Arbitrator: Grace Mafa-Chali
Case Number: ELRC538-25/26LP
Date of Award: 07 April 2026

In the arbitration between:

Msiza Thandeka Priscilla Applicant

And

Limpopo Department of Education Respondent

THE DETAILS OF THE HEARING AND REPRESENTATION

1. The arbitration proceedings for the alleged unfair dismissal dispute was referred to the Education Labour Relations Council (ELRC) in terms of section 191 of the Labour Relations Act 66 of 1995, (the LRA).
2. The matter was partly heard on 20 January 2026, 10 March 2026 and finalized on 11 March 2026.
3. The Applicant Thandeka Priscilla Msiza was represented by Lindiwe Skhosana, PEU official. The Respondent was represented by Nthabisheng Rasebotsa, from Respondent’s Labour Relations department.
4. The Respondent submitted its documentary evidence marked Bundle R and R1, and the Applicant submitted its documentary evidence marked Bundle A.
5. Both parties requested to submit written closing arguments and were directed to do so by the latest 18 March 2026, and both parties obliged. I have considered their arguments in arriving at my findings without necessarily repeating them verbatim.
6. The proceedings were conducted in English and were manually and digitally recorded. Interpretation services were not required.

BACKGROUND TO THE DISPUTE

7. The Applicant was employed by Respondent as CS1 Educator since 25 April 2022. She started at Mothibedi Primary School and later moved to Matsitsi Primary School, earning a monthly basic salary of R29 749.00 at the time of her dismissal.
8. The Applicant was charged of 70 counts for Contravention of Section 18 (i) of the Employment of Educators Act 76 of 1998 (the EEA) in that on or around the year 2023 at Matsitsi Primary School, she absented herself from work without permission or valid reasons for the period 11 September 2023 to 30 January 2024.
9. A disciplinary hearing was held on three occasions, on 27 February 2025, 26 March 2025 and finalized on 24 April 2025.
10. The Applicant was found guilty of the charges and subsequently dismissed by Respondent on 16 May 2025. The Applicant referred to the ELRC the dispute of unfair dismissal in terms of Section 191 of the Labour Relations Act 66 of 1996 (the LRA).
11. The Applicant challenged the substantive fairness of her dismissal and contended that she was not aware of the rule, that she did not contravene the rule, that the Respondent was not consistent in the application of the rule because another educator Emmanuel Maleka, who was charged of the same offence but was not dismissed and lastly that dismissal sanction was inappropriate.
12. The Applicant further challenged the procedural fairness of her dismissal in that the notice of hearing was issued to the Applicant with discrepancies on the venue as it was cancelled and initialed from Motetema Circuit to the venue of District’s Directors Boardroom.
13. The Respondent prayed for the dismissal of the Applicant’s referral as it contended that her dismissal was fair, whereas the, Applicant prayed for relief of retrospective reinstatement.

ISSUES TO BE DECIDED

14. I must determine whether or not the Applicant’s dismissal was substantively and procedurally fair.
15. If not, order the appropriate relief.

SURVEY OF EVIDENCE AND ARGUMENTS
Respondent’s Evidence

Mahlabelele Annah Malaka testified under oath as follows:

