IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD VIA DIGITAL ZOOM CONFERENCE

Case No: ELRC277-26/27WC

In the matter between

SADTU obo Tymarah Jones Applicant

and

Education Department of Western Cape Respondent

PANELLIST: Dr. GC. van der Berg.
DATE OF AWARD: 03 November 2026

ARBITRATION AWARD

Details of hearing and representation

1. The arbitration hearing took place via digital video conference (ZOOM) in Cape Town on 13 August 2026 and 15 October 2026 at 9:00 respectively. The proceedings were both digitally and manually recorded. The applicant, Tymarah Jones, was represented by Tesrel Fortuin, an official from SADTU. The respondent, Western Cape Education Department, was represented by Unothando Moxongo, the Labour Relations Officer.

Issue to be decided.

2. The dispute was referred to the ELRC as a dismissal for misconduct under section 191(1) [191(5(a)] of the Labour Relations Act 66 of 1995 as amended (“the LRA”). I must decide whether the applicant was dismissed and if she was dismissed, whether the dismissal was substantively and procedurally fair and thereafter determine the appropriate remedy. The applicant sought retrospective reinstatement, alternatively substitution dismissal with a lessor sanction. Background to the Dispute
3. The applicant is an educator with experience, and she was employed by the respondent since 04 October 2024 to 21 May 2026. The applicant was charged with misconduct and absenteeism and ultimately found guilty and dismissed. The applicant was subjected to a disciplinary hearing process that took place on 19 and 24 February 2026. The applicant was dismissed on 21 May 2026. She was charged with a similar charge a few months earlier and she received a final written warning for insubordination. She was absent from October 2025 to December 2025 for being absent 153 days in 2025 and 66 days in 2026. In January 2026 the applicant was charged for misconduct and her pattern of absenteeism
4. The dispute was referred to the ELRC, and a conciliation process took place, and it was not resolved. Then the dispute was set down for arbitration on 13 August 2026. The first witness of the respondent testified and was partly cross examined when the representative of the respondent requested to visit a Medical Practitioner at 13:00 and the applicant indicated that he would sent prove of his medical certificate to the ELRC and myself which he did. The arbitration was then postponed and re-scheduled for 15 October 2026.
5. The parties presented opening statements and the representative of the respondent, and the representative of the applicant presented written closing statements, as agreed on or before 22 October 2026. The representatives of the parties were allowed to cross-examine and re-examine the witnesses and the applicant during the presentation of their evidence. For the sake of brevity, the details of this will not all be repeated in the award, but it should not be construed that it was not considered. Survey of evidence and argument Documentary evidence.
6. Both parties submitted a bundle of documents, and the bundle of the respondent was marked as “R” pages 1-57, and the bundle of the applicant was marked as “A” pages 1 to 14. The representatives of the respondent and applicant did not dispute the authenticity of the content of the bundles submitted by the parties.
   Respondent’s evidence and arguments
   The 1st witness, Sofeya Moonsamy, Principal of Observatory Junior School, after having been sworn in, testified as follows:
7. The witness stated that she is Principal at the school since 2019 and the applicant was appointed in August 2023 as she was substituting an educator and she was appointed permanently in 2024. The applicant was charged with misconduct in 2026 as she was 64 days absent in 2024, and in 2025 she was absent for 153 days and 66 days in 2026 up to May 2026. When the applicant was absent the normal procedure was followed by completing leave forms and the applicant was aware of the procedure. In some instances, the applicant informed the school and in other instances she just stayed away.
8. The witness enquired from SNT members when no response was received. The witness enquired via email why the absence from the applicant and she responded she had panic attacks and then she turned back home. Other times the applicant arrived late or just stayed away for the entire day. In some instances, the absenteeism was authorised and other instances not. The applicant was advised that a medical certificate is needed.
9. The witness claimed that the applicant was assaulted in June 2024 as a learner in her class was trying to get out of the classroom before the break and she blocked the door. He pushed pass her putting his hands on her breasts to get out. The applicant came to the office and the witness called someone to calm the applicant down. The Departmental Head then went to her classroom. The Deputy Principal removed the learner from the classroom and informed the parents. Later the applicant went back to her classroom. The applicant was spoken to in her classroom, and it was followed up with counselling. The mother of the learner was at the school, and a disciplinary hearing took place, and the learner was placed on precautionary suspension and removed from the school, and he was never at the school again since the incident happened.
