PSES305-16/17EC

Award  Date:

25 March 2021

IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD AT GRAHAMSTOWN / MAKHANDA
Case No PSES305-16/17EC
In the matter between

Nontle Nako Applicant

and

Provincial Department of Education: Eastern Cape Respondent


ARBITRATION AWARD


ARBITRATOR: JC Robertson
HEARD: 13 02 2017; 31 05 2017, 1 & 2 06 2017; 18, 19 & 20 10 2017; 16 03 2018; 20 & 21 06 2018; 26 09 2018; 5 & 7 12 2018; 27 & 28 03 2019; 10 & 12 04 2019; 22 & 23 08 2019; 21 & 24 10 2019; 19, 20 & 21 02 2020; 11 & 18 09 2020; 21 10 2020
FINALISED: 29 01 2021
DELIVERED: 25 03 2021

SUMMARY: Labour Relations Act 66 of 1995 – Section 186(1)(a) – Unfair Dismissal Dispute; Employment of Educators Act No 76 of 1998 – Section 18(1)(j) – Gross misconduct - absence from work without valid reason during the period 28 11 2007 - May 2015.
Employment of Educators Act No 76 of 1998 – Section 18(1)(f)-Gross misconduct and/or dereliction of duty - unjustifiably prejudiced the administration, discipline or efficiency of the department of education, by your continued absence from the workplace despite your leave application having been refused.



DETAILS OF HEARNG AND REPRESENTATION
1. This matter was set down for arbitration in terms of section 191(5)(a)(i) of the Labour Relations Act, No 66 of 1995 as amended (LRA). The hearings were held at the district office of the Provincial Department of Education in Grahamstown / Makhanda and the latest hearings via zoom, on the dates set out above. Advocate Dyke SC instructed by Mr Jessop of Brown Braude & Vlok Attorneys represented Dr Nontle Nako (the applicant). Adv S Collett instructed by the State Attorney, East London, represented the Provincial Department of Education: Eastern Cape (the Respondent). The proceedings were digitally recorded. The matter was finalised on 29 January 2021 when the parties submitted written closing arguments. I requested an extension to submit my award.

THE ISSUE TO BE DETERMINED
2. I am required to determine whether the applicant’s dismissal was for a fair reason, both procedurally and substantively, and dependent thereon, appropriate relief.

BACKGROUND
3. The Provincial Department of Education Eastern Cape employed the applicant as a Deputy Chief Education Specialist (DCES) Special Needs educator based at the Grahamstown District Office. Prior to coming to Grahamstown, and while in the employ of the respondent at Bizana the applicant had been granted leave to attend and had obtained a Master’s Degree in Counselling Psychology at Western Michigan University (WMU) , United States of America (USA). The applicant graduated in December 2005 and returned to South Africa.

4. During 2007 the applicant, now working at the Grahamstown district office, sought leave to attend a doctoral programme at WMU and left South Africa on 18 August 2007 to commence her studies at WMU.

5. During the period 19 08 2007 to 30 04 2015 the applicant attended at and obtained a doctoral (PhD) degree from WMU, USA.

6. While overseas, the applicant was given notice to attend a disciplinary inquiry on 6 April 2012. This hearing was not held and was abandoned by the respondent. The applicant was again charged after her return in 2015 and subsequently dismissed on 07 07 2016.

7. The applicant initially applied for leave for the period 15 08 2007 to 01 12 2007 (78 calendar days) . This was granted (21 08 2007) on full pay , after she had left for the USA. In her covering letter dated 13 08 2007 the applicant stated that she intends using the leave days applied for, in the accompanying leave form, for study purposes while I compile the documents required in order to apply for Special Leave for study purposes in accordance with section 17 … of government notice No. 1400. The Z1(a) form is signed by the applicant and dated 14 08 2007. The date has been altered to 14 (08 2007), the applicant testified that she may have made the alteration.

8. Subsequent to her arrival at WMU and after she had received written confirmation of her acceptance to the doctoral programme she made a written submission dated 24 August 2007 to the Superintendent General (SG) asking to be granted special leave for study purposes instead of the leave initially applied for . This was sent via email to her head of department, Dr D Steenkamp. The applicant returned to South Africa on 09 12 2007 and at the instance of her supervisor submitted an application for leave form (Z1(a)) on 12 12 2007 together with her letter dated 12 12 2007 in which she stated that the leave form set out the start and end dates for the leave namely 27 08 2007 to 30 August 2009 and was an annexure to her earlier application for special leave (507 calendar days) . The applicant left for the USA / WMU on 29 12 2009, before she heard the outcome of her application for special leave for study purposes.

9. The second application was not approved and the applicant informed accordingly and that the department would implement leave without pay from date of departure till date, by way of letter from the District Director Grahamstown dated 09 01 2008 communicated to her by way of email on 17 01 2008.

10. The applicant took issue with the way her leave application had been handled and thereafter numerous communications (relating inter alia to the applicant’s leave and nature thereof, the validity of her leave, notices of intention to terminate her services, having to give reasons why she should not be dismissed, stopping payment of her salary, disciplinary proceedings, unpaid leave, notification that she had been dismissed, her status as an employee and payment of her salary), ensued between her and amongst others, her supervisor, the Grahamstown District Office, successive Superintendents General (SG) of the Provincial Department of Education: Eastern Cape, the SA Consul General in Chicago USA, the Minister of Basic Education Pretoria, South Africa. and the Director of Labour Relations, Eastern Cape Department of Education, Bhisho, during the period August 2007-October 2015.

11. After her return, on completion of her PhD degree, the applicant was charged and consequent on a disciplinary inquiry was dismissed. At the time of her dismissal (07 07 2016) the applicant was paid a basic salary of R 46 559.69 per month.

12. The applicant referred a dispute to the ELRC seeking as relief that she be reinstated and paid the outstanding remuneration, in respect of the deductions from her salary and stopping of her salary, when she was overseas during 2008-2015. The matter was not resolved at conciliation and proceeded to arbitration.

13. The parties handed up various bundles of documents as follows:
Applicant: Exhibit A1-A118, later amplified to A170
Respondent: Exhibit R1.1-R1.59
Exhibit R2.1-R2.23
Exhibit R3.1-R3.55
Transcript of the disciplinary inquiry (334 pages)
Rulings issued at the disciplinary inquiry. (75 pages)

14. The documents contained in the bundles were in many instances duplicated and not placed in chronological sequence (in particular R1, R2 and R3). Towards the latter part of the hearings the respondent prepared a separate consolidated bundle of all the documents, referred to as Exhibit C (C1-C287). The documents were handed up on the basis that they were what they purported to be, unless the contents were in dispute, in which event the author would have to be called. The arbitrator not to take account of documents not referred to. I shall refer to the documents as A1, A24, R1.23, R2.5, R3.11 and C1, C52, C31-C35 etc.,


15. Numerous correspondences and communications between the applicant and her superiors and the above mentioned bodies and correspondences from them to her and between each other were traversed during the testimony of the various witnesses. I have listed some of these in schedule 1 hereto .

SURVEY OF EVIDENCE AND ARGUMENT
The Respondent’s Submissions
16. The respondent led the following witnesses and closed its case:

Mr Mpakamisi Wilphus Pukwana: Deputy Director Human Resources (Head of HR in East London)

Dr Dorothea Sophia Steenkamp: Chief Education Specialist (CES) Education Support Service
District Office: Grahamstown

Mr Zolani Ntozini: Chief Personnel Officer
District Office: Grahamstown 2002 – 2008

Mr Toto Tsheko: Deputy Chief Education Specialist
Labour Relations
Department of Education

Reverend Amos Tamsanqa Fetsha: District Director
Grahamstown District Office
(from 2008)

Ms Nomaxhosa Beauty Kamana: Deputy Director HRA & Provisioning
11 April 2006 – 30 June 2009 (Retired)

Mr Richard Pretorius: Director: Labour Relations
Department of Education
Head Office: Zwelitsha
2002 until resigned in 2015

17. Mr Pukwana, the Deputy Director Human Resources (Head of HR in East London), testified on the department’s leave policies, types of leave, procedures and the applicant’s leave records. Dr Steenkamp, the applicant’s supervisor testified regarding her interactions in respect of the applicant’s 1st and 2nd leave applications and what transpired relating to the applicant’s leave and her understanding of the leave policies. There were factual differences between Dr Steenkamp’s version and that of the applicant as to the manner and prior agreements as to how the leave would be handled. However as per the documentation and common cause between the parties, the employee’s 1st leave application was approved and 2nd application for leave was not approved.

18 Dr Steenkamp recommended 184 days unpaid leave per S21.1 study leave to be approved by the SG (13 12 2007) . Yet on 07 01 2008 she, as the Acting Director signed a memorandum requesting special leave for the applicant, as not recommended. She put this down to the additional responsibilities she had to take into account as District Director. Her view being that only the SG could grant such leave. The proposal R1.11 – R1.12 was not approved by Head Office. She had attempted to find ways to ensure that the applicant got leave. However she was unable to work outside the prescripts of the leave policy. It also appeared during cross-examination that she was confused as to whether Clause 21 or 17 of Resolution 7 / 2001 found application. In the end she had suggested to the applicant that she appeal as she was unable to appeal on her behalf and in her position, she was tied by policy, as to what she could do.

19. It is not necessary to make a finding on exactly how the applications for leave were made as it is common cause that the applicant was not in the office, i.e. she had left her workplace to study at WMU, USA, before she had obtained written approval. Unfortunately irrespective of any arrangements that may have existed between Dr Steenkamp and Ms Nako, approval was not granted in respect of the 2nd application (leading in due course to the referral of this dispute). Put to Dr Steenkamp that the letter from Ms Makina dated 30 03 2009 (A90) to the applicant superseded any prior decision on the issue of the applicant’s leave, she responded that as it was done by the Head Office, she would not know.

20. Dr Steenkamp’s testimony covered the period August 2007 to May 2009 when she was placed on extended sick leave and from 2011 to 2014 when she returned to office. It was her view that because normal procedure had not been followed the situation had become like fishing in muddied waters.

21. Mr Z Ntonzini, the Chief Personnel Officer. District Office: (Grahamstown 2002 – 2008, testified in respect of his involvement with the applications for special leave and preparation of the memo (R1.11 – R1.12) dated 07 01 2008 and that this was not approved and communicated to the applicant. He agreed on it being put to him that the HOD may deviate from the grant of a maximum number of 184 days in exceptional cases. Generally his evidence was not relevant in view of the time period he testified in respect i.e. the period before 09 09 2008 and 30 03 2009 and consisted of opinion evidence.