16. She is the Principal of Matsitsi Primary School under Manthole Circuit, Sekhukhune South, and she knew the Applicant who joined the school in April 2022. In September 2022 the Applicant went on maternity leave and was supposed to be back on duty on 11 January 2023, but she did not report for work for reasons unknown to her.
17. On 12 January 2023, she made calls to find the whereabouts of the Applicant and spoke to the Applicant’s mother who told her that she brought the Applicant to her place on 09 January 2023 and was also surprised that she was not at work.
18. She went to the Applicant’s room in Sterkfontein, and the Applicant told her she was not well. She then advised the Applicant that she must report her absence to her. The Applicant informed her that she was going to see the doctor and would be at work on 16 January 2023, the following Monday.
19. The Applicant arrived on 16 January 2023, with the doctor’s note and submitted a leave form. The Departmental Head was not happy with the discrepancies in the dates on the sick note. She called the doctor who issued the sick note. She spoke to the Applicant about the issue of the fake sick note, and the Applicant apologized. She and the Circuit Manager spoke to the Applicant and warned her not to repeat her conduct.
20. In January 2023, the Applicant had 6 days of absence. When she returned to work, she sat with her and reprimanded her together with the SMT members, and that happened several times. She gave her motherly advice and tried to build her as she was a very good teacher. But the Applicant continued to absent herself in February and March 2023 despite knowing the repercussions of her absence from work.
21. They tried to assist the Applicant, held meetings with her, showed her support, but it all failed until she took the matter to Circuit Manager. She sent the Applicant together with Mr Maleka to attend the Wellness Workshop on 25 May 2023 as they had similar problem of absenteeism but, both of them did not return to school after the workshop.
22. The Circuit Manager came to school with Circuit officials on 18 July 2023 to meet with the Applicant and also offered her wellness. The Applicant said she had a problem to discipline herself. But even after the meeting with Circuit Manager, union site Mr Nthobeng Steward of PEU, Governance official Applicant continued to absent herself from duty even though she promised to improve her best. When she called her mother, she said she was not speaking terms with the Applicant.
23. On 01 August 2023, Ms Mageza and Ms Mapaisa from district office requested Mr Maleka and the Applicant for meeting. She did not attend the meeting but was told they spoke to them and both of them agreed they will not repeat the same mistake. However, their absenteeism continued 11 September until 14 December 2023 when schools closed even though the district officials spoke to both of them from.
24. On 11 September 2023, the Applicant came to school with PEU representative Ms Skhosana and her aunt and Ms Skhosana indicated that she went all out to find the Applicant as Mr Maleka was playing with her. Mr Maleka sometimes sent sms messages about his absence from work, but the Applicant did not do so. Ms Skhosana wanted to check the ELRC file to see if Applicant contravened Section 14 of the EEA and also brought a letter for the Applicant to see a psychologist. That was the last time she saw the Applicant.
25. She wrote the letter on Page 13 Bundle R to the Circuit Manager recommending disciplinary action as a form of progressive discipline, as the school was suffering with no teacher. The Applicant knew very well that she must report for duty as she used to send messages of her absence when she had to do some errands or pass by the child’s school.
26. Mr Maleka was also charged for the absence from work without permission. He attended the disciplinary hearing and pleaded guilty to the charges showing remorse. He also asked for help. He was referred to SANCA, the rehabilitation centre for abuse of alcohol, which was arranged by the District office from May 2025 for 3 months. When he attended the rehabilitation programme they were offered a temporary teacher. He came back to school in the third term of 2025. On 03 December 2025, the district served Mr Maleka with a suspension without pay for 3 months as a sanction.
27. The Applicant attended the disciplinary hearing on 27 February 2023, but it was postponed to another date, and postponed again for the second time. She did not see the Applicant on the last day of hearing. She was seated outside and saw Ms Skhosana leaving the hearing venue. When she was called inside the Applicant was still not there.
28. Between 25 May 2023 and June 2023, the Applicant was absent for 28 days. On 03 August 2023, the Applicant was issued with a final written warning valid for 6 months by the District Director for that absence from work as it appears on Page 1 of Bundle R1. As from 11 September 2023 to 14 December 2023, the Applicant was absent from work consecutively. On 30 November 2023, she then wrote to the Circuit Manager for an intervention, as she tried to speak to her and the District also spoke to her. She spoke to her parents, and they came to school on 01 February 2023 as they were also not aware of the Applicant’s whereabouts. She went to Applicant’s place, but when she knocked the Applicant did not open for her, but she could hear kids talking inside.
29. She then sent Ms Magane, who stayed at the same place but still the Applicant did not open for her. She then asked Ms Rachidi to go to the Applicant. The Applicant opened for Ms Rachidi, and she called her with the Applicant on speaker. The Applicant promised to come to school the following week but she did not come. The school continued to suffer without a teacher as they had no replacement. Other teacher took over the Applicant’s work. She had no personal problems with the Applicant.