10. On page 35 of bundle “R” appears an email that the witness sent to the applicant and it was about additional help she needed after attending the Wellness Centre. The absenteeism continued and some of the parents find out about it. The applicant was asked to complete the wellness forms to go again to the Wellness Centre, but she did not consent. She did not attend the wellness sessions in 2024 and 2025 as she indicated that she did not need it as she was seeing her own Psychiatrist.
11. On page 37 of bundle “R” the applicant had to be subjected to a disciplinary process. It was in 2024 regarding her performance and using of swear words the applicant’s absenteeism. The sanction was suspension for six (6) weeks, and she was from 16 September to 27 October 2025 suspended without payment. She did not come back to work on 28 October 2025. The witness emailed her and asked why she is not at work and the applicant indicated she was feeling unsafe and uncomfortable on the school premises. The Safety Policy was in place at the school and there was no unsafe environment. The applicant started to mention it after she was charged, and she showed a lot of mood swings. The applicant was not at the school for the rest of 2025, and she only came back in 2026.
12. The witness mentioned the financial constraints and other teachers had to do extra work due to the constant absenteeism in 2025. The applicant did not hand in reports in the first two terms of 2025. The absenteeism of the applicant from 28 October to the end of December 2025 was not authorised. On 23 April 2026, the Circuit Manager walked through the school with the people who did the safety studies, and it was decided that the school is safety compliant. The witness met with the Director and the applicant in November 2025, and the applicant was instructed to go back to school. Page 50 to 55 of bundle “R” indicates that the witness was present in the meeting as well as the applicant and the applicant’s concerns were discussed.
13. The applicant raised a grievance, and she was told by the witness to consider a transfer to a school closer to her, but she must except the workload would be the same at another school. The applicant did not initiate a transfer, and she was coming back to school in January 2026 the following year. She did not raise any concerns and acted very normal. The grievance was raised later about Grade 4 class instead of Grade 5. The applicant was told that she is an intermediate teacher and must not necessarily have a Grade 5 class.
14. Under cross-examination she confirmed that the applicant was 11 days absent in 2023 as she was sick on one occasion because of her ancle. In 2024 she was permanently appointed in May. The representative outlined the version of the applicant’s attack from the learner and the witness stated that she totally differs from the version of the applicant. The representative of the applicant told the witness that the witness is experiencing the attack on the applicant in a nonchalant way. The witness responded that she is not taking it lightly as she is also a woman.
15. The applicant opened a case of sexual assault against the learner at SAPS, but the witness did not report the incident. The applicant had and continued with her pattern of absence and late coming. In 2024 she was 64 days absent and the witness cannot say it resulted from her attack by the learner. The applicant could not concentrate and needs patience to calm her down. The panic attacks happened before she was in the classroom. On page 37 is charges 1 to 3 and the applicant was put on unpaid suspension from 16 September to 27 October 2025. The 153 days in 205 included the time of suspension.
16. LYRA is a team of counsellors, social workers and other who participate in counselling and the team is dealing with emotions, but the applicant did not attend the sessions. She attended PILLAR treatment for a term. The school applied for a substitute but did not pay for it as it is less than 30 days. The applicant went on temporary incapacity leave. The dates absent on page 28 of bundle “R” in Charge 1 look familiar to the witness. The applicant indicated that if she was not feeling safe at work it is a valid reason to stay away.
17. The witness indicated that measures for educators are in place and she engaged on a one-to-one basis with the applicant by speaking to her. There was no time to speak on a one-to-one basis as the applicant was seldom at work to speak to. The applicant drafted an email on 28 October 2025 about the safety and the respondent only made in April 2026 an effort to do a risk assessment. The witness responded that no policy had changed and the respondent was compliant with the safety policy.
18. The main concern of the applicant was the safety measures at school and the witness explained in detail the safety policy in place. The applicant was clearly given an instruction on 05 November 2025 to come to school the next day and the applicant did not come back to school as mediation was suggested. The applicant did not give a reason for not following the instruction. Support was offered to the applicant about her concerns, but mediation never happened as she stayed away for the rest of 2025 and only came back in 2026. There were also financial concerns as the school had to get other educators to work in the place of the applicant and paid them.
19. The witness further stated under re-examination that the applicant was charged for posting visuals of children, but she had several types of hearings for continues late coming. The applicant was previously charged, and the result was suspension from September to October 2025 and returned to school on 28 October 2025.

