---
title: "05 March 2026 -ELRC578-25/26KZN"
description: "IN THE MATTER BETWEEN Goodman Bhekithemba Zondo Applicant And KwaZulu-Natal Department of Education Respondent ARBITRATION AWARD Case Number: ELRC578-25/26KZN Date of Award: 05 March 2026 ELRC Arbitrator: T. Mtolo Education Labour Relations Council ELRC Building 261 West Avenue Centurion Tel:…"
url: "https://elrc.org.za/docs/05-march-2026-elrc578-25-26kzn/"
updated: "2026-03-05"
category: AWARDS
---

# 05 March 2026 -ELRC578-25/26KZN

IN THE MATTER BETWEEN

Goodman Bhekithemba Zondo Applicant

And

KwaZulu-Natal Department of Education Respondent

ARBITRATION AWARD

Case Number: ELRC578-25/26KZN

Date of Award: 05 March 2026

ELRC Arbitrator: T. Mtolo

Education Labour Relations Council
ELRC Building
261 West Avenue
Centurion
Tel: 012 663 0452
Fax: 012 643 1601
E-Mail: gen.sec@elrc.co.za
Website: www.elrc.org.za

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  DETAILS OF HEARING AND REPRESENTATION
```

1. The arbitration commenced on 17 October 2025. The matter was initially set down virtually but proceeded physically at a later stage in Ladysmith. The Applicant, Mr Goodman Bhekithemba Zondo, was represented by NEHAWU Official S.J. Makhoba. The Respondent was represented by its Labour Relations official.
2. The Respondent, KwaZulu-Natal Department of Education, was represented by its Labour Relations official Mr Don Mpembe. An interpreter assisted during the proceedings. The matter was referred as an unfair labour practice dispute in terms of section 186(2)(a) of the Labour Relations Act.
3. The last sitting of the arbitration took place on 02 and 03 February 2026. The parties were thereafter afforded an opportunity to file written closing arguments. The closing arguments of both parties were received on 12 February 2026 and have been duly considered in the preparation of this award.
   BACKGROUND
4. The Applicant is employed by the Respondent as a Departmental Head (Sciences) at Khandimfundo Secondary School.
5. Salary deductions were implemented against the Applicant’s salary:
   • On 1 July 2025 in the amount of R6,857.82
   • On 15 September 2025 in the amount of R3,000.90
6. The deductions were effected as leave without pay for periods during which the Respondent alleges the Applicant was absent without authorisation.
7. The Applicant disputes the deductions and seeks their reversal, together with discontinuation of any further salary deductions.
8. During the sitting, the parties were afforded time to conclude pre-arbitration minutes.
   ISSUES TO BE DECIDED
9. Whether the Respondent perpetrated an unfair labour practice relating to benefits in terms of section 186(2)(a) of the Labour Relations Act 66 of 1995.
   SURVEY OF EVIDENCE AND ARGUMENTS
   OPENING STATEMENTS
   Applicant’s Opening Statement
10. The Applicant submitted that the deductions were unlawful and implemented without any formal communication notifying the Applicant of the intended deductions and that unauthorised leave constitutes misconduct and that, if that was the Respondent’s position, disciplinary proceedings ought to have been instituted before any financial sanction was imposed.
11. The Applicant contended that from February 2025 to August 2025 he was authorised by the Respondent to be away from the school due to circumstances known to the Respondent. It was submitted that processes were ongoing during that period and that the Respondent was fully aware of the Applicant’s whereabouts. Reliance was placed on section 34 of the Basic Conditions of Employment Act, which regulates deductions from employees’ remuneration. The Applicant’s case is that the deductions were unlawful and must be reversed.

Respondent’s Opening Statement

1. The Respondent submitted that the leave without pay was implemented in accordance with the Determination and Directive on Leave of Absence in the Public Service (August 2021). It was submitted that the Applicant was absent from work without authorisation and that leave without pay was therefore correctly implemented. The Respondent stated that payment of salary without performance of work results in audit findings and irregular expenditure. It was further submitted that the policy requires an employee to apply for leave on the prescribed form, which must be approved by the responsible manager. The Respondent’s position is that the deductions were lawful and implemented in accordance with policy.

SUBMISSIONS OF EVIDENCE AND ARGUMENTS

1. Evidence in Chief
2. The Applicant, Mr Zondo Goodman Bhekithemba, testified under oath.
3. He testified that on 11 February 2025 he received an SMS from School principal. The message informed him that there had been discussions between the SGB, parents and management and that he was allowed to return to school as soon as possible.
4. The SMS was read into the record. It stated that there had been a meeting with the SGB and management and that he was permitted to return to Khandimfundo Secondary School.
5. He testified that he relied on that SMS and returned to school on 12 February 2025.
6. Upon returning to school on or about 20 February 2025, he encountered a group of individuals on the premises whom he described as hired agitators. He testified that these individuals later attempted to eject him from the school. He stated that the principal had granted these individuals access to the school and had allowed them to use one of the classrooms as a venue. He testified that ordinarily there is a security guard stationed at the gate, visitors are required to sign a register, and they are escorted to the person they are visiting. On that day, although the security guard was present on the premises, he was not stationed at the gate and the gate was open.
7. He further testified that he asked the principal who the individuals were. He was informed that they were Grade 12 parents. He questioned how that could be so because he had been informed via SMS that the SGB and parents had agreed that he could return to school. He testified that the principal did not provide a further explanation and informed him that Mr Mlambo, the circuit manager, would address him.
8. He testified that a man came to the office, knocked and addressed him by a different surname. He corrected him and informed him that he was Zondo. He testified that there are many offices in the school and that someone must have directed that individual to his office. He testified that the individual informed him that he must leave the school premises because he was not needed there. He stated that police officials were present at the school on that day. He testified that instead of removing the group of individuals, the situation resulted in him being escorted from the premises.
