07 July 2026 – ELRC477-25/26MP

IN THE EDUCATION LABOUR RELATIONS COUNCIL
HELD VIRTUALLY
Case No. ELRC477-25/26MP

In the matter between:

NATU obo NB NGCOBO Applicant

and

EDUCATION DEPARTMENT OF MPUMALANGA Respondent

PANELLIST: YOLISA NDZUTA

LAST HEARD: 30 April 2026

DATE OF AWARD: 06 July 2026

SUMMARY: Whether the Applicant was subject to an alleged unfair dismissal if they are not reinstated following a recommendation in terms of section 14(2) Employment of Educators Act 76 of 1998

ARBITRATION AWARD

PARTICULARS OF PROCEEDINGS AND REPRESENTATION

The matter was set down as an arbitration to be heard before me on two dates and was concluded on the 29th of April 2026. During these proceedings, the Applicant Ms Nondumiso Bridget Ngcobo was represented by Ms Zamangwane Khanyile of the National Teachers Union (NATU) while the Respondent, Mpumalanga Department of Education was represented by Ms Frieda Rieger.
The parties confirmed receipt of the notice of set down for each hearing date.

THE ISSUE IN DISPUTE

I am required to determine whether the Applicant was subject to an unfair dismissal when she was not reinstated following a recommendation in terms of section 14(2) Employment of Educators Act.

THE BACKGROUND TO THE DISPUTE

The Applicant referred a dispute following the Respondent’s decision not to uphold the recommendation of the chairperson who convened over the ‘good cause’ hearing which was scheduled in compliance with section 14 (2) of the Employment of Educators Act.
The Respondent challenged the above and maintained that it enjoyed a discretion to determine good case more so there were new facts established after the hearing which emphasized the decision.
The parties concluded a Pre-Arbitration minute to narrow the issues on the first day of Arbitration.
I shall hereinbelow summaries the respective parties’ cases and the viva voce evidence tendered. It is emphasised that these are summaries of the various witnesses.

SURVEY OF EVIDENCE AND ARGUMENT

The Applicant testified in support of her case together with two other witnesses while the Respondent called two (2) witnesses to testify in support of its case. I have hereinbelow summarised the viva voce evidence (testimony) of the proceedings. This summary should not be considered as the transcript of the testimony and proceedings. The respective parties filed closing submissions which the last filing was on the 12th of May 2026.

Respondent’s Case

Mr Mandla Wittleton Tshabalala testified as follows:

9.1 He is the principal appointed by the Respondent and is currently exercising such headmaster duties at Volksrust Primary School. He is also the administrative supervisor for the Applicant.

9.2 Attendance is managed at the school per the attendance register which is verified daily.

9.3 The applicant had presented a pattern of intermittent absence which was without permission or leave being granted. Applicant’s absence at times was not reported to him.

9.4 During the academic year of 2024, the applicant was absent on many occasions and had at times used sick leave. After the absence of 12 & 13 August 2024, further absence of the Applicant was without permission or knowledge of the Principal.

9.5 In terms of clause H.5.2.4 of the PAM Document, the Applicant (as an educator) must notify the Principal of her absence if same equals or exceeds five (5) days.

9.6 He doesn’t remember receiving any messages from the Applicant when she was absent during October 2024.

9.7 The applicant was contacted following during her absence of October 2024 however her phone was off and when her parents and relatives were contacted, they too could not assist insofar as locating the Applicant thereafter considering that her absence had exceeded fourteen (14) days, he notified the employer.

9.8 Owing to the Applicant’s absence, the school had to implement measures to maintain uninterrupted learning for her learners. Initially her absence did cause some interruptions.

9.9 This occurrence was not a first for the Applicant.

The above testimony was challenged per cross-examination to which the following was uncovered:

10.1 Mr Tshabala cannot dispute the existence of the messages also texting notice of absence was normal.

10.2 Mr Tshabalala had no idea of the Applicant’s hospitalization, nor did he contact all of the Applicant’s relatives and next of kin.

10.3 Mr Tshabalala played a role in the section 14(1) Employment of Educators Act 76 of 1998 (“EEA”) deemed dismissal of the Applicant in that he reported her absence to the district director for the section 14(1) process to commence.

10.4 On or about 27 November 2024 the Respondent effectively terminated the services of the applicant and same was registered on PERSAL system and this was the same stance undertaken by the Respondent against the applicant in another dispute.

10.5 There was an expectation that when the applicant was hospitalized that she would notify the employer.

Mr Johannes Mahlangu testified as follows on behalf of the Respondent:

11.1 He is the Labour Relations Officer for the District where Volkrust Primary School was located.

11.2 The chairperson of the section 14(2) EEA good cause hearing issued a report which was a recommendation for the Applicant to be reinstated which was presented to the district director to consider. The chairperson did not enjoy the entitlement to review the decision of the employer but rather could only recommend.
11.3 The district director enjoys the authority to enforce or reject the chairperson’s report or recommendation.