Noko Ivy Mapaisa testified under oath as follows:

30. She works at Labour Relations Section at Sekhukhune District. She knew the Applicant as one of the employees of the department, and she was reported to be continuously absent from work. The district received a letter from the school Principal, and from the circuit office with the report of the Applicant’s absenteeism. They requested for proof of the Applicant’s absence, and they were given the attendance registers. They realized that the situation needed some intervention. They visited the school around August 2023. It was her, Mr Mageza, the Corporate Services Manager, the Circuit Manager, Mr Mashifane and the Governance Manager Mr Ntobeng.
31. They met with the Applicant to understand what was her problem with absenteeism. They referred her to the wellness section. She agreed she will desist with her absence from work. She was already issued with a final written warning by the Principal. The district also implemented leave without pay for her absence. An appointment was made for her with Ms Matlanyane for wellness, but the Applicant did not honour the appointment arranged in August 2023.
32. When the Principal reported again that the Applicant was not coming to work, they requested for the attendance registers, and wrote a memo to the Head of Department recommending for Section 14 of EEA dismissal as she was absent from work for more than 14 days. However, the Head of Department returned the memo and directed them to go and search for the Applicant. They then sent the Principal to search for her. The Principal went to the Applicant’s place, but she did not open for her.
33. They wrote the memo again to Head Office to initiate disciplinary action for Applicant. The charges came back with the notice of the disciplinary hearing. The hearing was postponed twice. On the third date of hearing the Applicant did not attend. The Chairperson ruled that the hearing must continue in her absence.
34. According to the attendance registers, the Applicant was absent from work from 11 September 2023 to January 2024 without permission. On 03 August 2023, the Applicant was issued with final written warning for absence from work, and the district implemented leave without pay for theP28 days she was absent from work.
35. On 01 August 2023, the district officials meet with the Applicant and Mr Maleka to explain their behavior of continuous absence from work. They met with the principal before they met with the two educators. After speaking with the Applicant, they concluded that she will resume her work, and before reporting for duty, she would meet with wellness section as professionals to discuss her problems. The district office secured the wellness meeting.
36. The Applicant acknowledged receipt of the notice of hearing on 18 February 2025. The first date of hearing was postponed due to lack of exchange of documents by the employer prior to the date of hearing of 27 February 2025. The second date of hearing was 26 March 2025, and it was also postponed due to the change of venue or date of signatures. On that date the Applicant and her union representative Ms Skhosana were in attendance. The Applicant wrote a wrong date when she signed for the notice of hearing.
37. The third notice of hearing had a changed venue written by someone with pen and initialed. The Applicant also acknowledged receipt of the third notice and knew that the venue of the hearing is the District Director’s Boardroom. The hearing proceeded in the Applicant’s absence. Ms Skhosana, her union representative came with observers. When the Chairperson ruled that the hearing shall continue, Ms Skhosana left the Boardroom saying the hearing shall not continue because the department was not professional by writing the venue with a pen. The Chairperson continued with the hearing and a witness was called by the initiator. The only witness called was the Principal, Ms Malaka. The outcome of the hearing was dismissal of the Applicant, which she acknowledged receipt on 24 April 2025.
38. The school was severely affected by the Applicant’s absence from work she was not there to teach the learners, and other teachers were given her work which made their workload heavier.
39. Regarding Mr Maleka, he was not treated favorably as he was also charged of the same offence, but he attended the wellness meeting, he was remorseful at the disciplinary hearing and asked to be taken for rehabilitation. Mr Maleka was currently serving his 3 months’ suspension without pay and is still at Matsitsi Primary School. The employment relationship between the Applicant and the Respondent has broken down.

