ELRC331 – 21/22MP
Text
ELRC331 – 21/22MP
Award Date:
10 June 2022
IN THE ELRC ARBITRATION
BETWEEN:
NH LIGEGE “the Applicant”
and
DEPARTMENT OF EDUCATION – MPUMALANGA PROVINCE “the Respondent”
ARBITRATION AWARD
Case Number: ELRC331 – 21/22MP
Last date of arbitration: 16 May 2022
Final closing arguments submitted in writing on: 24 May 2022
Date of award: 10 June 2022 (extension granted)
COEN HAVENGA
ELRC Arbitrator
Details of hearing and representation
1. This arbitration took place in terms of the referral of the matter by the Applicant to the Education Labour Relations Council. It was heard virtually by making use of the Zoom process. The last day of the hearing was on 16 May 2022.
2. The Applicant is Mr Ligege, NH. The Respondent is the Mpumalanga Department of Education, represented by Mr Malaza, B.
Issue to be decided
3. The dismissal of the Applicant is not in dispute. The Respondent argues that the Applicant’s termination of employment was by operation of law, it being a deemed dismissal in terms of section 14(1)(a) of the Employment of Educators Act 76 of 1998 (“the EEA”).
4. I must determine whether the Applicant’s dismissal was in compliance with the provisions of section 14(1)(a) of the EEA, and therefore a termination by operation of law, which would exclude the Council’s jurisdiction to pronounce on the matter, or whether it was a substantively and procedurally unfair dismissal.
Background to the dispute
5. The Applicant was employed by the Respondent for a period of eleven years as an PL1 educator. He earned a basic salary of R25 020,25 per month at the time of his dismissal.
6. On 15 July 2021 the Respondent issued the Applicant with a “Deemed to be discharged from service” notice and terminated his employment in terms of section 14(1)(a) of the Employment of Educators Act 76 of 1998 (“the EEA”).
7. The Applicant referred an unfair dismissal dispute to the ELRC. The matter came before Commissioner Pabst for arbitration on 21 September 2021. At the onset of those proceedings the Respondent objected to the jurisdiction of the ELRC in this matter on the basis that the Applicant have been deemed dismissed by operation of law in terms of section 14(1) of the EEA, and that the ELRC therefore lacks jurisdiction to deal with the matter.
8. Commissioner Pabst in her ruling states that she was required to decide on whether or not the ELRC enjoys jurisdiction to arbitrate this matter.
9. Commissioner Pabst found the following, and I quote: “I do not see where s14(1)(a) of the EEA finds application. In my view the legislator, and the context of the EEA, clearly intended this piece of legislation to apply in situations where the educator unreasonably disappeared from the scene of his/her usual workplace (in the Applicant’s case this was the circuit office for the preceding 6 years) and failed to communicate with the Respondent – that being absconded without cause or reasoning.”.
10. Commissioner Pabst further found, and I quote again: “I do believe that fairness will only prevail if the Applicant and the Respondent correspondingly are afforded a platform on which to ventilate and also motivate their respective decisions, and in the interest of justice all held accountable.”.
11. Commissioner Pabst in conclusion handed down the following ruling: “The Respondent’s objection to the ELRC’s jurisdiction is rejected, and the matter must be set down for arbitration at the Council’s earliest convenience.”. Neither party took Commissioner Pabst ruling on review, and therefore the ruling that the ELRC does have jurisdiction to arbitrate in this alleged unfair dismissal dispute, stands.
12. The Respondent in the arbitration proceedings before me argues that the ruling by Commissioner Pabst did not exclude jurisdiction per se, and that the Respondent will prove compliance with the requirements of the provision of section 14(1)(a) of the EEA and reiterated its argument that the Applicant was not dismissed as he alleged, but that he was discharged by the operation of law. The Respondent argues that it rightfully invoked section 14(1)(a) of the EEA, and that the that the Applicant’s claim should be dismissed as the Council lacks jurisdiction.
13. The Applicant argues that section 14(1)(a) of the EEA has been ruled not to be applicable, that the Respondent cannot rely upon the deemed dismissal in terms of section 14(1)(a) of the EEA and argues that his dismissal was therefore substantively and procedurally unfair. The Respondent should have charged him with the misconduct of refusal to comply with instructions, instead of taking the section 14(1)(a) of the EEA shortcut.
14. The relief the Applicant seeks from this arbitration hearing is retrospective reinstatement without loss of benefits.
Summary of evidence
The proceedings have been recorded digitally, and a summary of the Respondent’s and Applicant’s witnesses’ evidence follows below. What follows is only a summary of evidence deduced at the arbitration hearing and does not purport to be a verbatim transcription of all the testimony given. The record of the proceedings will reflect the complete testimony of the witnesses.
Respondent’s case
15. The Respondent submitted the documents contained in bundles A.
16. Mandhla Thabethe (“Thabethe”) testified under oath that he is the assistant-director, Labour Relations, stationed in Ermelo. Amsterdam circuit falls under his jurisdiction. A11 reflects the section 14(1)(a) termination letter of the Applicant. In 2015 the Applicant had issues with the principal, the chairperson of the SGB and some members of the community of Umlambo Primary School where he was stationed. He was then instructed to report to the circuit office as alternative reporting station. He fell under the supervision of the circuit manager, Ms Sibiya. Attempts to have him return to Umlambo PS failed.
17. The Department tried to temporary reporting station at Driepan Primary School, but the Applicant did not report there due to the issue of transport costs. The Department then tried to find an alternative station. In that time the process of declaring educators in excess started, and the principal of Umlambo PS then declared the Applicant in excess. Thabethe tried to get hold of the Applicant by phone but could not get hold of him during working hours. Thabethe got hold of him after hours. He told the Applicant that the reason why he was looking for him was to inform him that he had been declared in excess by Umlambo PS, and that he had to report to Ithole Primary School on 17 May 2021.
