Panellist: Themba Manganyi
Case No.: ELRC625-25/26MP
Dates of Hearing: 09 and 10 April 2026
Date of Arguments: 17 April 2026
Date of Award: 06 May 2026

In the Arbitration between

MOSHE MOSES LEDWABA APPLICANT

and

HEAD OF DEPARTMENT: MPUMALANGA DEPARTMENT OF EDUCATION
RESPONDENT

Details of hearing and representation

1. The Applicant, Mr Moshe Moses Ledwaba (“Mr Ledwaba”), referred an alleged unfair labour practice dispute (section 186(2) of the Labour Relations Act 66 of 1995 (“the LRA”), as amended, to the Education Labour Relations Council (“the Council”).
2. The arbitration proceedings were conducted on 09 and 10 April 2026 at Nkangala District Office in Kwa-Mhlanga Government Complex Building. Mr Ledwaba attended the proceedings and he represented himself. Mr Sifiso Khoza (“Mr Khoza”), the Labour Relations Officer, represented the Respondent, Mpumalanga Department of Education.
3. The parties submitted bundles of documents into the record and the veracity of the documents were not in dispute. The Applicant’s bundle was marked as Bundle A and the Respondent’s bundle was marked as Bundle R. At the end of the proceedings, parties requested to submit their written heads of arguments on or before 17 April 2026 and they duly complied. The proceedings were recorded and the recordings thereof were retained by the Council.

Issue to be decided

4. I am required to determine whether the Respondent subjected the Applicant to an unfair labour practice in terms of section 186(2)(a) of the LRA related to benefits.

Background

5. The Applicant is employed as a PL1 Educator and placed at Ramokgetsane Primary School. He is earning a salary of R29 331, 00 per month. The Applicant last reported for duty on 23 May 2024. On 11 June 2025, the Principal (Mr J.M. Moukangwe) completed Form Edu 5 – Notice of suspension of salary. Subsequently, the Applicant’s salary was suspended at the end of June 2025 and it was reinstated in September 2025.
6. It was the Applicant’s case that during the suspension of his salary, his housing allowance and medical aid contributions were not paid and that the suspension of his salary made him to suffer severe prejudice and humiliation. As a result of the Respondent’s unilateral action to suspend his salary without just cause, he sought compensation. On the other hand, the Respondent contended that the Applicant was back paid his salary and his bonus and acceded that the Applicant was owed the housing allowance for three (3) months. However, the Respondent argued that the medical aid reinstatement was between the Applicant and the medical aid scheme concerned.

Summary of evidence and arguments

The Applicant’s case

7. Mr Ledwaba testified under oath and stated that he received a call from his bank in June 2025 enquiring if he was aware that his salary was frozen. He then went to enquire from the District Office and he was informed that his school Principal has submitted a Form Edu 5 to suspend his salary as he did not know his whereabouts. He stated that he was informed that the District Office never received his application forms since he went on TIL in 2023. The said application forms that he submitted to the Principal were retrieved from his personnel file from the school with the assistance of Mr Paul Sibanyoni, the Labour Relations Practitioner, (“Mr Sibanyoni”), who was investigating his matter.
8. He testified that he lost his employer’s medical aid contributions of R7 350, 00 per month due to the suspension of his salary. The non-payment of the medical aid contributions continued even after his salary was reinstated leading to the termination of his medical aid scheme. He was now without a medical aid and as a result, he cannot afford the medical consultations, MRI scans and medication that he needs on monthly basis. He testified that his housing allowance was also not paid during the suspension of his salary. However, it was paid when his salary was reinstated.
9. He averred that he submitted his TIL applications from the year 2023 to date and the Principal always recommended that his applications be approved. He stated that he consented that his employer could access his medical reports on all his TIL applications. He submitted that his TIL assessments were done in October and December 2025. The October 2025 assessment declined his TIL application citing that the condition that he suffered did not qualify for the granting of paid TIL. However, the December 2025 assessment approved the paid TIL with the same conditions that were previously declined.
10. Under cross-examination, he conceded that the period for the TIL for 2023 on Annexure A of Bundle A was not in dispute. He stated that he knew the process of applying for TIL and further stated that the TIL application are regulated by the Determination and Directive on Leave of Absence in the Public Service document issued in August 2021. He stated that the supervisor or manager recommends for the approval of the TIL and the HoD will approve. He did not know who prepared the documents on page 23 – 25 of Bundle R (Confidential Assessment Reports). He confirmed that the period of the TIL from 24 April 2025 to 10 October 2025 was declined as per page 23 of Bundle R. He confirmed that he was paid his housing allowance and pension fund in October 2025. He further confirmed that his suspended salaries and bonus were paid.
11. Mr Sibanyoni was subpoenaed by the Applicant and he testified under oath that there was correspondence from the Principal that the Applicant was not at work for a number of days and they had to investigate whether it was an issue of TIL or section 14 of the Employment of Educators Act. He confirmed that Annexure F of Bundle A (Form Edu 5) was the notice of suspension of salary that was completed by the Principal to suspend the Applicant’s salary and he conceded that the Applicant’s salary was suspended purely based on Form Edu 5. He confirmed that the Applicant’s application forms for TIL were discovered from the Principal during the investigation. He submitted that the declined TIL would not cause the salary to be suspended. Rather, there were mechanisms to recoup the overpaid salary.
12. He responded in the negative when asked by Mr Khoza if he investigated the period from 13 January 2025. He stated that the period of assessment on page 23 of Bundle R was 05 October 2025.