9. He averred that he informed the police that he believed the events were orchestrated by the principal and certain staff members. He testified that thereafter he was instructed by Mr Mlambo to report to the circuit office and sign there until further notice. He complied with that instruction. He testified that he later received a directive (transfer letter dated 24 March 2025) transferring him to another school. He approached the Labour Court and obtained an interdict preventing the implementation of that transfer. He testified that after obtaining the court interdict, he did not return to Khandimfundo Secondary School immediately because he had previously been instructed to sign at the circuit office and later instructed to stop signing there and report elsewhere. He stated that he awaited further direction from the Department after the court order was issued.
10. He testified that he lodged a grievance on 4 March 2025. He testified that he did not apply for leave without pay because he did not consider himself absent without authorisation. He confirmed that salary deductions were effected on 1 July 2025 in the amount of R6,857.82 and on 15 September 2025 in the amount of R3,000.90.
11. He testified that he did not receive any formal notification informing him that deductions would be made. He denied receiving the letter at page 51 of Bundle B requiring him to submit a leave application. He denied completing or signing the leave form at page 52 of Bundle B. He maintained that the deductions were unlawful.
    Cross-Examination
12. He was questioned regarding his belief that the individuals present at the school were hired (hooligans). He testified that he believed this because the principal granted them access to the school premises and allowed them to use a venue within the school. It was put to him that the individuals were members of the community, parents and not hooligans. He responded that if they were parents, they should have acted through the SGB and lawful processes. It was put to him that the anger of the community was related to a prior disciplinary matter concerning nutrition supplies and other allegations that were more serious. He testified that proceedings had taken place and that he was cleared of those allegations.
13. He was referred to clause 6.5 of Collective Agreement 2 of 2008 and asked why he did not report to the district office after the Labour Court order of 15 May 2025. He responded that he had been instructed to sign at the circuit office. Thereafter he was instructed to stop signing there and report elsewhere. After the court interdict, he awaited further direction from the Department.
14. It was put to him that a grievance does not excuse an employee from reporting for duty. He responded that whenever he received a directive to report, he complied, but on each occasion, he was prevented from entering the school premises by the same group of individuals.
15. He confirmed that he was not formally granted special leave. It was put to him that he never applied for leave using the prescribed form. He responded that he did not regard himself as absent without authorisation and therefore saw no basis to submit a leave application. It was put to him that he was absent from 27 March 2025 to 20 June 2025 without reporting for duty. He responded that he was awaiting direction from the Department following the court interdict and previous conflicting instructions. He denied that he wilfully absented himself.
    Re-Examination
16. He clarified that the SMS he received stated that the SGB and parents had agreed to his return to school.
17. He reiterated that after the court interdict, he awaited further instruction from the Department because he had previously been instructed to stop signing at the circuit office due to the transfer letter he had received. He confirmed that each time he received a directive to report to school, he reported but was prevented from entering. He maintained that he did not receive the letter at page 51 – PROFORMA – leave of absence. He reiterated that he did not absent himself without authorisation.
    RESPONDENT’S EVIDENCE
18. Witness 1: Thulasizwe Thembinkosi Mlambo (Acting DCES: Wembezi Circuit)
    Oath administered.
    Evidence in Chief
19. Mr Mlambo testified that, per the Employment of Educators Act, his job is to supervise and manage a group of schools in the circuit, and that his role includes curriculum and governance. He testified that Khandimfundo falls under his supervision. He testified he knows the Applicant and stated there is no animosity between them. Regarding 20 February 2025, he testified he was part of a team that visited Khandimfundo after matric results to provide support because the school underperformed in matric results in 2024.
20. He testified that during the visit, an educator informed him there were people who wanted to speak to him. He testified that two gentlemen were outside and demanded to speak to him. He testified he went with them to a classroom, where they stated they did not want the Applicant at the school, and that the Applicant was at the school through a settlement agreement and demanded that he remove him. He testified he informed them he could not do that. He testified they raised concerns including allegations about stealing nutrition food for learners and courting learners, but that there was no concrete evidence on the latter. He testified that he communicated these concerns to the Applicant and raised concern about the Applicant’s safety.
21. He testified that the Applicant initially wanted to stay, but the community insisted he vacate the premises. He testified that the police were also present.
22. He further submitted that the Applicant ultimately decided he would leave and report at the circuit office but wanted the Department to deal with the matter.
23. He testified he did not know the two gentlemen and had no relationship with them and had not had a prior meeting with them.
24. He denied any version that he organised or paid people to disrupt education institutions. He testified that after intervening, he continued working with his team.
25. He testified that it is not true that he instructed the Applicant to go and sign at the circuit office. He testified that when he later went into the principal’s office, he was informed there had been a departmental case with a sanction in an internal disciplinary enquiry relating to stealing food; the Applicant was found guilty and fined.
26. He testified that grievances are guided by the PAM document, Chapter G: grievances must be lodged at the relevant level, and the aggrieved person is expected to be at work until the grievance is resolved.
27. He testified the Department has no policy stipulating educators must stay home until a grievance is resolved or while under investigation. He testified that if a new policy exists it is cascaded from head office to districts, circuits and schools and unions also capacitate members; he stated he has not received any policy stating educators must stay home after lodging a grievance. He testified that from 27 March to 20 June 2025 the Applicant reported to the circuit office until a DTT meeting placed him at Njeza Secondary School for gainful employment while the matter was being attended to. He testified that if an educator reports at the circuit office, they should report in the morning and stay until afternoon; it is a temporary measure.
28. He was referred to Bundle A page 36 (PERSAL printout) and testified that when someone is without approval, a deduction is effected per KZN Circular/HRM 55 of 2014.
29. He testified the Leave Without Pay was effected from 19 May 2025 to somewhere in August, based on the school’s recommendation that the Applicant did not come to school from 19 May 2025. He testified he is not certain of the PERSAL codes.
30. He submitted that he said the Leave Without Pay should be effected from 19 May because he believed the court ruling directed the Applicant to return to school (Khandimfundo) on 19 May 2025. He also submitted that the report from the Principal was submitted sometime in August stating the Applicant never reported to Khandimfundo.
31. He was referred to Bundle A pages 16–17 (Labour Court Order) and testified that this order directed the Applicant to go back to school; it was made available to him although he received it later. He testified that after receiving the order, the Applicant should have reported to Khandimfundo.