Nyumani Joyce Mabasa testified under oath as follows:

40. She was appointed as the Presiding Officer for the Applicant’s disciplinary hearing, held on 26 March 2025 at the Department’s District Offices, Sekhukhune South Boardroom. She started the hearing with introduction, signing of attendance register and welcomed all. When she wanted to start with the hearing, Ms Skhosana started to talk. She told her that she will give her an opportunity to address her during the preliminary issues.
41. Ms Skhosana complained about the change of venue and the change of the Presiding Officer. She explained to her that the Department decides who to appoint as Presiding Officers. Ms Skhosana then continued to complain about the manner the notice of hearing was served on the employee, as it was served to Department Heads and given to the Applicant the following date to backdate.
42. She then ruled that the disciplinary hearing be postponed so that the Applicant can be properly served with the notice of hearing. The next date of hearing and venue were also agreed between her Ms Skhosana and Ms Mapisa, the initiator to be 24 April 2025. She also told them that in the next date of hearing, it shall not be postponed but it will continue.
43. On 24 April 2025, the hearing was held in the same boardroom at Sekhukhune South, and both Ms Mapisa and Ms Skhosana were in attendance. When they started with the preliminary points, Ms Skhosana complained again about the venue, that the Department employees were incompetent, and that labour relations officials were not performing according to their performance requirements because the Applicant signed the date of 2024 instead of 2025 on notice of hearing and she wanted it to be rectified.
44. She told Ms Skhosana that it was a minor clerical error which can be rectified by pen and ruled that the disciplinary hearing must continue. She further enquired from Ms Skhosana the whereabouts of the Applicant, and she said that she did not know and again contradicted herself that she contacted her telephonically and could not find her. The initiator did not also know the whereabouts of the Applicant.
45. She then ruled that the hearing will continue without the Applicant, as guided by the provisions of EEA and the notice of hearing served on the Applicant, in particular paragraph 4 which indicated that if the educator fails to attend the hearing without a valid reason, the disciplinary hearing shall continue. The Respondent was ready to continue with the hearing and the witness was available. Ms Skhosana stood up, banged on the table and stated that there will be no hearing. She did not ask for the opportunity to postpone the hearing or to call the Applicant. She demanded that the date of 2024 be rectified, but it was the Applicant who made the mistake with the date, which was not the Respondent’s mistake.
46. She then continued with the hearing, the initiator called one witness she asked clarity questions and closing arguments were presented. The hearing was finalized and she proposed the sanction of dismissal for Applicant and the Respondent dismissed her for absence from work without permission for 70 consecutive days. The dismissal sanction was imposed because the Applicant failed to respond to her employer when told to report for work with several attempts by the Principal, Circuit Office and District Directors Office.
47. The Applicant disrupted teaching and learning processes by her absence from work without permission or valid reason, while receiving salary every month from the employer. She failed to attend the disciplinary hearing when proper notice was given to her undermining the department’s disciplinary process. She failed to put learners first but put herself first and she did not show any remorse. Her representative who attended hearing did not know of the Applicant’s whereabouts and decided to abandon the disciplinary hearing without a valid reason.
48. She was guided by the EEA and paragraph 4 of the charge sheet in arriving at the decision to proceed in the Applicant’s absence. Ms Skhosana left the Boardroom and took the attendance register where everyone in attendance at the hearing signed. She then made a second attendance register. She wrote on top of the second register that Ms Skhosana took the first register and it was never returned even though she asked Ms Mapaisa to call her to return it. It would seem she intentionally took it, as she did not return it. She took it by anger. Attendance registers were submitted by Ms Malaka showing the Applicant’s absence from work.
49. This is not a serious offence, but it did not mean an employee could not be dismissed for that. She took into account the fact that Applicant was absent from work for 70 consecutive days, the behavior of her union representative, the Applicant did not communicate her absence to the Respondent and did not open for the Principal when she went to her place. She received the salary despite her long absence from work and she did not show remorse. She was very disappointed in the way the union representative behaved and her advice to the Applicant, as she misled her. If she had guided her properly, the ELRC dispute would not have been lodged. Everything was done in an emotional way rather than looking at the facts and taking into account that it was going to affect someone’s life The Respondent closed its case.

