PSES EC
PSES EC
Award Date:
22 March 2000
Case Number: PSES EC
Province: Eastern Cape
Applicant: L KALAWE
Respondent: DEPARTMENT OF EDUCATION
Issue: Unfair Dismissal - Misconduct
Venue: EAST LONDON
Award Date: 22 March 2000
Arbitrator: F W PRETORIUS
EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER :PSES EC
In the arbitration between:
L KALAWE (represented by SADTU) APPLICANT
and
EASTERN CAPE DEPARTMENT OF EDUCATION RESPONDENT
ARBITRATOR’S AWARD
1 . INTRODUCTORY
.1 The matter came before me as a submission to arbitration under a collective agreement concluded by the Education Labour Relations Council, a Bargaining Council as defined in the Labour Relations Act, number 66 of 1995. My terms of reference simply require me to “arbitrate the dispute” referred to me and “to award a remedy which (I)consider fair and/or appropriate in order to settle the dispute”. The parties agreed that the dispute which was referred to me for arbitration was whether or not the employee’s services had been fairly terminated.
2 .THE BACKGROUND
.1 The following emerges from the facts that are common cause and undisputed testimony.
.2 Kalawe was employed as an educator by the Department at Nkiwilini Senior Primary School, Port St Johns.
.3 On 5 October 1998 the employee received a “letter of no objection” from the principal of Nkiwilini School and she promptly left for East London where she began teaching at Sinovuyo High School. There is considerable dispute about the proper meaning of this “letter of no objection”, to which matter I will pay further reference below. Suffice it to say that the employee took this letter as authorising her secondment to Sinovuyo High School.
.4 Subsequently attempts were made to secure the return of the employee to Nkiwilini Senior Primary School but when this proved fruitless by 29 October 1998 the school recommended that her services be terminated on the ground of abscondment.
.5 The employee’s salary was stopped by the Department during November 1998 and on 4 December 1998 she reported to the district manager, at the Department’s Port St Johns’ District Office.
.6 The employee contended that she had misunderstood the meaning and effect of the “letter to no objection”. A number of meetings and interventions followed, including the involvement of the employee’s trade union, SADTU, but the Department would not relent and during February 1999 the employee was informed in writing that she had been dismissed with effect from 6 October 1998 for abscondment in terms of section 14(1)(a) of the Employment of Educators Act of 1998.
3 . THE DEPARTMENT’S CASE
.1 The Department adduced the evidence of Fenwick Afrika Ngewana, the district manager at Port St Johns, Mandisa Dzingwa a chief provisioning admin clerk at the Port St John’s district office Nomaza Sharpley, the principal of Nkiwilini Senior Primary School, and Tiyo Nogaga, a deputy director of human resources in the regional office, eastern region of the Department. Their evidence is to the following effect.
On 23 August 1998 the employee found the Union representative at Nkiwilini Senior Primary School, one Mrs Ndwara, and informed Ndwara that her house in East London had been burgled. Although the employee taught at Nkiwilini School in Port St Johns, her permanent residence was in East London. The employee was then given leave of absence to attend to the matter.
On 5 October 1998 the employee returned to Nkiwilini School and asked Sharpley to issue her with a “letter of no objection”. The employee said that she wanted to transfer to another school in the East London area as her father was not well and she wanted to be near her home.
Sharpley advised her to go to the district manager to discuss the problem with him. According to Sharpley she also informed the employee that before she could leave Nkiwilini School for another school she had to obtain a letter from such other school accepting her as an educator, and that the district manager had to consent to her proposed transfer.
Sharpley and the employee then went to the district office to discuss the matter with the district manager. The district manager was however not available and Sharpley then informed the employee that she should not leave for East London on that day but should wait until she had discussed the matter with the district manager. The employee was adamant that she would be leaving for East London but eventually agreed not to leave.
On further questioning by the Department’s representative Sharpley indicated that the purpose of the visit to the district manager was to report to him that the employee was leaving for Sinovuyo School and to seek a replacement teacher.
Sharpley later requested Ndwara to phone the employee and to inform her that she should return to Nkiwilini School. Ndwara thereafter reported to Sharpley that she could not get hold of the employee. Towards the end of October 1998, according to Sharpley, she asked Dzingwa to convey the said message to the employee. I will deal with Dzingwa’s evidence in this regard below.
When by 29 October 1998 the employee had not returned to Nkiwilini School, Sharpley wrote to the district office, recommending that the employee’s salary be “frozen” and that her services be terminated.
Upon receipt of the aforesaid recommendation Ngewana asked the regional office of the department to “freeze” the employee’s salary. The Department’s circuit manager then requested Dzingwa, an acquaintance of the employee, to establish her whereabouts and to inform her that she should return to Port St Johns. Dzingwa testified that she had first been asked by Sharpley on 6 October 1998 to contact the employee. She attempted to phone the employee but could not get hold of her and then left a message with a Mr Guga, an employee at the department’s East London offices. She did this because the employee did not have a telephone at her home and had asked Dzingwa, before she had left Port St Johns, to forward any messages to Guga. Dzingwa informed Guga that the employee should return to Nkiwilini High School.
On 8 October 1998 she phoned again and left the same message with Guga.
During October 1998 Dzingwa took leave and met the employee in East London. She informed the employee that she was required to return to Port St Johns. The employee advised her that she was teaching in East London and showed her a document entitled “record of understanding in respect of secondment of educators”. The employee contended that she was teaching in East London in terms of this document. The said document is an agreement between the employer and several unions, including the employee’s trade union, which seeks to regulate the secondment of educators from one school to another.
After Dzingwa had returned from leave she informed the Port St Johns office of the employee’s reliance on the said “record of understanding” but she was then again instructed to phone the employee and to inform her that she was nevertheless required to return to Port St Johns. Dzingwa spoke with the employee on the telephone during November 1998 and informed her that she had spoken to the education development officer at Port St Johns and that he did not accept the employee’s explanation and required that she nevertheless return to Port St Johns. To this the employee did not respond.
Dzingwa conceded under questioning by myself that no one had at any stage informed the employee that what she was doing was viewed by the Department as abscondment and that she risked being dismissed. (Dzingwa did attempt to change her evidence in this regard when re-examined by the Department’s representative. The less said about these attempts, however, the better.)