11.4 Section 14(2) of EEA does not compel the Respondent to reinstate an employee if good cause is shown. The employer enjoys a discretion as the legislation uses the word “may” thus the employer will consider its operations in making the decision.

11.5 When the medical certificate relied upon by the Applicant was first presented (at the s14(2) EEA hearing) there was no discrepancy observed however on closer consideration of same, it was learned that the medical certificate was issued by a Radiologist.

11.6 In terms of the PAM document, a radiologist is not a listed medical practitioner who may issue a medical certificate or whose medical certificate may be accepted.

11.7 The chairperson’s recommendation could not be enforced owing to the Applicant being a repeat offender and only after freezing of applicant’s salary did she present herself to explain her absence.

11.8 Given the applicant’s conduct, the district director applied his/her discretion and rejected the chairperson’s recommendation.

Under cross-examination the following emerged:

12.1 The chairperson of the section 14(2) good cause hearing is a Labour Relations Officer of the Respondent whose appointment was approved by the District Director.

12.2 During the section 14(2) good cause hearing, the applicant’s medical certificate was not disputed.

12.3 The medical certificate was only disputed after the conclusion of the good cause hearing because according to the Respondent, a radiologist is not a registered as a medical practitioner and does not meet the requirements of clause H.5.2.5.1 of the PAM document.

12.4 The purpose of a section 14(2) good cause hearing is to permit an employee deemed dismissed in terms of section 14(1) of EEA to account why the decision by the employer may have been ill informed also it allows the employee to present reasons and information for their absence which will inform the employer to possibly take a different decision.

12.5 When applying its discretion in terms of section 14(2) of EEA, the employer must act fairly and not arbitrarily.

Further to the latter, the Respondent filed written submissions with the last submission being filed on the 9 May 2026 which is referred to in the analysis hereinbelow.
Mr Andile Mkhize was called as a witness for the Applicant. He testified as follows:
14.1 He was a colleague of the Applicant and represented the Applicant at the good cause hearing.

14.2 To his understanding, the purpose of the section 14(2) good cause hearing was convened for the applicant to show good cause for her dismissal to be reversed as she would explain her absence from service which would refute the employer’s assumption about the employee’s commitment to her employment.

14.3 At the section 14(2) good cause hearing the Respondent was represented and failed to challenge any evidence.

14.4 Mr Tshabalala was aware of the applicant’s whereabouts and the applicant had informed Mr Tshabalala of her absence from work.

14.5 The chairperson of the section 14(2) good cause hearing recommended that the applicant be reinstated. The Respondent refused to effect the chairperson’s recommendation without justification.

Mr Mkhize was subjected to cross examination and the following was learned therein:
15.1 The chairperson of the section 14(2) good cause hearing understood and accepted that the applicant’s absence from work was justified as it was owing to hospitalization hence the recommendation made.

15.2 In the chairperson’s report there is an acceptance that the employer enjoys a discretion. Paragraph 5.3 of same report uses the phrase “If the recommendation above is approved…”

15.3 The employer enjoys the discretion to approve or reject a section 14(2) chairperson’s recommendation. The official who applies the latter discretion is the district director.

15.4 The district director and the Respondent failed to give a reason for not approving the section 14(2) chairperson’s recommendation.

16 The Applicant also relied on the testimony of Mr Njabulo Sibusiso Mtolo who testified as follows:

16.1 He is an admitted attorney and the legal officer of the NATU (the National Teachers Union).

16.2 He is familiar with section 14 of the Employment of Educators Act and explained that it’s an abscondment provision wherein an employee is dismissed by operation of law.

16.3 He testified that normally an employee who absents themselves from work for a legally predetermined period of time (14 consecutive days) is dismissed for abscondment. After the employee’s dismissal in terms of section 14 of the Employment of Educators Act, the employee may upon learning of their dismissal and who wishes to return to work evoke section 14(2) which results in a good cause hearing wherein a chairperson considers the submissions and makes a recommendation whether the employee should be reinstated or not.

16.4 Section 14 of the Employment of Educators Act was created to protect employees hence the requirement for a good cause enquiry because a section 14 EEA dismissal is one that is effected wherein the employee is not given an opportunity to make representations prior to the dismissal being imposed. The section 14(2) EEA good cause enquiry is an opportunity given to an employee to make representations which were not presented upon the implementation of the dismissal. Also it’s an opportunity for the employee to prove that they do want the employment relationship to persist.

