ELRC208-23/24EC

Case Number: ELRC208-23/24EC
Panelist: Thobela Obey Mqamelo
Date of Award: 11 January 2024

In the Arbitration between


NAPTOSA obo Sebastian Jaco Winston Wagner.
(Applicant)


And

Department of Education-Eastern Cape
(Respondent)


DETAILS OF HEARING AND REPRESENTATION

1. This unfair dismissal dispute was arbitrated under the auspices of the Education Labour Relations Council on 17 November 2023 in Graaf Reinet, and on 30 November 2023 in Gqeberha, as in terms of section 186 (1)(a) of the Labour relations Act 66 of 1995 (LRA), under the auspices of the Labour Relations Council.

2. The applicant, Sebastian Jaco Winston Wagner (Wagner) was present and represented by Adv. Gavin Saayman, an Official from NAPTOSA the union.

3. The respondent, Department of Education-Eastern Cape was present and represented by Mr Garth Jacobs, an Acting Chief Education Specialist-Employee Relations at the respondent.

4. The respondent submitted a bundle of documents (Bundle ER1)

5. The applicant submitted a bundle of documents (Bundle EE1)

6. The bundles were accepted by parties as what the purport to be, with the content to be challenged.

7. Ms Anita Patricia Swartz, and the applicant Sebastian Jaco Winston Wagner testified during the proceedings.

8. Evidence was tendered under Oath.

9. The proceedings were held in English and Afrikaans

10. The proceedings are manually and digitally recorded

11. Both parties submitted their closing arguments in writing.

ISSUE TO BE DECIDED

12. I must determine whether the applicant has been dismissed, and if so whether the dismissal is fair.

13. The applicant seeks retrospective reinstatement.

BACKGROUND TO THE ISSUES

14. The applicant commenced employment with the respondent on 20 January 2020.

15. At the time of termination of his employment he was employed in terms of the Employment of Educators Act 76 of 1998, as a Post Level 1 Teacher, and earned an amount R27,318.20 per month, and was based at Baviaans Kouga Academy in Hankey in the Eastern Cape.

16. The applicant was discharged from his service in terms of Section 14(1)(a) of the Employment of Educators Act 76 of 1998 , by the respondent on 21 February 2023.

17. Section 14 of the Employment of educators 76 of 1998 states the following.
Certain educators deemed to be discharged
(1) An educator appointed in a permanent capacity who –
(a) is absent from work for a period exceeding 14 consecutive days without
permission of the employer;
(b) while the educator is absent from work without permission of the employer,
assumes employment in another position;
(c) while suspended from duty, resigns or without permission of the employer assumes employment in another position; or
(d) while disciplinary steps taken against the educator have not yet been disposed
of, resigns or without permission of the employer assumes employment in
another position,
shall, unless the employer directs otherwise, be deemed to have been
discharged from service on account of misconduct, in the circumstances where -
(i) paragraph (a) or (b) is applicable, with effect from the day following immediately
after the last day on which the educator was present at work; or
(ii) paragraph (c) or (d) is applicable, with effect from the day on which the educator resigns or assumes employment in another position, as the case may be.

(2) If an educator who is deemed to have been discharged under paragraph (a) or (b)
of subsection (1) at any time reports for duty, the employer may, on good cause
shown and notwithstanding anything to the contrary contained in this Act, approve
the re-instatement of the educator in the educator’s former post or in any other post
on such conditions relating to the period of the educator’s absence from duty or
otherwise as the employer may determine.

18. The applicant is challenging procedural fairness.

19. The applicant also challenging substantive and fairness of the dismissal in that he did not breach the rule.

20. The applicant seeks retrospective reinstatement.

SURVEY OF EVIDENCE AND ARGUMENT

21. This is a summary of the evidence considered as in terms of Section 138(7)(a) of the LRA, pertinent to this dispute.

ANALYSIS OF EVIDENCE
RESPONDENT’S TESTIMONY
ANITA PATRICIA SWARTZ (MS SWARTZ)

22. She testified that she is the Principal at the school in which the applicant was placed.

23. She became a Principal, and leave Manager at the school in June 2002, and that the applicant became absent on many occasions did not send any leave requests.