On or about 5 November 1998 a letter was sent to the employee by the Department requiring her to explain her absence from Nkiwilini School within seven days from the date of receipt of the letter. The letter further provides as follows:
“Indicate as well as to why your services cannot be terminated by this department, in terms of section 10(1) of Educators Employment Act, 1994"
On 4 December 1998 the employee returned to Port St Johns. She spoke with Ngewana at the district office and apologised for having been absent for such a long time. She informed him that she had been teaching at Sinovuyo High School and that she thought that she was entitled to do this as she had received a ”letter a letter of no objection” from Sharpley. Ngewana advised her to discuss the matter with the Nkiwilini School governing body.
On 8 December 1998 the employee returned to Ngewana’s office with Sharpley and members of the school governing body. They informed Ngewana that the school community accepted the employee’s apology because they felt that Sharpley, as the principal, had in fact given the employee permission to leave, in the form of the “letter of no objection”. Ngewana explained to them that a “letter of no objection”simply meant that the recipient could seek an alternative post at another school. It did not entitle the educator to leave her current post without further ado. The educator concerned was in addition required to obtain a letter of acceptance from the “receiving” school and ultimately the department would have to authorise the transfer or secondment of the educator concerned. Thereafter Ngewana requested the school governing body to provide him with a written resolution evidencing their acceptance of the employee’s reasons for her absence.
On 11 January 1999 Ngewana received a letter from the school governing body indicating that they were not in fact accepting the employee’s apology, since they felt that she had misled them as to the proper meaning of a “letter of no objection”.
On 16 February 1999 the district office received a copy of the letter addressed by the MEC’s office to the employee informing her of her dismissal. Under cross-examination Ngewana conceded that had the school governing body furnished him with a resolution to the effect that they were prepared to accept the employee back at the school, she would in all likelihood not have been dismissed. In such event her absence would have been treated as a period of leave without pay.
Sharpley testified that during February 1999, prior to the receipt of the letter informing the employee of a dismissal, the school governing body had again changed their decision and resolved that they would accept the employee back at the school. This followed the intervention of SADTU.
Sharpley conceded under cross-examination that the employee did inform her that she had received a post at Sinovuyo High School on a “loan” basis and that she (the employee) required the letter of no objection for her to start at Sinovuyo High School. Sharpley further intimated that the employee had on many previous occasions requested to be transferred to the East London area and that she was told to await the re-deployment exercise.
Nogaga’s testimony was to the following effect. He stated that the “record of understanding” referred to above was concluded to facilitate the secondment of educators who were in excess at their own schools, to other schools where there were staff shortages. The secondment however had to be initiated by the Department in consultation with the educator concerned. Such an exercise would primarily be conducted where an educator was under-utilised at his or her existing school. A secondment ultimately had to be approved by the head of the provincial department.
Nogaga further testified that during the period here in question a number of other educators had in error “seconded themselves unilaterally” in the same fashion as the employee. The same procedure was adopted with regard to them, that is their salaries were frozen and they were requested to return to their original schools. Many of these educators returned after the initial 14 day period had lapsed but were not dismissed. The difference between Kalawe’s case and the respective cases of the other educators was simply that the recommendation for the termination of her services had already been forwarded to the Provincial Department’s head office in Bisho and could therefor not be retracted.
So much for the employer’s case.
4 . THE UNION’S CASE
.1 The employee testified that she had approached Sharpley on 5 October 1998 and informed her that she had found a post at Sinovuyo High School in East London and that she wished to be seconded there. The reason for her request was that her father lived with her and that he was ill. She had to be at home in order to care for him.
.2 The employee testified that before she met with Sharpley on 5 October 1998 and at the beginning of the third term, she had explained her problems to the district manager, Ngewana, and he had indicated that she should look for a post and inform his office should she find one. She understood that the only obstacle in her being “transferred” to East London was the availability of a post.
.3 According to the employee she had learned from an education development officer in East London, one Mr Mkhosi, that she could be seconded if the school at which she was teaching released her and the school to which she sought secondment accepted her.
.4 On 5 October 1998 the employee requested Sharpley to release her so that she could go and teach at Sinovuyo High School on a secondment basis and Sharpley wrote the notorious “letter of no objection”. Sharpley knew that she was leaving on that day since she herself had called school children to assist the employee with her bags. As the employee was leaving she informed Sharpley that she would first go to the district manager to inform him that she had found a post and that she was leaving. Sharpley thereupon indicated that she also wanted to go to the district manager so that she could request a replacement teacher.
.5 At the district manager’s office the employee was informed that the district manager would not be available for at least a week and she thereupon left a copy of the “letter of no objection” with Dzingwa and requested her to hand this to the district manager upon his return. She also gave Dzingwa facsimile numbers to which her correspondence could be forwarded. No one informed her at that stage that she was not supposed to leave or that she was acting incorrectly.
.6 The employee was emphatic that the only requirements for a proper secondment that she knew of was the “letter of no objection” and the “letter of acceptance”. As to the letter of acceptance, she received such a letter from Sinovuyo School and a copy thereof was adduced in evidence. The said letter confirms that the employee “served at the above-mentioned school as a secondment teacher with effect from 06-10-98 until 30-11-98".
.7 The employee responded as follows to Dzingwa’s evidence. She received a message from Guga that Dzingwa had phoned and had requested that she returned to Port St Johns. She thereupon spoke with the aforesaid Mkhosi to ascertain what she should do. He informed her that she had “sufficient letters”.
.8 The employee met with Dzingwa towards the end of October 1998 in East London and showed her the “record of understanding”. She informed Dzingwa that her secondment was in terms of the “record of understanding”. She conceded further that Dzingwa had informed her that if she did not return she could be dismissed. She thought however that this threat was made because the Port St Johns officials did not know that her case was one of secondment and not transfer. The employee decided to await the Port St Johns officials’ reply to the contents of the “record of understanding”. She did not receive a reply and then discovered at the end of November 1998 that her salary had been frozen. She thereupon spoke to the aforesaid Mkhosi and he informed her that the process of secondment had been implemented incorrectly. He further told her that it had been decided that all educators who had been seconded should return to their original schools and he advised the employee to go back to Port St Johns.
