Arbitrator: Minette van der Merwe
Case Reference No.: ELRC 918-24/25 FS
Date of award: 30 May 2025

In the Arbitration between:

Peter Wille Applicant

and

Department of Education – Free State Respondent

DETAILS OF HEARING AND REPRESENTATION

1. This is the arbitration award in the matter between Peter Wille (the Applicant) and the Department of Education – Free State (the Respondent), which was held on 28 March 2025, 19 May 2025, 20 May 2025 and 21 May 2025 at the Respondent’s office in Bloemfontein.
2. The Applicant was represented by Advocate Jacques Potgieter, on instruction from Pierre Venter from Jacobs Fourie Attorneys. The Respondent was represented by Mr Thulo Tsunke, Assistant Director: Labour Relations of the Respondent.
3. The proceedings were digitally recorded, and handwritten notes were kept. Interpretation services were not required.

APPLICATION FOR LEGAL REPRESENTATION

4. The Application brought an application for legal representation, through Adv Potgieter. The matter concerned a deemed dismissal in terms of section 14 of the EEA, which necessitated legal arguments and technical questions. The Applicant was not equipped to deal with it unrepresented. If legal representation was granted, the playing fields would be even, as Mr Tsunke, by the nature of his position held with the Respondent, was an expert on the subject matter.
5. The application was opposed by the Respondent and MR Tsunke argued that the ELRC lacks the jurisdiction to determine the dispute as the Applicant was terminated by operation of law. He was not an admitted attorney, accordingly he and Adv Potgieter were not on the same level.
6. The application was granted because of the jurisdictional challenge raised by the Respondent forming a large part of the entire case. That warranted the granting of the application for legal representation. In this instance it would be unreasonable to expect the Applicant to proceed without legal representation.

ISSUE TO BE DECIDED

7. The dispute was referred as a claim of unfair dismissal in terms of section 191(5) of the Labour Relations Act 66 of 1995, as amended (“the LRA”).
8. The Respondent challenged the jurisdiction of the Bargaining Council to determine the matter, as the Applicant was terminated by operation of law in terms of section 14 of the Employment of Educators Act 76 of 1998 (“the EEA”).
9. The Applicant alleged that the requirements of section 14 of the EEA were not satisfied by the Respondent, and as such it was a dismissal, and not a termination by operation of law.
10. The Applicant seeks reinstatement as remedy, but with placement at another school, with full backpay, and the reinstatement of all his benefits. He further seeks solatium for the pain and suffering caused by the Respondent.

BACKGROUND TO THE ISSUE

11. The dispute was referred to the ELRC and was certified as unresolved at conciliation.
12. The Applicant was appointed as an Educator by the Respondent during 2000, and he started his career at Grey College. He was thereafter appointed as the Mathematics Teacher at Bohmer School in Bloemfontein from January 2009. At the time of his termination, he earned a basic salary of R 34 213.75 and received a housing allowance of R 1 784.55 per month .
13. The Applicant and the Respondent has been involved in multiple arbitrations before the Bargaining Council and are currently involved in civil litigation.