22. Reverend AT Fetsha, the District Director: Grahamstown District Office (from 2008) testified to the effect that he was appointed before the response to the memo dated 21 July 2008 and that he signed the letter dated 19 08 2008 on 09 09 2008.

23. He was unable to explain how the letter could have been drafted a day before the SG made her decision (20 August 2008) and argued that District Office labour section was in touch with head office and was aware of the recommendation of the Director of Labour Relations made on 29 07 2008. Based on the dates this is possible but remains unknown.

24. Revd. Fetsha was ambivalent as to what the period in dispute meant, initially saying that it was up until then. He could not point to anything in the letter (09 09 2008) calling the employee back for a Disciplinary Inquiry. With regard to this letter (09 09 2008, R2.12) he understood that on her return a date would be scheduled for her disciplinary inquiry.

25. It was his understanding of the letter dated 09 09 2008 (R2.12), that in so far as it did not say she must come back for a disciplinary inquiry, this was to make her aware that there would be a disciplinary inquiry “when she comes back whenever that might be”.

26. Head Office told them to hold a disciplinary inquiry and it was scheduled for 06 April 2012. He did not attend at the inquiry and he was told that it had not sat as the applicant did not turn up. Nothing had been done after that about the disciplinary inquiry. They were in fact waiting for her return or Head Office to tell them to hold a disciplinary inquiry. He had not appointed anyone in her place during her absence and considered her at the time as an employee.

27. Ms NB Kamana, the Deputy Director HRA & Provisioning (11 04 2006 – 30 06 2009 (Retired) testified to the following effect. She was currently retired and had worked at the Grahamstown District Office from 11 04 2003 to 30 06 2009 as the Deputy Director HRA & Provisioning. Part of her duties included dealing with leave. She had spoken to Ms Nako about the leave she wished to take and showed her that she had too few days to her credit (as per PERSAL) to take study leave.

28. The applicant was not entitled to go on leave without first getting approval (e.g. as per 25.1 of the Determination of Leave of Absence). The HOD could approve study or unpaid leave and it was necessary to do this by way of a leave form and attach a motivation.

29. In terms of the leave policy, paragraph 23 of the Determination, the HOD could grant more than 184 days in exceptional circumstances and that except in exceptional circumstances an employee may not stay away from work without applying in writing and being informed that leave was granted as per paragraph 25.1 of the Determination on leave.

30. Paragraph 17 of Resolution 7 of 2001 provided that the HOD / delegate could grant special leave for study purposes.

31. After Ms Nako left on leave Dr Steenkamp approached her in respect of her communications about her leave and also showed her a letter from the applicant where she wanted to convert her leave to special leave for study purposes (R1.51 dated 27 August 2007). She told Dr Steenkamp this would be impossible as the initial application had been attended to and captured on PERSAL and one cannot apply for leave while away from the workplace and one needed prior approval. In addition the applicant did not have sufficient leave days to her credit.

32. She had later endorsed an application for study for the applicant, prepared by Mr Ntozini, to the effect that she did not recommend study leave and that the educator (the applicant) should rather resign. She did not consider the question of unpaid study leave as this would be at the discretion of the HOD. This request had been refused she could not recall Ms Nako returning to work.

33. She had endorsed the request for termination of Ms Nako’s services dated 21 July 2008 to the effect that she had advised Ms Nako, before she disappeared, to apply and wait for a response before she embarked on study leave but she did not co-operate. Dismissal is highly recommended. This was a recommendation not a decision.

34. The employee had not made any further application for leave. Dr Steenkamp had however submitted leave forms on her behalf in an effort to help Ms Nako not to lose her post.

35. Her, Ms Kamana’s, involvement in the matter, except for the recommendation she made on 23 07 2008 (R2.6), (at the request of Labour Relations who had prepared the submission), ended when Labour Relations took over the matter. She had used the word disappear as the applicant left without prior approval.

36. Put to her that Revd. Fetsha’s letter (19 09 2008) to the effect that approval was granted by the SG that her, the applicant’s, absence is granted as long vacation leave without pay and no end date; what had she as Deputy Director: HR done on sight of letter. She responded there was nothing she could do as Revd. Fetsha was her supervisor and she did not change it.

37. Asked if she updated the PERSAL records to reflect leave without pay she responded variously as follows:
o Was it not done?
o She was not requested to put it on PERSAL
o She could not respond as she did not peruse the applicant’s leave or personnel
file
o She was sure there was a reason but she needed the file

38. Mr R Pretorius, the Director: Labour Relations Department at Education Head Office: Zwelitsha, testified to the following effect. He had started with the department of Education in 2002 and resigned in 2015.

39. An employee was required to complete a leave from and obtain approval prior to leaving the workplace. Where leave was not approved the employee was required to remain at the workplace. In cases of unauthorised leave the department could:
• Charge the employee with misconduct in respect of S18 of the Employment of Educators Act
• Follow procedures outlined in Circular 21/2005 relating to S14 (R2.19 – 23) which applied to all educators in the Department of Education in respect of abscondment and provided for a procedure regarding the implementation of S14 of the Employment of Educators Act. (It was common however that S14 was not applicable in this case)

40. In the light of the disapproval of Ms N Nako’s application for study leave for the period 27 08 2007-30 08 2009, he did not recommend termination , but that a formal disciplinary hearing be held to give Ms N Nako a fair opportunity to state her case and that the period in dispute be leave without pay.. He was also of the view that depending on the leave policy in place this was not a dismissible offence. The period in dispute was 27 August 2008 – 30 August 2009 he could not have foreseen it would have been beyond that.

41. Leave without pay was generally instituted to encourage employees to return to work and so too in the case of the applicant
The HOD in circling approved must have approved his recommendation as otherwise Ms Nako’s services would have been terminated.

42. The hearing of 06 April 2012 did not take place. As per a letter from the District Office it was reported that the disciplinary hearing did not take place as Ms Nako was not available as she was still overseas. He was aware that the disciplinary inquiry scheduled for 06 April 2012 could not proceed as it was Good Friday. He had no reason to dispute that since then, the applicant had not been called to another disciplinary inquiry other than the one in respect of which this dispute had been referred to the ELRC.

43. He attended a meeting on 24 October 2012 with the Acting HOD, Mr Tsheko and the applicant’s trade union representative relating to the applicant’s salary. He could not recall if the salary issue was resolved. Where an employee was absent from work without permission they were not entitled to pay, unless there was a good reason.

44. He agreed that the respondent did not address any letter to Ms Nako advising her that the leave which had subsequently been approved by the SG was revoked and failure on her part to return to work would result in her dismissal. He was aware of a letter written by Makina to the employee that she had been granted approved unpaid leave

45. Dr Ntsiko, MM Ndudula, Ms Makina and Ms Kala whose names appear in various of the correspondences were not called.

46. The respondent argued to the following effect. The granting of leave was made after discussion with the employer in order to ensure authorisation of the leave and the smooth and orderly operation of the organisation in question. In terms of the respondent’s leave policies no employee may be absent (apart from emergencies) from the workplace without prior written authorisation, failing which the employee was required to be at the workplace. Doctor Nako would be aware of this.

47. The applicant left on 08 August 2007 not 21 August 2007 as later stated by her.

48. Doctor Steenkamp received the 2nd application on 13 December 2007. Doctor Steenkamp did her best to assist the applicant within the parameters of the leave policy

49. The refusal of her leave per letter dated 12 December 2007 meant that the applicant’s leave had not been recommended (whether paid or unpaid) and leave without pay implemented (due to her now unauthorised absence i.e. no work no pay). It was self-evident that if leave is refused that the applicant must return to her workplace.

50. The applicant left the workplace on 29 December 2007 before her leave application was approved contrary to the leave prescripts.

51. The applicant was aware of the refusal of her application via the letter dated 09 January 2008 and chose to ignore it.

52. It was decided that her period of absence without authorization be treated as leave without pay in order that she not be dismissed, affording her an opportunity to explain her conduct at a formal hearing. The stopping of salary ordinarily ensured the return of an employee to the workplace and Mr R Pretorius expected her to return to work for the Disciplinary Inquiry.

53. That given her application for leave of 507 days the applicant’s explanation that she thought the letter of 09 September 2008 meant she would get leave without pay for the 7 years it took for the PHD was not probable or plausible. The reference to absence without authorisation referred to past absence. Likewise for the letter dated 30 March 2009.

54. The department was entitled to stop the applicant’s salary on being informed that her leave had not been approved and the applicant was required to return to her workplace and it was not necessary for the respondent to inform her accordingly.

55. The applicant absented herself for 7 years and 9 months form the workplace without regard for her workplace, the employer or the position for which she was engaged. The post could not be filled and the respondent was prejudiced. If this was not the case then Dr Nako’s services would have been redundant whereas Dr Nako offered that they were of critical importance.

56. It was not put to any of the respondent’s witnesses that an admission letter was a pre requisite for applying for study leave. Given the applicant’s preparations for going overseas on study, she was aware long before she left or submitted her leave application that she was going.

57. The applicant had been given a fair hearing and the chairperson had considered the application for postponement on the available facts and provided reasons. At least 4 postponements were granted and only 2 refused.

58. The applicant on her own evidence, even if she had not had a fall, would have been late for the hearing on 24 February 2016 and her absence for the remainder of the hearing was of her own making.

59. The applicant and her attorney, on her evidence, arrived late for the scheduled hearing to present mitigation and in any event she was given the opportunity to present written submissions.

60. The respondent argued that the evidence established on the probabilities that the applicant was absent from the workplace without permission or valid excuse because her leave application was unauthorised and further that her absenteeism negatively prejudiced the administration of the department.

61. In the circumstances the respondent submitted that the applicant’s dismissal was both substantively and procedurally fair.

The Applicant’s Submissions
62. The applicant, Dr Nontle Nako, Deputy Chief Education Specialist (DCES), Special Needs Educator, District Office, Grahamstown, testified on her own behalf and closed her case.