.9 During the aforesaid period the Department did not communicate with her. In particular, she did not receive the letter referred to above which required her to explain her absence and informed her that she risked being terminated.
.10 In her evidence the employee confirmed the meeting with Ngewana on 4 December 1998 but added that he had intimated to her that he was not sure whether the process of termination could be stopped as it was at an advanced stage.
.11 The employee also confirmed that she approached the school governing body and they wanted to know why she had left. She explained to them the reason for her departure and indicated that she had the principal’s permission to leave. The school governing body was upset at the principal as she had never informed them of the true facts and had simply told them that the employee had disappeared. They then resolved to accept the employee back at the school.
.12 The employee’s evidence as to the further events are in material respects similar to that of the department’s witnesses.
.13 On 8 February 1999 the employee was informed by the school governing body that she should return to work. She immediately resumed her employment and worked until she received a letter informing her of the termination of her services at the end of February 1999.
5 .ASSESSMENT OF THE EVIDENCE AND ARGUMENT
.1 The employer justifies the termination of the employee’s services by invoking Section 14 of the Employment of Educators Act, No. 76 of 1998. That Section provides as follows:
“14. Certain educators deemed to be discharged -
[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] and [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] and [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 reinstatement 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.” (My emphasis)
.2 The word “deemed” has been held by our courts to have different meanings depending on the context in which it is used. In SV Rosenthal 1981 SA 65A at 75 G to 76 A Trollip JA, writing for the court, held as follows:
“The words “shall be deemed” (“word geag”) in the signed, Afrikaans text) are a familiar and useful expression often used in legislation in order to predicate that a certain subject-matter, e.g. a person, thing, situation, or matter, shall be regarded or accepted for the purpose of the statute in question as being of a particular, specified kind whether or not the subject-matter is ordinarily of that kind. The expression has no technical or uniform connotation. Its precise meaning, and especially its effect, must be ascertained from its context and the ordinary cannons of construction. Some of the usual meanings and effect it can have are the following. That which is deemed shall be regarded or accepted:
[i] as being exhaustive of the subject-matter in question and thus excluding what would or might otherwise have been included therein but for the deeming, or
[ii] in contra-distinction thereto, as being merely supplementary, i.e. extending and not curtailing what the subject-matter includes, or
[iii] as being conclusive or irrebuttable, or
[iv] contrarily thereto, as being merely “prima facie” or rebuttable.”
.3 The question is whether the expression “shall .... be deemed to have been discharged from service” means that on the happening of the specified event (that is, in casu, where the educator is absent from work for a period exceeding 14 consecutive days without permission of the employer) the educator is “ipso iure” dismissed, or whether the expression simply denotes a rebuttable presumption that the educator has absconded and that the employment relationship has therefore terminated.
.4 It is a salutary rule of statutory construction that where a provision is ambiguous it should not be given a meaning that would lead to absurd results. So for instance, the legislature could not have contemplated that a educator who is absent without leave in circumstances in regard to which he or she is entirely blameless and where the reasons for such absence could not have been communicated to the employer timeously, should be irrebutably presumed to have been discharged. This is no doubt why Section 14(2) of the said Act provides for the reinstatement of an educator who can show good cause for his or her absence.
.5 The purpose of the provision, it seems, is to allow the employer, on the happening of the specified event, to arrange its affairs on the basis that that which is deemed to be so, i.e. that the educator has been discharged, is in fact so. There are undoubtedly compelling reasons why the education authorities should want to deal with presumed desertion in an expeditious fashion. Section 14 empowers the education authorities to deal with such cases in a practical and quick manner.
.6 It seems clear that on a proper construction the expression “shall .... be deemed to have been discharged from service” has the meaning and effect of a rebuttable presumption, and that it is open to the employee to show that the employment relationship has not in fact terminated as a result of abscondment.
.7 It is trite that in our law a dismissal of an employee is required to be substantively and procedurally fair. In this regard Section 185 of the Labour Relations Act No. 66 of 1995 provides that “every employee has the right not to be unfairly dismissed.” Educators are not excluded from the application of the Act and they too have this right. Section 188 of the Labour Relations Act reads as follows:
“A dismissal that is not automatically unfair, is unfair if the employer fails to prove -
[a] That the reason for a dismissal is a fair reason -
[i] related to the employee’s conduct or capacity; or
[ii] based on the employer’s operational requirements; and
[b] that the dismissal was effected in accordance with a fair procedure.”
.8 Any enquiry into the fairness of a dismissal must perforce be preceded by the question whether or not there has been a dismissal in the first instance. If it is found that the educator in casu deserted her employment then there has been no dismissal and the fairness or otherwise of such dismissal self-evidently does not arise. The presumption of the employee’s discharge would then not have been rebutted.
.9 Section 192(2) of the Labour Relations Act provides that once the existence of the dismissal is established the employer must prove that the dismissal is fair. The onus is on the employee to establish that the he/she was in fact dismissed. The onus must be discharged on a balance of probabilities. (See John Grogan, Workplace Law 4th Edition, Juta and Company Limited, 1999 at p109 and p142).
.10 In casu a statutory influence of desertion arises by virtue of the provisions of Section 14 of the Educators Employment Act since the employee had been absent without the department’s permission for a period of more than 14 consecutive days. The total period of her unauthorised absence was 47 days. As indicated above the presumption of discharge may be rebutted by proof on a balance of probabilities that the employee had not intended to desert her employment. The determination of the employee’s intention is a factual question which must be judged in the light of the totality of circumstances prevailing at the time of her absence.
.11 It is appropriate at this stage to make certain observations regarding the quality of the evidence adduced before me. Sharpley and Dzingwa did not impress me as witnesses. They changed crucial aspects of their evidence almost at will and it proved particularly cumbersome and time-consuming to extract relevant information from Sharpley. Indeed I reprimanded her on a number of occasions for being coy and unresponsive. The employee, on the other hand, spoke frankly, her demeanour was good and her evidence was free of any material contradictions. In the result I prefer the evidence of the employee to that of Dzingwa and Sharpley where there is a conflict.