SURVEY OF EVIDENCE AND ARGUMENT

14. The testimonies, under oath, are fully captured on the digital recording, and a copy of the digital recording is available on request from the ELRC. Below is only a summary of the relevant evidence. If evidence is not captured herein, it does not mean that it was not considered. Documentary:
15. Bundles “Blue”, “Red”, Yellow” and “Green” was submitted into evidence by the Applicant. The Respondent submitted pages “R1” and “R2”. Its veracity was not disputed, and it was accepted as it purported to be. Evidence of the Applicant:
16. The Applicant, Peter Wille, testified that his relationship with the Principal and the SGB (School Governing Body) deteriorated due to an incident of false accusations against him in 2018. The charges were ultimately withdrawn against him. He further won an unfair labour practice dispute against the Respondent in 2021 at the Bargaining Council. In terms of the arbitration award in 2021 he had to report back to school and return to hostel duty, however, he was refused to return to hostel duty. He returned to work for approximately three months.
17. During the three months he was back at school he had lodged numerous complaints about the ongoing corruption at the school and sought an investigation by the Respondent. He received retaliation from the Principal, the SGB and the learners. His complaints have not been investigated, too date. He was insulted and humiliated by learners because of the false allegations made against him by the Respondent in 2018, and the Principal, Venter, would defend the learners if he complained about it or sought intervention. He conceded under cross-examination that the learners would now be finished with school that was at Bohmer during 2018. For six years he tried to be assisted and specifically dealt with Mr Moloi from the Respondent. During November 2021 he stopped reporting for duty, as his mental health had deteriorated severely. He started seeing a Psychiatrist and a Psychologist and was ultimately admitted to Bloemcare due to a mental breakdown.
18. After his release from Bloemcare he was booked off and submitted all medical certificate to the Respondent and the School respectively. The HOD informed him that he would investigate the matter, but he never reverted. In terms of the arbitration award dated 14 December 2022, he was awaiting placement at another school, as he could not work at Bohmer anymore. The Respondent did not instruct him to report, or where to report during December 2022 or January 2023. He did not tender his services for the period November 2021 to January 2023, during which time he submitted medical certificates and medical reports, and his attorney corresponded with the Respondent throughout, whilst he personally visited the Respondent on more than one occasion. During this period the Respondent never instructed him to report for work. He conceded that he stayed away from work because he sought an investigation at the school, and that he would not report until such an investigation was done.
19. On 11 January 2024 he received correspondence from Muller Gonsoir Attorneys, on behalf of the Principle of Bohmer, Venter, to report for duty on 15 January 2024. His attorney responded on 1 February 2024 , and served the same correspondence on the Respondent, and stated that (in par 2 & 3) the HOD had told him (Applicant) that he could stay at home and need not report to Bohmer due to the ongoing situation, whilst an alternative placement is sought or the investigation about his complaints is finalized. Even the Principal sought the Applicant to be placed at another school, which letter , dated 26 October 2021, he only became aware of on 13 February 2025. In the same correspondence the Respondent was reminded of two medical reports he had submitted from his Psychologist and Psychiatrist, dated 15 August 2023 and 17 January 2024 respectively. The Respondent was informed (par 7) that he was willing and prepared to adhere to any legitimate and reasonable instruction to report for work, subject to the recommendations of the medical reports, that he could not report to the hostile environment that was Bohmer School. He never received any instruction from the Respondent, his employer, to report for duty. He escalated the matter to the Public Protector and the States Advocate (Department of Justice) for investigation and intervention.
20. He did not receive his salary on 20 November 2024, so consulted Lekitlane. Lekitlane did not provide him with a reason why his salary was stopped but rather attempted to hand him two letters from the Principal, which he refused to take. During cross-examination he stated that Lekitlane told him that his salary was stopped on the Principal’s directive. He conceded under cross-examination that Lekitlane attempted to hand him the termination of service letter on 20 November 2024, but he refused to take it. He further conceded that Lekitlane told him on 20 November 2024 that his services had been terminated due to abscondment, however during evidence-in-chief he stated that he did not know during November 2024 that he was deemed dismissed. He conceded that correspondence regarding the nonpayment of his salary all followed the meeting with Lekitlane on 20 November 2024, but none of those correspondence was sent to Lekitlane. He personally handed the correspondence about his salary query to the Respondent, but not Lekitlane. He never received a termination of service letter through registered mail, as alleged by the Respondent, and the address on the Post Office slip was not his correct address. His attorneys corresponded with the States Attorney to request the termination letter since December 2024. He received confirmation that his services were terminated on 5 February 2025 through his attorney . The termination of service letter did not require him to report for service within fourteen days.
21. Under cross-examination it was put to him that he stopped sending medical certificates after 11 January 2023, to which he responded that the medical reports were, according to him, akin to medical certificates, and ought to have been accepted by the Respondent. He considered the correspondence from his attorney as his compliance to section 14(2) of the EEA. He conceded that he did not make representations in terms of section 14(2) of the EEA to Adv Chakela specifically, as requested in the termination letter, but that he had submitted same to the Respondent all the same. Under cross-examination he stated that he did not make submissions in terms of section 14(2) of the EEA as he had, by then, already referred the matter to the ELRC.
22. He maintained that he would never be able to return to Bohmer School. There are three alternative schools in Bloemfontein where he could be placed, being Lettie Fouche, Rosenhof and Tsoalang.