18. A13 reflects the email the Applicant sent to Thabethe on 19 May 2021. In paragraph 1 of the email the Applicant confirmed that Thabethe phoned him on 11 May 2021 and informed him that he had been declared in excess by Umlambo PS, and that he had to report to Ithole Primary School on 17 May 2021. Before that the Applicant’s reporting station was the circuit office. Thabethe wrote the letter dated 24 May 2021 to the Applicant, which is reflected in A14. He responded to the Applicant’s request for reasons why he had been declared in excess, and informed him that Ms Sibiya, his circuit manager, is to provide him with the minutes of the meeting wherein he was declared in excess.
19. In terms of Collective Agreement 4/2016 the circuit manager has the duty to provide the minutes of the excess meeting, and that is why Thabethe told the Applicant that Ms Sibiya was to provide the minutes.
20. Ithole PS principal informed Thabethe that the Applicant did not report at the school. In A14 Thabethe informed the Applicant that there would be consequences because he did not report at Ithole PS. Paragraph 6 of A13 reflects the Applicant’s reason for not reporting to Ithole PS. He questioned the legitimacy of and the reasons for the decision to declare him in excess at Umlambo PS. The Applicant confirmed he did not comply with the instruction to report at Ithole PS. It was a lawful instruction. It is the practice to inform educators in that manner when they are declared in excess. It is done telephonically. The provincial office will confirm it in writing later.
21. Thabethe wrote the termination letter reflected in A11. The Applicant failed to report to his allocated reporting station of Ithole PS for a period of more than 14 consecutive days, therefore the employer invoked the provisions of section 14(1)(a) of the EEA. Thabethe does not know where the Applicant reported to from 17 May 2021. He had to report to Ithole PS but did not. Before 17 May 2021 he had to report to the circuit office. He also did not report at the circuit office.
22. The Applicant was not dismissed, but he was discharged by operation of law. The deemed discharge letter was sent to the Applicant on 15 July 2021. His recourse was to show good cause why he should be discharged.
23. Under cross-examination Thabethe testified that he knew the offence of insubordination. He does not agree the Applicant committed insubordination. When an educator fails to report for 14 days or more, it is abscondment in terms of the EEA. The Applicant did not report to the circuit office or to the Ithole PS where he was supposed to report. The Respondent waited for more than 14 days.
24. The Applicant did have the right to know the reasons for being declared in excess. Thabethe does not know why the circuit manager would point fingers at him when it was her responsibility to provide the minutes to the Applicant.
25. Collective Agreement 4/2016 provides for the provincial office to issue the excess letter, that’s why they district communicate the decision by phone. It is the practice. The absence of the minutes of the excess meeting did not prevent the Applicant from reporting to Ithole PS. The circuit manager told Thabethe that the Applicant did not report to the circuit office.
26. There is a grievance procedure for educators who are disputing the excess process. A14 informed the Applicant in writing to report at Ithole PS.
27. Nomvula Sibiya (“Sibiya”) testified under oath that she is the circuit manager for the Amsterdam district since January 2015. After she started, the Applicant told to report to the circuit office. The Applicant did not report at the circuit office for the period 17 May 2021 to 8 July 2021.
28. The Applicant was declared in excess by the principal of Umlambo PS. She did not inform the Applicant, because the union advised her that the district office was dealing with the matter of the Applicant. The district office informed her that the Applicant had to report to Ithole PS.
29. The principal of Ithole PS informed Sibiya that the Applicant was not reporting at Ithole PS. They wanted him to report because they needed an educator. The principal and the SGB wanted him to go to Ithole PS.
30. The Applicant phoned Sibiya and wanted to know the reason for being declared in excess by Umlambo PS. She told him that the minutes of the excess meeting will show the reasons, but the minutes were at the school. Thabethe told Sibiya to give the minutes to the Applicant, but the principal of Umlambo PS did not provide her with the minutes. The principal kept on saying that he was waiting for the SMT members to sign it. Sibiya never gave the Applicant permission to be absent from work.
31. Under cross-examination Sibiya testified that the Applicant had the right to ask for the minutes of the excess meeting. She would have given it to him if she had it. It is a pity that the Applicant was not at the school, where he might have received it.
32. The principal did submit the minutes to Sibiya, and she told her not to give it to the Applicant because he was afraid the Applicant would comment about him on social media. Sibiya then gave the minutes to Thabethe.
33. Sibiya in her office advised the Applicant to report to Ithole PS. She told him that the principal and SGB were waiting for him. It was closer to him than Redpan PS. He should have reported there.
34. Ithole PS and its SGB did indicate in a letter previously that they did not want the Applicant there, but their attitude changed with the appointment of the new principal and election of a new SGB.
35. It is practice to inform educators verbally and follow it up with a letter later. The Applicant put it to Sibiya that refused the verbal instruction because he had valid reasons and was waiting for the instruction in writing. While he was waiting for the written instruction, he received the section 14 termination letter. Sibiya indicated that she could not comment on his statement.
36. The Applicant never came back to the circuit office after their meeting when she told him to report to Ithole PS on 17 May 2021. He was placed at Ithole PS and the paperwork would have been completed later. The Applicant refused to comply with the instruction based on his objections. Sibiya could not comment on why the Applicant’s question why he was not charged with misconduct, instead of invoking Section 14.
Applicant’s case
37. Ndifelani Harold Ligege, the Applicant, testified under oath that started as an educator on 5 May 2010. He was removed from the school where he was stationed in 2014 because he accused the principal of fraud. Since 2015 he was reporting to the circuit manager, despite the Department confirming that what that school did, was wrong.
38. In 2020 he was told to go to Driepan PS. He objected because of the travelling costs that would be involved, and the Department said they will reimburse him. He said he could not accept the transfer to Driepan PS, and he did not go there. The Department froze his salary for the period October 2020 to December 2020. It was reinstated and he continued to report to the circuit office. He proposed two schools, including Ithole PS, but the Department said those two schools refused to take him because of his conduct.
39. On 11 May 2021 the Applicant received a call from Thabethe, informing him that he had been declared in excess at Umlambo PS, and that he was expected to report at Ithole PS. The Applicant asked for the minutes of the excess meeting as proof that he was declared in excess, as he was better qualified that the educator teaching English, and who came 5 years after the Applicant. That educator had a diploma while the Applicant has an honours degree.
40. While the Applicant was waiting for the minutes of the excess meeting which he requested, he received the section 14 termination letter. He then referred a dispute to the ELRC.
