence. The arbitrator held in the Jordaan matter that a termination of employment in the circumstances envisaged by Section 14 (2) could never amount to a dismissal for the purposes of the Labour Relations Act and therefore that a claim for unfair dismissal was simply not competent.
20. At paragraphs  and  of the Jordaan judgement the Labour Court held:
 The Arbitrator referred to the matter of De Villiers v Head of Department: Education Western Cape (2010) 31ILJ 1377 (LC) and also (2009) 30 ILJ 1722 (C). In that instance, the court confirmed that where a discharge is deemed by statute to have occurred (such as provided for in Section 14 (1) of the Employment of Educator’s Act), this did not constitute a “dismissal” as defined in Section 186 (1) of the LRA.
 In other words, where the employment of an educator is terminated, as I have indicated, in the circumstances contemplated by Section 14, this is a termination of employment by operation of law and not a dismissal for the purposes of the LRA. The employee therefore has no claim for unfair dismissal. The employee’s proper right of recourse is a review in terms of Section 158 (1) (h) of the Labour Relations Act.
21. In the matter of Member of the Executive Council, Department of Education, Western Cape Government v Jethro & Another NNO (2019) 40 ILJ 2318 (LAC), the Labour Appeal Court held that a letter informing an employee of his or her deemed discharge by operation of law under Section 14(1) of the EEA involves no decision or exercise of a public power and cannot constitute administrative power; but a decision taken under Section 14(2) constitutes an exercise of a statutory power and the performance of a public function by the department. However, the discretion to grant reinstatement under Section 14(2) can only be exercised only if the discharged educator “at any time” reports for duty and on good cause shown.
22. The applicant had been absent from work without permission for period of 12 months and in terms of section 14(1) EEA as a consequence thereto, her employment was terminated due to operations of law.
23. The applicant, Zandile Mhlongo has failed to prove the existence of a dismissal as contemplated in terms of Section 186(1)(a) of the LRA. She is not entitled to any relief.
Name: Jonathan Gruss