The second witness, Liesl Apollos, Circuit Manager (Circuit 9), after having been sworn in, testified as follows:

20. The second witness testified that she is the Circuit Manager and her role is to manage and supported and observed junior educators and ensure that they were compliant. She became aware of the concerns of the applicant in August 2024. The applicant reported incidents in the classroom in January 2024 and there was only effective communication from April 2024. In the respondents bundle on page 50 the witness was aware of this meeting, and the purpose was to determine by the witness all victimisation and unsafeness at the school. The applicant was called as well as Moonsamy and the Labour Relations Officer. There were a discussion and Robertson asked various questions and when was the applicant feeling unsafe.
21. The applicant referred to what happened in 2024 with regards to the learner. The applicant also explained that Williams shouted at her in the corridor. The way forward was that the applicant needed to go back to school and mediation sessions would be arranged with SNT. The instruction was that the applicant had to report to school on 06 November 2025, but she did not report and was told to lodge a formal grievance. The witness stated that she was not aware of the grievance from the applicant. The applicant was referred to Wellness about her absence, and she had to inform Noonsamy by 07:30 AM every day about her presence or absence.
22. Under cross-examination she confirmed that on 05 November 2025 there was a meeting about the victimisation and feeling of unsafeness by the applicant. The Director told her about the environment and infrastructure and the context what let to the applicant being unsafe. The witness was asked if a learner assaulted an educator what must the principal do and what will be the involvement of the Circuit Manager. The witness said there are directors, it can be reported to SAPS, and it was done. Then counselling must be given to the educator depends on the context and nature, reports a plan for the wellness for the educator. The principal investigated this issue, and it was then reported to the witness. The investigation shows that the applicant must attend counselling. The following steps were taken to make the educator feel safe like it was reported to SAPS and the applicant received counselling and completed the LIRA forms but did not give consent.
23. The applicant was asked if she wanted to go to another class the applicant was in counselling and dealt with Wellness. The witness stated she cannot say whether the aforementioned was a valid reason for absence from the school be the applicant. The applicant had no panic attacks in the meeting because of feeling unsafe. The applicant said that she was emotional but fine and there was no breakdown and she clearly understood the way forward. The witness then stated again that it is not a valid reason to stay away from work if the applicant was not feeling safe at work. The principal understood and clarified what is unsafe according to the applicant and the applicant fully supported the principal. The witness stated she never had an educator being dismissed by not following an instruction but only heard about it.
24. No re-examination questions were asked to the second witness.
    Applicant’s evidence and arguments
    The applicant, Tymarah Jones, former Post Level 1 Educator, after having been sworn in, testified as follows:
25. The applicant stated that she started in Observatory in 2023 and she was appointed permanently in April 2024. In 2023 she taught Grade 7 learners as she was a substitution for a term and Grade 6 class for the last term. In 2024 she taught English and Geography in Grade 7 and in 2025 Grade 5 as well as Grade 5 in 2026. She is also senior phased qualified. She had a clean disciplinary record, and she was assaulted by a learner in 2024. It was the first week at school and the learner was in her classroom and he was giving problems. The principal told the applicant to be firm, and the applicant had to run around to get material for the learner. The learner upset the applicant in class, and she went to the office and spoke to Williams, and she was told by the principal to be firm.
26. The applicant stated that she went back to class and tried to handle the learner. She spoke to the learner as well as his previous teacher and the previous teacher also spoke to the learner. In the passage the learner walked pass her and took off his belt to hit another child and the learner had threatened the applicant. She struggled with the learner until the second break as the learner pushed pass the applicant and she screamed at the learner. The learner came back in the class, and he pushed her up against the door. The learner refused to take his hands off her, and he squeezed her breasts with his hands. She told him to get his hands off her and pushed him away. When she reached the office there were already learners with the principal, Moonsamy. No paperwork was filled in, and she had to sit in a room with the learner for two (2) hours. Later the applicant left and reported a sexual assault case at the SAPS.
27. She testified that the next day she had to sort out her transcript and she went to the University of the Western Cape. The principal told her to drop the case as it is not going to be a nice case. The case at the SAPS is still pending and the learner had to do a programme. The applicant contacted the Court, and the learner and his parents did not show up at Court on the date allocated and she is waiting for an alternative date. She was not emotionally affected immediately after the assault but as time went on, she had panic attacks. The principal showed learners how to disrespect the applicant as the principal spoke to the applicant in front of the learners in the class. The applicant did not feel safe at school after the incident and she asked for help and no one made the effort to enquire whether the applicant was OK, and she had to go back to school as if nothing happened. She asked to see a psychologist, and this request was denied and the learner did not return to school.