41. Commissioner Pabst dismissed the Respondent’s objection to jurisdiction of the ELRC, and the Respondent should have taken that ruling on review if they did not agree with it. The Department wanted him to go to Ithole PS, but he wanted to engage the Department first. He did not abscond. It was wrong to force him to report to Ithole PS while the school’s principal and SGB indicated they did not want him there.
42. All the jurisdictional requirements for invoking section 14 of the EEA were not met by the Respondent.
43. Under cross-examination the Applicant testified that he did not report to Ithole PS. He confirms the contents of his email reflected in A13. He did not receive A14. Thabethe never instructed him to report to Ithole PS. The Applicant disputes the veracity of A15, it appears to have been cut and pasted. He does not accept it as proof that A14 had been sent to him.
44. Sibiya is lying when she says he did not report to the circuit office. He was dismissed for failing to report to Ithole PS. He never reported there and therefore could not have absconded from Ithole PS. He was not told that that he absconded from the circuit office.
Analysis of evidence and argument
45. Both parties submitted written closing arguments which form part of the record and will not be repeated here. I have considered all the arguments, legal and legislative principles, case law and Codes of Good Practice referred to by the parties, together with the other evidence, oral and documentary, presented by the parties during the arbitration hearing, as reflected in the record of the arbitration hearing.
46. I however find it prudent to refer to specifically one comment the Applicant made in his closing arguments. The Applicant stated the following, and I quote: “It turns out that ELRC/Commissioner Havenga C committed reviewable irregularities because no operation of law processes requires witnesses and substantiating documents. Once witnesses are called, the process is no longer automatic. The discharge will be manual or effected by human conduct”. It is unclear what the Applicant is referring to, and at this stage of the proceedings I find the statement devoid of substance.
47. It is not in dispute that Applicant had been dismissed. I must determine whether, as argued by the Respondent, the Applicant’s termination of employment was indeed by operation of law, it being a deemed dismissal in terms of section 14(1)(a) of the EEA. If the Applicant’s employment termination falls within the ambit of section 14(1)(a), it would deny the ELRC jurisdiction to pronounce on the alleged unfair dismissal dispute, in which case I must dismiss the Applicant’s case for lack of jurisdiction. Should I however find that section 14(1)(a) of the EEA does not apply to the circumstances preceding the Applicant’s dismissal, I then need to determine the substantive and procedural fairness of the Applicant’s dismissal.
48. I will firstly deal with the issue of whether the Applicant’s dismissal was in compliance with the provisions of section 14(1)(a) of the EEA, and therefore a termination by operation of law, which would deny the Council the jurisdiction to pronounce on the Applicant’s termination of employment.
49. Section 14 of the EEA reads as follows:
14. (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.
(2) If an educator who is deemed to have been discharged under paragraph (a) or (b) of subsection (1) at any time reports for duty, the employer may, on good cause shown and notwithstanding anything to the contrary contained in this Act, approve the re-instatement of the educator in the educator’s former post or in any other post on such conditions relating to the period of the educator’s absence from duty or otherwise as the employer may determine.
50. I refer to the case of Mogola & another v Head of Department of Education: Department of Education NO (JR2987/2010) [2011] ZALC JHB where the same section 14(1)(a) of the EEA was invoked against educators who refused to report for work at a school. The learned Molahleli, J found that section 14(1)(a) of the EEA did not find application in circumstances where the refusal to report was result of or in terms of specific arrangements made beforehand with the employer.
51. The same legal question was dealt with by the Labour Court in the most recent case of Mkhwanazi v MEC for Department of Education, KwaZulu Natal (D 1425/19) [2022] ZALC 1. The Court stated that the effect of section 14(1) of the EEA is that, provided the statutory jurisdictional requirements are met, the employment contract of the affected educator is terminated by operation of law. The Court referred to the jurisdictional requirements as being: the educator must have been permanently employed, the educator must have been absent longer than 14 consecutive days and the absence must have been without permission of the employer.
52. The Court furthermore found that the purpose of section 14 of the EEA is for the efficient removal of employees who have absconded and is intended to be used sparingly only in cases where the employer is unaware of the whereabouts of an absent employee or if the employee has evinced a clear intention not to return to work. The Court found that the applicant in that case was contactable, and it cannot be said that the applicant had absconded given the communications between her, her trade union, and the respondent in that period.
53. Having regard to the above legal precedent, I concur with the Applicant’s argument that all the jurisdictional facts did not present themselves in order for the section 14 of the EEA legal fiction to take effect in this matter. It cannot be said the Applicant was absent without permission in circumstances where the Respondent was unaware of the whereabouts of the Applicant, nor did the Applicant evince a clear intention not to return to work. Both Thabethe and Sibiya were in continuous communication with the Applicant, verbally and/or by email. The Applicant also visited Sibiya in her office.
54. The Applicant requested minutes of an excess meeting, which would have provided him with the reasons for being declared in excess, which he was entitled to. Both Thabethe and Sibiya confirmed that the Applicant was entitled to those minutes, and they in fact had it in their possession, but nevertheless refused to provide him with the minutes. During the arbitration they shifted the responsibility and blame to do so from one to the other. It was not an unreasonable request by the Applicant for information which he was entitled to. While he was waiting for the minutes to be provided to him, the Respondent instead of complying with his request and the provisions of Collective Agreement 1/2016, rather decided to serve him with the section 14 of the EEA termination letter, using the same contact details used to communicate with him up to that point. It appears as if the Respondent’s officials, rightly or wrongly, got frustrated with the Applicant’s conduct, and decided to opt for the quicker option of a section 14 of the EEA discharge, instead of the more cumbersome route of charging him with misconduct, and subjecting him to a disciplinary process.
55. I therefore find that all the jurisdictional facts did not present themselves in order for the Respondent to invoke the provisions of section 14(1)(a) of the EEA, and that the Applicant’s termination was not by operation of law.
56. Having found that the Applicant’s dismissal was not in compliance with the provisions of section 14(1)(a) of the EEA, and therefore not a termination by operation of law, I must now determine whether his dismissal was a substantively and procedurally fair dismissal for misconduct.