.12 It will be recalled that the employee testified that she had been told by an education development officer employed by the department in East London that she could in terms of the record of understanding “second” from Nkiwilini School to Sinovuyo School. The only requirements in this regard were that she had to obtain a letter of no objection from Nkiwilini School and a letter of acceptance from Sinovuyo School. She duly complied with these requirements.
.13 I have no hesitation in accepting that when the employee left Port St Johns on 5 October 1998 Sharpley knew, or must have known, that the employee was leaving because she understood that she was entitled to do so by virtue of the letter of no objection. I also accept that Sharpley knew that the grievant would be teaching at Sinovuyo School.
.14 It is accordingly clear to me that on 5 October 1998 the employee had no intention to desert her employment. She honestly thought that she was entitled to assume a different position within the same provincial department, for the reasons stated above.
.15 Did this position change from the time that the employee left Nkiwilini School on 5 October 1998 to the time when she returned to the Port St Johns district office on 4 December 1998?
.16 On the evidence before me it cannot be said that the employee had, subsequent to her departure from Port St Johns, formed the intention to abandon her employment. Apart from the fact that she was still working for the same employer, albeit in a different location, the employee had met with Dzingwa and had explained to her that she relied on the “record of understanding”. She had given Dzingwa a copy of this document to show to the relevant officials. She thereafter received no further communication regarding the matter and first realised that something was amiss when she discovered that her salary had been frozen at the end of November 1998. At that stage she returned to Port St Johns to establish the reasons for her salary being stopped. I concluded therefore that the employee at no stage had the intention to abscond or abandon her employment.
.17 That being so, I find that the employee was in fact dismissed by the department by virtue of the letter issued to her in February 1999.
.18 As indicated above, once the employee has discharged the onus of proving that she was dismissed, the employer is required to prove that the dismissal was fair. In this regard the employer must firstly prove that the reason for the dismissal is a fair reason related to the employee’s conduct or capacity or based on the employer’s operational requirements (See Section 188 of the Labour Relations Act, supra). This issue was in a sense foreshadowed by the treatment of the question whether or not the employee had absconded.
.19 It is clear that the employer in casu relies on the employee’s conduct as justification for the dismissal. As indicated above the employee was absent without leave for a period of 47 days. The employee’s reasons for her absence were discussed above. It is clear to me that in the circumstances of the case it was not improbable for the employee to have thought that she was entitled to assume a position at Sinovuyo High School. Nogaga confirmed that, as indicated above, a number of educators in the regional area under which Port St Johns district falls, had also misunderstood the meaning and effect of the record of understanding. Indeed, it seems that the employee’s trade union, SADTU, had laboured under the same mis-apprehension. To make matters worse a reasonable senior employee of the department, namely the aforesaid education development officer at East London, Mkhosi, was the source of the employee’s misunderstanding of the said document. The employee had in good faith acted on his advice.
.20 I find therefor that there were good and compelling reasons for the employee’s absence from Nkiwilini School during the period 5 October 1998 to 4 December 1998.
.21 But even if one accepts that the employee’s absence without leave was not for a valid reason and that the employee was therefor guilty of misconduct, the sanction imposed on her was particularly harsh in the circumstances. All the other educators who had acted in the same manner as the employee did not suffer a similar fate. They were not dismissed. According to Nogaga what distinguished the employee from these other educators was the fact that the “processing of her termination forms” was at an advanced stage, in that it had already been submitted to Bisho by the time that representations were made on her behalf. Such a basis for drawing a distinction between the employee and the said other educators is capricious, arbitrary and simply not justifiable. It is clear that the department had acted inconsistently towards the employee. For this reason, too, the dismissal was substantively unfair.
.22 The issue of procedural unfairness is very simply disposed of. No procedure whatsoever had been followed to deal with the employee’s alleged misconduct. The department did not institute disciplinary proceedings or hold any enquiry to determine the reasons for the grievant’s absence and to consider whether her conduct should be visited with the sanction of dismissal. In the circumstances the dismissal is also procedurally unfair.
.23 The natural remedy for a substantive unfair dismissal is of course reinstatement. The Department did not contend that reinstatement would be inequitable, and I can think of no reason why it would be an inappropriate remedy. I propose however not to make the award fully retrospective as the employee was, to an extent, the author of her own misfortune. There was also a dely between the conclusion of the proceedings on 23 January 2000 and the handing down of this award for which the blame cannot entirely be placed at the door of the employer.
6 . AWARD
In the circumstances I make the following award:
.1 The employee is hereby reinstated in her employment with the department from the date of this award retrospectively to 1 July 1999.
.2 The employee must report for duty at the Port St Johns districts office of the Department within seven (7) days of the date of this award. Should the employee’s post at Nkiwilini Senior Primary School have been filled in the interim, the department may treat the employee as an educator in excess of the educator establishment at Nkiwilini Senior Primary School and may deal with her in terms of the department’s re-deployment process.
.3 The department shall pay the employee the remuneration due to her for the period 1 July 1999 to the date of this award, within thirty (30) days of the date hereof.
Dated at East London this 22nd day of March 2000.
________________________
ARBITRATOR
F.W. PRETORIUS
Date: 22 MARCH 2000
EDUCATION LABOUR RELATIONS COUNCIL
ARBITRATION AWARD
CASE NUMBER PSES EC
APPLICANT L KALAWE
RESPONDENT DEPARTMENT OF EDUCATION
NATURE UNFAIR DISMISSAL / MISCONDUCT
ARBITRATOR F W PRETORIUS
DATE OF ARBITRATION
VENUE EAST LONDON
REPRESENTATION:
APPLICANT MR V MPAYEPELI (SADTU)
RESPONDENT MISS T POSWA
AWARD:
1 In the circumstances I make the following award:
1.1 The employee is hereby reinstated in her employment with the department from the date of this award retrospectively to 1 July 1999.
1.2 The employee must report for duty at the Port St Johns districts office of the Department within seven (7) days of the date of this award. Should the employee’s post at Nkiwilini Senior Primary School have been filled in the interim, the department may treat the employee as an educator in excess of the educator establishment at Nkiwilini Senior Primary School and may deal with her in terms of the department’s re-deployment process.
1.3 The department shall pay the employee the remuneration due to her for the period 1 July 1999 to the date of this award, within thirty (30) days of the date hereof.