63. The applicant testified to the effect that she had applied for leave in connection with doing her doctoral degree at Western Michigan University, USA. Her version of the details as to her handing in the leave form for the 1st and 2nd leave application differed from that of Dr Steenkamp. I have stated above that this is not relevant to the determination of the dispute. The fact remains that the applicant left her workplace before the respective leave applications were approved / not approved. The 1st application for leave was approved and the 2nd was not. The applicant was informed that her application for special study leave was not approved. It was her view that the District Office, in particular Dr Steenkamp and Ms Kamana in question were not ofé with the leave policy and the various types of leave available. In her view she was entitled to special leave for study purposes for an approved course of study (Psychology being a scarce skill) and that the SG had authority to grant this. She took exception to the fact that her leave application had not been presented to the SG for consideration. She then embarked on a series of letters addressed to all the role players in the department and outside. She received a letter from the District Office signed by Revd. Fetsha to the effect that approval had been granted by the SG that her absence from work without authorisation be regarded as long vacation on leave without pay. She took umbrage that her salary had been stopped and addressed further correspondence to various authorities resulting in a letter from Ms Makana advising her that approval had been granted by the Provincial Delegated Authority to treat her absence, as approved unpaid leave. She took it that she was now on unpaid leave and again addressed correspondence to various authorities in this regard and relating to her position generally.

64. At one time she was under the impression she had been dismissed and for a while did not address any further communications to the department. Later she learned that she had not been dismissed and again started her correspondence to address her unpaid leave and stoppage of salary.

65. On completion of her degree she returned to South Africa and on arriving at the District Office in Grahamstown was told to go home so that Reverend Fetsha could get guidance on what to do with her. She was later charged and after a disciplinary inquiry dismissed with effect from 07 07 2016. The applicant denied the charges against her, at arbitration, her case being that her absence was authorised as unpaid leave.

66. The applicant also raised issue with various procedural aspects of the disciplinary inquiry. I dealt with this below.

67. The applicant argued to the effect that the disciplinary action taken against her was procedurally unfair in that it was not promptly and expeditiously applied. The respondent had initiated disciplinary action against her on three occasions which had been abandoned, namely May 2008, March 2012 and February 2013. The respondent eventually started a process in October 2015 which it finalised in July 2016. The delay in disciplining her was in excess of 7 years and this she argued in addition constituted a waiver by the respondent of its rights to institute disciplinary action against her and rendered her dismissal substantively unfair.

68. With regard to the disciplinary inquiry instituted against her in 2015, she was of the view that there was a relationship between the presiding officer and initiator stemming from numerous cases they had handled, together as presiding officer / initiator on behalf of the employer, and that the presiding officer accordingly was partial to the interests of the employer and not to hers. The presiding officer had refused a postponement when he should have granted it, and had then proceeded to make a determination on the merits without affording her an opportunity to be heard. Further the presiding officer had entertained submissions from the initiator and received evidence regarding sanction in the absence of the applicant.

69. With regard to the charges the applicant argued that her absence for the period 28 November 2007 until May 2015 had been approved by the SG all be it without pay and that this was evident not only from the official correspondence from the respondent to the applicant, at the time, but also the conduct of the respondent. The respondent had not addressed correspondence to her or communicated to her in any way that the authorisation given by the SG had been revoked and that unless she returned to work forthwith, she would be dismissed.

70. The applicant argued that her absence was justified on the basis of the SG’s approval and she was not guilty of the misconduct set out in charge 1. Similarly the applicant argued that as her leave had been approved, the premise to charge 2 fell away and she could not be found guilty on it. Alternatively the charge was simply a consequence of charge one and not a self-standing charge. The applicant’s authorised absence could not constitute misconduct for purposes of charge two. Neither Dr Steenkamp (the applicant’s supervisor) nor Rev Fetsha (one of the District Directors of the Grahamstown District Office) had complained or attempted to seek an appointment in the place of the applicant during the period in question. In any event the respondent had not established any prejudice to the respondent resulting from the applicant’s absence. If there was any prejudice, which the applicant denied, she argued this was justified in the upskilling of her vocational ability .

71. The applicant argued further that it appeared that the real reason for her dismissal was whether she committed misconduct by leaving her workstation without securing prior written permission from the SG in relation to her studies, In so far as she may have been charged for leaving prior to obtaining written authorisation the applicant sets out her reasons why she should not be found guilty of such misconduct and argues that even if she were guilty of such misconduct, then dismissal would not be an appropriate sanction given inter alia the circumstances of her leaving to study, the provisions of the relevant disciplinary codes and the principle of progressive discipline.

72. As relief the applicant sought that she be reinstated and the issue of her unpaid remuneration while overseas, be left to be determined by the arbitrator.

ANALYSIS OF EVIDENCE AND ARGUMENT
73. I have considered all the evidence and argument, but because the Labour Relations Act no. 66 of 1995 (LRA) requires brief reasons (Section 138 (7)), I have only referred to the evidence and argument necessary to substantiate my finding/s and award.

74. The LRA provides that an employee may not be unfairly dismissed , and that a dismissal includes the situation where an employer terminated employment with or without notice . Further that [i]n any proceedings concerning any dismissal, the employee must establish the existence of the dismissal and that [i]f the existence of the dismissal is established, the employer must prove that the dismissal is fair . In terms of Section 188 of the LRA a dismissal is unfair if the employer fails to prove that the reason for dismissal is a fair reason (substantive fairness) and that it was arrived at in accordance with a fair procedure (procedural fairness), taking into account any relevant code of good practice issued in terms of the LRA . Schedule 8 of the LRA, the Code of Good Practice: Dismissal; sets out guidelines relating to procedural and substantive fairness and guidelines on determining sanction .

75. This matter arises out of the applicant’s referral of her dismissal dispute. Dismissal was not in dispute. The applicant denied that she was guilty as charged and raised issue with procedural and substantive fairness. The applicant seeks that she be reinstated. It was the respondent’s case that the applicant was guilty as charged and that dismissal was an appropriate sanction.

76. In order to discharge the onus, an employer, the respondent herein, is required to prove that the applicant’s dismissal was fair and that the applicant is guilty of the allegations proffered against her, on a balance of probabilities. The respondent needs to prove by way of credible evidence, that its version is the more probable and acceptable version .

77. During the period of the applicant’s sojourn in the USA, the respondent addressed several communications to her regarding her status inter alia the following .
o 09 01 2008. Letter District Director to applicant, referring to applicant’s letter of 12 12 2007 relating to special study leave for the period 27 08 2007-30 09 2009 advising this leave has not been approved by the Chief Director HRM and inter alia that the department will implement leave without pay from date of departure till date.
o 22 01 2008. Email in which the applicant’s supervisor, Dr Steenkamp informs the applicant that she could not grant or approve her study leave and had requested the SG to consider her application for study leave and recommended leave without pay for as many days as the policy allows, if study leave could not be granted.
o 27 05 2008 . Letter department to applicant requesting her to show cause within 7 days why her services should not be terminated; as she was not on special leave for an approved course of study or for a period approved by the employer, on conditions approved by the employer including leave with full, partial or without pay and no agreement between applicant and employer (Par. 17.1, 17.2 Resolution 7/2001)
o 09 09 2008. In a letter dated 19 08 2008 but signed by the District Director, Mr Fetsha, on 19 08 2008, to the applicant, reference is made to a letter of 27 05 2008 and it is communicated to her that an approval was granted by the SG that the period of your absence from work without authorisation be regarded as long vacation on leave without pay and that a formal disciplinary hearing will be held on your arrival whereby you will be given an opportunity to state your case.
o 30 03 2009. Letter from Chief Director HRM&D, Ms Makina referring to applicant’s request to the SA Consul General dated 03 11 2008 and inter alia informing her that on her own admission (applicant’s letter of 13 08 2009 ) she left before her application for special leave was approved [H]owever, approval was subsequently granted by the Provincial Delegated Authority to treat your absence as approved unpaid leave, the outcome of which you were duly notified, letter dated 27 May 2008
o 05 09 2009. Email Sipho Lombo responding to applicant’s queries, suggesting inter alia she appeal the refusal of her leave via her line function to the SG who otherwise would not entertain such a request.
o 05 10 2009. Email Dr Lombo to applicant to the effect that:
 If she is unhappy with the response from her director she should talk to a higher authority the Cluster C Chief Director, Mr Tyali, per protocol
 Alternatively write a submission that will end up with the Superintendent General for approval / disapproval
 Everyone at HR seems to be aware she left without permission to undertake study and therefore that is regarded as abscondment
 There is no policy that that allows study leave with pay for 3 years. Although she says she had a verbal agreement this cannot be used post facto
 According to HR there is no recourse for this matter
 She should write a letter of appeal through the line function of her director to the SG, who will not entertain a submission without their comment. If her submission is strong enough he may approve it through Tyali’s PA
o 04 11 2011. Email Adv Mannya to Ms N Nako responding to her email of 20 12 2010 (R1.22) together with letter outlining her situation, advising that he has asked that the matter be investigated and that an employee has a duty to ensure that their leave is approved before leaving.
o 13 03 2012. Notice to the applicant to attend a disciplinary inquiry on 06 04 2012 and setting out the following charges:
CHARGE 1
It is alleged that you misconducted yourself in terms of Chapter 5 Sec 18(1) of the Employment of Educators Act 76 of 1998 (as amended) in that you absent yourself from work without a valid reason or permission on or about 27 August 2007 to date.

CHARGE 2
It is alleged that you misconducted yourself in terms of Chapter 5 sec 18.(1)i, of the Employment of Educators Act 76 of 1998 (as amended), in that you failed to carry out a lawful order or routine instruction from your supervisor without just or reasonable cause in that you went on leave without obtaining the required written approval for such leave by going to a disapproved study leave whilst you were informed.

ALTERNATATIVE CHARGE TO CHARGE 2
It is alleged that you committed an act of misconduct in terms of section 18(1)(i) of the Employment of Educators Act 76 of 1998 (as amended), in that when you were informed that your application for study leave was not approved you did not return to work but continued to be absent without permission on or about 27 August 2007 by ignoring this directive.

The meeting will be held on the 06 April 2012 at the St Aidans Building Department of Education (Grahamstown District Office) Room 152, at 09:00. You are requested to inform this office in writing should the time period be disadvantaging you and suggest a time that will be convenient for all parties involved in this matter.

If you do not attend and cannot give reasonable ground for failing to attend, the meeting will be held in your absence.