28. Regarding Wellness the applicant attended a few sessions, and she was provided with a social worker. She did not continue because after three (3) sessions she had to pay for herself. LIRA forms were given to her only eight months afterwards and the applicant did not attend the LIRA sessions as she had no finances to pay for it. The applicant was seeing a psychologist at District Six Hospital and the first person the applicant spoke to be the Labour Relations Officer as there were four to five meetings and reports followed by consultations but there were no paper trails. She also spoke to other subject advisors. The applicant stated that there were no social workers at the Department and District. The applicant went to reception and asked for a psychologist, and she was told that there is not such service at Metro Central. The applicant put her concerns about her safety in writing to Moonsamy and Harison as well as Naidoo. The applicant was suspended after she put her status on WhatsApp after she was assaulted and she was called to the office and given a warning as she was not aware of the social media policy.
29. The applicant was absent on several days since 2024 to 2025 and 2026. She had severe panic attacks and could not sleep. She informed the school that she was not coping and received no response and was told by the principal to stop send emails to school. The applicant was familiar with the charges before she was dismissed. On Charge 1 in bundle “R” on page 28 the applicant sent an email to the school that she was not feeling safe at the school. The applicant received an email back to follow the instructions from the principal. After the assault the applicant felt victimised as she was reprimanded in front of the learners and screamed at. There was a meeting on 05 November 2025, and the applicant raised her concerns, and she was advised by the Medical Practitioner to attend the meeting. She requested the meeting not to be conducted at the school, and no representative was allowed and needed. At the meeting it seems Mrs Robertson did not know anything about what happened at the school. Robertson addressed Williams and Moonsamy at the school to apologise to the applicant and the applicant never received this letter.
30. The applicant stated she was not going back to school as she told the principal that she was not comfortable to go back to school and she was told about her emotional safety to seek help and lodged a grievance, but she went to a psychologist and social counsellors. She submitted certain documentation and medical certificates about her absence in October, November and December 2025. The applicant also informed them why she was absent. The applicant stated the three (3) people she complaint about did the investigation and they said the school is safe. She was not aware of the meeting with SMT as no paperwork was given to her.
31. Regarding Charge 2 the applicant was instructed to go back to school on 06 November 2025 and the applicant said that it was not safe at school. The applicant told the principal that she rather resigns than to go back to school. The Director responded that the applicant need to return to the school, but it was not a proper lawful instruction. This was not a defiance of the District Directors instruction as the environment at the school was not safe and the assault affected her ability to perform at school as she experienced panic attacks and she could not sleep properly. The applicant was seeking medical assistance, but the medical practitioners’ intervention did not help her as the environment was still there where she was assaulted. She said that she was taken to Grote Schuur Hospital after she had a panic attack and no permission was given the school to contact the hospital about her emotional condition.
32. It was put to the applicant that her absence was disruptive to the school, and she could not be trusted with the learners and the applicant responded that she is the one who is not trusting them as no help was given to her. The applicant stated that she wants to go back to the teaching profession as she likes her job as educator. When the classroom is safe, she wants to return to the classroom. She did not go ahead with the transfer as she asked to be transferred but when the forms were thrown in her direction by the principal she left it on the floor and left. The applicant stated that the school just fooling themselves and that was the reason the risk assessment was only done in April 2026. The applicant believed that she did not commit a misconduct and the learner who assaulted her was in Grade 5, but he failed and was supposed to be in Grade 6. The applicant sought to be reinstated and compensated.
33. Under cross-examination the applicant confirmed that she was absent from 28 October 2025, 06 November 2025 and 03 December 2025 to 12 December 2025. She had to communicate to the school, the principal and the HOD and the principal testified that she had not communicated about her late coming and absence. The applicant stated she informed the school and HOD about it. The reason for his absence was that she was victimised, and she received no professional help. She was told by an official of the school that her friend at LIRA would help the applicant. She said that the people responsible for her safety did not report it to anyone. The applicant said that no authorisation was given for her absence, but she informed them about it and confirmed via email and some medical certificates.
34. Regarding Charge 2 she confirmed the meeting that was held on 05 November 2025. Her concerns and sexual assault were addressed but not properly handled and she was instructed to report the next day at school. The applicant did not adhere to the instruction. On pages 37 and 38 of bundle “R” is the chargesheet and the applicant put her status on WhatsApp. Charge 3 appears on page 38, and the applicant did not submit the school-based assessment on 10 March 2025. She confirmed the final written warning was valid given on 25 June 2025 and valid until 24 December 2025. The applicant denied that she failed to adhere to a lawful instruction according to Charge 2. The applicant confirmed that her dismissal was unfair as she was sexually assaulted in her classroom and not transferred to another classroom.
35. She confirmed that she was fit enough to return to school but not to the same environment and school. She declined LIRA as it was not presented in a professional way and no social workers were available to assist the applicant. She was recommended on 05 November 2025 for LIRA, and she did not take it as she had no finances to pay for it but confirmed that LIRA did not request any financial assistance from the applicant.
36. Under re-examination the applicant confirmed that she sent the email on page 28 of bundle “A”. She had never received authorisation to be absent, but she did not feel safe in the classroom and at her school.