57. In considering the fairness of the dismissal of the Applicant for misconduct, I will consider the principles contained in Schedule 2: Disciplinary Code and Procedures for Educators, promulgated in terms of the EEA, as well as the principles contained in the Code of Good Practice: Dismissals, as contained in Schedule 8 to the Labour Relations Act 66 of 1995 (the Code). The Applicant disputes the substantive and procedural fairness of his dismissal, and the Respondent is therefore required to prove on a balance of probabilities that it was substantively and procedurally fair.
58. Arbitration hearings are not merely reviews of the employer’s decision to dismiss employees, or the propriety of the procedures followed by the employer (John Grogan Dismissal 320 (2002)). It is important to keep in mind that an arbitration hearing constitutes a full de novo rehearing on the merits as well as an investigation of the fairness of the procedure followed by the employer, should the latter be in dispute. The decision of the arbitrator is not reached with reference to the evidential material that was before the employer at the time of its enquiry, but on the evidential material placed before the arbitrator during the arbitration hearing. This means that all relevant evidence must be placed before the arbitrator in proper form, even if it has been fully canvassed at the employee’s disciplinary hearing. (See Sidumo & another v Rustenburg Platinum Mines Ltd & others [2007] JOL 20811 (CC, where the Court approved the LAC dictum in Count Fair Foods (Pty) Ltd v CCMA & Others [1999] 11 BLLR 1117 (LAC)).
59. The Applicant was not charged with misconduct and the Applicant denies that he committed any misconduct that could have led to his dismissal. Despite the ruling of Commissioner Pabst, which rejected the Respondent’s objection to the ELRC’s jurisdiction, the Respondent elected not to present evidence in respect of an alleged disciplinary offence other that abscondment, for instance insubordination or refusal to comply with a reasonable and lawful instruction, but rather continued to argue and rely upon the operation of section 14 of the EEA. The result is that the Respondent did not discharge its onus of proving on a balance of probabilities that a rule regulating conduct in the workplace was contravened. .
Substantive fairness
60. On the evidence before me the Respondent had no just reason to summarily terminate the Applicant’s employment. The Applicant testified that he did not commit any misconduct. I find on a balance of probabilities that there was no other valid reason for the summary dismissal of the Applicant.
61. In the light of my finding that it was not proven that a rule regulating conduct in the workplace was contravened, it is not necessary to consider whether the rule was valid and reasonable, whether the employee was aware of the rule, whether the rule has been consistently applied by the employer and whether dismissal was an appropriate sanction for the contravention of the rule, except to the extent it was dealt with above.
62. I accordingly find the Applicant’s dismissal substantively unfair.
Procedural fairness
63. Due to the Respondent’s reliance on only the operation of section 14(1) of the EEA, it follows that the Applicant was not subjected to a disciplinary hearing affording him the opportunity to defend himself against any alleged misconduct. By not affording the Applicant that basic right of a disciplinary hearing the dismissal was rendered procedurally unfair. I therefore find that the Applicant’s dismissal was also procedurally unfair.
Relief
64. The Applicant requested to be reinstated with retrospective effect. He had been employed by the Respondent for more than 11 years. The Applicant is a highly qualified educator with an honours degree. Section 28(2) of the Constitution of the Republic of South Africa 108 of 1996 provides that a child’s best interests are of paramount importance in every matter concerning the child. This is a factor that I keep in mind as surely it is in the best interest of learners to employ skilled educators in the class rooms. The Respondent is a large governmental institution, with different options of deployment available, at schools or otherwise, and I find that a continued employment relationship would be possible. It should not be an issue for the Respondent with all the resources available to it, to address the deployment concerns of the Applicant in the interest of proper education. In the light of the facts before me I find that reinstatement would be the appropriate remedy.
65. Considering the lengthy ongoing impasse between the Applicant and the Respondent in respect of the deployment of the Applicant, and to bring finality to this dispute, I find it appropriate to direct the Applicant to report at Ithole Primary School for duty. I also direct the Respondent to provide the Applicant with the minutes of the meeting in which he was declared in excess at Umlambo PS, in compliance with Collective Agreement 4/2016. ,
Award
66. The dismissal of the Applicant, Mr Ligege, NH, was substantively and procedurally unfair.
67. I hereby order the Respondent, Mpumalanga Department of Education, to reinstate the Applicant in his position of PL1 educator by no later than 1 July 2022, on the same terms and conditions of employment that existed immediately prior to his unfair dismissal, and without loss of any remuneration and benefits that would have accrued to him but for the dismissal.
68. The said reinstatement shall have a retrospective operation from the date of the Applicant’s dismissal, i.e. 15 July 2021.
69. The Respondent is ordered to pay to the Applicant his full salary for the period between the date of dismissal, i.e. 15 July 2021 and the date of reinstatement, i.e. 1 July 2022, (from when he will receive his salary again), by no later than 1 July 2022.
70. The amount that must be paid to the Applicant is calculated in terms of the provisions of section 35 of the Basic Conditions of Employment Act, no. 75 of 1997, as follows:
• R25 020,25 per month x 11 months [from 1 August 2021 to 30 June 2022) = R275 222,75.
• 16 July 2021 to 31 July 2020, being 16 days @ R1155,66 per day = R18 490,71 (R25 020,25 ÷ 4.33 = R5778,34 per week ÷ 5 = R1155,66 per day)
• Total amount payable to the Applicant is R293 713,46 (two hundred and ninety-three thousand seven hundred and thirteen rand and forty-six cent), minus such deductions as the Respondent is in terms of the law or agreement with the Applicant entitled or obliged to make.
71. The Applicant shall report for duty at Ithole Primary School by no later than 1 July 2022.
72. The Respondent is ordered to provide the Applicant with the minutes of the meeting in which he was declared in excess at Umlambo PS by no later than 1 July 2022, in compliance with Collective Agreement 4/2016 .
73. I have considered the Applicant’s application for costs. Considering all the circumstances of the matter, I am not convinced that the Respondent acted in any frivolous or vexatious manner that would justify such an order. I find that it would not be justified, and therefore no order is made in respect of costs.