32. He testified that although he is not in Employee Relations, someone from that office informed them that the Applicant would be reporting from 19 May 2025.
33. He testified there was no need to write to the Applicant to inform him to report to work.
34. He testified that when an educator is absent, the Principal must instruct the educator to submit leave forms or LWP will be implemented if they fail, per HRM 55 of 2014.
35. He was referred to Bundle B page 51 (PROFORMA A), which he testified is from HRM 55 of 2014 and should be sent to an absent employee, warning of consequences.
36. He testified section 14 amounts to abscondment if absence exceeds 14 days and the person is deemed dismissed/resigned.
37. He testified that educator absence impacts learners; at smaller schools it overloads other educators; the Applicant is a departmental head, and his absence has high operational impact.
38. He testified that at the DTT the placement was issued but the Applicant did not report at the placed school.
39. He was referred to Bundle A page 14 (temporary transfer to Njeza) and testified the Applicant did not report there; he was meant to go back to Khandimfundo.
40. He testified the Applicant was reporting to the circuit office until he received the letter directing him to be at school.
41. He referred to paragraph 9 of the March transfer letter and testified it stipulates the educator must work while the grievance is lodged and under investigation; the Applicant was meant to be somewhere performing duties. He testified the letter is dated 24 March 2025 and was received on 27 March 2025.
42. On special leave, he testified that an employee must apply, attach supporting documentation, and obtain approval; he testified there was no special leave application. He averred that special leave is possible, but the employee must apply and vehemently denied such was applicable to the absence of the applicant.

Cross-Examination

1. Mr Mlambo testified he was appointed on 2 December 2022 as Acting DCES.
2. He testified he would not know how the two gentlemen came to allegations about stealing and courting learners; he stated the alleged theft case happened before his arrival; on courting learners there was no evidence. He stated that there are many education stakeholders: parents, traditional healers, ward councillors, and other departments, and that traditional healers and ward councillors can form part of broader structures interfacing with education. Regarding the two gentlemen, he testified they introduced themselves as community members/parents; there were no meeting minutes or attendance registers.
3. He testified access control is pivotal and should be implemented; SMT and SGB are responsible for safety; as circuit manager he is also responsible for safety. He testified the two gentlemen were unknown to him and could have been known by SMT or SGB.
4. He also stated police were called; he told the two men they could not remove the Applicant; the police assessed the Applicant’s safety as compromised and engaged him about leaving, he cannot estimate time, but it occurred during school hours and acceded that teaching and learning must be protected.
5. He testified he left the meeting and returned to staffroom duties and the police remained with community members. He testified he did not take further steps to verify the two men’s identities because SGB was present and accepted they were parents. He informed them the Applicant is an employee and cannot be removed; the Applicant left voluntarily; he did not remove him. He accepted the Applicant could have been psychologically harmed.
6. He confirmed that from 21 February 2025 to 27 March 2025 the Applicant reported at the circuit office and was deemed at work, and he allowed the Applicant to sign at the circuit office while he prepared a submission to the district director explaining the absence from school.
7. He was referred to Bundle A page 9 paragraph 6.3 and accepted the Applicant can be regarded as displaced; he said he was not involved in resolution of the matter, and it was dealt with by the Director. He testified he allowed signing at the circuit office because it appeared reasonable. He testified Mr Maharaj (CES) provided him a report regarding a sanction for stealing food; he did not know if the sanction was implemented.
8. He stated he was not aware of an appeal pending until it was raised; if appeal is pending then sanction may not have been implemented. He testified the grievance was lodged on 3 March 2025; he could not answer on grievance timelines because those handling grievances should answer. He referred to the 30 July 2025 letter and stated it reflected that which he was informed that the Applicant was absent.
9. Regarding the court order date issue, he stated that he received a report that the Applicant must return on 19 May 2025; he clarified he did not say it was written in the order at that stage, but that the instruction was verbally relayed and the court order came later, with registrar date 26 May 2025. He accepted that in evidence in chief he referred to it “as per the court order,” but clarified the earlier information was a report/communication from those who attended.
10. He testified that leave without pay implementation is submitted from the school/principal directly to the leave section, not to him, the principal reported absence from 19 May 2025 to 22 July 2025, but he could not explain the PERSAL dates reflecting 22 April 2025 to 20 June 2025 and stated there may have been other absent periods; he did not accept it as a “discrepancy” because other days might exist.
11. He testified the Applicant had received letters previously in the past. He testified that the Applicant did not receive a letter to return because he was in court and represented and ought to have known to return; he stated nobody told the Applicant he would not receive a letter. He stated that if Mr Ntshangase said the presiding officer directed return on 19 May, and that was not correct, then he would accept that he was misled.
12. He testified he wrote to the Applicant because he was not reporting anywhere and the school was informed the Applicant would return on 19 May as per the court ruling report; he was told he did not need to write because the Applicant knew he must return.
13. He testified he would not know if the Applicant received PROFORMA A because it is done at school level. Regarding page 52 (leave of absence form) he testified that if the employee refuses to sign, the supervisor can sign and should attach a letter; there is no letter attached and he does not know if it exists; he does not know who signed because it does not come to him. He stated alleged fraud would be “unprocedural” if no supporting documentation existed.
14. He testified if someone breaks a rule, he must do a preliminary investigation that may lead to discipline. He testified abscondment (section 14) could apply if absence exceeds 14 days; he did not know why the Applicant was not discharged; he stated he did not implement section 14 because he thought he needed to write first.
15. He testified if money is deducted for absence of at least three days and monies are deducted there is no need for a disciplinary enquiry; the employee is informed via PROFORMA A and B; section 34 BCEA requires notification; HRM 55 of 2014 prescribes the process. He testified he was not responsible for the employee and would not know if he was given reasonable opportunity to make representations before deduction. Regarding the Applicant returning and allegedly not being utilised for a week in August 2025, he testified he was informed by the Applicant; he instructed duty load be rearranged and shared accordingly.
16. He testified he wrote the submission for placement and that the Director’s letter dated 24 March placed the Applicant at Njeza; he was uncertain on the DTT date. He testified CMTT meeting dated 29 January 2025 existed, but he was not part of it.