Closing arguments

37. The representative of the applicant and respondent sent written closing arguments by 22 October 2026, as agreed on 15 October 2026. Both parties’ submissions and arguments were perused and incorporated into the decisions made in the award.

Analysis of evidence and argument

38. This is a summary of the relevant evidence and does not reflect all the evidence and arguments heard and considered in reaching my decision on this matter. In this arbitration I am firstly going to refer to the Employment of Educators Act 76 of 1998. Dismissal is not in dispute as agreed by the parties. I must therefore decide whether the dismissal of absence without permission and the applicant failed to obey lawful instruction to report for duty was substantively and procedurally fair or unfair. Procedure was not put into dispute, and the applicant also claims substantive unfairness in that she did not break the rules and therefore the penalty of dismissal was too harsh.
39. Section 138 (6) of the LRA further provides that a Commissioner conducting an arbitration must consider any code of good practice issued by NEDLAC and any guidelines published by the ELRC that are relevant to the matter being considered in the arbitration proceedings. Section 192(1) of the LRA, as amended, states that the applicant has a duty to prove that she was dismissed and once that has been proven, the respondent must prove that the dismissal was fair in terms of section 192(2).
40. The applicant was employed as an educator Level 1 by the respondent since 04 October 2024 to 21 May 2026. The applicant was charged and ultimately found guilty of the following charges: “It is alleged that you are guilty of misconduct in terms of section 18(1)(j) of the Employment of Educators Act 76 of 1998 (herein after referred to as the Act), in that you absented yourself from work without a valid reason or permission on the following dates: 28 October 2025 – 04 November 2025 and /or 06 November 2025 – 17November 2025 and/or 03 December 2025 – 12 December 2025” Charge 2 “It is alleged that you are guilty of misconduct in terms of section 18(1)(j) of the Act, in that you failed to carry out a lawful order or routine instruction without just or reasonable cause when you were instructed by the Metro Central District Director to report for duty on 06 November 2025”. The applicant was subjected to a disciplinary hearing process that took place on 19 and 24 February 2026. The applicant was dismissed on 21 May 2026.
41. This enquiry evolved from the principles set out in Sidumo and another v Rustenburg Platinum Mines Ltd & others (2007) 28 ILJ 2405 (CC) where the Constitutional Court per Navsa AJ [at para 78] held that: “In approaching the dismissal dispute impartially a commissioner will consider the totality of circumstances. He or she will necessarily consider the importance of the rule that had been breached. The commissioner must of course consider the reason the employer imposed the sanction of dismissal, as he or she must consider the basis of the employee’s challenge to the dismissal. There are other factors that will require consideration. For example, the harm caused by the employee’s conduct, whether additional training and instruction may result in the employee not repeating the misconduct, the effect of dismissal on the employee and his or her long-service record. This is not an exhaustive list.”
42. It is acknowledged that given the nature of the respondent’s business and the risks involved, it is crucial that it should have rules, policies, codes and procedures in place. A breach of such rules and policies should obviously not be treated lightly as the consequences could be dire not only for the respondent but also for its other employees. However, in considering the appropriate sanction for any breach, the employer is required to do so dispassionately and fairly.
43. The existence, knowledge, and reasonableness of the rules regarding absenteeism and disobeying of lawful instruction were not in dispute. The contravention of the rules and policy regarding it as claimed by the respondent and whether dismissal was an appropriate sanction, were issues placed in dispute and on which I am required to decide. Substantive fairness
44. Section 185 of the LRA, as amended, stipulates that every employee has the right not to be unfairly dismissed or to be subjected to an unfair labour practice. Section 186 (1) (a) of the LRA, stipulates that dismissal means an employer has terminated employment with or without notice. Section 188 of the LRA, stipulates that a dismissal that is not automatically unfair, is unfair if the employer fails to prove that the reason for dismissal is a fair reason related to the employee’s conduct and that the dismissal was affected in accordance with a fair procedure.
45. The Code of Good Practice Dismissal, which came into effect on 4 September 2025, provides the applicable general framework for evaluating dismissals for misconduct and incapacity. It recognizes that each case must be assessed in its own circumstances and that fairness requires consideration of the nature of the alleged misconduct, the surrounding circumstances, the employee’s explanation, and the appropriateness of the dismissal.
    Did the applicant contravene the policy and rules?
46. This is a purely factual question. Unless the employee concedes to contravention of the rule, evidence must be led from both points of view. That evidence must be carefully analyzed and determined based on credibility and on a balance of probability. In Early Bird Farms (Pty) Ltd v Mlambo (1997) 5 BLLR 541 (LAC) at 544, it was held that the employer did not have to prove with absolute certainty that the employee was guilty of the alleged misconduct but that proof on a balance of probabilities was sufficient. In other words, even in cases of misconduct that constitute crimes, the onus of proof on the employer alleging this misconduct is that of the civil onus, or a balance of probabilities. See also SACCAWU & Another v The Click’s Organization (Pty) Ltd (1997) 2 BLLR 164 (IC).
47. The representative of the respondent submitted that the Commissioner listened to the evidence led by the respective parties and will make a finding based on (a) the credibility of the witnesses; (b) their reliability; and (c) documentary evidence and (d) the probabilities. The respondents will, however, focus on salient aspects which could assist the commissioner in reaching an appropriate finding. The applicant claims that the WCED pursued misconduct charges instead of incapacity procedures despite evidence of trauma and psychological incapacity. The dismissal was disproportionate. The applicant claims that the employer failed to provide a safe working environment as required by OHSA.