The above testimony was subjected to cross examination from which the following emanated:

17.1 The employer (the Respondent) enjoys a discretion in section 14(2) EEA good cause hearing which is an elective for the Employer however section 14(2) provides an opportunity to the employee to make representations given that section 14(1) EEA dismissal is effected in absentia of the employee.

17.2 The discretion conferred to the employer in section 14(2) EEA is subject to it being on good cause shown.

17.3 The good cause hearing is also an opportunity for the employer to reconsider its decision to dismiss in absentia and to confirm that same decision was lawful, reasonable and rational. Once presented with the reasons for what triggered a dismissal in terms of section 14(1) and the employer accepts same, then any decision to refuse reinstatement on good cause shown renders same dismissal unfair because the acknowledgment of the reasons addresses the good cause having been shown.

17.4 Good cause does not automatically entitle an employee to reinstatement as it is the reinstatement committee convenes the hearing and provides a recommendation which is considered by the employer. In section 14(2) hearings, the employer and employee are essentially given an opportunity to resuscitate the employment relationship.

17.5 The fact that case law supports challenging a section 14(1) dismissal at the ELRC means that fairness is also a factor to be considered during section 14(2) good cause hearing.

17.6 Operational requirements are not a factor to be considered in section 14(2) EEA hearing. Operational issues are addressed in Collective Agreement 4 of 2016 As such there is no provision in the latter collective agreement is reinstatement considered. Case law has emphasised that wherein reinstatement is ordered then operational issues are an employer predicament which cannot affect the employee and reinstatement is a particular relief which cannot be treated arbitrarily.

The applicant testified as follows in support of her case:
18.1 In 2024 she fell ill and was hospitalized and had informed her supervisor of her absence.

18.2 She was served with a dismissal letter on the 15th of November 2025.

18.3 Upon her return to work she had submitted a medical certificate explaining her absence from work.

18.4 Following her dismissal in terms of section 14(1) of EEA, she (together with her representative) made inquiries that ended with a good case hearing being convened. At the good cause hearing, she (together with her representative) made submissions and representations and a recommendation was rendered by the chairperson which supported her reinstatement.

18.5 She was shocked to learn that the employer elected not to uphold the recommendation and rather elected to dismiss her although she has established that she wants to work.

18.6 She refutes the notion of being a repeat offender as in 2021 she had resigned because of ill-treatment from the principal and requested to be transferred. She then withdrew her resignation therefore she had not been dismissed in terms of section 14.

18.7 Her persal status remained as dismissed in terms of section 14(1) and the salary freeze was maintained.

The above testimony was subjected to cross-examination and the following was learned therefrom.
19.1 The medical certificate that applicant relies on was issued on the 16th of November 2024.

19.2 After receiving the dismissal letter, the applicant took same to her union for intervention which resulted in the good cause hearing being convened.