DATE OF AWARD 22 MARCH 2000
Province: Eastern Cape
Applicant: L KALAWE
Respondent: DEPARTMENT OF EDUCATION
Issue: Unfair Dismissal - Misconduct
Venue: EAST LONDON
Award Date: 22 March 2000
Arbitrator: F W PRETORIUS
EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER :PSES EC
In the arbitration between:
L KALAWE (represented by SADTU) APPLICANT
and
EASTERN CAPE DEPARTMENT OF EDUCATION RESPONDENT
ARBITRATOR’S AWARD
1 . INTRODUCTORY
.1 The matter came before me as a submission to arbitration under a collective agreement concluded by the Education Labour Relations Council, a Bargaining Council as defined in the Labour Relations Act, number 66 of 1995. My terms of reference simply require me to “arbitrate the dispute” referred to me and “to award a remedy which (I)consider fair and/or appropriate in order to settle the dispute”. The parties agreed that the dispute which was referred to me for arbitration was whether or not the employee’s services had been fairly terminated.
2 .THE BACKGROUND
.1 The following emerges from the facts that are common cause and undisputed testimony.
.2 Kalawe was employed as an educator by the Department at Nkiwilini Senior Primary School, Port St Johns.
.3 On 5 October 1998 the employee received a “letter of no objection” from the principal of Nkiwilini School and she promptly left for East London where she began teaching at Sinovuyo High School. There is considerable dispute about the proper meaning of this “letter of no objection”, to which matter I will pay further reference below. Suffice it to say that the employee took this letter as authorising her secondment to Sinovuyo High School.
.4 Subsequently attempts were made to secure the return of the employee to Nkiwilini Senior Primary School but when this proved fruitless by 29 October 1998 the school recommended that her services be terminated on the ground of abscondment.
.5 The employee’s salary was stopped by the Department during November 1998 and on 4 December 1998 she reported to the district manager, at the Department’s Port St Johns’ District Office.
.6 The employee contended that she had misunderstood the meaning and effect of the “letter to no objection”. A number of meetings and interventions followed, including the involvement of the employee’s trade union, SADTU, but the Department would not relent and during February 1999 the employee was informed in writing that she had been dismissed with effect from 6 October 1998 for abscondment in terms of section 14(1)(a) of the Employment of Educators Act of 1998.
3 . THE DEPARTMENT’S CASE
.1 The Department adduced the evidence of Fenwick Afrika Ngewana, the district manager at Port St Johns, Mandisa Dzingwa a chief provisioning admin clerk at the Port St John’s district office Nomaza Sharpley, the principal of Nkiwilini Senior Primary School, and Tiyo Nogaga, a deputy director of human resources in the regional office, eastern region of the Department. Their evidence is to the following effect.
On 23 August 1998 the employee found the Union representative at Nkiwilini Senior Primary School, one Mrs Ndwara, and informed Ndwara that her house in East London had been burgled. Although the employee taught at Nkiwilini School in Port St Johns, her permanent residence was in East London. The employee was then given leave of absence to attend to the matter.
On 5 October 1998 the employee returned to Nkiwilini School and asked Sharpley to issue her with a “letter of no objection”. The employee said that she wanted to transfer to another school in the East London area as her father was not well and she wanted to be near her home.
Sharpley advised her to go to the district manager to discuss the problem with him. According to Sharpley she also informed the employee that before she could leave Nkiwilini School for another school she had to obtain a letter from such other school accepting her as an educator, and that the district manager had to consent to her proposed transfer.
Sharpley and the employee then went to the district office to discuss the matter with the district manager. The district manager was however not available and Sharpley then informed the employee that she should not leave for East London on that day but should wait until she had discussed the matter with the district manager. The employee was adamant that she would be leaving for East London but eventually agreed not to leave.
On further questioning by the Department’s representative Sharpley indicated that the purpose of the visit to the district manager was to report to him that the employee was leaving for Sinovuyo School and to seek a replacement teacher.
Sharpley later requested Ndwara to phone the employee and to inform her that she should return to Nkiwilini School. Ndwara thereafter reported to Sharpley that she could not get hold of the employee. Towards the end of October 1998, according to Sharpley, she asked Dzingwa to convey the said message to the employee. I will deal with Dzingwa’s evidence in this regard below.
When by 29 October 1998 the employee had not returned to Nkiwilini School, Sharpley wrote to the district office, recommending that the employee’s salary be “frozen” and that her services be terminated.
Upon receipt of the aforesaid recommendation Ngewana asked the regional office of the department to “freeze” the employee’s salary. The Department’s circuit manager then requested Dzingwa, an acquaintance of the employee, to establish her whereabouts and to inform her that she should return to Port St Johns. Dzingwa testified that she had first been asked by Sharpley on 6 October 1998 to contact the employee. She attempted to phone the employee but could not get hold of her and then left a message with a Mr Guga, an employee at the department’s East London offices. She did this because the employee did not have a telephone at her home and had asked Dzingwa, before she had left Port St Johns, to forward any messages to Guga. Dzingwa informed Guga that the employee should return to Nkiwilini High School.
On 8 October 1998 she phoned again and left the same message with Guga.
During October 1998 Dzingwa took leave and met the employee in East London. She informed the employee that she was required to return to Port St Johns. The employee advised her that she was teaching in East London and showed her a document entitled “record of understanding in respect of secondment of educators”. The employee contended that she was teaching in East London in terms of this document. The said document is an agreement between the employer and several unions, including the employee’s trade union, which seeks to regulate the secondment of educators from one school to another.
After Dzingwa had returned from leave she informed the Port St Johns office of the employee’s reliance on the said “record of understanding” but she was then again instructed to phone the employee and to inform her that she was nevertheless required to return to Port St Johns. Dzingwa spoke with the employee on the telephone during November 1998 and informed her that she had spoken to the education development officer at Port St Johns and that he did not accept the employee’s explanation and required that she nevertheless return to Port St Johns. To this the employee did not respond.
Dzingwa conceded under questioning by myself that no one had at any stage informed the employee that what she was doing was viewed by the Department as abscondment and that she risked being dismissed. (Dzingwa did attempt to change her evidence in this regard when re-examined by the Department’s representative. The less said about these attempts, however, the better.)