A fellow employee or a representative of a recognized union may represent you. You may also be represented by legal representative if the Presiding Officer so directs.

o 13 02 2013. Letter Acting Head Education (ML Ngonzo) to Ms N Nako. Notice of Intention to terminate your service and Ms N Nako to provide reasons why she should not be discharged from service by operation of law within 14 working days.
o 05 06 2013. Letter from respondent to applicant’s attorneys advising that disciplinary hearing scheduled for 06 04 2012 could not sit due to absence of the applicant and on reconsideration a different approach was embarked on.
o Undated. Letter SG to Mlindazwe & Associates (applicant’s attorneys) to the effect that having considered the submissions (reference to letter dated 06 08 2013 containing submissions as to why the applicant should not be charged), the department still convinced that Ms N Nako has committed misconduct and as such will be subjected to a disciplinary process
o At no time after the applicant was informed by the respondent, that the SG had granted an approval that the period of her absence from work without authorisation be regarded as long vacation leave without pay / that approval had been granted by the Provincial Delegated Authority to treat her absence as approved unpaid leave , did the respondent inform the applicant that the approval had been revoked and that failure on her part to return to work would result in her being dismissed .
o The applicant did not receive notice to attend any further disciplinary hearings, after the disciplinary hearing scheduled for 6 April 212, until after her return on completion of her degree.

78. During the period October 2009 to August 2011 the applicant following on an email from Dr Lombo was under the impression that her services had been terminated. During August 2011 she met with the administrator of the respondent, who informed her that it was not possible that she had been dismissed. She had then addressed a letter to the Minister of the Department of Basic Education.

79. The applicant completed her PhD in 2015 (completed her dissertation end February 2015 and defended it on 20 03 2015) and returned to South Africa on 30 04 2015. She reported for work to the District Office Grahamstown on 12 05 2015. The District Director (Revd. Fetsha) did not allow her to return to work and told her to wait at home until he had consulted with the Provincial Office for guidance.

80. She was given notice on 7 10 2015 to attend a disciplinary inquiry on 9-10 November 2015 . The applicant was found guilty as charged (07 04 2016) and sanctioned to a dismissal on 20 05 2016, the applicant’s appeal was dismissed and sanction upheld on 07 07 2016.

81. The applicant was charged and found guilty of:
6.1 It is alleged that you are guilty of gross misconduct in terms of Section 18(1)(j) of the Employment of Educators Act of 76 of 1998 more particularly:
6.1.1 You absented yourself from work without valid reason and/or permission during the period 28 November 2007 until May 2015.
6.2 It is alleged that you are guilty of gross misconduct and/or dereliction of duty in terms of Section 18(1) of the Employment of Educators Act 76 of 1998 more particularly:
6.2.1 You unjustifiably prejudiced the administration, discipline or efficiency of the Department of Education, by your continued absence from the workplace despite your leave application having been refused.
(emphasis added)

Procedural fairness
82. The delay in disciplining the applicant is extensive. I note that on the basis of the applicant’s application for study leave, despite that she had left without first obtaining written approval, the SG nevertheless granted approval that her absence from work without authorisation be regarded as long vacation on leave without pay / approved unpaid leave and that she would face a disciplinary inquiry on her return. On the facts and on the applicant’s case (to the effect that she advised the SG / respondent by way of her application for special leave that the duration of the PhD would take 6-7 years) given the accommodation by the SG, the applicant can hardly be heard to complain about the delay.

83. Insufficient evidence of a probative value was tendered to make a decision on any untoward relationship between the chairperson of the disciplinary inquiry and the initiator. The fact that evidence was tendered in the absence of the applicant at the hearing on sanction is not the fault of the respondent.

84. The applicant argued that the chairperson proceeded in her absence at the hearing scheduled for representations on sanction. The applicant arrived late for the hearing in question and her representative arrived even later. The fault accordingly lies with the applicant and not the respondent. I note that the chairperson nevertheless reached an accommodation with the applicant’s attorney that he would be afforded a copy of the mornings proceedings and would then submit written submissions on sanction.

85. The applicant argued that the chairperson / respondent had proceeded at a hearing scheduled on the merits in her absence, despite a medical certificate tendered to the effect she was unfit to attend. The applicant had in between hearings returned to the USA. On the way back and before leaving USA she had fallen and injured herself and was unable to depart as planned. She had initially booked flights to and from the USA so as to return to East London at around 11H00 on the day of the hearing. Although her representative communicated the fact that she was unfit to attend the hearing and handed up the certificate, the chairperson ruled against her and the matter proceeded. The chairperson did not testify. However as evident from the ruling on postponement, it was found, inter alia, that but for the accident, there was nothing to substantiate that she would have been present.

86. The point however is that the applicant was unable to travel back to South Africa as originally planned, because of her fall and being medically unfit. If she had flown back as initially planned she would have been late for the disciplinary inquiry, however she could have attended the balance of the hearing. In not granting the postponement, in the face of the representation that she was unable to fly and the medical certificate, the respondent to this extent acted procedurally unfairly, as it had the effect of depriving the applicant of an opportunity to present her version of events.

Substantive Fairness
87. In the morass of material concerning this case, it is important to focus on the actual misconduct with which the applicant was charged at the disciplinary inquiry scheduled after her return to South Africa in 2015.

88. The applicant left before receiving formal written approval of her leave, both in respect of her first application and second application for leave, this was contrary to the leave provisions . In addition whether she slid the application under the door or slid other documents under the door, although this may reflect on credibility, is not relevant to this matter,(as per the charges against the applicant), as this is related to the first application for leave, which was granted, and in respect of which the applicant was not charged.

89. As apparent from the charges, the applicant was charged in respect of the second application for leave only and it was common cause that she left before this was approved by the respondent (SG). It was the applicant’s case that she had received permission from her supervisor, Dr Steenkamp and the District Director Dr Ntsiko to leave before the leave was approved. Dr Steenkamp denied this. Whether this was so or not is not relevant to the charges as framed against the applicant.

90. To find that the charges as proffered against the applicant in respect of the disciplinary hearing in 2015, included that she had left before first obtaining written permission / approval would be prejudicial to the applicant in that she was not called on to defend such an allegation. Given the history in this matter, the numerous and voluminous communications between the applicant and various institutions including all levels of the respondent, that the respondent had charged the applicant with misconduct during 2012 and not proceeded with the disciplinary inquiry , and the extensive time period involved, it behooved the respondent to clearly set out particulars of all the acts of misconduct with which the applicant was charged.

91. In Woolworths (Pty) Ltd v CCMA and Others [2011] 10 BLLR 963 (LAC) the Labour Appeal Court held:
“[32] Unlike in criminal proceedings … the misconduct charge on and for which the employee was arraigned and convicted at the disciplinary enquiry did not necessarily have to be strictly framed in accordance with the wording of the relevant acts of misconduct as listed in the appellant’s disciplinary codes, referred to above. It was sufficient that the wording of the misconduct alleged in the charge sheet conformed, with sufficient clarity so as to be understood by the employee, to the substance and import of any one or more of the listed offences. After all, it is to be borne in mind that misconduct charges in the workplace are generally drafted by people who are not legally qualified and trained. (Emphasis added)

92. The applicant was not charged with and found guilty of going on leave without first securing written authorisation in respect of her first or second application for leave. Whether she did or not is irrelevant for purposes of considering the fairness or otherwise of her dismissal as this was not a reason/s for her dismissal.

93. The reasons for dismissal are the acts of misconduct of which the employee was found guilty and for which s/he was dismissed see Fidelity Cash Management Service and CCMA & Others . The employer may only proceed, in respect of those acts of misconduct of which the employee was found guilty at the disciplinary inquiry and which led to her dismissal, at an arbitration following on the referral of a dismissal dispute. This is also apparent from the provisions of section 188 of the Labour Relations Act No. 55 of 1996.

94. As is evident from the charge s and the finding of the presiding officer the applicant was dismissed for gross misconduct in being absent from work without valid reason and/or permission for the period 28 11 2007 until May 2015 together with gross misconduct and/or dereliction of duty in that she allegedly prejudiced the department by her continued absence from the workplace despite her leave having been refused .

95. In the circumstances, the reasons for dismissal in this matter are the charges she was charged with and found guilty of at the disciplinary inquiry held after her return to South Africa in 2015.

96. Charge 6.1 relates to being absent from work without valid reason and/or permission during the period 28 11 2007 to May 2015. Charge 6.2 relates to the applicant prejudicing the interests of the respondent by her continued absence from the workplace despite her leave application having been refused. It is accordingly self-evident from the charges that the applicant was not given notice to face a charge of going on leave without first obtaining the required written approval, at the disciplinary hearing scheduled for 9-10 11 2015.

97. Despite the applicant’s protestations that she had left with the permission of her supervisor, and that this was a normal practice, alternatively this was an exceptional circumstance, this would not assist the applicant in respect of a finding of contravention of such a charge, however it would be relevant as to any determination on sanction for such a contravention. The charges against the applicant, as I have demonstrated above, do not include a charge that the applicant left before getting the written approval of the respondent, and neither was this one of the reasons for her dismissal. In the circumstances, this is irrelevant to the applicant’s dismissal and accordingly I cannot make any finding or determination thereon

98. The applicant was charged and found guilty of:
6.1 It is alleged that you are guilty of gross misconduct in terms of Section 18(1)(j) of the Employment of Educators Act of 76 of 1998 more particularly:
6.1.1 You absented yourself from work without valid reason and/or permission during the period 28 November 2007 until May 2015.
6.2 It is alleged that you are guilty of gross misconduct and/or dereliction of duty in terms of Section 18(1) of the Employment of Educators Act 76 of 1998 more particularly:
6.2.1 You unjustifiably prejudiced the administration, discipline or efficiency of the Department of Education, by your continued absence from the workplace despite your leave application having been refused.

99. It is self-evident from the various correspondences , that approval was granted by the SG that the applicant’s absence from work without authorisation be regarded as long vacation on leave without pay / approval was granted to treat your absence as approved unpaid leave . No instruction was given to her to return without delay . In addition the department did not seek to apply section 14 of the Employment of Educators Act, this, the fact that the department did not invoke section 14, can only be explained, on the basis that the SG had decided otherwise . Indeed the department communicated this to the applicant / the applicant’s attorneys, see for example the respondent’s letters dated 09 09 2008 , 30 03 2009 and 05 06 2013 to the effect that approval had been granted that the period of her absence from work without authorisation be regarded as long vacation leave without pay (09 09 2008) and that approval was granted by the Provincial Delegated Authority to treat your absence as approved unpaid leave (30 03 2009). This was confirmed by the Department of Basic Education in its letter of 31 01 2012 to the applicant . It is self-evident that the applicant had approval (permission) to be absent from work for the period 28 11 2007 until completion of her degree, all be it on approved unpaid leave .