24. She does not remember signing any of the leave days requests of the applicant, and also did not did not approve any of the leave.

25. She further testified that the applicant was absent for the period 01 December 2022 until 20 February 2023.

26. This resulted she reported the absence of Mr Wagner to the Circuit Manager Mr Garth Jacobs, she was informed that when the applicant reports fir duty she must inform him to report at the district office of the respondent.
27. It is Ms Swartz testimony that the applicant only returned to work on 20 February 2023, and she informed him to report to the district office.

28. She testified that applicant has never returned back to work again after 20 February 2023, and that the applicant has been deemed to have his services terminated by operation of the law as in terms of section 14 (1)(a) of the Employment of Educators Act 76 of 1998 with effect from 21 February 2023.

29. It is the testimony of Ms Swartz that the conduct of the applicant has affected the school learning, in that foundation phase teachers were over loaded having to the work of the applicant and their work during the absence of the applicant.

APPLICANT’S EVIDENCE
SEBASTIAN WINTSON JACO WAGNER (MR WAGNER)

30. He testified that he did not breach the rule in terms of section 14 (1) (a) of the Employment of Educators Act 76 of 1998.

31. He had applied for the leave for the period alleged to have been absent between 01 December 2022 until 20 February 2023.

32. He submitted that on some certain days when he applies for leave the Principal being the leave manager at the schools would refuse to sign some of the leave application forms.

33. He testified that the nature of the relationship with the principal was bad to an extent that the office of the Human Rights Commission had to intervene.

34. He testified that he applied to be leave from 01 December 2022 and reported at the school at 08h00 for duty on 14 December 2022, and completed the attendance register, it is the same the meeting between him, the Principal and the Human Rights commission was scheduled on at the school.

35. He was informed by the Principal to wait at the Staff Room as there was a scheduled meeting with the Human Rights Commissions, and that on 15 December 2022 no one reported to school, as the entire staff member reported to the venue for the year end staff party.

36. It is the applicants testimony that he applied for leave of absence for the following days; 18 January 2023 until 20 January 2023; 23 January until 27 January 2023; 30 January 2023 until 31 January 2023; 01 February 2023 until 02 February 2023; 03 February only, 07 February until 20 February 2023; and that only the leave of absence for 18 January 2023 until 20 January 2023, and 03 February 2023 were signed and approved by the respondent, he referred pages numbers 06, 08, 10, 12, 14, &16 of bundle EE1 in support his testimony.

37. It is the applicant’s testimony that the Ms Swartz would receive his leave requests form through the school secretary as normal practice of the school, but she would refuse to sign some of them.

38. He learned on the 20 February 2023, that the other leave of absence he had applied for were not approved by the school Principal, Ms Swartz, and went to file them at the district office of the respondent.

39. On 14 May 2023, he received the letter of discharge (termination of employment) indicating that he has been discharged from service as from 21 February 2023, for absconding as in terms of section 14(1)(a) of the Employment of Educators Act 76 of 1998.

40. It is the applicants submissions that will still be able to work for the respondent, and that trust relation is not broken , in that the parents of the learners will accept him if he is reinstated.

41. The applicant seeks retrospective reinstatement.

ANALYSIS OF EVIDENCE

42. This matter was referred in terms of Section 186(1)(a) of the LRA

43. In dealing with the disputes of unfair dismissal the courts have clarified the manner in which the determination for the fairness of the dismissal must be made.

44. In the case of Fidelity Cash Management Service v CCMA and others (DA 10/05) [2007] ZALAC 12; [2008] 3 BLLR 197 (LAC); (2008) 29 ILJ 964 (LAC) (handed down on 5 December 2007) The Court held that the fairness of the dismissal must be based on the reasons relied on by the Employer at the time of the dismissal.