48. The applicant was employed as a PL1. educator at Observatory Junior from 01 January 2024 until 22 May 2026. In January 2024 the applicant was assaulted by a learner. The learner never came back to school after the assault. That is when the applicant started to feel unsafe at the school. Ms. Jones was referred several times to LYRA wellness which she declined and stated that she attends her own session. In June 2025, the applicant was charged and found guilty. A sanction as an alternative to dismissal with immediately affect was imposed: (i) Formal counselling by means of managerial referral to the health and wellness service provider, with the full cooperation of the employees, (ii) Final written warning that will stay on the employee’s file for six months, and (iii) Suspension without pay for a period of six weeks starting from the first day of school in the new term.
49. The applicant was supposed to return to school on 28 October 2026, however she failed to return to school. The Circuit Manager, M.s Apollos, instructed Ms. Jones to come back, and she ignored the instructions and stated that she would not return to school as the environment remains unsafe and poses a serious risk to her mental and physical wellness. WCED is of the view that Ms. Jones failed to follow a lawful order, which is tantamount to insubordination. An instruction was made and Miss Jones did not comply with the instruction. A meeting was set for 05 November 2025 by the District Director, Ms. Robertson, to resolve the concerns of Ms. Jones. In the meeting, Ms. Jones’ concerns were discussed and recommendations were made. Ms. Jones was referred to LYRA and instructed to go back to work the following day. Ms. Jones did not return to school on 6 November 2025 as instructed. The principal testified that instructions would be given to Ms. Jones to return to work.
50. In January 2026, Ms. Jones returned to work without raising any working environment concerns. At the end of January 2026, Mrs. Jones was charged with misconduct, and the sanction was a dismissal. From the day when Ms. Jones was charged until today, she stayed absent from work without authorization. Further to this, whenever Ms. Jones was instructed by the principal to return to work, she would raise safety concerns and the 2024 assault by a learner who was no longer at the school. Ms. Jones herself also testified that she never saw the learner again. Support was provided to Ms. Jones, which she declined. Despite all referrals that were recommended, Mr. Jones testified that she never attended the referral due to having no data. Commissioner, I must put emphasis on the fact that LYRA wellness is the WCED service provider, meant to support employees after WCED free of charge, confidential 24/7/365 support, counselling and guidance.
51. The respondent submits that the applicant’s own testimony confirms material aspects of the employee’s case. Ms. Jones acknowledged that she was referred to LYRA, that she received instructions to return to work, and that she was absent from school on the dates relevant to the charges. The employer acknowledged that Ms. Jones raised concerns regarding her safety and psychological well-being. However, the Commission is required to consider whether the evidence established that these concerns justified her continued absence and non-compliance with the instructions issued to her.
52. The closing argument that was submitted on behalf of the applicant was that she was an educator employed by the Western Cape Education Department (WCED) in support of her claim that the dismissal was substantively and, to the extent established by the arbitration record, procedurally unfair. The dispute arises from allegations that Ms. Jones was absent from duty without permission or a valid reason during the periods 28 October to 04 November 2025, 06 to 17 November 2025, and 03 to 12 December 2025. A further allegation concerned her failure to comply with an instructor issued by the District Director to report for duty on 06 November 2025. The Council is accordingly requested to determine whether dismissal was a fair and proportionate response, rather than treating the internal guilty findings as automatically determining the fairness of the sanction.
53. In Legal Aid South Africa versus Jansen [2020] ZALAC 37, the Labour Appeal Court considered the relationship between depression, misconduct and dismissal. The Court’s reasoning makes clear that mental-health difficulties do not automatically excuse misconduct, but their relevance to the employee’s conduct and culpability must be assessed where supported by the evidence. The union relies on Jansen for the limited but important proposition that serious psychological difficulties should not simply be disregarded when evaluating the employee’s explanation and the fairness of the employer’s response. The present case must be determined by its own evidence. Ms. Jones testified about the continuing impact of the 2024 incident, including anxiety, panic attacks, sleep difficulties, and fear associated with returning to the school environment. The internal chairperson expressly acknowledged the traumatic nature of the incident. The question is therefore whether those circumstances received sufficient weight in deciding that dismissal was the appropriate sanction.
54. Ms. Jones testified in 2024, a Grade 5 learner physically attacked her in the classroom and subjected her to unwanted sexual contact. She reported the incident to school management and subsequently approached the police. Her evidence was that she experienced anxiety, nightmares, disturbed sleep, panic attacks, and difficulty coping with the school environment after the incident. She further testified that she had sought assistance, raised concerns about safety and requested changes to her working environment. The Union submits that the existence of a traumatic experience cannot, by itself, excuse every subsequent failure to attain work. However, neither can the experience be acknowledged as traumatic and then treated as having no material relevance to the employee’s subsequent conduct.
55. Ms. Jones testified that she had not received a written safety assurance or participated in a safety meeting that resolved her concerns. She maintained that she would have been willing to return if appropriate safety measures had been implemented. However, removing the learner who was involved in the original incident does not necessarily resolve every concern an employee might have about the workplace or the effects of a traumatic experience. Equally, the employee’s subjection to fear does not automatically establish that the workplace remained objectively unsafe.