On or about 5 November 1998 a letter was sent to the employee by the Department requiring her to explain her absence from Nkiwilini School within seven days from the date of receipt of the letter. The letter further provides as follows:
“Indicate as well as to why your services cannot be terminated by this department, in terms of section 10(1) of Educators Employment Act, 1994"
On 4 December 1998 the employee returned to Port St Johns. She spoke with Ngewana at the district office and apologised for having been absent for such a long time. She informed him that she had been teaching at Sinovuyo High School and that she thought that she was entitled to do this as she had received a ”letter a letter of no objection” from Sharpley. Ngewana advised her to discuss the matter with the Nkiwilini School governing body.
On 8 December 1998 the employee returned to Ngewana’s office with Sharpley and members of the school governing body. They informed Ngewana that the school community accepted the employee’s apology because they felt that Sharpley, as the principal, had in fact given the employee permission to leave, in the form of the “letter of no objection”. Ngewana explained to them that a “letter of no objection”simply meant that the recipient could seek an alternative post at another school. It did not entitle the educator to leave her current post without further ado. The educator concerned was in addition required to obtain a letter of acceptance from the “receiving” school and ultimately the department would have to authorise the transfer or secondment of the educator concerned. Thereafter Ngewana requested the school governing body to provide him with a written resolution evidencing their acceptance of the employee’s reasons for her absence.
On 11 January 1999 Ngewana received a letter from the school governing body indicating that they were not in fact accepting the employee’s apology, since they felt that she had misled them as to the proper meaning of a “letter of no objection”.
On 16 February 1999 the district office received a copy of the letter addressed by the MEC’s office to the employee informing her of her dismissal. Under cross-examination Ngewana conceded that had the school governing body furnished him with a resolution to the effect that they were prepared to accept the employee back at the school, she would in all likelihood not have been dismissed. In such event her absence would have been treated as a period of leave without pay.
Sharpley testified that during February 1999, prior to the receipt of the letter informing the employee of a dismissal, the school governing body had again changed their decision and resolved that they would accept the employee back at the school. This followed the intervention of SADTU.
Sharpley conceded under cross-examination that the employee did inform her that she had received a post at Sinovuyo High School on a “loan” basis and that she (the employee) required the letter of no objection for her to start at Sinovuyo High School. Sharpley further intimated that the employee had on many previous occasions requested to be transferred to the East London area and that she was told to await the re-deployment exercise.
Nogaga’s testimony was to the following effect. He stated that the “record of understanding” referred to above was concluded to facilitate the secondment of educators who were in excess at their own schools, to other schools where there were staff shortages. The secondment however had to be initiated by the Department in consultation with the educator concerned. Such an exercise would primarily be conducted where an educator was under-utilised at his or her existing school. A secondment ultimately had to be approved by the head of the provincial department.
Nogaga further testified that during the period here in question a number of other educators had in error “seconded themselves unilaterally” in the same fashion as the employee. The same procedure was adopted with regard to them, that is their salaries were frozen and they were requested to return to their original schools. Many of these educators returned after the initial 14 day period had lapsed but were not dismissed. The difference between Kalawe’s case and the respective cases of the other educators was simply that the recommendation for the termination of her services had already been forwarded to the Provincial Department’s head office in Bisho and could therefor not be retracted.
So much for the employer’s case.
4 . THE UNION’S CASE
.1 The employee testified that she had approached Sharpley on 5 October 1998 and informed her that she had found a post at Sinovuyo High School in East London and that she wished to be seconded there. The reason for her request was that her father lived with her and that he was ill. She had to be at home in order to care for him.
.2 The employee testified that before she met with Sharpley on 5 October 1998 and at the beginning of the third term, she had explained her problems to the district manager, Ngewana, and he had indicated that she should look for a post and inform his office should she find one. She understood that the only obstacle in her being “transferred” to East London was the availability of a post.
.3 According to the employee she had learned from an education development officer in East London, one Mr Mkhosi, that she could be seconded if the school at which she was teaching released her and the school to which she sought secondment accepted her.
.4 On 5 October 1998 the employee requested Sharpley to release her so that she could go and teach at Sinovuyo High School on a secondment basis and Sharpley wrote the notorious “letter of no objection”. Sharpley knew that she was leaving on that day since she herself had called school children to assist the employee with her bags. As the employee was leaving she informed Sharpley that she would first go to the district manager to inform him that she had found a post and that she was leaving. Sharpley thereupon indicated that she also wanted to go to the district manager so that she could request a replacement teacher.
.5 At the district manager’s office the employee was informed that the district manager would not be available for at least a week and she thereupon left a copy of the “letter of no objection” with Dzingwa and requested her to hand this to the district manager upon his return. She also gave Dzingwa facsimile numbers to which her correspondence could be forwarded. No one informed her at that stage that she was not supposed to leave or that she was acting incorrectly.
.6 The employee was emphatic that the only requirements for a proper secondment that she knew of was the “letter of no objection” and the “letter of acceptance”. As to the letter of acceptance, she received such a letter from Sinovuyo School and a copy thereof was adduced in evidence. The said letter confirms that the employee “served at the above-mentioned school as a secondment teacher with effect from 06-10-98 until 30-11-98".
.7 The employee responded as follows to Dzingwa’s evidence. She received a message from Guga that Dzingwa had phoned and had requested that she returned to Port St Johns. She thereupon spoke with the aforesaid Mkhosi to ascertain what she should do. He informed her that she had “sufficient letters”.
.8 The employee met with Dzingwa towards the end of October 1998 in East London and showed her the “record of understanding”. She informed Dzingwa that her secondment was in terms of the “record of understanding”. She conceded further that Dzingwa had informed her that if she did not return she could be dismissed. She thought however that this threat was made because the Port St Johns officials did not know that her case was one of secondment and not transfer. The employee decided to await the Port St Johns officials’ reply to the contents of the “record of understanding”. She did not receive a reply and then discovered at the end of November 1998 that her salary had been frozen. She thereupon spoke to the aforesaid Mkhosi and he informed her that the process of secondment had been implemented incorrectly. He further told her that it had been decided that all educators who had been seconded should return to their original schools and he advised the employee to go back to Port St Johns.