17. He stated he does not know any version that it was made up to eject the Applicant for placement. He testified he would not agree that the Applicant’s leave was authorised. He drew a distinction between earlier ejection periods and later periods where there was a directive to be at school and alternative placement existed.

Re-Examination

1. He was referred again to Bundle A pages 16–17 and noted the court order dated 15 May 2025 and registrar date 26 May 2025, and that LWP started 22 April 2025, meaning dates precede 19 May and could correspond to earlier absence periods.
2. He referred to page 16 paragraph 5.9 and testified that no disciplinary action is required if HRM 55 proformas are used; he stated the LWP was instituted correctly. Regarding the disputed signature on page 52, he testified if employee does not sign, supervisor can place surname/initials; the form reflects “G.B Zondo” and, if supporting documentation is available must be attached.
   Witness 2: Phumlani Majola (Principal: Khandimfundo Secondary School)
   Oath administered.
   Evidence in Chief
3. He stated that he is the Principal of Khandimfundo Secondary School, where the applicant was stationed. He has been at the school since 2024 and into early 2025.
4. He confirmed that he knows the applicant, Mr Goodman Bhekithemba Zondo. He described their relationship as having previously been cordial and friendly. They both resided in Bergville and interacted socially. The applicant worked with his wife, and they would often speak at length when they met. When Mr Majola commenced duties at Khandimfundo Secondary School, the applicant assisted him with orientation and explained what to expect at the school. He described the applicant as someone he regarded as a friend at that time.
5. He was referred to allegations that he was part of a plot against the applicant. He rejected this outright and stated that he had only joined the school in 2024 and could not have been part of any plot. He stated that the applicant had pre-existing issues with certain educators and members of the community before his arrival.
6. He testified that on a particular day in early 2025, a district visit team attended the school due to underperformance in the matric results. The Circuit Manager and other district officials were present. During that meeting, members of the community entered the school premises and interrupted the meeting. They demanded that the Principal, Mr Majola, and the Circuit Manager leave the meeting to address them.
7. He testified that the community members indicated that they were parents of learners at the school. He did not personally know them, as he had only been at the school for two years.
8. He stated that the community raised various concerns regarding the applicant. These included allegations that the applicant had a history of conflict at the school, had been involved in disputes with previous principals, and had been associated with allegations relating to school nutrition food. He testified that the community alleged that the applicant had stolen nutrition food from the school and had a tender supplying food to other schools. They further alleged that he did not properly mark learners’ scripts and would merely allocate totals without marking. There were also allegations that he was dating learners. He described some of these allegations as embarrassing to repeat.
9. He stated that the community expressed that they did not want the applicant at the school. The police were called to the school on that day.
10. He testified that after these events, he himself was shot at his home. He stated that this occurred shortly after the confrontation at the school. He further testified that he received anonymous threatening calls and messages instructing him to leave the school or face death. He reported these threats to the School Governing Body and to the Circuit Manager. He also informed certain staff members. He stated that, in his view, these threats were linked to the events involving the applicant.
11. He testified that a former acting principal had also previously indicated that he had experienced threats in relation to the applicant.
12. He was referred to Bundle B, page 52, being a Leave of Absence form. He confirmed that it related to the applicant. He testified that ordinarily an educator who is absent completes the leave form. However, if the educator does not report for duty and does not communicate his whereabouts, the Principal is entitled to complete the leave documentation.
13. He confirmed that on page 52, where it reflects “employee signature”, he inserted the applicant’s name and initials. He stated that he is the supervisor of the applicant and that the rules permit him, as supervisor, to sign where the employee is absent and has not reported his whereabouts.
14. He testified that according to that document, the applicant was absent from 22 April 2025 to 20 June 2025, being 38 days. He stated that during that period he was not aware of the applicant’s whereabouts. He monitored attendance through the school time book and marked the applicant absent. He then calculated the total number of days and completed the leave documentation accordingly. He submitted it to the Circuit Office.
15. He was referred to Bundle A, pages 16 and 17, being the Labour Court order. He confirmed that the Registrar’s stamp reflected 26 May 2025. He acknowledged that the leave period reflected in the Leave of Absence document commenced on 22 April 2025, which was prior to the stamped date of the court order.
16. He stated that he had discussions with the Circuit Manager regarding the applicant’s continued absence. He testified that following the issuing of the court order directing the applicant to return to work, the applicant did not report for duty at the school. He stated that no reasons were furnished to him explaining the continued absence.
17. He was referred to Bundle B, page 53, another Leave of Absence form covering the period 22 July 2025 to 31 July 2025. He confirmed that he again inserted the applicant’s name in the employee signature space as supervisor because the applicant did not sign and did not report his whereabouts. He testified that he reported the applicant’s absence to the Circuit Manager.
18. He further testified that a medical certificate was later submitted to the Circuit Office. He regarded it as questionable because, according to his understanding, an injury-on-duty situation requires proper documentation and reporting. He stated that no injury at work had been reported to him. He further stated that, according to the rules, a medical certificate should be attached to a properly completed leave application form.
19. He confirmed that, in his experience, an educator is required to complete a leave application form together with the submission of a medical certificate. He maintained that in completing the leave documentation in the applicant’s absence, he acted within his authority as Principal and supervisor.

Cross-Examination

1. Mr Majola confirmed that he is the Principal at Khandimfundo Secondary School.
2. He confirmed that the Applicant’s salary deductions for leave without pay (LWP) related to the Applicant’s absence from school. He was referred to Bundle A page 16 (Labour Court Order). He stated that, during his earlier evidence, he had said the Applicant “must return to school,” but he retracted the part where he said he was in “court proceedings.” He clarified that he was at a consultation, not court proceedings.
3. When asked whether the person he dealt with was a court official, he responded that the “official” was in the same building, and that the district and circuit manager were also in the same building. He stated it was his first time seeing the Labour Court Order. When asked whether the order says the Applicant must go back to school, he read the order and stated his interpretation that the order restrained the Department from sending the Applicant to another school.