The Applicant’s Evidence
Priscilla Thandeka Msiza testified under oath as follows:

50. She was not inducted when she was employed at Matsitsi Primary School. It was correct that she was absent from work for 28 days, from 12 January 2023 to 15 June 2023 and she was aware of the final written warning. She did not understand why she did not report for duty on those days stated.
51. The letter on pages 6 and 7 of the bundle R1 is the letter which she was instructed to write when she was reporting at Manthole Circuit. The letter has no date. She and Mr Maleka were given papers at Manthole Circuit office to write apology letters and apologized for what they did. At that time, it wasn’t long that she had a child and was facing financial issues with the father of her child. She was depressed and not well.
52. She was never assisted with anything by the school or the Circuit. She was told that she submitted a fake sick note and instructed to sign leave without pay. She did not have the knowledge that she submitted a sick note.
53. She went with her aunt to school on 11 October 2023. Her aunt wanted to take her back to school. She went together with Ms Skhosana to the Principal office as Ms Skhosana wanted to see her days she was absent from work and to offer assistance to her to resume her duties. Her aunt also requested the Principal to take her to wellness and further submitted to the Principal a letter from psychologist. The principal refused her to resume work and to sign in the register. They also gave the Principal the letter requesting for wellness.
54. The letter on page 73 of Bundle A is from the circuit manager indicating that she reported at Manthole Circuit from 11 December 2023 until 15 December 2023 for a total of 5 days. The number of days in the letter is incorrect because she reported from 29 November 2023 until 14 December 2023 not for 5 days. She signed in the attendance register but when she went to look for a copy of the register and she was told they cannot locate it. Mr Maleka reported only once at the circuit office.
55. At the time they served her the notice to attend the disciplinary hearing, she was not at school. She was at Mamehlabe Hospital. It was given to teachers at school, and Mrs Ntsoane called her to sign for the acknowledgement of the notice and to backdate it even though she was not at school when the notice was served. Ms Ntsoane also told her that she was uncooperative and will lose her job.
56. The notice of hearing on Pages 93 and 94 of Bundle A was also served to her by Mrs Ntsoane from District Office. She acknowledged receipt thereof. She was not in attendance or hearing on 24 April 2025 because she started at Motetema Circuit Boardroom, and realized that there was no hearing there. She was confused because Ms Ntsoane told her to backdate the notice and then she was asked to sign the second notice, it was given to her and later taken to scratch and write the new venue.
57. When she arrived at Motetema Circuit she was told that there was no hearing. She then took a taxi to the District Office in Lebowakgomo. She signed at security offices. She tried to call her union representative but could not reach her. When she arrived at the District Office, she met her union representative who told her that there was no hearing. She did not go to the boardroom. Applicant closed her case.