Evidence of the Respondent:

23. The 1st witness, Baleni Johannes Lekitlane (“Lekitlane”) was the Acting Assistant Director: Labour Relations for the Mangaung District since May 2024. He became aware of the Applicant’s matter during May 2024, but knew the Applicant from another matter between parties in 2018.
24. The Applicant visited his office on 20 November 2024 to enquire about the nonpayment of his salary on even date. He informed the Applicant that he had absconded, and that he could make representation, in terms of section 14(2) of the EEA to Adv Chakela. He attempted to give the Applicant a copy of the termination letter, which the Applicant refused to take. The document was also sent to the Applicant’s address on file by the school on the Respondent’s request. Once the Applicant received such a termination letter for reasons of abscondment, he had 30 (thirty) days in which to make representations, in this instance to Adv Chakela . He was not aware of any such representations submitted by the Applicant in terms of section 14(2) of the EEA to the Respondent.
25. He was informed, when he arrived during May 2024, that the Applicant had not reported for work since 11 January 2023 and did not submit any medical certificates. He conceded that the clinical assessments from the Psychiatrists and Psychologist were received by the Respondent (not him personally), but that it was not medical certificates in terms of which the Applicant was booked off. He did not respond when asked why the Respondent did not inform the Applicant that the medical assessments were not akin to medical certificates, and therefore not accepted. He took time to investigate the matter and took action during September 2024. It was on his recommendation that the Applicant was terminated for abscondment in terms of section 14 of the EEA. He was informed that the Applicant held the view that he was not required to report for work because the HOD told him he need not, until the investigation was finalized and/or a suitable alternative placement was found for him, yet there was no proof found of this agreement. He could not confirm nor deny whether such an agreement with the HOD existed. He did not consult the HOD as part of his investigations. He was not included in any correspondence from the Applicant via his attorney.
26. He considered the Principal’s letters to the Applicant, via the attorney, in terms of which he was instructed to report for work, as sufficient instruction by the Respondent, as the Principal was a delegated authority of the Respondent. He conceded that the Principal’s correspondence did not indicate that, if the Applicant failed to report for work, that he would be deemed as having absconded. He further considered the correspondence from the Applicant’s attorney during his investigation, although some of it he has not seen before. He conceded that the Respondent, as the Employer, did not issue such instruction directly to the Applicant. He neither confirmed nor denied that the instruction to the Applicant to report for work was at the Principal’s behest, and not the Respondent’s, despite it having been a common cause fact. The Applicant was deemed absconded as from 11 January 2023, and he conceded that the Respondent continued to pay the Applicant’s salary until 20 October 2024. He denied the statement that the Respondent was on a mission to get rid of the Applicant.
27. The 2nd witness, Karel Viljoen (“Viljoen”) was the Principal of Bohmer School. He stated from the onset that he was at a disadvantage in the arbitration process, because he was not forewarned by Mr Tsunke that he would be testifying in an arbitration, and he was called on short notice, which prevented him from preparing for the matter. He was frank about the fact that he did not have an independent recollection of many of the facts.
28. The Applicant’s termination letter was sent by the school via registered mail on instruction by the Respondent to his last known address, which is a guesthouse owned or managed by the Applicant’s brother, where they both stay. The Applicant refused to report to work, even after instructions issued by him and the SGB, via its attorneys, because he said he did not report to the Principal, only the Respondent. He confirmed that the Respondent did not issue instructions to the Applicant to report for duty. He confirmed that he did not have the authority to deem the Applicant as absconded. He confirmed that the Applicant’s termination letter did not indicate a timeframe in which he had to report for work in order to avoid an abscondment. The Applicant refused to report to him as the Principal in the ordinary course of work as well. No medical certificates of the Applicant were forwarded to the school during the period 11 January 2023 to 13 September 2024. The Respondent was continuously kept abreast of the Applicant’s matter, and advice was regularly sought. Much of the Applicant’s correspondence though his attorney he has not seen before.
29. Ordinarily, the Respondent would provide a substitute teacher if an Educator were absent for a prolonged period and that is a temporary incapacity leave form, with supporting documents submitted. However, due to the Applicant’s failure to submit same, the school could not get a substitute teacher for Math, which is what the Applicant taught, for the period January 2023 to September 2024. Eventually the SGB appointed and paid for a substitute teacher so that the teaching of learners could continue. He was unsure if medical certificates or reports of the Applicant were received after 11 January 2023.
30. The Applicant indicated his willingness to transfer to another school and as the Principal, he was not opposed to the idea. He used to be friends with the Applicant when they were both Educators at Grey College, but it had become increasingly difficult to maintain a good working relationship with the Applicant in recent years at Bohmer School when he became the Principal. He refused to attend morning meetings and refused to report to him as Principal of the school. He did his utmost to continue to treat the Applicant professionally. He was unaware of any intimidation, humiliation or ill treatment of learners towards the Applicant, as the Applicant had never reported such incidents to him. He would never ignore such a complaint from an Educator. He added that, due to the nature of the school and learners, the school was rife with gang activity and affiliation, and it made the environment itself more challenging than an ordinary school environment. He was, however, strict on discipline, which ensured better control and management.