4. He was referred to Bundle A page 14 paragraph 1. He stated that he did not know anything about 20 November 2025 regarding the Applicant which resulted in a settlement agreement. He stated he did not remember anything regarding a settlement agreement or 2024. He stated that the Applicant came to the school in 2025. He was referred to page 49 (SMS) and confirmed the SMS originated from his cellphone number. He confirmed the SMS concerned inviting the Applicant back to school, dated 11 February 2025. He testified that he invited the Applicant back and the Applicant came to school with a letter stating that he must go back to school. He stated it was the first time he heard that the SMS related to a settlement agreement concluded on 20 November 2024. He confirmed there was a typing error regarding his initials and stated it should be “P.R” and not “P.N” Majola. He confirmed the paragraph referred to (in the documents) correlates with what happened, namely that he sent the SMS inviting the Applicant back to work.
5. When asked if he always sends the Applicant communications to return to work, he responded that the Applicant had not been at school for several years. He further explained that when the Applicant came with the letter, he dropped it off, but it was not that the Applicant came and resumed duties.
6. He stated that because the Applicant’s issues were known, he would consult the SGB, the circuit manager, and obtain a response from them. He was referred to Bundle A page 14 (letter from Mr Mlambo). He stated he does not remember when he received that letter, whether before or after the court hearing. It was noted that the letter is dated 30 July 2025.
7. It was put to Mr Majola that he never invited the Applicant back to work up to the period 19 May 2025 to 22 July 2025. Mr Majola stated he had no comment. It was put to him again that, for the period 22 April 2025 to 20 June 2025, he did not invite the Applicant back to school.
8. He responded that a district official, Mr Ntshangase, indicated during one of the court hearings that he invited the Applicant back to school. He stated that during that period there was a visit to the school to check if the Applicant came back, and he was advised in terms of leave measures.
9. Regarding the third period 22 July 2025 to 31 July 2025, he stated he only called and sent the text once after the Applicant presented the letter. He testified that he consulted the SGB and circuit manager. He stated he does not remember if he filled in leave forms for the period before the Applicant was invited back before 11 February 2025. He stated the Applicant was not given LWP because there was already an instruction that he goes back to work, but he did not report back to work. He testified that he joined the school in February 2024 and there were no leave forms prior to that.
10. He stated that he knew there were discussions/negotiations up to the issue of the court order. He testified that he only became actively involved when they were called in with departmental lawyers. He testified the Applicant used to come to the school and he recalled one day the Applicant came to certify applications when they were still friends. He stated that, if he is not mistaken, it was in 2025 that he interacted with the Applicant in his official capacity as an educator in the school. He explained general procedure when an educator is absent: the employee should report via text before 10am; if not, he would phone the individual to establish whereabouts because classes would be unattended. He conceded that in the Applicant’s case, he did not phone him to ascertain whereabouts because the Applicant’s issue was dealt with at district level and he had not been at school for years.
11. He stated he was not given anything by Mr Ntshangase confirming that the Applicant was invited back to work during the period 22 April to 20 June 2025. It was put to him that the version about Mr Ntshangase inviting the Applicant back was hearsay because no proof was furnished. Mr Majola responded that it is between them and Mr Ntshangase; he does not know, but he will accept that. He was referred to paragraph 35 (letter from the Applicant to the Principal dated 12 August 2025) requesting written reasons for implementation of LWP. He stated he does not remember that letter. On the proposition that he should have consulted the Applicant prior to the LWP implementation, he stated he does not disagree. It was put to him that the leave forms were fraudulently completed by the principal. He rejected that assertion and stated principals are allowed to fill in leave forms against employees absent without reporting or approval.
12. It was put to him that the document was fraudulent because it was not adequately captured/approved by the designated authority. He stated that on his part “on top” he filled in as he knows how; the other section he does not know.
13. It was put to him that it was filled in against the will of the Applicant. He stated he “hears him.” It was put to him that the deductions on pages 36 and 37 are unlawful and the amounts must be paid back (R6,857.82 and R3,000.90).
14. He responded that the Applicant was not at work and they were overloaded; if you are absent from work you do not get paid. It was put to him there is no such provision in the Employment of Educators Act or HRM 55 of 2014 allowing him to fill in forms as he did. He responded it is common practice. It was put to him school attendance is regulated. He stated he has no comment.
15. When asked about school operating hours he stated it is internal school policy; each school has its own policy. When asked whether the Applicant is employed by Khandimfundo or KZNDOE, he stated the school belongs to KZNDOE where the Applicant was placed. When asked who writes the employment contracts/policies regulating attendance, he stated KZNDOE is the umbrella that covers all schools in KZN. When it was put to him there is no policy giving him powers to fill in forms and deduct, he responded that at school level they have policies dealing with attendance. He stated the policy requires the educator to be present five days a week, and if the educator does not report and the whereabouts are unknown after several days (above three days), then the leave form must be filled in and LWP recommended. He stated it is the first time he heard that consent for LWP must be sought from the employee prior to the Principal implementing/recommending it.

Re-Examination

1. Mr Majola was referred to Bundle B page 50 (Leave of absence document). He stated this is the letter he wrote to the Applicant informing him that if he is not present and his whereabouts are unknown, they will start implementing LWP. He stated the letter is marked PROFORMA A on the right. He testified that he took this letter from HRM 55 of 2014. He stated he wrote it so that if the Applicant does not report for duty for more than five working days, they will start implementing LWP for the period 22 April 2025 to 06 June 2025.
2. He referred to the next page (page 51) and stated the leave of absence reflects 22 April 2025 to 20 June 2025.
3. He explained the difference between 06 June and 20 June: the PROFORMA is the warning; the second form is action because the Applicant remained absent. He testified that the PROFORMA letter was hand-delivered by the circuit manager to the applicant; he does not have the exact date. When asked why there were no leave forms submitted for the period 20 February 2025 to 22 April 2025, he stated it is because the Applicant was reporting at the circuit office due to the community chasing him away, and they did not regard that as absence because he was at the circuit office.