SURVEY OF EVIDENCE AND ARGUMENTS

58. In terms of Section 192(1) of the LRA:
    “In any proceedings concerning any dismissal, the employee must establish the existence of the dismissal.”
59. In terms of Section 192(2) of the LRA: “If the existence of the dismissal is established, the employer must prove that the dismissal is fair.”
60. In the present case the existence of the dismissal was a common cause issue.
61. The Applicant challenged both the substantive and procedural fairness of her dismissal in respect of the awareness of the rule, commission of the offence, inconsistency and the appropriateness of the sanction.
62. Regarding procedure, the Applicant submitted and argued that her dismissal was procedurally unfair in that the notice of hearing was issued to her with discrepancies on the venue as it was cancelled and initialed and another venue written on top.
63. I have to determine on a balance of probabilities if the Respondent has been able to discharge its onus of proof that the dismissal of the Applicant was fair on both substance and procedure grounds under the circumstances.
64. The Respondent led testimonies of three witnesses, the Principal of Matsitsi Primary School Ms Malaka, the initiator Ms Mapaisa and Ms Mabasa, the Chairperson. The Applicant led her own evidence without calling any witnesses.
65. Their testimonies were that the Applicant was absent from work without permission or valid reason, from 11 September 2023 to 30 January 2024 in contravention of the provisions of Section 18 (1)(i) of the EEA. The testimonies of Ms Malaka and Ms Mapaisa were also corroborated by the documentary evidence of the school’s attendance registers showing the Applicant’s absence from work for the period in question.
66. The Respondent’s three witnesses led testimonies that corroborated each other in all material respects. Ms Maleka’s evidence was that she did her best to ensure that the Applicant reports for duty, and she went all out to try to assist and support her but the Applicant was not a wiling party; she always promised to report for work on specific dates but failed to do so until she asked the SMT, the circuit office and the district office’s intervention which also yielded no positive results. The applicant continued to absent herself from work without permission or valid reason even after the meeting held with her by the circuit and district officials. It was testified that an appointment was made for her and Maleka with Wellness but she did not honour that appointment.
67. I have no reason to doubt the credibility of these witnesses as it was consistent, reliable, coherent and collaborative. I find no reason why these witnesses could lie against the Applicant.
68. On the other hand, the Applicant initially submitted that she was not aware of the rule not to absent herself from work without permission or a valid reason. However, she did not challenge any of the Respondent’s witnesses on the aspect of her absence form duty. In contrast, it became clear in her testimony that she was aware of the rule as she was previously issued with a final written warning for a similar offence on 03 August 2023 for 28 days’ absence from work without permission. The Applicant never challenged this final written warning. Ms Malaka also led unchallenged evidence that the Applicant previously used to send her sms or WhatsApp regarding her absence from work or when she ran some errands or took child to school.
69. The Applicant also wrote an apology letter to Manthole circuit office for her absence form work without permission and even stated that she was aware of the seriousness of the situation and full took responsibility. She committed that she would not allow her personal problems to affect he work.
70. The Applicant did not contest the material aspects of the Respondent’s testimony or give a valid defence to her conduct other than state that she did not know what was happening to her at that time. She claimed that the father to her child was frustrating her and not financially supporting the child and that depressed her. But despite the Principal sending her to Wellness training, she still failed to report for work with no valid reason. The Applicant could not show that she was headhunted with false charges as she conceded that she was absent from work without permission or valid reasons.
71. The Applicant furthermore did not challenge the documentary evidence of the attendance registers submitted by the Respondent for the period showing her absence from work, except to state that she was at work on 11 October 2023 with her aunt and her PEU official. Her evidence was further that she went to school to resume work but the Principal refused; and her PEU representative wanted to meet with the Principal to check her absent days and her aunt was to submit the letter requesting for Wellness and the psychological report. The Applicant advanced several new evidence in her testimony which was not canvassed with the Respondent’s witnesses.
72. The Applicant conceded that at the time they went to school to meet the Principal, the school had already started. The Applicant knew the school reporting times as she has signed the school register daily which shows the school starts at 07h00, and therefore nothing prevented her to report for work at that time even on that day unaccompanied. I am not convinced that the Applicant had no intentions to work.