100. The question arises as to the period in respect of which this unpaid leave was approved and when a formal disciplinary inquiry would be held for the applicant to be given an opportunity to state her case. The following circumstances and conduct of the respondent set the context and reasons for drawing an inference as to what the period in fact was:

o After several communications between the applicant and the respondent.
 The respondent via its letter dated 09 09 2008 (R2.12 / C52) informed the applicant that approval was granted by the SG that the period of her absence from work without authorisation be regarded as long vacation on leave without pay
 The respondent reiterated per its letter dated 30 03 3009 (R3.1 / A90 / C60, C60A) that approval was subsequently granted by the Provincial Delegated Authority to treat her absence as approved unpaid leave.
 The Department of Basic Education (DBE) confirmed the position by way of their letter dated 31 01 2012 (R3.18 / R3.5C) as follows: The ECD informed you in a letter dated 19 August 2008 that approval was granted that your period of absence from work without authorization will be regarded as long vacation on leave without pay and that a formal disciplinary hearing will be held on your arrival whereby you will be given an opportunity to state your case. The DBE has not received any correspondence from the ECED notifying it about any changes to their position

o The respondent advised the applicant on numerous occasions to the effect that her absence was authorised as long vacation leave without pay / approved unpaid leave and that leave without pay would be implemented.

o The contents of the Chief Director HRM&D, Ms Makina’s letter of 30 03 2009 (R3.1 / A90 / C60, C60A), to the applicant advising that approval was subsequently granted by the Provincial Delegated Authority to treat your absence as approved unpaid leave

o The respondent in fact did stop payment of the applicant’s salary from April 2009 which was resumed with effect from July 2015 after her return to South Africa and tendering her services to the respondent.

o The respondent was informed of the nature and potential duration of the applicant’s doctoral programme ,

o No limit was placed on the period of the applicant’s absence save to state that on her arrival she would face a disciplinary inquiry

o On 29 07 2009 the Director Labour Relations recommended a formal disciplinary inquiry be held in respect of the applicant. This was not held. The Director Labour Relations addressed a follow up letter to the District Director for attention CES: HRD & Labour Relations on 26 10 2011 to which the CES HRD & Labour Relations officer responded on 27 10 2011 to the effect that the hearing could not be held due to the fact that the applicant was still at WMU, USA . On 01 12 2011 the District Director, Grahamstown District Office, AT Fetsha (District Director) and NB Kala (CES HRD & Labour) addressed a letter to M Stowman (Director HR Administration). To the effect that it was false that the services of Ms N Nako had been terminated, attaching PERSAL printouts and advising that [T]he District Office is still waiting for Ms N Nako to return from USA so that a formal disciplinary hearing can be convened.

o No communication was made to the applicant to the effect that the leave she applied for which was not approved and later approved as unpaid leave, was revoked and that her failure to return to work would result in a dismissal

o No instruction was given to the applicant for her to return to work without delay or face being dismissed, despite the aborted disciplinary inquiry of 06 04 2012

o The applicant was not called to another disciplinary inquiry until the disciplinary inquiry of 9-10 November 2015, after her return to South Africa.

o The department, in a letter dated 05 06 2013 from the Director of Labour Relations to the applicant’s attorneys, advised inter alia that in view of the disciplinary hearing (06 04 2012) not proceeding due to the absence of the applicant, the department had on reconsideration followed a different approach

o The respondent at various times sent letters to the applicant requesting her to submit reasons why her services should not be terminated. The applicant replied and the department took it no further. Later the SG addressed a letter (13 02 2013) to the applicant requesting reasons why she should not be discharged from service. After intervening correspondence between the parties, the applicant’s attorneys furnished reasons as per their letter dated 06 08 2013 . The SG responded per undated latter to the effect that the department still considered she had committed misconduct and that she would be charged. No charges or notice to attend a disciplinary inquiry was given to the applicant until after she reported for work, on the completion of her studies and return to South Africa in 2015. The applicant reported for work on 12 05 2015 and was given a notice on 07 10 2015 to attend a disciplinary inquiry on 9-10 November 2015

o The respondent in its letters dated, 09 09 2008 and 30 04 2009 , did not instruct the applicant to report to work immediately or by a certain date. The applicant returned to work, after leaving in 2007 on 12 05 2015. If her leave were unapproved then the question arises why her services were not terminated, as in such a situation the provisions of section 14 of the Employment of Educators Act would have found application. The fact that her services were not terminated is because the SG determined otherwise i.e. the SG approved her absence as long vacation on leave without pay / approved unpaid leave

o Only after she had completed her studies and returned to South Africa in 2015 did the respondent once again proceed with formal charges and a disciplinary inquiry against the applicant. The applicant completed her studies and returned to South Africa on 30 04 2015 and reported for work on 12 05 2015. She was sent home so that the District Director could take instructions from the Provincial Office on how to deal with the matter and a notice was served on her to attend a disciplinary inquiry on 12 05 2015 on the charges set out at A105-A106 / R1.23-R1.24

o The applicant was not called back because of any staff shortages and the respondent did not appoint anyone to act in the applicant’s post

101. The only plausible inference to be drawn, in the circumstances, is that the approval was for the period the applicant was absent from work, to complete her studies, and that this was approved as long vacation on leave without pay / approved unpaid leave and that on her return she would be given an opportunity to state her case at a formally constituted disciplinary inquiry. This amounted to authorisation to be absent from the work place, without pay, for a defined period (in the circumstances, a period of time that it would take, within reason, to acquire the doctoral degree). In other words, the applicant’s absence was regularised and approved as long vacation on leave without pay / approved unpaid leave for the duration of her studies .

102. The import of the approval and determination by the SG that the applicant’s absence from work be treated as long vacation on leave without pay / approved unpaid leave, is that any decision as to whether the applicant was guilty of misconduct in the manner of her application for Special Leave for Study purposes / leaving before approval granted in writing / acting contrary to the policy or prescripts (Rule) etc. relating to Special Leave for study purposes, was to be left over for determination at the disciplinary inquiry to be held on her return, after completion of her studies . (In other words this was to be left over for determination at the disciplinary inquiry to be held on her return). On her return she should have been charged accordingly as per the relevant rule / s which also should have been specified. This was not done

103. The SG subsequent to the applicant’s departure, granted approval that the applicant’s absence from work be regarded as long vacation on leave without pay / her absence be treated as approved unpaid leave . In other words the entire period of her absence from work was authorised all be it without pay. Although given ex post facto this constitutes a valid reason / permission for her absence from work for the period 28 November 2007 until May 2015 (Charge 6.1)

104. Given the ex post facto approval on the part of the employer, and that her absence from work be regarded as long vacation on leave without pay / her absence be treated as approved unpaid leave, the applicant’s absence was accordingly authorised and there would be no additional financial burden on the respondent given that the leave was without pay. Charge 6.2.1 does not find application because the applicant could not have unjustifiably prejudiced the administration or efficiency if her absence from work was authorised and so justified. In addition there was no additional financial burden to the respondent. It also appears from the testimony of Dr Steenkamp that she coped with the additional workload, until she retired and that another employee took over the balance of coordinating functions managed by the applicant. As stated however, this is not relevant as the applicant’s absence from work was approved by the SG without pay.

105. In the circumstance I find that the applicant Dr Nontle Nako was authorised to be absent form work for the period 28 November 2007 until May 2015, on the basis of the Superintendent General’s approval and that she is not guilty of the misconduct preferred against her, namely charges 6.1 and 6.2 as set out in the notice of disciplinary hearing dated 07 10 2015

106. Claim for remuneration during the period the applicant was overseas until her return to work 12 May 2015
In terms of section 74(2) of the Basic Conditions of Employment Act, 1997 (BCEA) an arbitrator may determine any claim for an amount that is owing to an employee in terms of the BCEA.

107. Par. 17.1 of ELRC Resolution 7/2001 provides that special leave may be granted to an educator for a period and on conditions approved by the employer, including leave with full or partial or without pay. The use of the word may indicates that such leave is granted in the discretion of the employer. It is accordingly evident that the employer / SG is entitled to exercise his / her discretion in deciding on leave of absence in particular, for special leave.

108. Par. 17.1 of ELRC Resolution 7/2001 similarly provides for the exercise of the employer’s discretion as to whether the leave is on full, partial or without pay. Again it is within the employer’s discretion to decide on whether such leave will be with full, partial or without pay.

109. The parties were ad idem that section 14 of the Employment of Educators Act had not found application, it being common cause that the employer had directed otherwise. The SG / Provincial Delegated Authority ex post facto approved the unauthorised absence as long vacation leave without pay/ approved unpaid leave .

110. The applicant takes issue with the fact that she was not remunerated for the months of April 2009 to June 2015. The applicant claims that the department converted the mode of payment of her salary to that of cheques and retained these on file without first consulting her. Further the applicant argued that the department refund her unpaid salary as in this instance too, the department had not consulted her. This however misses the point that the applicant was not entitled to be paid a salary as her leave was authorised as approved unpaid leave. In terms of the no work no pay principle, an employee is not entitled to remuneration where they do not perform the work they are appointed to do, unless they have been given leave of absence on application and approval obtained prior to going on such leave . The employer in effect, ex post facto, authorised the applicant to be away from work for the duration of her studies and that this would be without pay. This is within the employer’s prerogative as per the provisions outlined above.

111. The applicant was granted leave for the period 21 08 2007-27 11 2007. She applied for special leave for the period 27 08 2007-30 08 2009. This leave was refused and ultimately the employer approved the unauthorised absence as long vacation leave without pay/ approved unpaid leave . I have found that period of unpaid leave was for the duration of the applicant’s studies, see above. To hold that the applicant was entitled to pay during this period, would not only be contrary to what the employer had determined but would defeat the purpose of the no work no pay principle . The applicant returned to South Africa on 30 04 2015 and reported for work on 12 05 2015. In the circumstances the applicant is not entitled to remuneration for the period 28 11 2007 to 12 05 2015 and I find accordingly.

112. In terms of section 193(1) of the LRA a commissioner may order reinstatement, reemployment or compensation. In addition and in terms of section 193(2) a commissioner must require an employer to reinstate or reemploy an employee unless, the employee does not wish to be so reinstated or reemployed, it would be intolerable or it would be impracticable for the employer or the dismissal is unfair only because the employer did not follow a fair procedure. The applicant wishes to be reinstated. No evidence has been placed before me to suggest that the trust relationship between the parties has been broken or that it would be impracticable or intolerable for the applicant to resume her employment. No one has been appointed to her post. In my view there is no reason why she should not be re-instated in her employment

113. The applicant testified that she reported for work on 12 May 2015 and in January 2016, she was paid her salary with effect from end July 2015. (one month and 19 days short)

114. The applicant was dismissed on 07 07 2016. As at end February 2021 the applicant is entitled to backpay in the sum of R 2 010 445.70, calculated as follows:
12 05 2015-30 06 2015: 19/31 x 1 x R 46 559.69 = R 75 965.80
07 07 2016-28 02 2021: 23/31 x 56 x R 46 559.69 = R 1 934 479.90
Total R 2 010 445.70

115. I make the following award:

AWARD
116. The applicant, Dr Nontle Nako, is not guilty of the charges set out in the notice of disciplinary hearing dated 07 10 2015

117. The dismissal of the applicant by the respondent, the Provincial Department of Education: Eastern Cape on 07 07 2016 was substantively and procedurally unfair.

