Commissioner: Lanthis Taylor
Case No.: ELRC482-26/27WC
Date of Award: 05 October 2026
In the Arbitration between:
SADTU obo Lloyd Nkululeko Mhluzi
(Union/Applicant)
And
DEPARTMENT OF EDUCATION – WESTERN CAPE
(Respondent)
Union / Applicant’s representative: Mr. Tesrel Fortuin & Mr. Mhluzi
Respondent’s representative: Ms. Puseletso Mosese (WCED Representative)
PARTICULARS OF PROCEEDINGS AND REPRESENTATION
- An arbitration hearing was convened under the auspices of the Education Labour Relations Council on 28 September 2026 by way of the virtual platform, Microsoft Teams. The applicant, Mr. Lloyd Mhluzi (Mhluzi) was represented by Mr. Tesrel Fortuin (Fortuin) from SADTU. Ms. Puseletso Mosese (Mosese) represented the respondent, the Department of Education – Western Cape. The proceedings were conducted in English and were digitally recorded.
BACKGROUND TO THE ISSUE - The issue before me relates to the applicant’s claim of an unfair labour practice relating to the benefit of Family responsibility leave. The respondent raised a point in limine regarding the jurisdiction of the ELRC. The WCED representative stated that the applicant applied for Family Responsibility Leave which was not recommended by the Principal and which subsequently led to a deduction from the applicant’s remuneration. She stated that the applicant’s dispute related to an unauthorised deduction and cited that the dispute fell within the ambit of Section 73A of the BCEA and not an unfair labour practice as alleged. Her view is that the ELRC lacks the jurisdiction to deal with the dispute.
- Mr. Fortuin stated that the applicant lodged an unfair labour practice dispute as the Educator has the benefit available to him for use when his spouse is sick. This benefit is part of a collective agreement and policy (PAM document). The applicant did not get the benefit of family responsibility leave and subsequently had a deduction from his salary. He referred to the matter of Apollo Tyres v CCMA and others as the authority in this matter. He stated that the deduction was made after the Principal did not approve the family responsibility leave. The approval is at the discretion of the Principal, and the Department deducts the amount as unpaid leave from the Educator’s salary if the Principal does not approve the leave.
- I made an ex-tempore ruling after considering the submissions of both parties in the point in limine. I determined that the matter fell within the ambit of Section 186(2) of the Labour Relations Act and was not a claim for monies owed in terms of Section 73A of the BCEA as alluded to by the respondent. The deduction arose from the non- approval of the family responsibility leave which is a right in terms of the BCEA and in the PAM document, is enhanced to include illness of a spouse.
- A benefit is defined as an existing advantage or privilege to which an employee is entitled contractu (from a contract) or ex lege (from law) or granted in terms of a policy or practice subject to the employer’s discretion. In my ruling, I referred to the Apollo Tyres v CCMA matter where the LAC remarked that “the most significant finding in Apollo relates to the remark that where an employer act unfairly in the granting of a benefit to an employee, where it needs to be granted subject to the employees discretion, the only remedy she will have is in terms of section 186(2)(a) of the LRA. In the circumstances section186(2)(a) of the LRA reigns supreme as it presents an aggrieved employee with the only remedy. I ruled that the ELRC has the requisite jurisdiction and that the matter would continue on the day.
THE ISSUES THAT ARE TO BE DETERMINED
6. I have to determine whether the respondent committed an unfair labour practice by the Principal’s refusal to approve the family responsibility leave which subsequently led to the deduction from the applicant’s salary.
SUMMARY OF THE EVIDENCE & ARGUMENTS:
7. Only the applicant presented a bundle of documents in support of his version. In this arbitration before me, the applicant testified on his own accord while the respondent called two witnesses, Lindokuhle Tywaku (Acting Departmental Head) and Xolani Victor Ndamane, the School Principal. I am required by the LRA to provide brief reasons to substantiate my findings and determinations in this dispute. As such despite considering all the submissions presented, I will only deal with what I believe is relevant and what will relate to the core issues in dispute.
8. By agreement with the applicant’s representative, I adopted a part-inquisitorial approach to hearing the applicant’s version of events and I also adopted a part-inquisitorial approach in respect of the respondent’s witnesses. All the witnesses testified under oath and, for ease of reference, the relevant aspects of their respective testimonies will be dealt with under the analysis, hereunder.
ANALYSIS OF EVIDENCE AND ARGUMENT
THE APPLICANT’S CASE
9. The applicant, Lloyd Mhluzi, testified under oath that he is a classroom-based educator at Chuma Primary School since 2017. He stated that his wife took ill and upon request to the Departmental Head on 3 February 2026, he was granted permission to leave school early on the day. He stated that he had told her that he would not be in the following day as he needed to take care of his wife who was being discharged from hospital.
