PSES735-18/19KZN

IN THE ELRC ARBITRATION

BETWEEN:

SADTU obo MNTAMBO EM “the Employee”

and

DEPARTMENT OF EDUCATION – KWAZULU-NATAL “the Employer”

DEFUALT AWARD

Case Number: PSES735-18/19KZN
Date of Award: 16 October 2023
Panelist: NTOMBIZONKE MBILI

Education Labour Relations Council
ELRC Building
261 West Avenue
Centurion
Tel: 012 663 0452
Fax: 012 643 1601
E-Mail: gen.sec@elrc.co.za
Website: www.elrc.org.za

DETAILS OF HEARING AND REPRESENTATION

1. The matter was set down before me on 03 October 2023 for the arbitration process at the Teacher Centre, Overport.

2. The Applicant appeared in person and was represented by Mr. Nicholas Dlamini, an Advocate. The Respondent was represented by Mr. Itumeleng Makhoe, employed by the Department as a Labour Relations Director.

ISSUE TO BE DECIDED

3. I am required to determine whether the Applicant was substantively and procedurally unfairly dismissed or not.

BACKGROUND

4. The applicant referred an unfair dismissal dispute in terms of section 191(5)(a) of the Labour Relations Act.

5. At the beginning of the arbitration process the parties reverted to conciliation with the aim to resolve the matter. A considerable amount of time was spent to try and resolve the matter. The representative of the Respondent stated that he was unable to get a mandate from the authorized official of the employer which would have given him authority to resolve the matter. It is noteworthy that the matter on 01 June 2023 was postponed for the same reason. To that end the matter could not be resolved amicably.


6. The respondent then made an application for the matter to be postponed on the basis that their main witness was unavailable. The application for postponement was refused as I was not satisfied that the reasons advanced by the Respondent were adequate, given the history of the matter and the dictates of the Labour Relations Act which require labour disputes to be finalized expeditiously.

7. After the ruling the Respondent elected not to participate in the further conduct of the arbitration hearing. I accordingly proceeded in default.

EVIDENCE

8. The Applicant stated that he was initially employed by the Department on 28 February 1986. He resigned in April 2013 and was re-employed in January 2017 as a Teacher at Ferndale Secondary School, earning R28 586.00 as a basic salary.

9. He stated that he was dismissed following allegations that he contravened section 17 (1) (a) of the Employment of Educator’s Act in that he defrauded the Department by submitting a fraudulent qualification viz National Senior Certificate.

10. The Applicant disputed the respondent’s version and further stated that a disciplinary enquiry was held and that the Presiding Officer found him not guilty of the misconduct levelled against him.


11. The Applicant stated that his salary was frozen from 01 July 2018. He went on to state that Mr. SLN Kheswa, the Acting District Director wrote to Mr. N.C Ngcobo, the Senior Manager of Employee Relations, informing him to restore his salary retrospectively as he was found not guilty. He said that following the above letter his salary was still not restored.

12. He added that on 03 December 2018 he received a letter discharging him from his services on account that he misrepresented his academic qualifications.

13. The Applicant is seeking for re-instatement.

ANALYSIS

14. In terms of section 192 of the LRA the onus is on the Respondent to establish that the dismissal was procedurally and substantively fair. The Applicant led evidence which was undisputed.

15. I have no reason to disbelieve the Applicant’s evidence. I therefore find the Applicant’s dismissal to be both substantively and procedurally unfair.

16. Section 193 of the LRA states that if the Labour Court or an arbitrator appointed in terms of the LRA finds that a dismissal is unfair, the Court or the arbitrator may order the employer to reinstate the employee from any date not earlier than the date of dismissal.


17. I find that the appropriate remedy in the circumstances of the case is reinstatement. The reinstatement must apply with retrospective effect such that all benefits and conditions of employment that prevailed prior to the dismissal are restored.

18. The Respondent is to pay the Applicant all monies in respect of accrued and outstanding salary. The back pay for Mr. EM Mntambo is calculated as follows: (R28 586.00 (monthly salary) x 64 months (back pay) = R1 829 504.00.

AWARD
I make the following award:

1. The dismissal of the Applicant, Mr. EM Mntambo, by the Respondent, the Department of Education KwaZulu-Natal, is declared to be substantively and procedurally unfair.
2. The Respondent is ordered to reinstate the Applicant, Mr. EM Mntambo, to a date no later than 03 December 2018.
3. The Respondent is further directed to accept the Applicant back to the workplace on 24 October 2023.
4. The Respondent is further directed to pay the Applicant Mr. EM Mntambo
R1 829 504.00 as back pay by no later than 14 days of receipt of this award.

Ntombizonke Mbili
Panelist: ELRC