45. In the termination letter handed to the applicant, the applicant is deemed to have been discharged from his duties with effect from 21 February 2023.

46. The version of the respondent is that the last the applicant reported for duty was on 30 November 2023, and only came back on 20 February, hence his services are be terminated.

47. The applicant was employment in terms of the Employment of Educator Act 76 of 1998 and that in terms of section 14(1)(a) should an educator who is employed in terms of the above mentioned act be absent from work for more than 14 days he or she is deemed to have discharged.

48. In terms of this Employment of Educator Act 76 of 1998, the employer does not have the responsibility to attempt to contact the employee, hence there was also no attempt made to contact the applicant during the period concerned. All that the respondent has to do is to count 14 days of absence and issue the termination letter, the procedural challenge cannot sustain.

49. Evidence was led by the respondent was that the applicant last day at work in the year 2022 was 30 November 2022, and that he only returned on 20 December 2023.

50. The applicant disputed vehemently this version, and testified that he was at work on 14 December 2023, as he was returning to work, and that he was granted leave of absence for 18 until 20 January 2023, 03 February 2023.

51. I accept this version that the applicant attended work as it is common cause that he was at the school on the day, which on the same day he also attended the meeting scheduled, this interrupts the 14 school working days required in terms of section 14(1)(a) of the Employment of Educators Act 76 of 1998.

52. During cross examination Ms Swartz, admitted that the signature in the granted leave form 18 January 2023 until 20 January 2023, and 03 February 2023 is her signature,

53. I have assessed the leave forms documents submitted and I cannot conclude that the signature was placed without the knowledge of Ms Swartz, as she testified. This substantiates the applicant’s submissions that Ms Swartz would approve some leave and not approve others.

54. Although the applicant claims to have been on leave, some of his leave days were not approved before and after his absence, there is no proof that a manager at the district office intervened by approving the following leave of absence. 23 January until 27 January 2023; 30 January 2023 until 31 January 2023; 01 February 2023 until 02 February 2023; 07 February until 20 February 2023.

55. From the 14 December 2022 until the approved leave of 18 January 2023 until 20 January, there are 4 days of unauthorised absence, as the schools opened on 11 January in 2023.

56. From the date of 20 January 2023 until the next approved leave 03 February 2023, there are 9 unauthorised working days of absence.

57. The period of unauthorised absence from the approved leave of absence for the 03 February 2023 until the date of discharge 21 February 2023 is 11 working days.

58. The approved leave of absence are characterised by the signature of the Principal Ms Swartz.

59. Despite this number of unauthorised leaved of absence, the respondent opted to following the process in terms of section 14(1)(a).

60. I do not find any unauthorised 14 day on the side of the applicant, between the periods of 01 December 2022 until the date of termination of service, 21 February 2023.

61. I find the dismissal of the applicant is procedurally fair but, substantively unfair.

Relief

62. I am convinced that the relationship between the applicant and the respondent can be restored and learners may benefit out of it. They both were capable of resolving the differences under the auspices of the Human Right Commission.

63. Furthermore, with the dismissal being substantively unfair, I cannot deprive the applicant his right to be reinstated, based on what was said during the arbitration. There is also no reason for me to deviate from the full back-pay

64. I therefore make the following order.

AWARD

65. I find the dismissal of the applicant, Sebastian Jaco Winston Wagner is procedurally fair but, substantively unfair.

66. The respondent, Department of Education-Eastern Cape is ordered to reinstate the applicant with effect from 01 February 2024.

67. The respondent, Department of Education-Eastern Cape is ordered to pay amount R273,182.00 equivalent to ten (10) month back-pay to the applicant by no later than 31 January 2024


Signature:

Commissioner: Thobela Obey Mqamelo
Sector: Department/ Education