10. Mhluzi stated that he sent a message to the Departmental Head on 4 February confirming his absence from school. She replied “Noted”. He always informed the Departmental Head of his absence over the years that he was working at the school. The incumbent Principal had commenced duties at the school in July 2025. He did not ever inform the Principal when he was absent. He only informed the Departmental Head. He had been absent several times since the Principal was appointed and had not reported the absence to him. Mhluzi stated that he was never informed in any meeting of the requirement to inform the Principal.
11. Mhluzi stated that upon his return to school on 5 February 2026, he completed a leave form for family responsibility leave and submitted his wife’s sick certificate as a supporting document. He then went about his duties as normal. On 4 March 2026, he was given a letter from WCED by an intern at the school. The letter indicated that his leave was unauthorised and that the WCED would be deducting the money from his salary, which they duly did at the next payment date. He stated he sent an email to the Principal requesting the reason for the leave without pay. The response was that he had not reported to the Principal. He took this up with the union and wrote a letter to Labour Relations at the WCED. Mhluzi stated that the union representative came to the school, however the Principal was not willing to speak to Mr. Fortuin. The matter was then taken up with ELRC.
THE RESPONDENT’S CASE
12. The respondent called its witness, Lindokuhle Tywaku, the acting Departmental Head to testify. She confirmed that the applicant reported to her. She further confirmed that he had sent her a message on 4 February 2026 via Whatsapp informing her that he was going to be absent as he needed to look after his wife. She stated that she told him that she was absent from school as well and that he should report to the Principal. She did not have any proof of this as “disappearing messages” were on the phone. She stated that the normal procedure for reporting absence was to the Principal firstly and then to the Departmental Head. This was communicated in staff meetings. However, she did not have any attendance or minutes to substantiate this version.
13. Tywaku confirmed that the applicant had always reported his absences to her prior to the new Principal’s appointment in 2025. The rules changed upon the appointment of the new Principal. After the incident in February 2026, the applicant reports absences to both. She stated that she was at hospital on 4 February 2026 and told the applicant that she was not available. He knows the channels of reporting, and she did not tell him to report to the Principal as she did not see the need to do so. She explained that generally if somebody is absent and does not report to the Principal, the Principal would follow up with her to see if the person reported to her. She also checks with the Principal in the event of someone not reporting to her.
14. During cross-examination, she confirmed that he had left early on 3 February 2026 but had not told her that he was not coming in the next day. She confirmed that she had completed an affidavit confirming that he was absent on 4 February 2026 and had sent a message to her. When it was put to her that she had replied to him “noted”, she stated that she had told him that she was not at work. At this point it must be noted that the witness rolled her eyes. She stated that the school has a written policy regarding reporting absence, but the staff did not receive any copies thereof. She then stated that the Principal and the SGB were still drafting the policy. She maintained that it was communicated more than once that there were two channels of reporting and that the applicant was present when this was communicated. She did not have any proof to substantiate her version. She confirmed that the Principal did not ask her if the applicant had made any contact with her.
15. The respondent’s second witness, Xolani Victor Ndamane, testified that he is the Principal of the school since 15 April 2025. When he arrived at the school, he implemented certain changes and relayed this in a workshop for the staff. He confirmed that he had implemented that all staff report to him if they were going to be absent from school. He did so because there were many issues at the school where teachers just disappeared during the day. Ndamane stated that he had a few meetings with the applicant and the Circuit Manager had to intervene as the applicant was not reporting for duty, not signing the attendance register and was arriving late at school. He confirmed that he did not approve the applicant’s application for family responsibility leave as the applicant had not reported his absence to him. The document was uploaded as not approved. When asked whether he had communicated this with the applicant, he stated that the applicant ignores him when he calls him. This is why the Circuit Manager had to intervene. During cross-examination when he was asked whether he had spoken to the Departmental Head, he confirmed that he was made aware that a WhatsApp message had been sent to her. No context or content of the message was given to him, and he left it at that point. His point of departure remained that the applicant did not report to him even to the extent that when the Departmental Head returned to school, he confirmed with her that the applicant had reported to her. He was not aware that she had allowed the applicant to leave early the previous day.
FINDING
16. This is a simple dispute that has been allowed to escalate into an arbitration matter before the ELRC. The applicant is entitled to family responsibility leave as per the PAM document and organizational policies. He left work early on 3 February 2026 to collect his wife from hospital. He obtained permission from the Departmental Head and she confirmed this. His version is that he told her that he would not be at work the following day and sent her a message on that day to confirm that he would not be at work. There are two directly conflicting versions with the Departmental Head stating that he did not do so.