SIGNED AT KEMPTON PARK ON THIS 10th DAY OF JUNE 2022.
Coen Havenga
BETWEEN:
NH LIGEGE “the Applicant”
and
DEPARTMENT OF EDUCATION – MPUMALANGA PROVINCE “the Respondent”
ARBITRATION AWARD
Case Number: ELRC331 – 21/22MP
Last date of arbitration: 16 May 2022
Final closing arguments submitted in writing on: 24 May 2022
Date of award: 10 June 2022 (extension granted)
COEN HAVENGA
ELRC Arbitrator
Details of hearing and representation
1. This arbitration took place in terms of the referral of the matter by the Applicant to the Education Labour Relations Council. It was heard virtually by making use of the Zoom process. The last day of the hearing was on 16 May 2022.
2. The Applicant is Mr Ligege, NH. The Respondent is the Mpumalanga Department of Education, represented by Mr Malaza, B.
Issue to be decided
3. The dismissal of the Applicant is not in dispute. The Respondent argues that the Applicant’s termination of employment was by operation of law, it being a deemed dismissal in terms of section 14(1)(a) of the Employment of Educators Act 76 of 1998 (“the EEA”).
4. I must determine whether the Applicant’s dismissal was in compliance with the provisions of section 14(1)(a) of the EEA, and therefore a termination by operation of law, which would exclude the Council’s jurisdiction to pronounce on the matter, or whether it was a substantively and procedurally unfair dismissal.
Background to the dispute
5. The Applicant was employed by the Respondent for a period of eleven years as an PL1 educator. He earned a basic salary of R25 020,25 per month at the time of his dismissal.
6. On 15 July 2021 the Respondent issued the Applicant with a “Deemed to be discharged from service” notice and terminated his employment in terms of section 14(1)(a) of the Employment of Educators Act 76 of 1998 (“the EEA”).
7. The Applicant referred an unfair dismissal dispute to the ELRC. The matter came before Commissioner Pabst for arbitration on 21 September 2021. At the onset of those proceedings the Respondent objected to the jurisdiction of the ELRC in this matter on the basis that the Applicant have been deemed dismissed by operation of law in terms of section 14(1) of the EEA, and that the ELRC therefore lacks jurisdiction to deal with the matter.
8. Commissioner Pabst in her ruling states that she was required to decide on whether or not the ELRC enjoys jurisdiction to arbitrate this matter.
9. Commissioner Pabst found the following, and I quote: “I do not see where s14(1)(a) of the EEA finds application. In my view the legislator, and the context of the EEA, clearly intended this piece of legislation to apply in situations where the educator unreasonably disappeared from the scene of his/her usual workplace (in the Applicant’s case this was the circuit office for the preceding 6 years) and failed to communicate with the Respondent – that being absconded without cause or reasoning.”.
10. Commissioner Pabst further found, and I quote again: “I do believe that fairness will only prevail if the Applicant and the Respondent correspondingly are afforded a platform on which to ventilate and also motivate their respective decisions, and in the interest of justice all held accountable.”.
11. Commissioner Pabst in conclusion handed down the following ruling: “The Respondent’s objection to the ELRC’s jurisdiction is rejected, and the matter must be set down for arbitration at the Council’s earliest convenience.”. Neither party took Commissioner Pabst ruling on review, and therefore the ruling that the ELRC does have jurisdiction to arbitrate in this alleged unfair dismissal dispute, stands.
12. The Respondent in the arbitration proceedings before me argues that the ruling by Commissioner Pabst did not exclude jurisdiction per se, and that the Respondent will prove compliance with the requirements of the provision of section 14(1)(a) of the EEA and reiterated its argument that the Applicant was not dismissed as he alleged, but that he was discharged by the operation of law. The Respondent argues that it rightfully invoked section 14(1)(a) of the EEA, and that the that the Applicant’s claim should be dismissed as the Council lacks jurisdiction.
13. The Applicant argues that section 14(1)(a) of the EEA has been ruled not to be applicable, that the Respondent cannot rely upon the deemed dismissal in terms of section 14(1)(a) of the EEA and argues that his dismissal was therefore substantively and procedurally unfair. The Respondent should have charged him with the misconduct of refusal to comply with instructions, instead of taking the section 14(1)(a) of the EEA shortcut.
14. The relief the Applicant seeks from this arbitration hearing is retrospective reinstatement without loss of benefits.
Summary of evidence
The proceedings have been recorded digitally, and a summary of the Respondent’s and Applicant’s witnesses’ evidence follows below. What follows is only a summary of evidence deduced at the arbitration hearing and does not purport to be a verbatim transcription of all the testimony given. The record of the proceedings will reflect the complete testimony of the witnesses.
Respondent’s case
15. The Respondent submitted the documents contained in bundles A.
16. Mandhla Thabethe (“Thabethe”) testified under oath that he is the assistant-director, Labour Relations, stationed in Ermelo. Amsterdam circuit falls under his jurisdiction. A11 reflects the section 14(1)(a) termination letter of the Applicant. In 2015 the Applicant had issues with the principal, the chairperson of the SGB and some members of the community of Umlambo Primary School where he was stationed. He was then instructed to report to the circuit office as alternative reporting station. He fell under the supervision of the circuit manager, Ms Sibiya. Attempts to have him return to Umlambo PS failed.
17. The Department tried to temporary reporting station at Driepan Primary School, but the Applicant did not report there due to the issue of transport costs. The Department then tried to find an alternative station. In that time the process of declaring educators in excess started, and the principal of Umlambo PS then declared the Applicant in excess. Thabethe tried to get hold of the Applicant by phone but could not get hold of him during working hours. Thabethe got hold of him after hours. He told the Applicant that the reason why he was looking for him was to inform him that he had been declared in excess by Umlambo PS, and that he had to report to Ithole Primary School on 17 May 2021.
18. A13 reflects the email the Applicant sent to Thabethe on 19 May 2021. In paragraph 1 of the email the Applicant confirmed that Thabethe phoned him on 11 May 2021 and informed him that he had been declared in excess by Umlambo PS, and that he had to report to Ithole Primary School on 17 May 2021. Before that the Applicant’s reporting station was the circuit office. Thabethe wrote the letter dated 24 May 2021 to the Applicant, which is reflected in A14. He responded to the Applicant’s request for reasons why he had been declared in excess, and informed him that Ms Sibiya, his circuit manager, is to provide him with the minutes of the meeting wherein he was declared in excess.