The Respondent’s case

13. Ms Jabulile Mabena (“Ms Mabena”) testified under oath and stated that she was the Assistant Director: HR Benefits. She stated that page 14 of Bundle R depicted the Applicant’s payslip for October 2025 where it is indicated that the Applicant’s salary and housing allowance were reinstated. She confirmed that page 16 of Bundle R was the Applicant’s supplementary payslip for 18 September 2025 where his bonus and the salary for July and August 2025 were paid. She testified that the Applicant had a medical aid before his salary was suspended. However, the medical aid benefit was not reinstated because the Respondent cannot reinstate the medical aid benefit as that was between the Applicant and the medical aid scheme concerned to re-apply for membership.
14. Under cross-examination, she stated that the medical aid benefit was stopped as a result of the suspension of the salary due to Form Edu 5. She confirmed that as per Form Edu 5, the Applicant was last at his workplace on 23 October 2024 and that as per the attendance register on Annexure E of Bundle A, the Applicant’s absence was recorded as TIL for the week commencing on 13 January 2025.

Analysis of evidence and arguments

15. I find it prudent to state from the onset that the Applicant subpoenaed three (3) witnesses that are in the employ of the Respondent. However, only Mr Sibanyoni honored the subpoena. The HR personnel and the witness that he went with to Siyabuswa Circuit Office to collect his TIL applications forms were in contempt of these proceedings. Nonetheless, the Applicant did not have any issue to proceed with his case in their absence. I therefore, did not find the need to proceed with contempt proceedings in terms of section 142(9) of the LRA.
16. Section 185(b) of the LRA prescribes that every employee has the right not to be subjected to an unfair labour practice and section 186(2)(a) of the LRA defines unfair labour practice as any unfair act or omission that arises between an employer and an employee involving unfair conduct by the employer relating to the promotion, demotion, probation (excluding disputes about dismissals for a reason relating to probation) or training of an employee or relating to the provision of benefits to an employee.
17. It is common cause that the Applicant last reported for duty on 23 May 2024 on the basis that he was on TIL. It is common cause that the Applicant’s salary was suspended in June 2025 and was reinstated in September 2025. The Respondent asserted that the Applicant’s salary was suspended because of the declined TIL applications. However, Mr Sibanyoni conceded that the Applicant’s salary was suspended as a result of Form Edu 5 that stated the reason for the suspension of his salary as abscondment. Abscondment is defined as the act of leaving work without permission with the clear intention of not returning. In the employment context, it is a form of breach of contract often occurring when an employee leave their job without notice, typically defined by extended, uncommunicated absence. The Respondent’s witnesses did not dispute that Mr Ledwaba’s absence was communicated to the Principal at all material times. Therefore, it cannot be true that Mr Ledwaba absconded as indicated by the Principal in Form Edu 5. The Applicant’s whereabouts were at all times communicated to the Principal and as such, the completion of Form Edu 5 was not warranted. Consequently, I find that his salary was suspended without just cause.
18. It is common cause that the salary suspension resulted in the non-payment of the Applicant’s benefits, inter alia, housing and medical aid allowances. Ms Mabena testified that the Applicant’s housing allowance was since reinstated and this was also confirmed by the Respondent in its closing arguments. The Respondent also conceded that the Applicant’s housing allowance for the period during the suspension of his salary was still outstanding and the Respondent undertook to pay the Applicant’s outstanding housing allowance. In essence, the Respondent conceded that it subjected the Applicant to an unfair labour practice as contemplated in section 186(2)(a) of the LRA by not paying his housing allowance.