.9 During the aforesaid period the Department did not communicate with her. In particular, she did not receive the letter referred to above which required her to explain her absence and informed her that she risked being terminated.
.10 In her evidence the employee confirmed the meeting with Ngewana on 4 December 1998 but added that he had intimated to her that he was not sure whether the process of termination could be stopped as it was at an advanced stage.
.11 The employee also confirmed that she approached the school governing body and they wanted to know why she had left. She explained to them the reason for her departure and indicated that she had the principal’s permission to leave. The school governing body was upset at the principal as she had never informed them of the true facts and had simply told them that the employee had disappeared. They then resolved to accept the employee back at the school.
.12 The employee’s evidence as to the further events are in material respects similar to that of the department’s witnesses.
.13 On 8 February 1999 the employee was informed by the school governing body that she should return to work. She immediately resumed her employment and worked until she received a letter informing her of the termination of her services at the end of February 1999.
5 .ASSESSMENT OF THE EVIDENCE AND ARGUMENT
.1 The employer justifies the termination of the employee’s services by invoking Section 14 of the Employment of Educators Act, No. 76 of 1998. That Section provides as follows:
“14. Certain educators deemed to be discharged -
[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] and [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] and [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 reinstatement 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.” (My emphasis)
.2 The word “deemed” has been held by our courts to have different meanings depending on the context in which it is used. In SV Rosenthal 1981 SA 65A at 75 G to 76 A Trollip JA, writing for the court, held as follows:
“The words “shall be deemed” (“word geag”) in the signed, Afrikaans text) are a familiar and useful expression often used in legislation in order to predicate that a certain subject-matter, e.g. a person, thing, situation, or matter, shall be regarded or accepted for the purpose of the statute in question as being of a particular, specified kind whether or not the subject-matter is ordinarily of that kind. The expression has no technical or uniform connotation. Its precise meaning, and especially its effect, must be ascertained from its context and the ordinary cannons of construction. Some of the usual meanings and effect it can have are the following. That which is deemed shall be regarded or accepted:
[i] as being exhaustive of the subject-matter in question and thus excluding what would or might otherwise have been included therein but for the deeming, or
[ii] in contra-distinction thereto, as being merely supplementary, i.e. extending and not curtailing what the subject-matter includes, or
[iii] as being conclusive or irrebuttable, or
[iv] contrarily thereto, as being merely “prima facie” or rebuttable.”
.3 The question is whether the expression “shall .... be deemed to have been discharged from service” means that on the happening of the specified event (that is, in casu, where the educator is absent from work for a period exceeding 14 consecutive days without permission of the employer) the educator is “ipso iure” dismissed, or whether the expression simply denotes a rebuttable presumption that the educator has absconded and that the employment relationship has therefore terminated.
.4 It is a salutary rule of statutory construction that where a provision is ambiguous it should not be given a meaning that would lead to absurd results. So for instance, the legislature could not have contemplated that a educator who is absent without leave in circumstances in regard to which he or she is entirely blameless and where the reasons for such absence could not have been communicated to the employer timeously, should be irrebutably presumed to have been discharged. This is no doubt why Section 14(2) of the said Act provides for the reinstatement of an educator who can show good cause for his or her absence.
.5 The purpose of the provision, it seems, is to allow the employer, on the happening of the specified event, to arrange its affairs on the basis that that which is deemed to be so, i.e. that the educator has been discharged, is in fact so. There are undoubtedly compelling reasons why the education authorities should want to deal with presumed desertion in an expeditious fashion. Section 14 empowers the education authorities to deal with such cases in a practical and quick manner.
.6 It seems clear that on a proper construction the expression “shall .... be deemed to have been discharged from service” has the meaning and effect of a rebuttable presumption, and that it is open to the employee to show that the employment relationship has not in fact terminated as a result of abscondment.
.7 It is trite that in our law a dismissal of an employee is required to be substantively and procedurally fair. In this regard Section 185 of the Labour Relations Act No. 66 of 1995 provides that “every employee has the right not to be unfairly dismissed.” Educators are not excluded from the application of the Act and they too have this right. Section 188 of the Labour Relations Act reads as follows:
“A dismissal that is not automatically unfair, is unfair if the employer fails to prove -
[a] That the reason for a dismissal is a fair reason -
[i] related to the employee’s conduct or capacity; or
[ii] based on the employer’s operational requirements; and
[b] that the dismissal was effected in accordance with a fair procedure.”
.8 Any enquiry into the fairness of a dismissal must perforce be preceded by the question whether or not there has been a dismissal in the first instance. If it is found that the educator in casu deserted her employment then there has been no dismissal and the fairness or otherwise of such dismissal self-evidently does not arise. The presumption of the employee’s discharge would then not have been rebutted.
.9 Section 192(2) of the Labour Relations Act provides that once the existence of the dismissal is established the employer must prove that the dismissal is fair. The onus is on the employee to establish that the he/she was in fact dismissed. The onus must be discharged on a balance of probabilities. (See John Grogan, Workplace Law 4th Edition, Juta and Company Limited, 1999 at p109 and p142).
.10 In casu a statutory influence of desertion arises by virtue of the provisions of Section 14 of the Educators Employment Act since the employee had been absent without the department’s permission for a period of more than 14 consecutive days. The total period of her unauthorised absence was 47 days. As indicated above the presumption of discharge may be rebutted by proof on a balance of probabilities that the employee had not intended to desert her employment. The determination of the employee’s intention is a factual question which must be judged in the light of the totality of circumstances prevailing at the time of her absence.
.11 It is appropriate at this stage to make certain observations regarding the quality of the evidence adduced before me. Sharpley and Dzingwa did not impress me as witnesses. They changed crucial aspects of their evidence almost at will and it proved particularly cumbersome and time-consuming to extract relevant information from Sharpley. Indeed I reprimanded her on a number of occasions for being coy and unresponsive. The employee, on the other hand, spoke frankly, her demeanour was good and her evidence was free of any material contradictions. In the result I prefer the evidence of the employee to that of Dzingwa and Sharpley where there is a conflict.