19. In terms of Collective Agreement 4/2016 the circuit manager has the duty to provide the minutes of the excess meeting, and that is why Thabethe told the Applicant that Ms Sibiya was to provide the minutes.
20. Ithole PS principal informed Thabethe that the Applicant did not report at the school. In A14 Thabethe informed the Applicant that there would be consequences because he did not report at Ithole PS. Paragraph 6 of A13 reflects the Applicant’s reason for not reporting to Ithole PS. He questioned the legitimacy of and the reasons for the decision to declare him in excess at Umlambo PS. The Applicant confirmed he did not comply with the instruction to report at Ithole PS. It was a lawful instruction. It is the practice to inform educators in that manner when they are declared in excess. It is done telephonically. The provincial office will confirm it in writing later.
21. Thabethe wrote the termination letter reflected in A11. The Applicant failed to report to his allocated reporting station of Ithole PS for a period of more than 14 consecutive days, therefore the employer invoked the provisions of section 14(1)(a) of the EEA. Thabethe does not know where the Applicant reported to from 17 May 2021. He had to report to Ithole PS but did not. Before 17 May 2021 he had to report to the circuit office. He also did not report at the circuit office.
22. The Applicant was not dismissed, but he was discharged by operation of law. The deemed discharge letter was sent to the Applicant on 15 July 2021. His recourse was to show good cause why he should be discharged.
23. Under cross-examination Thabethe testified that he knew the offence of insubordination. He does not agree the Applicant committed insubordination. When an educator fails to report for 14 days or more, it is abscondment in terms of the EEA. The Applicant did not report to the circuit office or to the Ithole PS where he was supposed to report. The Respondent waited for more than 14 days.
24. The Applicant did have the right to know the reasons for being declared in excess. Thabethe does not know why the circuit manager would point fingers at him when it was her responsibility to provide the minutes to the Applicant.
25. Collective Agreement 4/2016 provides for the provincial office to issue the excess letter, that’s why they district communicate the decision by phone. It is the practice. The absence of the minutes of the excess meeting did not prevent the Applicant from reporting to Ithole PS. The circuit manager told Thabethe that the Applicant did not report to the circuit office.
26. There is a grievance procedure for educators who are disputing the excess process. A14 informed the Applicant in writing to report at Ithole PS.
27. Nomvula Sibiya (“Sibiya”) testified under oath that she is the circuit manager for the Amsterdam district since January 2015. After she started, the Applicant told to report to the circuit office. The Applicant did not report at the circuit office for the period 17 May 2021 to 8 July 2021.
28. The Applicant was declared in excess by the principal of Umlambo PS. She did not inform the Applicant, because the union advised her that the district office was dealing with the matter of the Applicant. The district office informed her that the Applicant had to report to Ithole PS.
29. The principal of Ithole PS informed Sibiya that the Applicant was not reporting at Ithole PS. They wanted him to report because they needed an educator. The principal and the SGB wanted him to go to Ithole PS.
30. The Applicant phoned Sibiya and wanted to know the reason for being declared in excess by Umlambo PS. She told him that the minutes of the excess meeting will show the reasons, but the minutes were at the school. Thabethe told Sibiya to give the minutes to the Applicant, but the principal of Umlambo PS did not provide her with the minutes. The principal kept on saying that he was waiting for the SMT members to sign it. Sibiya never gave the Applicant permission to be absent from work.
31. Under cross-examination Sibiya testified that the Applicant had the right to ask for the minutes of the excess meeting. She would have given it to him if she had it. It is a pity that the Applicant was not at the school, where he might have received it.
32. The principal did submit the minutes to Sibiya, and she told her not to give it to the Applicant because he was afraid the Applicant would comment about him on social media. Sibiya then gave the minutes to Thabethe.
33. Sibiya in her office advised the Applicant to report to Ithole PS. She told him that the principal and SGB were waiting for him. It was closer to him than Redpan PS. He should have reported there.
34. Ithole PS and its SGB did indicate in a letter previously that they did not want the Applicant there, but their attitude changed with the appointment of the new principal and election of a new SGB.
35. It is practice to inform educators verbally and follow it up with a letter later. The Applicant put it to Sibiya that refused the verbal instruction because he had valid reasons and was waiting for the instruction in writing. While he was waiting for the written instruction, he received the section 14 termination letter. Sibiya indicated that she could not comment on his statement.
36. The Applicant never came back to the circuit office after their meeting when she told him to report to Ithole PS on 17 May 2021. He was placed at Ithole PS and the paperwork would have been completed later. The Applicant refused to comply with the instruction based on his objections. Sibiya could not comment on why the Applicant’s question why he was not charged with misconduct, instead of invoking Section 14.
Applicant’s case
37. Ndifelani Harold Ligege, the Applicant, testified under oath that started as an educator on 5 May 2010. He was removed from the school where he was stationed in 2014 because he accused the principal of fraud. Since 2015 he was reporting to the circuit manager, despite the Department confirming that what that school did, was wrong.
38. In 2020 he was told to go to Driepan PS. He objected because of the travelling costs that would be involved, and the Department said they will reimburse him. He said he could not accept the transfer to Driepan PS, and he did not go there. The Department froze his salary for the period October 2020 to December 2020. It was reinstated and he continued to report to the circuit office. He proposed two schools, including Ithole PS, but the Department said those two schools refused to take him because of his conduct.
39. On 11 May 2021 the Applicant received a call from Thabethe, informing him that he had been declared in excess at Umlambo PS, and that he was expected to report at Ithole PS. The Applicant asked for the minutes of the excess meeting as proof that he was declared in excess, as he was better qualified that the educator teaching English, and who came 5 years after the Applicant. That educator had a diploma while the Applicant has an honours degree.
40. While the Applicant was waiting for the minutes of the excess meeting which he requested, he received the section 14 termination letter. He then referred a dispute to the ELRC.