ANALYSIS OF EVIDENCE AND ARGUMENT

31. Parties made oral closing arguments. Same will not be repeated herein.
32. Section 14 of the EEA states as follows:

“14. Certain educators deemed to be discharged
(1) An educator appointed in a permanent capacity who –
(a) is absent from work for a period exceeding 14 consecutive days without permission of the employer;
(b) while the educator is absent from work without permission of the employer, assumes employment in another position;
(c) while suspended from duty, resigns or without permission of the employer assumes employment in another position; or
(d) while disciplinary steps taken against the educator have not yet been disposed of, resigns or without permission of the employer assumes employment in another position,
shall, unless the employer directs otherwise, be deemed to have been discharged from service on account of misconduct, in the circumstances where –
(i) paragraph (a) 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.”

33. The Supreme Court of Appeals held in Minister van Onderwys & Kultuur & andere v Louw 1995 (4) SA 383 (A) and Phenithi v Minister of Education & others (2006) 27 ILJ 477 (SCA) that the employment of an Educator is terminated through his/her own absence without leave, in terms of section 14(1) of the EEA.
34. The Applicant’s whereabouts, and whether the Respondent carries knowledge of an absent employee’s whereabouts, is irrelevant in terms of section 14(1) of the EEA. The submission of medical certificates is irrelevant in section 14(1) of the EEA terminations, as the absence of the Applicant needed to have been on approval by the Respondent. These factors are, however, relevant in terms of section 14(2) of the EEA.
35. The consideration here is whether the Applicant was absent for 14 continuous days, and whether this period of absence was approved by the Respondent. If this requirement is met, it is a termination by operation of law (ex lege).
36. In this matter, the evidence did not support the Applicant’s allegation that he had the approval of the Respondent to be absent for the periods in question. If the Applicant relied on approval that he, allegedly, had from the HOD, he needed to provide such proof. I find the Applicant’s version that he had approval from the HOD to be absent from work for an indefinite period, implausible and improbable.
37. It is further irrelevant whether the Applicant has received a letter from the Respondent in terms of which he was warned that, unless he returns to work, he would be deemed as absconded, as the deemed discharge in terms of section 14(1) of the EEA is not dependent on issuing any ultimatums or warning letters. (See MEC, Education and Culture v Mabika [2006] JOL 16770 (LC))
38. Section 14 of the EEA is distinguishable from section 17 of the PSA, and its stipulations should not be applied to each other.
39. An arbitrator has no jurisdiction to enquire into the procedural and substantive fairness of a deemed dismissal, as was held in Free State Provincial Government (Dept of Agriculture) v Makae & others [2006] 11 BLLR 1090 (LC).
40. In this matter, the Applicant was absent from work for 14 (fourteen) consecutive days, and without the approval of the Respondent. In the matter of Gangaram v MEC for the Department of Health, Kwazulu-Natal and Another (DA9/16) [2017] ZALAC 38; (2017) 38 ILJ 2261 (LAC); [2017] 11 BLLR (LAC) the Court did not state that, where there is non-compliance to section 14(1) of the EEA, that the termination then constitutes a dismissal. In this matter, the employer refused to reinstate the employee, and the LAC stated that the review at the LC ought to have been successful. The Gangaram-judgement did not change the authority on terminations by operation of law, and whether a Commissioner has the jurisdiction to determine such a termination.
41. It then follows that the Applicant was absent from work for a period exceeding 14 (fourteen) days, and without the approval of the Respondent, and that the Applicant was terminated in terms of section 14(1) of the EEA.
42. It then further follows that the ELRC lacks the necessary jurisdiction to determine this matter.
43. The Applicant may still exercise his right in terms of section 14(2) of the EEA, as the evidence showed that he did not make submissions in this regard to Adv Chakela. Alternatively, the Applicant may approach the Labour Court.

AWARD

44. The ELRC lacks the necessary jurisdiction to determine this dispute, as the Applicant’s services were terminated by operation of law in terms of section 14(1) of the EEA.
45. The Applicant was not dismissed, in terms of the LRA, by the Respondent
46. The ELRC may close the file.

Minette van der Merwe
ELRC Panelist