56. On 28 October 2025, Ms. Jones informed management that she did not consider the school environment psychologically safe and that she was unable to return until her concerns were addressed. She requested consideration of appropriate leave arrangements and a formal grievance process. She also communicated with the circuit manager and other departmental officials. Her correspondence identified the workplace concerns she wishes to have addressed and requested a risk assessment and written assurance regarding safety.
57. Charge 1 regarding absence without permission or a valid reason. The Union accepts that the periods of absence were not disputed. The dispute concerns the justification for the absences and the fairness of the dismissal that followed. The three periods should not be treated as if they necessarily arose from identical circumstances. Ms. Jones explained that she was afraid to return to school and believed that her safety concerns remained unresolved for the absence from 28 October to 04 November 2025. Her correspondence of 28 October 2025 supports the fact that she communicated those concerns to management at the time. It also demonstrated that her absence was not unexplained. Absence from 06 to 17 November 2025. The employee’s case is not that she was physically present at school throughout the relevant periods. Her explanation is that she did not feel safe returning to the workplace following the traumatic experience she had reported, and that her absence occurred in circumstances involving serious psychological distress.
58. Absence from 03 to 12 December 2025. Ms. Jones testified that she continued to fear returning to school and did not believe that the safety concerns had been resolved. Charge 2. Failure to obey the instructions to report for duty. The second charge concerns the instruction issued at the meeting on 05 November 2025 that Ms. Jones reported for duty on 6 November 2025. Ms. Jones acknowledged receiving the instruction and failing to comply. She explained that she did not consider her concerns resolved and remained afraid to return. The meeting on 05 November 2025 addressed several matters. The minutes record the employee’s concerns, discussions of wellness support, the possible day of lodging a formal grievance, the proposed management response and the instructions to report for duty.
59. The record shows that Ms. Jones was still subject to a final written warning for insubordination and that the employer regarded the present conduct as a repetition after earlier offence. The Union acknowledges that this is a significant aggravating factor. A valid final return warning for similar can probably influence the assessment of sanctions, particularly where employees repeat conduct during the warning’s period of validity. The Union does not ask the Council to ignore the warning or to treat repeated unauthorized absence as trivial to the operations impact at the school. The employer’s witnesses testified that Ms. Jones’ absence caused operational difficulties, affected curriculum delivery, required substitute arrangements, and created concerns among parents. Union does not dispute that the absence of an educator can have adverse consequences for learners and the school. Consequently, after teaching is an important responsibility, and the WCED is entitled to take the impact options into consideration regarding the seriousness of it.
60. The respondent submitted that the evidence presented supports its case that Ms. Jones failed to comply with lawful and reasonable instructions to return to work and remained absent without authorization. The respondent further submitted that Ms. Jones repeated absenteeism disrupted teaching and learning, created instability for learners due to changes in substitute educators, and placed additional financial and administrative burdens on the school. The respondent further submitted that educators have a professional responsibility to attend work, comply with lawful and reasonable instructions and follow their applicable absence. Failure to fulfil these responsibilities, without just and reasonable cause, undermines discipline and the effective functioning of the school. The respondent was of the view that the applicant was not unfairly dismissed.
61. In analyzing the evidence presented before me, I find on a balance of probability that the witnesses of the respondent were reliable and credible when they testified. Their evidence convinces the commissioner that the applicant was aware of the rules, policy and consequences of continued absenteeism and disobeying of a lawful instruction to return to work on 06 November 2025. There were some contradictions in the testimony of the applicant and on a balance of probability, I therefore find it probable that the applicant broke the rules and policy regarding absenteeism and disobeying lawful instruction.
62. I therefore find that the applicant did contravene the rules and policy regarding absenteeism and disobeying lawful instruction in terms of section 18 (1)(j) of the Employment of Educators Act 76 of 1998. Any reasonable person would arrive at the same conclusion on a balance of probabilities having heard and observed the evidence given during the hearing. I therefore find that the decision to find the applicant guilty on Charges 1 and 2 as formulated was the correct decision. Is dismissal the appropriate sanction?
63. In Cash Paymaster Services Northwest (Pty) Ltd v Paul Shabanga NO & others [2009] 5 BLLR 415 (LC) it was held that the commissioner must consider if the trust relationship was destroyed in evaluating the appropriateness of the sanction. In Woolworths (Pty) Ltd v Majiba & others (2016) 37 ILJ 1380 (LAC) it was found that it is always better if evidence regarding the breakdown in the trust relationship is led by people who can testify to such breakdown. Even if the relationship of trust is breached, it would be but one of the factors that should be weighed with others to determine whether the sanction of dismissal was fair. Therefore, the commissioner had to consider the nature of the offence, the seriousness of the misconduct, the nature of the job and the position of the employee. The breakdown in the trust relationship could also be inferred from the seriousness of the offences.