73. The Applicant also testified that in December 2023 she was reporting at the Circuit office as directed by the Circuit Manager, although the letter from the Manthole circuit office stated 5 days from 11 to 15 December, in her knowledge she reported there for 11 days. The Applicant could not however submit any tangible evidence like the attendance register to prove her submissions. In anyway, even her evidence is accepted that she reported at Manthole Circuit office for 12 days, the rest of the other days of absence in the charge sheet were still not accounted.
74. Based on the evidence presented, I am satisfied that the Applicant was correctly found guilty of the offence as there is overwhelming evidence that she contravened the provisions of Section 18 (1) (j) of the EEA, and she was aware of the rule.
75. On the inconsistency issue, it is important to note that, once the employee has pertinently put the issue of inconsistency in issue, the employer has a duty to rebut such allegation with evidence. In NUM obo Botsane v Anglo Platinum Mine (Rustenburg Section) (2014) 35 ILJ 2406 (LAC), the Labour Appeal Court, the LAC emphasised the importance of raising the inconsistency case from the beginning of the proceedings and with relevant detail. The following was thus said:
    ‘Moreover, as a matter of practice, a party, usually the aggrieved employee, who believes that a case for inconsistency can be argued, ought, at the outset of proceedings, to aver such an issue openly and unequivocally so that the employer is put on proper and fair terms to address it. A generalised allegation is never good enough. A concrete allegation identifying who the persons are who were treated differently and the basis upon which they ought not to have been treated differently must be set out clearly. Introducing such an issue in an ambush–like fashion, or as an afterthought, does not serve to produce a fair adjudication process. (See: SACCAWU and Others v Irvin and Johnson Ltd (1999) 20 ILJ 2302 (LAC) at [29]; also see: Masubelele v Public Health and Social Development Bargaining Council and Others [2013] ZALCJHB JR 2008/1151] which contains an extensive survey of the case law about the idea of inconsistency in employee discipline)’.
76. In SA Police Services v Safety and Security Sectoral Bargaining Council and Others (2011) 32 ILJ 715 (LC), the Court, per Lagrange J, restated the applicable approach in matters where consistency is raised in terms of onus and the following was said:
    ‘Once the employee has pertinently put the issue of consistent treatment in issue, the employer has a duty to rebut such allegations. In the context of a case in which evidence was led by the employee of inconsistent treatment, Landman J held in Sappi Fine Papers (Pty) Ltd t/a Adamas Mill v Lallie and others (1999) 20 ILJ 645 (LC) at 647 para 5:
    “As regards the onus, the onus of proving that the dismissal was fair, and thus of rebutting the allegation of inconsistency, is one which rests squarely on the employer”’.
77. The Respondent has submitted evidence to differentiate the case of the Applicant and the comparator Mr Maleka, her colleague, who was also charged for the same offence of continuous absence from work without permission or valid reasons.
78. The legal principles applicable to consistency in the exercise of discipline are set out in the Code of Good Practice. These are established guidelines for testing the fairness of a dismissal for misconduct whether the rule or standard has been consistently applied by the employer. This is often referred to as the ‘parity principle’, a basic tenet of fairness requires that like cases be treated alike unless there is valid justification for differentiation. This principle has been affirmed in numerous decisions of the Labour Court, and also in Eskom Holdings Soc Ltd v Commission for Conciliation, Mediation and Arbitration and Others (JR1372/14) [2018] ZALCJHB 110 (13 March 2018).
79. The Applicant did not attend her disciplinary hearing whereas Mr Maleka attended his, pleaded guilty to the offence, requested for professional assistance from the Wellness for rehabilitation which was offered to him and he attended. Mr Maleka was imposed with 3 months suspension without pay. All those factors are not present in the Applicant’s case. It is therefore my considered view that this evidence has sufficiently shown justification for treating similar cases. I find that the Respondent has succeeded to prove that it was consistent in the application of the rule.
80. On the issue of the sanction, the Respondent led evidence of the serious impact the Applicant’s misconduct had on the rights of the learners to education due to the absence of the Applicant from work and failing to execute her duty to teach the learners. It is clear that the school struggled and the Applicant’s colleagues were overloaded with work as they had to assisting with teaching her subjects at the same time also teaching theirs, because the Applicant’s position could not be advertised and neither could the school get a temporary teacher; thus justifying a sanction of dismissal.
81. It is therefore my considered view that a dismissal sanction was appropriate under the circumstances taking into account the aggravation in terms of the period of absence by the Applicant from work without permission or no valid reasons even in exclusion to weekends and duplicate dates in the charge sheet, the steps taken by the Respondent to assist her and her continued disregard of the instruction to report for work by her superiors at school, and even at the circuit and district level. The Respondent applied progressive discipline and issued the Applicant with final written warning but she was not rehabilitated.