4. He reiterated that he was not part of the settlement agreement in November 2024. Regarding the leave forms appearing on pages 52 and 53, he stated that from 20 to 27 June 2025 the Applicant was absent from school. He stated he did submit the leave of absence, and it may have been delayed, but it was submitted to the circuit office. He stated it is not common practice that when educators are absent, they are called/telephoned; educators are the ones who report their absence. He stated there is no acknowledgement of receipt of the PROFORMA from the circuit manager, as he was the one who served the Applicant with the letter.
   ANALYSIS OF THE EVIDENCE AND ARGUMENTS
5. This is not a review of administrative action but an arbitration conducted in terms of the Labour Relations Act 66 of 1995. The task is to determine whether the Respondent’s conduct in implementing leave without pay and effecting the resultant salary deductions was fair.
6. The dispute is referred as an unfair labour practice in terms of section 186(2) of the LRA, relating to benefits. In practical terms, the applicant challenges the fairness of the respondent’s decision to treat him as absent without authorisation and to deduct remuneration accordingly. Although this is not a BCEA claim for unlawful deductions, the principles underlying section 34 of the BCEA remain relevant. An employer may not deprive an employee of remuneration unless there is a lawful and procedurally fair basis to do so. In arbitration, the enquiry is therefore whether the respondent established, on the facts, that the applicant was absent without authorisation and that the process leading to the implementation of leave without pay was fair.
7. The applicant bears the overall onus to prove unfair conduct. However, once it is common cause that leave without pay was implemented, and the resultant deductions, the respondent carries a clear evidentiary responsibility to justify the basis upon which it did so, both substantively and procedurally.
8. Phumlani Majola (Principal): Mr Majola testified as the principal of Khandimfundo Secondary School. His evidence was central to the respondent’s case that the applicant failed to report for duty and was therefore correctly placed on leave without pay.
9. Mr Majola accepted that he sent the applicant an SMS in February 2025 inviting him back to school. He did not dispute that the SMS originated from his cellphone number. It was further not disputed that following that message, the applicant returned.
10. This aspect of his testimony is significant. It demonstrates that when a direct and unambiguous instruction was communicated, the applicant complied. That factual pattern weakens the inference that the applicant deliberately refused to report whenever required to do so.
11. When questioned about the period following the Labour Court order of 15 May 2025, Mr Majola’s evidence was less certain. He relied largely on what district officials had allegedly conveyed or what he understood to be the effect of the court order. He did not testify to issuing a clear written instruction to the applicant immediately after the order specifying a reporting date and place. Nor did he produce evidence of such communication being acknowledged by the applicant.
12. Mr Majola also gave evidence regarding PROFORMA A. He maintained that it formed part of the standard process and that principals or responsible managers may complete leave documentation where an employee is absent. However, when confronted with the document itself, it was evident that it was undated and bore no acknowledgment of receipt by the applicant. His explanation that it may have been delivered through circuit management remained wholly uncorroborated. Procedural fairness in matters where remuneration is withheld demands objective evidence, not assumption.
13. Importantly, Mr Majola conceded that at certain earlier periods the applicant was not treated as absent because he was reporting at circuit office. This admission confirms that absence from the school premises was not automatically equated with unauthorised absence. Overall, Mr Majola’s evidence establishes that communication channels existed and were used when necessary. However, it does not convincingly establish that, after the court order, the applicant was clearly and unequivocally instructed to report on 19 May 2025 in circumstances where failure would attract leave without pay. Nor does it establish that the warning step preceding LWP was properly served.
14. Thulasizwe Thembinkosi Mlambo (Acting DCES / Circuit Official): He testified that the lodging of a grievance does not entitle an educator to remain at home and that an employee must continue to report for duty unless on approved leave or suspension. That proposition is accepted as no evidence was led to the contrary substantiated with proof of the policy relied upon.
15. He further testified that reporting at circuit office may constitute reporting for duty where authorised. He confirmed that the applicant did, during a defined period, report at circuit office and that this arrangement was part of an interim measure. This evidence is important because it reinforces that the department itself recognised alternative reporting arrangements. It follows that any allegation of absence must distinguish between authorised alternative reporting and unauthorised non-attendance.
16. On the critical issue of the Labour Court order, Mr Mlambo’s testimony suggested that the effect of the order was that the applicant should have returned. However, like Mr Majola, he did not point to wording in the order that expressly directed the applicant to report on a specified date. Nor did he produce evidence of a clear directive issued to the applicant immediately after the order and acknowledged by him.
17. Mr Mlambo confirmed that PROFORMA A must precede any implementation of leave without pay. He conceded he would not know whether it was served, as it is administered at school level. His evidence was coherent on policy in principle but did not establish that the policy was in fact applied to this Applicant.
18. The Respondent’s witnesses established the existence of leave policy and the procedures governing leave without pay. They also confirmed that the Department has a structured mechanism intended to warn employees before salary consequences are imposed.
19. However, the central issue is not whether such policy exists. It is whether, in this case, the applicant was clearly instructed to report after the Labour Court order, whether he failed to do so without justification, and whether the leave without pay process was implemented fairly. On that score, the testimonies leave material gaps: Neither witness could point to wording in the court order mandating reporting on 19 May 2025. Neither produced a contemporaneous written directive clearly instructing the applicant to report on that date. The PROFORMA A warning step lacks proof of service to the applicant. The applicant’s demonstrated history of returning when directly instructed (February SMS and 04 August letter) weakens the inference of wilful refusal.
20. The respondent’s case relies heavily on interpretation and assumption rather than on documented communication and acknowledged directives. When the applicant received a clear written instruction, he reported. When he was authorised to report at circuit office, the department accepted that as attendance. The Labour Court order restrained a transfer to Njeza but did not, on its face, stipulate the applicant must report at a specified location.
21. The warning document required to precede any implementation of leave without pay is procedurally compromised by the complete absence of proof of service. These probabilities lend material support to the Applicant’s evidence that he awaited a clear directive from the Department before resuming duty.
22. The respondent’s case rests heavily on the Labour Court order issued on 15 May 2025. It was repeatedly suggested that the order required the applicant to return to school, and that his failure to do so justified the deductions. It is therefore necessary to examine what the order says.