17. These conflicting versions, however, have no relevance to the dispute. What becomes relevant is the credibility and probabilities of each person’s version which I will deal with below. The dispute emanated out of the Principal not approving the application for one day of family responsibility leave based on the applicant “not reporting” his absence. Nothing is further from the truth. The applicant reported his absence to the Departmental Head, the person to whom he generally reported. She confirmed this and confirmed that the Principal would confirm with her whether a staff member had contacted her about being absent if that staff member had not contacted him. The Principal confirmed in his evidence in chief that he had been made aware that the applicant had sent her a Whatsapp message even though he did not canvass the context thereof from her. Yet in the face of having the application for leave form, the associated medical certificate and confirmation that the applicant had contacted the Departmental Head, the Principal still saw fit to disapprove the leave application.
18. Tywaku was not a credible witness. She contradicted herself on a number of occasions. She testified that she had told the applicant to contact the Principal directly and then later stated that she had not told him to contact the Principal as he knows the channels of reporting, and she did not see the need to tell him to do so. Tywaku testified of a policy being in place at the school but then stated that it was still being drafted. This does not make sense. The policy is either in place or it is not.
19. Tywaku’s demeanour and body language was not conducive to a person giving an honest account. She was evasive when questioned about the affidavit that she had completed confirming that the applicant had contacted her on 4 February 2026 and rolled her eyes when certain versions were put to her. She also could not present any evidence to substantiate her version and remarked that she was not aware that she would be called as a witness by the WCED.
20. From Ndamane’s testimony, it can logically be deduced that he and the applicant do not have a good working relationship. He stated that the applicant did not listen to him and the Circuit manager had to intervene in meetings between himself and the applicant. He confirmed that he was unaware of the applicant being granted early release from school which shows that Tywaku placed him in an uninformed position by not relaying holistically the situation around the applicant. I have already found that the Departmental Head’s testimony was not credible whereas the applicant gave a believable account of the simple situation which in my view was badly managed.
21. Despite the applicant reporting his absence and Ndamane being aware of this, Ndamane’s view is that the applicant did not contact him and therefore he submitted the leave form as “not approved, not reported”. He did so despite having the background to the family responsibility leave which was also supported by the applicant’s wife’s medical certificate. In my view this appears to be a wilful act on Ndamane’s part.
22. In consideration of the above, I find that Mhluzi was entitled to the family responsibility leave applied for; this is a benefit that he was denied. He is entitled to be re-imbursed for the deduction to the value of R1158.83 that is associated with the benefit of the family responsibility leave in this instance.
FURTHER CONSIDERATION
23. The respondent’s representative presented no documentary evidence, sought to raise an unsustainable jurisdictional challenge, presented witnesses with questionable credibility and then sought to pursue a dispute in arbitration that was straight forward and which could very well have been resolved by way of internal mechanisms.
24. It is my view, and in consideration of all the evidence and testimony presented to me, that the respondent’s stance to pursue that this matter be arbitrated and that I decide what would be an obvious outcome, is frivolous in the least. Paragraph 54.1 of the ELRC Constitution states “In any arbitration proceedings, the commissioner/panelist may make an order for the payment of costs according to the requirements of law and fairness and when doing so should have regards to:
54.1.1 …. 54.1.3 ….
54.1.4 Whether a party or the person who represented that party in the arbitration proceedings acted in a frivolous and vexatious manner –
54.1.4.1 By proceeding with or defending the dispute in the arbitration proceedings. (underlining my emphasis).
25. I have considered what is set out in paragraph 54 of the ELRC Constitution. The use of the word “may” as set out above gives a commissioner/panelist a clear discretion to issue a cost order against a party that acts in a frivolous manner after due consideration of the listed effect that a cost order may have on a continued employment relationship; any agreement concluded between the parties to the arbitration concerning the basis on which costs should be awarded; the importance of the issues raised during the arbitration to the parties as well as to the labour community at large; any other relevant factor.
26. I have already determined that the respondent’s actions are frivolous. I have considered the effect of awarding a cost order in this instance. In my view there will be no effect on the continued employment relationship. There is no agreement concerning a basis of costs being awarded. However, it is my view that a cost order will deter the respondent from acting in a similar vein in future matters which could be resolved internally but where the respondent pursues the matter at arbitration with the distinct knowledge that it does not have a sustainable case.
27. Therefore, in consideration of the above, I make the following award:
AWARD:
28. The applicant is entitled to the family responsibility leave that he applied for. The respondent is ordered to repay the applicant the amount of R1158.53, which is associated with the family responsibility leave which it deducted from the applicant’s salary. Payment is to be made by no later than 31 October 2026.
- The respondent is held to account for the costs associated with this frivolous defending of a dispute at arbitration. The ELRC Constitution makes provision for payment of an amount of R6000.00 (VAT Inclusive) as costs. Accordingly, the WCED is ordered to pay the costs of R6000.00 (VAT Inclusive) to the Education Labour Relations Council for this arbitration process, by no later than 31 October 2026.
L M Taylor
Commissioner