118. The applicant is not entitled to remuneration for the period 28 11 2007 to 12 05 2015.

119. The respondent is ordered:
119.1 To reinstate the applicant with effect from the date of her dismissal, 07 07 2016 in the post she occupied, on the same terms and conditions she enjoyed prior to her dismissal
119.2 To pay the applicant the sum of R 2 010 445.70 (Two million ten thousand four hundred and forty five Rand and seventy cents) as and for backpay for the period 12 May 2015 to 30 June 2015 and 07 July 2016 to 28 February 2021

120. The applicant is ordered to report for duty at the Grahamstown / Makhanda District Office on or before 7 April 2021



Senior Arbitrator ELRC
Makhanda / Grahamstown




EDUCATION LABOUR RELATIONS BARGAINING COUNCIL
Case: PSES305-16/17EC
In the Matter Between:

Nontle Nako Applicant

and

Provincial Department of Education: Eastern Cape Respondent


SCHEDULE 1


20 December 2006
1 (A74 / C2) Letter from Programme Director Ford Foundation Internal Fellowship Programme, South Africa. The Africa American Institute, inter alia to the effect that the applicant was awarded a Ford Foundation International Fellowship beginning January 2004 to study for a Master’s Degree in Counselling Psychology at Western Michigan University (WMU). The applicant graduated in December 2005 and returned to South Africa.

11 January 2006
2 (A72 / C3-C4) Letter of support Nontle Nako’s application for doctoral study in counseling psychology, from MZ Anderson, Associate Professor to Department of Counselor Education & Counseling Psychology WMU.

First application for Leave
13 August 2007:
3 (R1.2A) Letter Ms N Nako to Dr DS Steenkamp, District Manager, Department of Education, Grahamstown. Applying for long leave starting on Wednesday 15 August 2007 to do a PhD. In Counseling Psychology, Department of Counselor Education and Counseling Psychology at Western Michigan University (WMU), Kalamazoo, Michigan, USA, starting 20 August 2007. Intend using leave days applied for in the accompanying leave form for study purposes while I compile the documents required in order to apply for Special Leave for study purposes in accordance with section 17 … of government notice No. 1400. (Section 17 of GN No. 1400, page 18). Travelling to USA on 18 August 2007 and requesting all correspondence be forwarded to an address at WMU.

14 August 2007:
4 (R1.1(A)) Application for leave of Absence Form Z1, for Special Leave; Long Leave (For Study Purposes)
Start & end date 15 August 2007 – 01 December 2007 (78 Calendar days) signed by Ms N Nako on 14 August 2007
Recommended 21 08 2007:
Remarks: Ms Nako has already left for USA on 18 08 2007. Recommended for the period that leave credits allow for-70 days.
Signed by Manager / Supervisor; Dr Steenkamp on 21 August 2007.
Approved with full pay 21 08 2007
Remarks: Not more than 78 days i.e. her leave credits
Signed by HOD or Designee (Ntsiko?) on 21 August 2007
Captured and checked on 19 September 2007

19 August 2007
5 (C288-C295). Copy of Applicant’s passport and as per applicant’s testimony in cross examination by Adv S Scott. Applicant left RSA for USA

Second Application for Leave
24 August 2007:
6 (R1.2 / R1.51 / A76). Letter from Ms N Nako to Superintendent General Department of Education: Eastern Cape Province, Bhisho. Sequel to submission of 13 August 2007, applying for a long leave (see above addressed to Dr Steenkamp District Manager Department of Education Grahamstown (R1.2A)) expressing the wish to be granted a Special leave for study purposes instead of the leave she initially applied for (R1.1A) and applying for Special Leave for study purposes
I apply for the above stated leave in accordance with S17 of attached copy of Government Notice (See p. 18): Attached are following supporting documents:
(i) Letter of admission from the University where I am currently enrolled in a PHD in Counselling Psychology program
(ii) A copy of the Doctoral program Handbook
(iii) A copy of Government Notice 1400
I understand that if I do not fulfil my obligation to return to work for the Department of Education for the equivalent of the time period of the leave as stated in the attached resolution, I will repay the remuneration, allowance, vacation and other benefits earned during my leave at the time of resignation.

09 October 2007
7 (R2/1A, R2.1C / CC22, 24). Email from D Steenkamp to N Nako to the effect that her letter was given to Ms Kamana, who had said that they cannot undo her leave as it had already been implemented on the system, she cannot apply for leave in absentia, she does not have sufficient days to effect study leave on a 50:50 basis

10 October 2007
8 (R2/1A, R2.1C / CC22, 24). Email D Steenkamp to N Nako suggesting she fill in a leave form to make it official and attaching leave form.


09 December 2007
9 (C288-C295). Copy of Applicant’s passport and as per applicant’s testimony in cross examination by Adv S Scott. Applicant returned to RSA from USA

12 December 2007
10 (R1.9 / R1.52). Letter Ms N Nako to SG DOE Eastern Cape Bhisho. APPLICATION FOR A SPECIAL LEAVE FOR STUDY PURPOSES-NONTLE NAKO: LEAVE FORMS. With reference to letter dated 24 08 2007, submitting application for leave form (as an annexure to letter of application dated 24 08 2007) with start and end dates for a special leave for study purposes and applying for study leave starting 27 08 2007, ending 30 08 2009

13 December 2007
11 (A77). Application for Leave of Absence Form Z1(a) for Special Leave: Study Purposes
Start Date: 27 August 2007
End Date: 30 August 2009 [507 days]
Signed by Ms N Nako on 12 December 2007
Balance of Z1 form blank

13 December 2007
12 (R1.10 / A78). Same Form Z1(a) as above but balance of Z1(a) form completed
Recommended
Remarks: 184 days unpaid leave per leave measures Section 21.1. Study leave to be approved by SG.
Period 21 August 2007 – 27 November 2007 already captured on system as capped leave – no credits left
Signed by Dr Steenkamp (Designation: Manager’s Supervisor’s Signature) on 13 December 2007
Signature of HOD or Designee Mr Ntozini on 13 December 2007
None of the blocks i.e. Approved with Full Pay; Approved without Pay; Not Approved, are ticked
Captured and checked and signed on 13 December 2007

29 December 2007
13 (C288-C295). Copy of Applicant’s passport and as per applicant’s testimony in cross examination by Adv S Scott. Applicant left RSA for USA

7 January 2008
14 (R1.11 – R1.12). Motivation / Memorandum (compiled by Z Ntozini (CPO)) to obtain approval for application for Study Leave for Nako for 27 August 2007 – 30 August 2009.
Recommendation: As per leave measures, Section 21.1 of attached Gazette: the Head of Department may grant him/her unpaid leave up to maximum of 184 days. signed by Z Ntozini (CPO) 7 January 2008 (R1.11)
Long Leave Study Leave is not recommended, educator should rather resign her post.
Signed DD. HRA & P (NB Kamana) 7 January 2008 (R1.12)
Not recommended: Signed by Dr D Steenkamp pp Acting District Director (N Ntsiko) 8 January 2008 (R1.12)
Not recommended: Currently utilized all available leave (capped) 44 days plus 26 days vacation leave, I agree with District Director: HRA&P that she should resign as she will be req....?? a benefit or yearly basis and Act DD also do not recommend. Also did not apply prior to departure. Irresponsible. Not approved
Signed Acting Chief Director (Z Makina) (Signature unknown) 08 01 2008 (R1.12)
Line drawn through where Superintendent General would recommend or sign (R1.12).

9 January 2008
15 (R1.53 / R2.10 / C21, C21A). Letter from District Director Grahamstown to Ms N Nako signed by Mr Ntozini (compare signature at R1.10) pp N Ntsiko, District Director Grahamstown. With reference to applicant’s letter dated 12 December 2007 (enclosing application for special leave for study purposes), advising special leave for study leave from 27 August 2007 – 30 August 2009 has not been recommended and approved by Chief Director Human Resources Management of the Department. Further:
o One has to apply before departure.
o Ms N Nako has exhausted capped leave and vacation leave days
o Department will implement LWOP from date of departure till date

22 January 2008
16 (R2.46 / A79 / C30). Email D Steenkamp to N Nontle. … in your case I cannot grant or approve study leave. Therefore I have requested the SG to consider your application for study leave. I have recommended leave without pay for as many days as the policy allows if study leave cannot be granted.

17 31 Jan 2008 (R1.55). Application for leave of Absence Form Z1(a).
Annual Leave: 2 January 2008 – 6 February 2008 (26 working days)
Unpaid leave: 3 December 2007 – 31 December 2007 (29 calendar days)
Top half of Form Z1(a) filled in as above but not signed or dated by Ms N Nako
Bottom half of Form Z1(a) completed as follows:
Recommended: Signed by D Steenkamp (Designation: Manager’s /Supervisor’s signature) and dated 31 January 2008
Approved with Full Pay: Signed by N Ntsiko (Designation: Signature of HOD or Designee) on 15 February 2008. Captured and checked on 15 February 2008

22 May 2008
18 (R1.57). Letter Dr DS Steenkamp (CES: ESP) to HR Section, Department of Education: Grahamstown. To the effect: Ms N Nako left office on 8 August 2007 to study in USA. After her departure she submitted an application for 507 days study leave. A submission was made to the Provincial Office but the leave was not approved. Ms N Nako has exhausted all her leave credits. Since she has indicated she will be away until 9 August 2009. Recommends leave without pay is implemented subject to the conditions in the policy.