19.3 She (the applicant) had not returned to work after receipt of the dismissal letter.

19.4 After October 2024, she (the applicant) had not contacted the principal as she (the applicant) was hospitalised.

ANALYSIS OF THE EVIDENCE AND ARGUMENT

The Applicant referred a dispute wherein she alleges to have been unfairly dismissed following the decision by the Respondent not to uphold the recommendation of the chairperson following a section 14(2) good cause hearing.
I considered the parties’ respective cases and evidence from the latter perspective it therefore is my task to evaluate whether the Applicant’s dispute in that regard has been established or not.
At the crux of the Applicant’s dispute is the allegation that the decision to defer from the recommendation of the chairperson was irrational and could not be justified. Normally in such matters, a jurisdictional challenge is raised which was not the case herein, neither party objected to the jurisdiction of the honourable council to preside over this dispute nonetheless the dispute was arbitrated as a dismissal for reasons unknown.
In argument (per submissions) the Applicant submitted that the foundation of her dispute is the Respondent’s decision to invoke section 14(1)of the Employment of Educators Act 76 of 1996 (“the EEA,) and to deem the Applicant discharged from service on the basis that her absence from duty exceeded fourteen consecutive days. The Applicant submits that the Respondent improperly and unfairly invoked section 14 and thereafter irrationally refused to reinstate her despite overwhelming evidence demonstrating good cause in terms of section 14(2). The applicant was not an absconding employee however her absence from work was owing to her hospitalization owing to medical and psychological difficulties.
In argument the Applicant also submitted that she was under treatment & was booked off by medical practitioners, and communicated her condition to the employer through her supervisor. The Applicant’s absence was therefore neither wilful nor deliberate; it arose from illness and incapacity.
The Applicant also argued that the Respondent failed to apply the principles of fairness properly, ignored material evidence placed before it during the good-cause proceedings, disregarded the recommendation that the Applicant be reinstated, and applied section 14 mechanically and unfairly. The dismissal was procedurally unfair because the Respondent failed to properly apply section 14(2), ignored relevant evidence and disregarded the recommendation arising from the good cause proceedings. The dismissal was substantively unfair because the Applicant’s absence was medically justified, the employer knew her whereabouts and there was no intention to abandon employment.
The applicant concluded her argument by stating that the evidence of the Applicant’s witnesses overwhelmingly supports a finding that the dismissal was unfair and that reinstatement is the appropriate remedy. She then emphasised that the Respondent on the other hand relied heavily on the technical provisions of section 14 and attempted to justify the deemed dismissal on the basis that the Applicant had been absent for more than fourteen consecutive days. The latter argument however suffered from serious deficiencies because the Respondent failed to dispute manner and failed to rebut evidence demonstrating that the employer was aware of the Applicant’s whereabouts and medical condition. The Respondent failed to explain why the favourable recommendation arising from the good cause proceedings was ignored and the Respondent failed to distinguish between genuine abscondment and medically justified incapacity.
The Applicant relies on authorities such as Phenithi v Minister of Education and other related authorities dealing with deemed dismissal and reinstatement which latter authorities confirm that:
(i) section 14 is not immune from scrutiny;
(ii) fairness remains reviewable;
(iii) surrounding circumstances must be considered.
The Respondent argued that the Applicant’s case was misguided as it fails to appreciate that section 14(2) of the EEA confers the employer with a discretion.
The Respondent argued that the Applicant’s own medical certificate and own conduct failed to meet the parameters of H.5. of the PAM Document.
Firstly, on examining the various witnesses one can determine that certain aspects were conveyed without contradiction as such they were credible witnesses therein. Where there were problems is wherein certain aspects contradicted. The Applicant’s testimony (together with that of Mr Mkhize) complimented each other insofar as the process that had been experienced during the good cause hearing convened in terms of section 14(2). On the other hand, the testimony of Mr Tshabalala presented difficulties insofar as inconsistencies and aspects of sudden change of more so relating to communication from the Applicant regarding her absence.
It is not disputed that the Applicant had presented evidence to justify her absence and same was accepted by the chairperson of the good cause hearing.
The statutory provision under consideration is clear and as was discussed in Phenithi v Minister of Education and Others (18/2005) [2005] ZASCA 130; 2008 (1) SA 420 (SCA); [2006] 1 All SA 601 (SCA), a dismissal in terms of section 14(1)(a) is not the consequence of a discretionary decision, but merely the notification of a result which occurred by operation of law and the operation of the provisions of section 14 (1)(a) of the Act may only be lifted or revoked by the employer directing otherwise in consideration of section 14(2).
Wherein I find difficult is the exercise of the discretion in section 14(2) and whether same is subject to the test of reasonableness and fairness. In the Labour Appeal Court case of the Member Executive Council for the Department of Education, Western Cape Government v Jethro N.O and another, the Court held “when an employer exercises its discretion as to whether good cause exists, the employer must consider whether the constituted relationship would be intolerable. Furthermore, the employer must consider the reasons for the employee’s absence, the duration thereof, the employee’s prior conduct, whereabouts of the employee during their absence and the possibility of alternative processes and solutions. The employer must thus investigate and evaluate all the relevant circumstances of the case. Should the employer find that the employee failed to show good cause, the employer’s decision may be taken on review in terms of the Promotion of Administrative Justice Act.”
It follows from the latter that the employer’s decision is therefore subject to the test of fairness in Promotion of Administrative Justice Act 3 of 2000. In South African law, there isn’t a single “rational test of fairness”. Instead, the Promotion of Administrative Justice Act (PAJA) divides the evaluation of state and administrative decisions into two distinct legal concepts: Rationality (is there a logical link between the action and its purpose?) and Procedural Fairness (was the process fair?).
Upon application of the latter to the employer’s decision, it is determinable that such was not considered and that is based on the Respondent’s case and evidence lead. As is determined in law, in such cases the employer enjoys the obligation to establish if the dismissal was fair both substantively and procedurally. It is undisputed that the Applicant was dismissed however what stands to be determined is the fairness of the dismissal which the Respondent only defended the substance which same defence failed. It therefore is concluded that the applicant was unfairly dismissed. Now I turn to the relief sought.
The Applicant sought retrospective reinstatement to her former position, alternatively to a suitable permanent position within the Department. The Applicant further sought the restoration of her salary and benefits, the unblocking of persal, and full back pay from the date of dismissal to the date of reinstatement.
The applicant argued that the employer did not argue that reinstatement would be impracticable.
The Respondent made no submissions to the latter save to state that the Applicant is not entitled to the relief sought owing to the dismissal being a fair and proper application of the statutory provision.
I therefore make the following award.