.12 It will be recalled that the employee testified that she had been told by an education development officer employed by the department in East London that she could in terms of the record of understanding “second” from Nkiwilini School to Sinovuyo School. The only requirements in this regard were that she had to obtain a letter of no objection from Nkiwilini School and a letter of acceptance from Sinovuyo School. She duly complied with these requirements.
.13 I have no hesitation in accepting that when the employee left Port St Johns on 5 October 1998 Sharpley knew, or must have known, that the employee was leaving because she understood that she was entitled to do so by virtue of the letter of no objection. I also accept that Sharpley knew that the grievant would be teaching at Sinovuyo School.
.14 It is accordingly clear to me that on 5 October 1998 the employee had no intention to desert her employment. She honestly thought that she was entitled to assume a different position within the same provincial department, for the reasons stated above.
.15 Did this position change from the time that the employee left Nkiwilini School on 5 October 1998 to the time when she returned to the Port St Johns district office on 4 December 1998?
.16 On the evidence before me it cannot be said that the employee had, subsequent to her departure from Port St Johns, formed the intention to abandon her employment. Apart from the fact that she was still working for the same employer, albeit in a different location, the employee had met with Dzingwa and had explained to her that she relied on the “record of understanding”. She had given Dzingwa a copy of this document to show to the relevant officials. She thereafter received no further communication regarding the matter and first realised that something was amiss when she discovered that her salary had been frozen at the end of November 1998. At that stage she returned to Port St Johns to establish the reasons for her salary being stopped. I concluded therefore that the employee at no stage had the intention to abscond or abandon her employment.
.17 That being so, I find that the employee was in fact dismissed by the department by virtue of the letter issued to her in February 1999.
.18 As indicated above, once the employee has discharged the onus of proving that she was dismissed, the employer is required to prove that the dismissal was fair. In this regard the employer must firstly prove that the reason for the dismissal is a fair reason related to the employee’s conduct or capacity or based on the employer’s operational requirements (See Section 188 of the Labour Relations Act, supra). This issue was in a sense foreshadowed by the treatment of the question whether or not the employee had absconded.
.19 It is clear that the employer in casu relies on the employee’s conduct as justification for the dismissal. As indicated above the employee was absent without leave for a period of 47 days. The employee’s reasons for her absence were discussed above. It is clear to me that in the circumstances of the case it was not improbable for the employee to have thought that she was entitled to assume a position at Sinovuyo High School. Nogaga confirmed that, as indicated above, a number of educators in the regional area under which Port St Johns district falls, had also misunderstood the meaning and effect of the record of understanding. Indeed, it seems that the employee’s trade union, SADTU, had laboured under the same mis-apprehension. To make matters worse a reasonable senior employee of the department, namely the aforesaid education development officer at East London, Mkhosi, was the source of the employee’s misunderstanding of the said document. The employee had in good faith acted on his advice.
.20 I find therefor that there were good and compelling reasons for the employee’s absence from Nkiwilini School during the period 5 October 1998 to 4 December 1998.
.21 But even if one accepts that the employee’s absence without leave was not for a valid reason and that the employee was therefor guilty of misconduct, the sanction imposed on her was particularly harsh in the circumstances. All the other educators who had acted in the same manner as the employee did not suffer a similar fate. They were not dismissed. According to Nogaga what distinguished the employee from these other educators was the fact that the “processing of her termination forms” was at an advanced stage, in that it had already been submitted to Bisho by the time that representations were made on her behalf. Such a basis for drawing a distinction between the employee and the said other educators is capricious, arbitrary and simply not justifiable. It is clear that the department had acted inconsistently towards the employee. For this reason, too, the dismissal was substantively unfair.
.22 The issue of procedural unfairness is very simply disposed of. No procedure whatsoever had been followed to deal with the employee’s alleged misconduct. The department did not institute disciplinary proceedings or hold any enquiry to determine the reasons for the grievant’s absence and to consider whether her conduct should be visited with the sanction of dismissal. In the circumstances the dismissal is also procedurally unfair.
.23 The natural remedy for a substantive unfair dismissal is of course reinstatement. The Department did not contend that reinstatement would be inequitable, and I can think of no reason why it would be an inappropriate remedy. I propose however not to make the award fully retrospective as the employee was, to an extent, the author of her own misfortune. There was also a dely between the conclusion of the proceedings on 23 January 2000 and the handing down of this award for which the blame cannot entirely be placed at the door of the employer.
6 . AWARD
In the circumstances I make the following award:
.1 The employee is hereby reinstated in her employment with the department from the date of this award retrospectively to 1 July 1999.
.2 The employee must report for duty at the Port St Johns districts office of the Department within seven (7) days of the date of this award. Should the employee’s post at Nkiwilini Senior Primary School have been filled in the interim, the department may treat the employee as an educator in excess of the educator establishment at Nkiwilini Senior Primary School and may deal with her in terms of the department’s re-deployment process.
.3 The department shall pay the employee the remuneration due to her for the period 1 July 1999 to the date of this award, within thirty (30) days of the date hereof.
Dated at East London this 22nd day of March 2000.
________________________
ARBITRATOR
F.W. PRETORIUS
Date: 22 MARCH 2000
EDUCATION LABOUR RELATIONS COUNCIL
ARBITRATION AWARD
CASE NUMBER PSES EC
APPLICANT L KALAWE
RESPONDENT DEPARTMENT OF EDUCATION
NATURE UNFAIR DISMISSAL / MISCONDUCT
ARBITRATOR F W PRETORIUS
DATE OF ARBITRATION
VENUE EAST LONDON
REPRESENTATION:
APPLICANT MR V MPAYEPELI (SADTU)
RESPONDENT MISS T POSWA
AWARD:
1 In the circumstances I make the following award:
1.1 The employee is hereby reinstated in her employment with the department from the date of this award retrospectively to 1 July 1999.
1.2 The employee must report for duty at the Port St Johns districts office of the Department within seven (7) days of the date of this award. Should the employee’s post at Nkiwilini Senior Primary School have been filled in the interim, the department may treat the employee as an educator in excess of the educator establishment at Nkiwilini Senior Primary School and may deal with her in terms of the department’s re-deployment process.
1.3 The department shall pay the employee the remuneration due to her for the period 1 July 1999 to the date of this award, within thirty (30) days of the date hereof.
DATE OF AWARD 22 MARCH 2000