ELRC462-23/24NW

Commissioner: D Smith
Case No.: ELRC462-23/24NW Date of Award: 31 May 2024

In the ARBITRATION between:

APPELS, MILDRED
(Union / Applicant)
and
DEPARTMENT OF EDUCATION NORTH WEST
(Respondent)


DETAILS OF HEARING AND REPRESENTATION:

1. The dispute was referred to the Education Labour Relations Council (Council) in terms of Section 191(5)(a) of the Labour Relations Act, No. 66 of 1995, as amended (LRA). The matter was scheduled for Arbitration on 14 May 2024 and was conducted via Zoom.

2. The Applicant, Ms. Mildred Appels (Appels), was represented by Mr. Elco Geldenhuys (Geldenhuys), an attorney. The Respondent was represented by Mr. Martin Keetile, its director: labour relations.

3. The process was digitally recorded, and I took handwritten notes.

4. Appels submitted a 36-page bundle of documents marked “A”.

5. The parties agreed to submit closing argument by 21 May 2024.

ISSUE TO BE DECIDED:

6. Whether Appels was unfairly dismissed or not, and if so, determine the appropriate remedy.

BACKGROUND:

7. Appels was employed in August 2009 as an educator. At the time of her dismissal for alleged misconduct on either 5 July 2023 (Applicant’s version) or 18 March 2023 (Respondent’s version) she earned R28757.82 per month.

REMEDY

8. Appels sought retrospective reinstatement.

SURVEY OF EVIDENCE AND ARGUMENT:

9. For the purposes of this award, I do not intend, to record verbatim evidence led, submissions made and or arguments raised on record. Only the prominent points raised by each party in their evidence that have a bearing on the issue in dispute and to be decided are recorded hereunder. I did, however, consider all the evidence that was presented in rendering this award.

RESPONDENT’S VERSION:

10. Mr. Miles (Miles), acting principal at the time, testified:

10.1. He was aware of the Section 14 (EEA) letter drafted for Appels by the department’s labour relations practitioner, De Meyer, A63. He could not confirm whether it was the letter he had given to Appels.

10.2. Appels had absconded.

10.3. He could not give the background.

10.4. At the start of the 2022 school year Appels came to work for three days. She sent in four medical certificates, covering four weeks. He then heard nothing until the end of March 2022. He had already reported the situation to HR.

10.5. A59 was the first medical certificate dated 20 January 2022. A60 and 61 were the other three.

10.6. He communicated with HR when Appels failed to report from 18 March 2022. Appels last report to him was on 18 February 2022. He expected her to be at work from 19 February 2022.

10.7. He had never seen the letter A19 dated 31 October 2022.

11. In cross-examination he testified:

11.1. 19 and 20 February 2022 were a weekend.

11.2. In April 2022 Appels brought another medical certificate, A62.

11.3. He confirmed Appels had sent him a WhatsApp on 21 February 2022.

11.4. He denied telling Appels to go home on 22 February 2022.

11.5. He told Appels she was on suspension and that the department would get back to her. He said it was not in his hands and he had given all the documentation to the department.

11.6. Appels told him she had applied for long leave with Roger from HR.

11.7. When he was asked why he sent documentation to the department when he knew Appels was sick, he replied that she had been appointed as counselor. He sent in evidence of this. Appels was on sick leave and did council work, A19.

11.8. He was not involved in the suspension of Appels’ salary. He could not comment on whether Appels had received her salary until April 2022.
11.9. He arranged for Appels to pick up the letter from the department.

APPLICANT’S VERSION:

12. Appels testified under oath:
12.1. She submitted four medical certificates covering the period 19 January to 19 February 2022, A59-62. On Monday 21 February 2022 she sent a WhatsApp to Miles saying she would be back on 22 February 2022.

12.2. On 22 February 2022 she went to the school. Her colleagues told her that Miles was waiting for her in his office. He told her she must go home, and the department would tell her when to come back.

12.3. She was paid until the end of April 2022.

12.4. She referred an unfair labour practice, suspension, that was awarded in her favour, A2.

12.5. On 23 July 2023 she received a letter of termination dated 16 February 2023.

13. In cross-examination she testified:

13.1. She went to the school on 22 February 2022.

13.2. She submitted the last medical certificate to Miles in April 2022 with a request for long leave. Miles said he would submit it to the department.

13.3. There was no mention of her being absent for a long time.

ANALYSIS OF EVIDENCE AND ARGUMENT:

14. Section 192(1) of the LRA provides that in any proceedings concerning any dismissal, the employee must establish the existence of the dismissal. Section 192(2) provides that if the existence of the dismissal is established, the employer must prove that the dismissal was fair.

15. However, Section 14 of the EEA provides for a deemed dismissal where an employee is absent for 14 days without approved leave or permission:

“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) …”

16. Appels was absent for more than 14 consecutive days. Her absence started on 19 January 2022. The deemed discharge would have been effective from 20 January 2022. The is no evidence of sick leave being approved. The Courts have held that for the purposes of a deemed dismissal, as in this case, it is irrelevant whether, whether the employee was absent due to illness and later submitted medical certificates. The only question is whether the leave was approved. There is no evidence of approved leave for the 14-day period. Appels bore the onus to prove that the leave was approved. She has not discharged this.

17. Consequently, I find that Appels has not proved that she was dismissed in terms of the LRA.

FINDING

18. Section 14 of the EEA has application, and Appels was deemed to be discharged.

RULING

19. The Council lacks the jurisdiction to arbitrate the matter.


D H Smith

ELRC PANELIST
31 May 2024