64. It is the submission of the representative of the respondent that in the matter of De Beers Consolidated Mines Ltd versus CCMA and others (2000) 21 ILJ 1051 LAC) at 1058 paragraph 25 per Conradie JA, the following was said: “It would be in my view be difficult for an employer to reemploy an employee who has shown no remorse. Acknowledgement of wrongdoing is the first step towards rehabilitation. In the absence of commitment to the employer’s workplace values, an employee cannot help to be re-establishing the trust which he himself has broken”. Considering the case law and the applicant’s serious misconduct, the witness of the WCED humbly states that the employment relationship between the applicant and the WCED is irretrievable broken down and that the dismissal was procedurally and substantively fair.
65. Sidumo and Another v Rustenburg Platinum Mines Ltd and Others [2007] ZACC 22. In this Constitutional Court judgment, the Court confirmed that the fairness of dismissal must be assessed with reference to the totality of the circumstances. Relevant considerations include the importance of the rule breached, the harm caused, the employee’s circumstances, the possibility of correction action and the effect of dismissal. The significance of Sidumo is that the employer’s disciplinary decision cannot be assessed by considering that this misconduct in isolation. The council must evaluate the reason for the sanctions alongside the employee’s challenge to it. In the present matter the respondent relies on unauthorized absence, failure to obey instruction and an existing final written warning. Union asks the Council to consider those factors alongside the evidence concerning Ms. Jones trauma, her repeated communication about her feeling unsafe, her explanation for the different absences and the alternatives available to the respondent.
66. In accordance with Paragraph 3(4) of Schedule 8 of the Code of Good Practice: Dismissal, while dismissal for a first offence is generally not appropriate, an exception is made when the misconduct is so serious that it renders the employment relationship intolerable. The applicant’s conduct meets this threshold regarding the instruction from the Circuit Manager. I find that the repeated absence of the applicant and the disobeying of the instruction on 05 November 2025 was indeed unwanted, and the nature of the conduct and continues absence of the applicant impacted the finance of the respondent.
67. Should the Council find that the dismissal was unfair, the union seeks reinstatement in terms of section 193 of the Labour Relations Act, subject to the Council’s assessment of the statutory requirements and the circumstances of the case. The Union recognizes that relationships with management is an important consideration. However, a difficult working relationship does not automatically establish that reinstatement is inappropriate. The Council must consider whether the relationship can reasonably be restored through clear expectations, appropriate workplace engagement and a structured return to work process. The Union accordingly submits that reinstatement should be considered together with measures designed to ensure compliance with attendance requirements and to address any outstanding working concerns. In reinstatement is not applicable, the Council is requested to consider any alternative remedy available under section 193, including compensation.
68. The test to decide whether dismissal is an appropriate sanction is whether the respondent could have imposed the sanction of dismissal in the circumstances, either because the misconduct rendered the continued employment intolerable, or because of the cumulative effect of the misconduct when taken together with other instances of misconduct. Determining whether dismissal was an appropriate sanction involves three enquiries: (1) an enquiry into the gravity of the intervention of the rule; (2) an enquiry into the consistent application of the rule and sanction; and (3) an enquiry into factors that may have justified a different sanction. There were no factors presented that may have a different sanction in these circumstances.
69. Item 3(5) of the same code directs that: “When deciding whether to impose the penalty of dismissal, the employer should in addition to the gravity of the misconduct consider factors such as the employee’s circumstances (including length of service, previous disciplinary record and personal circumstances), the nature of the job and the circumstances of the infringement itself. I find with a final written warning and the seriousness of the offences despite the traumatic and psychological experience of the applicant, that it warrants dismissal.
70. In deciding on a sanction after the applicant is found guilty of continued absenteeism, besides the help that was offered to her, the serious nature of the offence should be borne in mind by the Chairperson and in arbitration by the Commissioner. The relationship of trust has been broken directly between the applicant and the respondent, and the applicant had a valid final written warning on her file for absenteeism, and the offence may warrant dismissal.
71. The applicant was found guilty of the two charges as testified by the witnesses of the respondent. I find that the respondent had discharged the onus of proof by showing on a balance of probability that the applicant was guilty of the formulated charges. According to the respondent, they proved that the offence that the applicant was found guilty and warrant dismissal due to the repeated and seriousness of the absenteeism besides assistance offered to the applicant that was denied as LYRA wellness is free of charge.
72. I find that the dismissal of the applicant was substantively fair. In the light of the above, I further find that the dismissal of the applicant was an appropriate sanction because of the factors and aggravating circumstances mentioned above. There is a range of appropriate sanctions proportionate to the seriousness of the offences. Where the offences are serious and in case of Charge 1 continues absenteeism then summary dismissal may be appropriate.
    Procedural fairness
73. Procedural fairness was put into dispute by the representative of the applicant, but nothing was further testified by the applicant or mentioned in the closing statements. This dismissal was procedurally fair. I therefore find that the dismissal of the applicant was procedurally and substantively fair. AWARD
74. The dismissal of the applicant, TR Jones, was substantively and procedurally fair.
75. The case of the applicant is dismissed, and both parties must be informed accordingly.

Signature:

Panelist: Gert van der Berg
Sector: Western Cape Education Department