23. The order interdicts and restrains the third respondent from implementing or enforcing the transfer decision dated 24 March 2025, which placed the applicant on transfer from Khandimfundo Secondary School to Njeza Secondary School. It further restrains the respondent from placing the applicant on transfer without complying with the applicable displacement procedure. What the order does not do is equally important. It does not stipulate that the applicant must report on 19 May 2025. It does not identify a specific reporting station. It does not convert itself into a human resources instruction. It is a restraint on transfer implementation. Nothing more.
24. If the respondent’s case is that the order automatically required the applicant to report at Khandimfundo on 19 May 2025, that proposition must be supported by evidence of a clear directive communicating that obligation to the applicant. The order itself does not provide that clarity.
25. The respondent later issued a letter dated 30 July 2025 stating that the applicant was expected to report at Khandimfundo on 19 May 2025 “as per the ruling of the court.” That statement overstates what the court order expressly provides. The fairness enquiry requires more than an interpretation; it requires proof that the applicant was clearly and unequivocally instructed to report to a defined workplace on a defined date.
26. Without such proof, reliance on the court order as the foundational trigger for implementing leave without pay is fatally flawed.
27. There is no dispute that in February 2025 the principal sent the applicant an SMS inviting him to return to school. The principal accepted that the SMS originated from his phone. The applicant returned following that message.
28. This fact is not peripheral. It demonstrates that where the applicant received a clear written instruction to report, he did so. It also demonstrates that the respondent knew how to communicate reporting expectations directly.
29. That background becomes relevant when evaluating the later period forming the basis of the deductions. If the respondent’s case is that the applicant was expected to return after the court order, the absence of similarly clear communication is striking.
30. The applicant also produced a letter dated 04 August 2025 confirming that he was assuming duty at Khandimfundo pursuant to a directive. The principal acknowledged receipt of that letter on the same day. Again, when a clear directive was issued, the applicant reported. These facts weigh against an inference of deliberate non-compliance.
31. The Respondent relies on PROFORMA A as the prescribed warning stage that must precede implementation of leave without pay. The document produced in evidence was, however, undated.
32. It carries no acknowledgment of receipt by the applicant. There is no documentary proof of service. No email trail. No delivery confirmation. No signed acceptance. The applicant denies receiving it.
33. Evidence was led that the applicant, at certain periods, reported at the circuit office rather than at the school. The respondent’s own witness accepted that reporting at circuit office can constitute reporting for duty where authorised. This period did not form part of the Leave Without Pay.
34. The Applicant accounted in detail for the periods during which he acted on express departmental directives. From 21 February 2025 to 27 March 2025, he reported at the circuit office pursuant to instruction, and this was accepted as reporting for duty. That period does not fall within the leave without pay window reflected in the payroll deductions.
35. The leave without pay period begins on 22 April 2025. The discrete period between 27 March 2025 and 15 May 2025 falls within the first deduction window of 22 April 2025 to 20 June 2025. During this interval, the Applicant remained at home and suggested that he regarded himself as being on special leave. The unchallenged evidence of Mr Mlambo was that special leave requires a formal written application and approval. No such process was followed. To that extent, that portion of the first deduction period was not regularised.
36. As to the period after the Labour Court order dated 15 May 2025, the order interdicts and restrains the Respondent from implementing or enforcing the transfer decision dated 24 March 2025 placing the Applicant at Njeza Secondary School. It does not direct the Applicant to report to Khandimfundo Secondary School on 19 May 2025. It does not prescribe a reporting date. It is confined to restraining the transfer. In the absence of a clear, unequivocal and properly communicated instruction issued after 15 May 2025 specifying where and when the Applicant was to report, the Respondent could not fairly rely on assumption as a substitute for communication. The Applicant had been physically ejected from the school and his situation remained unresolved. It was not reasonable to expect him to know where to report without being told.
37. In County Fair Foods (Pty) Ltd v CCMA and Others the Labour Appeal Court confirmed that failure to comply with an instruction constitutes misconduct only where the instruction is lawful, reasonable and clearly communicated. An employee cannot be prejudiced for failing to comply with an expectation that was not unambiguously conveyed. That principle applies equally where the consequence is financial through payroll deductions.
38. On the probabilities, leave without pay for the period 22 April 2025 to 14 May 2025 is not justified on the basis of special leave. No application was submitted and no alternative arrangement was sanctioned. The Applicant’s own evidence was that during this period he was in Pietermaritzburg pursuing legal relief, having been advised that jurisdiction lay with the Labour Court in Durban. That was a choice he made unilaterally following receipt of the transfer directive. The Respondent cannot be faulted for his decision to pursue litigation, but that decision did not authorise the absence. The leave without pay for the period 22 April 2025 to 14 May 2025 was therefore substantively justified.
39. The signing of the leave forms by the principal on behalf of the applicant does not amount to fraud. Fraud requires proof of a deliberate misrepresentation made with intent to deceive and to cause prejudice. There is no evidence that the principal falsified the forms in order to mislead the department or fabricate absence. He testified that he signed in his capacity as supervisor because the applicant was not reporting and that this was, in his understanding, permitted in standard practice. The issue is therefore one of procedural fairness, not fraud. If the Applicant was not informed through PROFORMA A and was not given an opportunity to respond before leave without pay was implemented, the process was procedurally unfair, but that does not, on the evidence, constitute fraud. It constitutes a procedural defect, which is addressed separately in the relief.

FINDINGS

1. The Applicant bore the onus of establishing unfair conduct. Once it was common cause that leave without pay was implemented and the resultant salary deductions followed, the Respondent assumed a clear evidentiary responsibility to justify its conduct, both substantively and procedurally. The enquiry is therefore twofold: first, whether the absence in each period was genuinely unauthorised; and second, whether the prescribed process for implementing leave without pay was followed.