19. With regard to the medical aid allowance and the terminated medical aid membership, the Respondent held the view that the medical aid membership was an issue that was between the employee and the medical aid scheme. I find the Respondent’s view in this regard rather disturbing and myopic. In the first instance, the Applicant’s medical aid membership was terminated due to the Respondent’s arbitrary administrative decision to suspend the Applicant’s salary. It is my considered view that had the Respondent acted expeditiously upon being advised by the Applicant in June 2025 already before his salary was suspended, this turn of events could have been avoided. It was the Applicant’s undisputed testimony that he communicated with both the HR and the LR Departments concerning the medical aid scheme’s intention to terminate his membership. For reason only best known to the Respondent, no action was taken to reinstate the Applicant’s salary until the membership was terminated. As a result of the Respondent’s action, the Applicant suffered severe prejudice in that he was unable to attend to medical consultations and to submit the MRI scans and reports that are required to substantiate his TIL applications. It was not disputed that the Applicant lost about R77 320, 00 in unpaid housing and medical aid allowances. I therefore conclude that the Respondent subjected the Applicant to an unfair labour practice for also not paying his medical aid allowance.
20. I now turn to the TIL applications for completion. Resolution 7 of 2001 of the ELRC provides for TIL and this Resolution is a mirror reflection of Resolution 7 of 2000 of the PSCBC. There is also the Determination and Directive on Leave of Absence in the Public Service issued in August 2021 (“the Determination”). The approval or the disapproval of the TIL applications is the prerogative of the employer guided by these documents. In my view, if the Respondent held the conviction that the Applicant or his supervisor / manager failed to comply with the provisions of clause 15 of the Determination, the Respondent should have invoked the provisions of clause 15.7.2 either against the Applicant or his supervisor / manager. Instead, the Respondent elected to invoke the prescripts of Form Edu 5 to the detriment of the Applicant.
21. It was not in dispute that the Applicant submitted the necessary documentations with his applications for the TIL. Hence, his salary was reinstated. All that was required from the Respondent was to investigate the extent of the Applicant’s incapacity within thirty (30) days. The Applicant was informed on 08 October 2025 that his TIL application for the period 15 January 2024 to 09 October 2024, 04 March 2025 to 14 April 2025 and 24 April 2025 to October 2025 were declined because the Respondent was of the opinion that the Applicant’s condition (Lumbar Spinal Stenosis) did not qualify for the granting of paid temporary incapacity leave. However, the Applicant’s TIL application was granted / approved on 30 December 2025 for the same condition (Lumbar Spinal Stenosis) for the period 26 September 2023 to 29 September 2023. Having considered all the oral evidence, documentary evidence and closing arguments presented by the parties in these proceedings, I find and award as follows:

Award

22. The Respondent, the Head of Department: Mpumalanga Department of Education, subjected the Applicant, Mr Moshe Moses Ledwaba, to an unfair labour practice as contemplated in section 186(2)(a) of the LRA by omitting to pay benefits that were entitled to the Applicant.
23. The Respondent, the Head of Department: Mpumalanga Department of Education, is ordered to pay the Applicant, Mr Moshe Moses Ledwaba, his outstanding housing allowance for three (3) months amounting to R1 973, 00 x 3 months = R5 919, 00 as a statutory entitlement.
24. I further, in terms of section 194(4) of the LRA, order the Respondent, the Head of Department: Mpumalanga Department of Education to compensate the Applicant, Mr Moshe Moses Ledwaba, an amount equivalent to six (6) months’ of his remuneration for subjecting the Applicant to an unfair labour practice resulting in the loss of the medical aid benefit and the termination of his medical aid scheme membership. I find this amount to be just and equitable considering that upon the approval of the Applicant’s application for the new medical aid membership, he will be placed on a waiting period. Thus, exacerbating his situation. This amount is calculated as R29 331, 00 x 6 months’ salary = R175 986, 00.
25. In total, the Respondent is ordered to compensate the Applicant an amount of R181 905, 00 (one hundred and eighty one thousand nine hundred and five rands only), less any statutory deductions, on or before 30 June 2026.
26. In the event of non-compliance with this award, the Applicant may invoke the prescripts of section 143 of the LRA.

Arbitrator: Themba Manganyi