41. Commissioner Pabst dismissed the Respondent’s objection to jurisdiction of the ELRC, and the Respondent should have taken that ruling on review if they did not agree with it. The Department wanted him to go to Ithole PS, but he wanted to engage the Department first. He did not abscond. It was wrong to force him to report to Ithole PS while the school’s principal and SGB indicated they did not want him there.
42. All the jurisdictional requirements for invoking section 14 of the EEA were not met by the Respondent.
43. Under cross-examination the Applicant testified that he did not report to Ithole PS. He confirms the contents of his email reflected in A13. He did not receive A14. Thabethe never instructed him to report to Ithole PS. The Applicant disputes the veracity of A15, it appears to have been cut and pasted. He does not accept it as proof that A14 had been sent to him.
44. Sibiya is lying when she says he did not report to the circuit office. He was dismissed for failing to report to Ithole PS. He never reported there and therefore could not have absconded from Ithole PS. He was not told that that he absconded from the circuit office.
Analysis of evidence and argument
45. Both parties submitted written closing arguments which form part of the record and will not be repeated here. I have considered all the arguments, legal and legislative principles, case law and Codes of Good Practice referred to by the parties, together with the other evidence, oral and documentary, presented by the parties during the arbitration hearing, as reflected in the record of the arbitration hearing.
46. I however find it prudent to refer to specifically one comment the Applicant made in his closing arguments. The Applicant stated the following, and I quote: “It turns out that ELRC/Commissioner Havenga C committed reviewable irregularities because no operation of law processes requires witnesses and substantiating documents. Once witnesses are called, the process is no longer automatic. The discharge will be manual or effected by human conduct”. It is unclear what the Applicant is referring to, and at this stage of the proceedings I find the statement devoid of substance.
47. It is not in dispute that Applicant had been dismissed. I must determine whether, as argued by the Respondent, the Applicant’s termination of employment was indeed by operation of law, it being a deemed dismissal in terms of section 14(1)(a) of the EEA. If the Applicant’s employment termination falls within the ambit of section 14(1)(a), it would deny the ELRC jurisdiction to pronounce on the alleged unfair dismissal dispute, in which case I must dismiss the Applicant’s case for lack of jurisdiction. Should I however find that section 14(1)(a) of the EEA does not apply to the circumstances preceding the Applicant’s dismissal, I then need to determine the substantive and procedural fairness of the Applicant’s dismissal.
48. I will firstly deal with the issue of whether the Applicant’s dismissal was in compliance with the provisions of section 14(1)(a) of the EEA, and therefore a termination by operation of law, which would deny the Council the jurisdiction to pronounce on the Applicant’s termination of employment.
49. Section 14 of the EEA reads as follows:
14. (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.
(2) If an educator who is deemed to have been discharged under paragraph (a) or (b) of subsection (1) at any time reports for duty, the employer may, on good cause shown and notwithstanding anything to the contrary contained in this Act, approve the re-instatement of the educator in the educator’s former post or in any other post on such conditions relating to the period of the educator’s absence from duty or otherwise as the employer may determine.
50. I refer to the case of Mogola & another v Head of Department of Education: Department of Education NO (JR2987/2010) [2011] ZALC JHB where the same section 14(1)(a) of the EEA was invoked against educators who refused to report for work at a school. The learned Molahleli, J found that section 14(1)(a) of the EEA did not find application in circumstances where the refusal to report was result of or in terms of specific arrangements made beforehand with the employer.
51. The same legal question was dealt with by the Labour Court in the most recent case of Mkhwanazi v MEC for Department of Education, KwaZulu Natal (D 1425/19) [2022] ZALC 1. The Court stated that the effect of section 14(1) of the EEA is that, provided the statutory jurisdictional requirements are met, the employment contract of the affected educator is terminated by operation of law. The Court referred to the jurisdictional requirements as being: the educator must have been permanently employed, the educator must have been absent longer than 14 consecutive days and the absence must have been without permission of the employer.
52. The Court furthermore found that the purpose of section 14 of the EEA is for the efficient removal of employees who have absconded and is intended to be used sparingly only in cases where the employer is unaware of the whereabouts of an absent employee or if the employee has evinced a clear intention not to return to work. The Court found that the applicant in that case was contactable, and it cannot be said that the applicant had absconded given the communications between her, her trade union, and the respondent in that period.
53. Having regard to the above legal precedent, I concur with the Applicant’s argument that all the jurisdictional facts did not present themselves in order for the section 14 of the EEA legal fiction to take effect in this matter. It cannot be said the Applicant was absent without permission in circumstances where the Respondent was unaware of the whereabouts of the Applicant, nor did the Applicant evince a clear intention not to return to work. Both Thabethe and Sibiya were in continuous communication with the Applicant, verbally and/or by email. The Applicant also visited Sibiya in her office.
54. The Applicant requested minutes of an excess meeting, which would have provided him with the reasons for being declared in excess, which he was entitled to. Both Thabethe and Sibiya confirmed that the Applicant was entitled to those minutes, and they in fact had it in their possession, but nevertheless refused to provide him with the minutes. During the arbitration they shifted the responsibility and blame to do so from one to the other. It was not an unreasonable request by the Applicant for information which he was entitled to. While he was waiting for the minutes to be provided to him, the Respondent instead of complying with his request and the provisions of Collective Agreement 1/2016, rather decided to serve him with the section 14 of the EEA termination letter, using the same contact details used to communicate with him up to that point. It appears as if the Respondent’s officials, rightly or wrongly, got frustrated with the Applicant’s conduct, and decided to opt for the quicker option of a section 14 of the EEA discharge, instead of the more cumbersome route of charging him with misconduct, and subjecting him to a disciplinary process.
55. I therefore find that all the jurisdictional facts did not present themselves in order for the Respondent to invoke the provisions of section 14(1)(a) of the EEA, and that the Applicant’s termination was not by operation of law.
56. Having found that the Applicant’s dismissal was not in compliance with the provisions of section 14(1)(a) of the EEA, and therefore not a termination by operation of law, I must now determine whether his dismissal was a substantively and procedurally fair dismissal for misconduct.