27 May 2008
19 (R1.15 / R1.49/ A84). Letter from Department of Education: Labour Relations, Grahamstown to Ms N Nako. Enquiries MM Ndudula. Advising come to attention of the office that Ms N Nako went on Special Leave for study to pursue your studies at Western Michigan University knowing that your application was not approved by the Superintendent General.
The period applied for was 27 August 2007 – 30 September 2009 – 507days
Ms N Nako requested to show cause within 7 days why her services should not be terminated, as in terms of R7/2001 (Annexure A) Section 17 (17.1, 17.2) which clearly state that Special Leave may be granted to an educator for an approved cause of study and for a period approved by the employer, on conditions as approved by the employer, including leave with full or partial pay or without pay. In your case there is no agreement between yourself and the employer.
Signed by Representative of the employer (Signature unknown) on 27 May 2008

30 May 2008
20 (A83 / R1.58 / R2.11 / C37). Letter (Enquiries ZF Mngxuma; NB Kamana), signed by District Director (signature unknown) to The Manager, Education Support Services: Grahamstown. Vacation / Sick Leave Without Pay: Miss Nako N; Period 07 02 2008 to 28 05 2008. To the effect that due to insufficient leave credits due to the officer at date, leave for the period has been granted without pay. Inform her accordingly

02 June 2008
21 (R1.17-R1.21 / A85-A89 / C38-C42A). Letter Ms N Nako to MM Ndudula / Grant Van Der Merwe responding to letter dated 09 January 2008 (R1.15, R1.49 / A84) to the effect that she was receiving inconsistent statements from the department (reference is made to. R1.53 / R2.10 / C21, C21A dated 09 01 2008 and R1.17-R1.21 / A85-A89 / C38-C42A dated 27 05 2008). Taking issue with being told that she is absent from work without permission; relevant leave procedures; submitting reasons why her employment should not be terminated inter alia as she is studying for a PhD at WMU; the district office failed to submit her application to the SG and seeking retention of her salary and that she has strong reasons and just cause to be absent from duty.

21 July 2008
22 (A102 - A104 / R2.5 – R2.8, R2.14 – R2.17, R3.6 – R3.9 / C44-C47(c))
MEMORANDUM: REQUEST FOR THE TERMINATION OF SERVICE: Ms N Nako Persal No. 52878470: DCES – SPECIAL NEEDS Grahamstown.
Compiler MM Ndudula
From: CES – Labour Relations & Human Resources Department To: Superintendent General
CES – Labour Relations (B Kala) signed and dated 21 July 2008 inter alia to the effect that implores the Superintendent General approve the submission to terminate Ms N Nako’s services as of the day after she left work.

District Director: HRA & P (NB Kamana) signed and dated 23 July 2008
Advised her before she disappeared to apply and wait for response before embarking on study leave: Dismissal highly recommended.

District Director (N. Ntsiko) signed and dated 23 July 2008)
Not recommended: Dismissal is rather too harsh. This is a scarce skill. The country is in a process of importing scarce skills from overseas countries and developing our own is highly recommendable. Leave without pay is a much better recommendation.

Director Labour Relations (R Pretorius) signed and dated 29 July 2008
Not recommended: Termination of service due to abscondment not recommended because the District was at all times aware of the whereabouts of the employee. In reference to the letter of Ms Nako dated 2 June 2008, it is my opinion, that depending on whether a leave policy was in place at the time of her request, that this is not a dismissible offence. My recommendation is that a formal disciplinary inquiry be held wherein Ms Nako be allowed to state her case and that the period in dispute be regarded as leave without pay

Chief Director (Z Makina) signed and dated 4 August 2008
Recommended: as per Dir LRs
Acting DDG: IOM (M Ngonzo) signed and dated 18 August 2008
Not recommended deleted on form and endorsed Recommended

Superintendent General (NV Mahanjana) signed and dated 20 August 2008
Approved circled and no further endorsements.

9 September 2008
23 (R2.12 / C52). Letter dated 19 August 2008, but signed on 9 September 2008 from the District Director (Revd. Fetsha) to Ms N Nako the following is recorded:
1 Our letter of 27 May 2008 has reference to this matter.
2 Please be informed that an approval was granted by S/G, that the period of your absence from work without authorization be regarded as long vacation on leave without pay .
3 A formal disciplinary hearing will be held on your arrival whereby you will be given an opportunity to state your case.
4 Should you need more information please feel free to contact your workstation at 046 603 4200 or the office of the Superintendent General at 040 608 4205

3 November 2008
24 (R1.44 – R1.53, R2.12B – R2.12F, C53 –)
Letter from Ms N Nako to Office of Consular General, Chicago, (USA) inter alia to the effect that:
o She is a second year Counselling Psychology doctoral student at WMU and also employed by Department of Education: EC and has served in the position of Deputy Chief Education Specialist providing psycho-social and curriculum services for 12 years and seeking the Consul General’s intervention in bringing the parties together to resolve the matter and willing to enter into a contract to ensure her continued service on completion of her study program
o The Department of Education EC stopped her salary for August 2008 and part paid her for September and October 2008
o She is dependent on her salary for subsistence and other living expenses while in the process of applying for further funding
o Reporting on her application for leave and responses by the department

December 2008
25 (R2.12G) Letter from Consul General: Chicago, to MEC, Eastern Cape Department of Education, cc Ms N Mahanjana (Superintendent General), Mr AT Fetsha (District Director Grahamstown), Ms Z Makina (Chief Director, Human Resources and Management) Directing that Nako gets the necessary response and assistance as her situation desperately needs attention.

10 January 2009
26 (C288-C295). Copy of Applicant’s passport and as per applicant’s testimony in cross examination by Adv S Scott. Applicant returned to RSA from USA

15 January 2008
27 (C28A). Email from N Ntsiko in reply to applicant’s email to him of 14 Jan 2008 (C28A-C28B). Inter alia to the effect that Dr Steenkamp is still handling the matter and no problems so far. If they are still paying you I don’t think it will be wise for you to contact and negotiate with them wait until they stop.

23 January 2009
28 (C288-C295). Copy of Applicant’s passport and as per applicant’s testimony in cross examination by Adv S Scott. Applicant left RSA for USA

30 March 2009
29 (R3.1/A90 / C60, C60A). Letter from Chief Director HR Management & Development (HRM&D) (Ms Makina), Provincial Department of Education Eastern Cape, Zwelitsha, to Ms N Nako stating inter alia:
1 The above request dated 3 November 2008 to the SA Consul General, Ms Magaqa, has reference.
2 The Provincial Office of the Department of Education has thoroughly investigated your case and concluded that it was dealt with in terms of Prescripts and Policies governing and determining the Leave of Absence in the Public Service
3 By your own admission you left prior to your application for special leave being approved in order to secure funding and to enrol for your course intending to apply for special leave while in the United States, letter dated 13 August 2007 . Therefore your absence has been regarded as unauthorized.
4 However, approval was subsequently granted by the Provincial Delegated Authority to treat your absence as approved unpaid leave, the outcome of which you were duly notified, letter dated 27 May 2008 .


5 May 2009
30 (A144-A146). Letter from Ms N Nako to SG inter alia requesting SG’s office to look into her matter and reconsider her application for study leave. Further taking issue with respondent’s:
o response to her application for special leave for study purposes in terms of 17.1 & 17.2 of Leave Procedures, Notice No. 1400 GG No. 22961. She is of the view that she is entitled to a study leave with full pay as provided for in the policy document
o withdrawal of her salary

05 September 2009
31 (A94, C68) Email dated 5 September 2009 Sipho Lombo to applicant to the effect that:
o If she is unhappy with the response from her director she should talk to a higher authority, the Cluster C Chief Director, Mr Tyali, per protocol
o Alternatively write a submission that will end up with the Superintendent General for approval / disapproval
o Everyone at HR seems to be aware she left without permission to undertake study and therefore that is regarded as abscondment
o There is no policy that allows study leave with pay for 3 years. Although she says she had a verbal agreement this cannot be used post facto
o According to HR there is no recourse for this matter
o She should write a letter of appeal through the line function of her director to the SG, who will not entertain a submission without their comment. If her submission is strong enough he may approve it through Tyali’s PA

09 September 2009
32 (A93, C67) Email from applicant to Dr Lombo. She is frustrated and it is too traumatic and humiliating to continue making written submissions. Appealing to Dr Lombo to present the matter to the SG. She will inform her lawyer she is open to negotiations and if does not hear from the department she can say that she tried her best to avoid wasting taxpayer’s money.

05 October 2009
33 (A92 / C66) Email from Dr Lombo (Sipho Lombo) to applicant, reporting that according to a document received from the Labour Relations Office, termination of her services was requested because she had absconded and that her termination was approved by the then SG, Mrs Mahanjana, on 26 August 2009, and that based on this document there is nothing further that this office can do

22 December 2009
34 (C288-C295). Copy of Applicant’s passport and as per applicant’s testimony in cross examination by Adv S Scott. Applicant returned to RSA from USA

08 January 2010
35 (C288-C295). Copy of Applicant’s passport and as per applicant’s testimony in cross examination by Adv S Scott. Applicant left RSA for USA

04 January 2011
36 (R1.22 / R2.13) Email from M Mannya to Ms N Nako responding to Ms N Nako’s email of 20 12 2010 (R1.22) attaching a letter outlining her situation advising that he has asked that the matter be investigated and that he would revert to her and stating:
In the meantime, it does not appear from your letter that the person having authority to approve your leave of absence did in fact do so.

I must also point out to you that it is the duty of the person taking leave to obtain the requisite approval prior to taking leave. This applies to all types of leave.

Although every employee is entitled to leave, the requirement that it be approved limits the scope of such entitlement. I cannot at this stage find any basis to conclude that then Head of Department approved or disapproved of your leave. You were not entitled to take leave of absence without such approval from the Head of Department without her prior written approval

03 August 2011
37 (C288-C295). Copy of Applicant’s passport and as per applicant’s testimony in cross examination by Adv S Scott. Applicant returned to RSA from USA

5 September 2011
38 (A95). Letter Ms N Nako to the Minister Department of Basic Education (DBE) cc Mr S Mabua & Mr M Msweli attached to Ms N Nako’s email (R3.14-R3.15 / R3.17) to the Minister DBE. I hereby forward you correspondence presenting a case of unfair and unprocedural dismissal. … In her letter to the Minister DBE, the applicant requests the Minister’s intervention and sets out her concerns with:
o Her application for and disapproval of her leave
o The withdrawal of her salary
o Unfair approval that her services be terminated / dismissal

19 September 2011
39 (C288-C295). Copy of Applicant’s passport and as per applicant’s testimony in cross examination by Adv S Scott. Applicant left RSA for USA

26 October 2011
40 (R3.37). Memorandum Director: Labour Relations to District Director: Grahamstown. Attention CES: HRD & Labour Relations requesting whether formal disciplinary inquiry held as recommended by Director: Labour Relations on 29 July 2008 and if not, why not. Signed by R Pretorius Director: Labour Relations and dated 26 October 2011.