2. Regarding the period 22 April 2025 to 14 May 2025, the Applicant was in possession of a transfer directive issued on 24 March 2025 placing him at Njeza Secondary School. That directive remained operative and unchallenged in terms of his obligation to report somewhere. The Applicant elected to pursue litigation rather than comply under protest, as is required by the principle confirmed in County Fair Foods (Pty) Ltd v CCMA and Others, where the Labour Appeal Court held that an employee cannot be prejudiced for non-compliance with an instruction only where that instruction was not lawfully and clearly communicated. In this instance, the transfer directive was communicated in writing and received. The Applicant chose litigation over compliance, which is a right afforded to him, but it does not convert an unauthorised absence into an authorised one. The principle commonly expressed as "comply first and grieve later", affirmed under clause 6.5 of Collective Agreement 2 of 2008, required him to report whilst challenging the directive through lawful processes. No special leave application was submitted and no alternative arrangement was sanctioned. The absence during this period was therefore substantively unauthorised and the implementation of leave without pay was substantively justified.
3. The procedural position for that same period is, however, different. PROFORMA A is the mandatory pre-deduction notice mechanism prescribed under KZN Circular HRM 55 of 2014. It must be served on an absent employee before leave without pay may be implemented, formally placing the employee on notice of the intended deduction and affording an opportunity to respond or regularise the absence. The document produced in evidence was undated, bore no acknowledgement of receipt, and the Applicant denied receiving it. Neither witness could establish proof of service. The principles underlying section 34 of the Basic Conditions of Employment Act reinforce the requirement that an employee must be notified before financial prejudice is imposed. That obligation was not discharged. It is acknowledged that neither the Employment of Educators Act nor HRM 55 of 2014 expressly prohibits a supervisor from completing leave documentation where an employee fails or refuses to sign. The Principal acted within recognised practice in doing so. However, the completion of leave documentation by a supervisor does not cure the separate obligation to serve PROFORMA A before any deduction is made. The two steps serve distinct purposes and one cannot substitute for the other. The failure to serve PROFORMA A rendered the process procedurally unfair for this period, notwithstanding that the substantive decision to impose leave without pay was sound. Consistent with the approach in Sidumo and Another v Rustenburg Platinum Mines Ltd [2007] 12 BLLR 1097 (CC), where the Constitutional Court held that relief must be proportionate to the nature of the unfairness established, full reimbursement would not be appropriate here. The procedural harm was real but limited: the Applicant lost the opportunity to make representations before the deduction was imposed. Solatium is the appropriate remedy.
4. For the periods 15 May 2025 to 20 June 2025 and 22 July 2025 to 31 July 2025, the substantive and procedural cases against the Respondent are both made out. The Labour Court order of 15 May 2025 restrained the Respondent from implementing the transfer to Njeza Secondary School. It did not direct the Applicant to report to Khandimfundo on any specified date. Neither Mr Majola nor Mr Mlambo could identify wording in the order mandating reporting on 19 May 2025, nor could either produce a written directive issued to the Applicant after the order specifying a reporting place and date. The letter of 30 July 2025 stating that the Applicant was expected to return "as per the ruling of the court" overstates what the order provides. The Applicant had demonstrated on two clear occasions, namely the February SMS and the 4 August 2025 letter, that when given an unambiguous written directive he reported without delay. The absence of equivalent communication for these periods, combined with the unserved PROFORMA A, means the Respondent has not discharged its burden substantively or procedurally. The leave without pay for these periods constituted an unfair labour practice.

QUANTIFICATION OF RELIEF

1. The deductions are quantified as follows for purposes of the relief ordered below. The monthly deduction of R6 857.83 (PERSAL code 0052 – LEAVE DISS PAST, SARS code 3601) is a recurring deduction with a begin date of 01 July 2025 and an end date of 31 July 2026, reflecting a total projected LWP balance of R89 151.85. The deduction was effected monthly from July 2025. The February 2026 salary was paid on 15 February 2026, being prior to the date of this award, and the deduction for that month had accordingly already been effected. The total amount deducted from the Applicant’s remuneration for the period July 2025 to February 2026 is therefore R54 862.64 (R6 857.83 x 8 months).
2. The daily rate is derived from the total LWP balance as follows: R89 151.85 ÷ 38 days (being the total number of working days in the first LWP period of 22 April 2025 to 20 June 2025 per the leave of absence form completed by the Principal) = R2 346.10 per day.
3. The period found to be substantively justified is 22 April 2025 to 14 May 2025, being 17 working days. The value of the justified deduction is: 17 days x R2 346.10 = R39 883.70.
4. The reimbursable amount in respect of Period 1 (15 May 2025 to 20 June 2025) is therefore: R54 862.64 (total actually deducted) minus R39 883.70 (justified portion) = R14 978.94. The deduction in respect of Period 2 (22 July 2025 to 31 July 2025) in the amount of R3 000.90 is deemed unfair in its entirety. The total reimbursement is accordingly R14 978.94 + R3 000.90 = R17 979.84 (seventeen thousand nine hundred and seventy-nine rand and eighty-four cents).
5. The Respondent, KwaZulu-Natal Department of Education, is found to have committed an unfair labour practice relating to benefits in terms of section 186(2)(a) of the Labour Relations Act 66 of 1995 in implementing leave without pay deductions against the remuneration of Mr Goodman Bhekithemba Zondo for the period 15 May 2025 to 20 June 2025 and for the period 22 July 2025 to 31 July 2025.
6. The Respondent is ordered to restore Mr Goodman Bhekithemba Zondo’s remuneration and to reimburse the total amount of R17 979.84 (seventeen thousand nine hundred and seventy-nine rand and eighty-four cents), being the reimbursable leave without pay deductions effected in respect of the periods 15 May 2025 to 20 June 2025 and 22 July 2025 to 31 July 2025, within thirty (30) days of the date of this award. The Respondent is further ordered to immediately cease all further monthly deductions of R6 857.83 against the Applicant’s remuneration with effect from the date of this award.
7. In respect of the period 22 April 2025 to 14 May 2025, the implementation of leave without pay was substantively justified but procedurally unfair by reason of the failure to serve PROFORMA A in accordance with KZN Circular HRM 55 of 2014. The Respondent is accordingly ordered to pay Mr Goodman Bhekithemba Zondo solatium in the amount of R5,000.00 (five thousand rand) within thirty (30) days of the date of this award.

ELRC Arbitrator:

![](https://elrc.org.za/wp-content/uploads/2026/03/image-7-265x145.png)

Date: 05 March 2026