57. In considering the fairness of the dismissal of the Applicant for misconduct, I will consider the principles contained in Schedule 2: Disciplinary Code and Procedures for Educators, promulgated in terms of the EEA, as well as the principles contained in the Code of Good Practice: Dismissals, as contained in Schedule 8 to the Labour Relations Act 66 of 1995 (the Code). The Applicant disputes the substantive and procedural fairness of his dismissal, and the Respondent is therefore required to prove on a balance of probabilities that it was substantively and procedurally fair.
58. Arbitration hearings are not merely reviews of the employer’s decision to dismiss employees, or the propriety of the procedures followed by the employer (John Grogan Dismissal 320 (2002)). It is important to keep in mind that an arbitration hearing constitutes a full de novo rehearing on the merits as well as an investigation of the fairness of the procedure followed by the employer, should the latter be in dispute. The decision of the arbitrator is not reached with reference to the evidential material that was before the employer at the time of its enquiry, but on the evidential material placed before the arbitrator during the arbitration hearing. This means that all relevant evidence must be placed before the arbitrator in proper form, even if it has been fully canvassed at the employee’s disciplinary hearing. (See Sidumo & another v Rustenburg Platinum Mines Ltd & others [2007] JOL 20811 (CC, where the Court approved the LAC dictum in Count Fair Foods (Pty) Ltd v CCMA & Others [1999] 11 BLLR 1117 (LAC)).
59. The Applicant was not charged with misconduct and the Applicant denies that he committed any misconduct that could have led to his dismissal. Despite the ruling of Commissioner Pabst, which rejected the Respondent’s objection to the ELRC’s jurisdiction, the Respondent elected not to present evidence in respect of an alleged disciplinary offence other that abscondment, for instance insubordination or refusal to comply with a reasonable and lawful instruction, but rather continued to argue and rely upon the operation of section 14 of the EEA. The result is that the Respondent did not discharge its onus of proving on a balance of probabilities that a rule regulating conduct in the workplace was contravened. .
Substantive fairness
60. On the evidence before me the Respondent had no just reason to summarily terminate the Applicant’s employment. The Applicant testified that he did not commit any misconduct. I find on a balance of probabilities that there was no other valid reason for the summary dismissal of the Applicant.
61. In the light of my finding that it was not proven that a rule regulating conduct in the workplace was contravened, it is not necessary to consider whether the rule was valid and reasonable, whether the employee was aware of the rule, whether the rule has been consistently applied by the employer and whether dismissal was an appropriate sanction for the contravention of the rule, except to the extent it was dealt with above.
62. I accordingly find the Applicant’s dismissal substantively unfair.
Procedural fairness
63. Due to the Respondent’s reliance on only the operation of section 14(1) of the EEA, it follows that the Applicant was not subjected to a disciplinary hearing affording him the opportunity to defend himself against any alleged misconduct. By not affording the Applicant that basic right of a disciplinary hearing the dismissal was rendered procedurally unfair. I therefore find that the Applicant’s dismissal was also procedurally unfair.
Relief
64. The Applicant requested to be reinstated with retrospective effect. He had been employed by the Respondent for more than 11 years. The Applicant is a highly qualified educator with an honours degree. Section 28(2) of the Constitution of the Republic of South Africa 108 of 1996 provides that a child’s best interests are of paramount importance in every matter concerning the child. This is a factor that I keep in mind as surely it is in the best interest of learners to employ skilled educators in the class rooms. The Respondent is a large governmental institution, with different options of deployment available, at schools or otherwise, and I find that a continued employment relationship would be possible. It should not be an issue for the Respondent with all the resources available to it, to address the deployment concerns of the Applicant in the interest of proper education. In the light of the facts before me I find that reinstatement would be the appropriate remedy.
65. Considering the lengthy ongoing impasse between the Applicant and the Respondent in respect of the deployment of the Applicant, and to bring finality to this dispute, I find it appropriate to direct the Applicant to report at Ithole Primary School for duty. I also direct the Respondent to provide the Applicant with the minutes of the meeting in which he was declared in excess at Umlambo PS, in compliance with Collective Agreement 4/2016. ,
Award
66. The dismissal of the Applicant, Mr Ligege, NH, was substantively and procedurally unfair.
67. I hereby order the Respondent, Mpumalanga Department of Education, to reinstate the Applicant in his position of PL1 educator by no later than 1 July 2022, on the same terms and conditions of employment that existed immediately prior to his unfair dismissal, and without loss of any remuneration and benefits that would have accrued to him but for the dismissal.
68. The said reinstatement shall have a retrospective operation from the date of the Applicant’s dismissal, i.e. 15 July 2021.
69. The Respondent is ordered to pay to the Applicant his full salary for the period between the date of dismissal, i.e. 15 July 2021 and the date of reinstatement, i.e. 1 July 2022, (from when he will receive his salary again), by no later than 1 July 2022.
70. The amount that must be paid to the Applicant is calculated in terms of the provisions of section 35 of the Basic Conditions of Employment Act, no. 75 of 1997, as follows:
• R25 020,25 per month x 11 months [from 1 August 2021 to 30 June 2022) = R275 222,75.
• 16 July 2021 to 31 July 2020, being 16 days @ R1155,66 per day = R18 490,71 (R25 020,25 ÷ 4.33 = R5778,34 per week ÷ 5 = R1155,66 per day)
• Total amount payable to the Applicant is R293 713,46 (two hundred and ninety-three thousand seven hundred and thirteen rand and forty-six cent), minus such deductions as the Respondent is in terms of the law or agreement with the Applicant entitled or obliged to make.
71. The Applicant shall report for duty at Ithole Primary School by no later than 1 July 2022.
72. The Respondent is ordered to provide the Applicant with the minutes of the meeting in which he was declared in excess at Umlambo PS by no later than 1 July 2022, in compliance with Collective Agreement 4/2016 .
73. I have considered the Applicant’s application for costs. Considering all the circumstances of the matter, I am not convinced that the Respondent acted in any frivolous or vexatious manner that would justify such an order. I find that it would not be justified, and therefore no order is made in respect of costs.
SIGNED AT KEMPTON PARK ON THIS 10th DAY OF JUNE 2022.
Coen Havenga