27 October 2011
41 (R3.39). Letter CES HRD & Labour Relations to Director: Labour Relations. …the disciplinary hearing against Mrs N Nako could not be held … due to the fact that the official is still in Western Michigan University, USA. Signed by CES HRD & Labour (B Kala) and dated 27 October 2011.

01 December 2011
42 (A101 / R3.2-R3.5) Letter District Director - Grahamstown to Director Human Resource Administration. NB Kala (CES HRD & Labour) & AT Fetsha (District Director) to M Stowman (Director HR Administration). To the effect that it was false that the services of Ms N Nako had been terminated, attaching PERSAL printouts and advising that [T]he District Office is still waiting for Ms N Nako to return from USA so that a formal disciplinary hearing can be convened. Signed by CES HRD & Labour (NB Kala), dated 1 December 2011 and signed by District Director (AT Fetsha).

5 December 2011
43 (R3.5A-R3.5B). Letter Ms N Nako to Minister DBE Attention: Mr E Segabutla, cc Mr S Mabua & Mr M Mweli. Reference is made by Ms N Nako to a Report and that inter alia this report revealed that a recommendation that her services be terminated, but that this was later modified to a recommendation for leave without pay for the period until a formal hearing was held. She had never been called to a hearing and was of the view that denial of her study leave was unfair and the withdrawal of her salary illegal and seeks the intervention of the Minister to resolve the problem.

31 January 2012
44 (R3.18 / R3.5C). Email Mr E Segabutla (DBE) to Ms N Nako:
This is in response to your email of 30 January 2011 to Mr Steve Mabua.

The Provincial Education Departments are responsible for the employment of educators in the province. As previously indicated, in terms of the Employment of Educators Act, 1998 (Act 76 of 1998), the power to appoint or transfer any educator in the province is vested in the Head of Department (HOD) and not the Minister of Education. The HOD in the province is the employer of educators in that province.

The ECED. The reason why the DBE informed you previously that the Minister cannot intervene in this case and relies on feedback from the ECED is because the HOD and not the Minister is your employer. The HOD is within his/her rights to charge any employee who has committed an offence in the Provincial Education Department. The Employment Act grants an educator the right to appeal to the MEC (not the Minister) against the finding by the presiding officer of a disciplinary hearing where an educator has committed misconduct.

The DBE trusts that you will find the above in order.

20 February 2012
45 (R3.6A-R3.6B). Letter Ms N Nako to Mr Pretorius Director of Labour Relations Eastern Cape Department of Education Bhisho seeking that his office address, investigate and intervene as a matter of urgency. Ms N Nako inter alia raises issue with:
o The period in dispute, when approval for leave without pay was given by SG on 20 08 2008, was 96 days. As at 20 02 2012 (3 years 6 months) she has not yet been afforded the opportunity to state her case / she has not been summoned to a disciplinary inquiry.
o The Grahamstown District Office effected undisclosed deductions from her salary prior to approval of SG for leave without pay, with reference to August 2008-March 2009
o The lawfulness of the deductions and subsequent total withdrawal of her salary in April 2009


13 March 2012
46 (A105-A106 / R1.23-R1.24). Notice to attend disciplinary inquiry scheduled for 6 April 2012 and setting out charges as follows:
CHARGE 1
It is alleged that you misconducted yourself in terms of Chapter 5 Sec 18(1) of the Employment of Educators Act 76 of 1998 (as amended) in that you absent yourself from work without a valid reason or permission on or about 27 August 2007 to date.

CHARGE 2
It is alleged that you misconducted yourself in terms of Chapter 5 sec 18.(1)(i), of the Employment of Educators Act 76 of 1998 (as amended), in that you failed to carry out a lawful order or routine instruction from your supervisor without just or reasonable cause in that you went on leave without obtaining the required written approval for such leave by going to a disapproved study leave whilst you were informed.

ALTERNATIVE CHARGE TO CHARGE 2
It is alleged that you committed an act of misconduct in terms of section 18(1)(i) of the Employment of Educators Act 76 of 1998 (as amended), in that when you were informed that your application for study leave was not approved you did not return to work but continued to be absent without permission on or about 27 August 2007 by ignoring this directive.

The meeting will be held on the 06 April 2012 at the St Aidans Building Department of Education (Grahamstown District Office) Room 152, at 09:00. You are requested to inform this office in writing should the time period be disadvantaging you and suggest a time that will be convenient for all parties involved in this matter.

If you do not attend and cannot give reasonable ground for failing to attend, the meeting will be held in your absence. …




15 May 2012
47 (R3.41). Letter CES HRD & Labour (B Kala) unsigned, forwarded to A Brand & R Pretorius per email from M Ndudula (R3.42) dated 5 May 2020, to the effect that a disciplinary inquiry was scheduled for 30 April 2012 and Ms Nako did not attend and seeking advice on what to do next.

21 May 2012
48 (R2.9 / R3.40). Internal memorandum from Director: Labour Relations to Acting District Director: Grahamstown. Attention CES: HRD & Labour Relations, signed by Director: Labour Relations (R Pretorius) and dated 21 May 2012, with reference to correspondence dated 15 May 2012, advising that write to Ms Nako to request reasons for not attending disciplinary inquiry.

30 May 2012
49 (R3.45-R3.47). Letter Ms N Nako to SG Eastern Cape Department of Education. Similar to R3.6A-R3.6B dated 20 February 2012 (see above) and requesting the SG to address, investigate and intervene as a matter of urgency.

6 June 2012-01 Feb 2013
50 Various emails from Ms N Nako, emails and letter from NUPSAW, Director Labour Relations, references to nature of applicant’s grievance, meeting between department and NUPSAW, outcome of meeting, and attendance register of meeting with HOD, LR and NUPSAW on 1 February 2013

17 January 2013
51 (C288-C295). Copy of Applicant’s passport and as per applicant’s testimony in cross examination by Adv S Scott. Applicant returned to RSA from USA


13 February 2013
52 (A107 / R3.20) Letter Acting Head Education (ML Ngonzo) signed and dated 13 February 2013 to Ms N Nako. Notice of Intention to terminate Your Service and Ms N Nako to provide reasons why she should not be discharged from service by operation of law within 14 working days.

21 February 2013
53 (A178) Email from T Maletswa (NUPSAW) to Ms N Nako attaching Notice of intention to terminate your service

01 March 2013
54 (A108-A109 / R3.23-R3.24). Letter Ms N Nako to SG inter alia requesting extension of 60 days

05 March 2013
55 (C288-C295). Copy of Applicant’s passport and as per applicant’s testimony in cross examination by Adv S Scott. Applicant left RSA for USA

19 March 2013
56 (A110 / R3.25). Letter SG to Ms N Nako extension granted

05 June 2013
57 (A112 / R3.29). Letter Director Labour Relations to Mlindazwe & Associates (Ms N Nako’s attorneys), in response to their letter of 7 May 2012 (A111/ R3.27-R3.28) advising that the disciplinary inquiry scheduled for 6 April 2012 could not sit due to absence of Ms N Nako and on reconsideration a different approach was embarked on and as such there could be no outcome.


06 August 2013
58 (A115-A116 / R3.33-R3.35). Letter Mlindazwe & Associates NONTLE NAKO MATTER: REASONS FROM DISCHARGED. Requesting Director Labour Relations to consider the reasons and further abandon the intended hearing.

Undated
59 (A117 / R3.36 / C143, C143A). Letter SG to Mlindazwe & Associates to the effect that having considered the submissions (reference to letter dated 06 08 2013), the department still convinced that Ms N Nako has committed misconduct and as such will be subjected to a disciplinary process

30 April 2015
60 (C288-C295). Copy of Applicant’s passport and as per applicant’s testimony in cross examination by Adv S Scott. Applicant returned to RSA from USA

03 September 2015
61 (A118) Email E Scheun Dir Legal Services to Ms Nako. Reference to Acting SG ruling that matter to proceed by way of formal disciplinary hearing

3 October 2015
62 (A121-A122). Letter Ms N Nako to the Minister of Education, attention Mr S Mabua & Mr M Mweli, asking the Minister to intervene and resolve the impasse. Stating inter alia that she has completed her degree, returned to South Africa on 30 April 2015, reported for work on 12 May 2015, however the District Director did not allow her to return to work and told her to wait until he obtained guidance from the Provincial Office, she was still at home, the department of education had not resolved the issue of her resumption of duties or salary and no charges were levelled against her, almost 5 months later.

7 October 2015
63 (A1-A4 / A123-A126). Notice of disciplinary hearing to commence 9-10 November 2015 at East London. Indicating inter alia that Ms N Nako may be represented by a trade union official, fellow employee, or any other suitably qualified person able to deal with the matter as set down and who should contact the department’s representative (Par. 3.1). The departments representative is given as Adv SA Collett. Setting out charges as follows:
6.1 It is alleged that you are guilty of gross misconduct in terms of Section 18(1)(j) of the Employment of Educators Act of 76 of 1998 more particularly:
6.1.1 You absented yourself from work without valid reason and/or permission during the period 28 November 2007 until May 2015.

6.2 It is alleged that you are guilty of gross misconduct and/or dereliction of duty in terms of Section 18(1) of the Employment of Educators Act 76 of 1998 more particularly:
6.2.1 You unjustifiably prejudiced the administration, discipline or efficiency of the Department of Education, by your continued absence from the workplace despite your leave application having been refused.

12 October 2015
64 (A127). Letter Nontle Nako to SG. Disciplinary Hearing and Related Issues. Ms Nako inter alia raises issue with direction by presiding officer to the department to appoint Adv Collett without extending the same invitation to her and her suspension and payment of salary. The instruction to remain at home constitutes suspension, she should be placed on suspension on full pay and return to work after three months. Disciplinary hearing to be held within 1 month of suspension and within 10 working days of notice to attend a disciplinary hearing. Seeking SG to address certain concerns failing which will seek urgent redress from the Labour Court. (Items 6, 7(1), 7(2)&(5), of the Disciplinary Code Schedule 2 to the Employment of Educators Act 76 of 1998

07 April 2016
65 (A7-A26). The applicant was found guilty as charged on 7 April 2016

20 May 2016
66 (A27-A36). The applicant was given a sanction of dismissal on 20 May 2016.

07 July 2016
67 (A38-A40). The applicant’s appeal against the findings and sanction, to the MEC, was dismissed and the sanction upheld on 7 July 2016 (date of dismissal)