82. Regarding the procedural fairness, the Respondent’s testimony by the Chairperson of the disciplinary hearing, was that the Applicant was properly notified of the hearing when it was postponed, and the next date of hearing and venue was agreed by all the parties including the Applicant and her PEU representative, as well as confirmation of the venue. However, on that date of hearing the Applicant was not in attendance but her PEU representative attended and she informed the Chairperson that she was not aware of the Applicant’s whereabouts. The Chairperson’s evidence in this regard was corroborated by Ms Mapaisa, the initiator.
83. Perusal of the notice of hearing showed that the venue was scratched and initialed and another venue was written on top. The Applicant under cross-examination testified that she was aware of the agreement for the postponement of the hearing as well as the agreed venue, which was written on top of the scratched venue. She also testified that Ms Ntsoane who gave her the notice of hearing scratched the typed venue and wrote changes one on top at the time she issued her with the hand delivery notice and she acknowledged receipt thereof. The changes on the notice venue did not prejudice the Applicant in any manner.
84. I disagree that the Applicant was confused due to the change in the venue as her union representative was not confused of the venue, yet it was the Applicant who received the notice of hearing. The attendance of the union representative at the correct venue proved the Chairperson’s testimony that the said venue was agreed by all the parties when the matter was postponed.
85. On that basis, it is therefore my considered view that the Applicant and her union representative were both aware of the agreed date and venue of the hearing irrespective of the typo error which was rectified in the Applicant’s presence. The Applicant’s testimony that she was unsure of the venue and she decided to start at the venue where the first hearing was held is unacceptable.
86. There was no reason for her to go to that venue when the venue was clearly communicated by the Chairperson in her presence and as also rectified on the subsequent notice of hearing. The fact that there was an alteration of the venue on the notice does not make the procedure irregular and unfair in any manner.
87. Section 7(1)(6) of the EEA provides that if the educator fails to attend the hearing and the Presiding Office concludes that the Educator does not have a valid reason, the hearing may continue in the absence of the educator. Furthermore, Clause 4 of the charge sheet also advised the Applicant that failure to attend the hearing will not preclude the hearing from continuing in her absence if the Chairperson concludes that she did not have a valid reason.
88. The Chairperson was correct and fair to make a conclusion that there was no valid reason for the Applicant to be absent form the hearing and proceed in her absence, moreover her union representative was in attendance and did not make an application for a postponement of the hearing due the Applicant’s absence but walked away from the hearing venue.
89. The Applicant did not challenge the Chairperson’s evidence but tried to justify her absence in the hearing with delays of transport from Motetema Circuit office where she claimed she went before going to the District Offices; after the security officers at Motetema Circuit office told her that there was no hearing at those offices.
90. The Applicant further testified that she finally arrived at the District Offices late, only to meet with her union representative who told her that there was no hearing there. There was no shred of evidence, like the entrance registers to show in these proceedings that she was ever at Motetema Circuit office and finally arrived at the District offices as she claimed. Surprisingly so, she was only seen by her union representative and neither did the Principal, the initiator or the Chairperson saw her on that day at the District offices. The Applicant also testified that she and her union representative communicated on cellphone but there were issues with the network, which I find unbelievable.
91. Since the Applicant did not attend the hearing and her representative attended but left the hearing when she had disagreements with the chairperson when she ruled that the hearing will proceed in the Applicant’s absence as she was properly notified and was aware of the date and venue of the hearing, as stated in the notice and in the EEA, the Applicant waived her right to present her defence of the allegations at the disciplinary hearing, and cannot therefore claim that the hearing proceeded in her absence and procedurally unfair.
92. The Applicant was not remorseful at any stage during the arbitration proceedings and could not answer most of the questioned asked to her during cross-examination and could not provide any substantive and convincing reasons or her continued absence from work despite all the efforts made by the Respondent’s officials to assist and support her to return to work.
93. The Applicant’s conduct clearly was only for her self-interest and did not take the interests of her leaners at heart. Moreover, she was receiving a salary every month whereas she was not rendering her services as expected in terms of her contract of employment to the Respondent.
94. I therefore consequently find that the Respondent’s evidence is more probable than that of the Applicant. It is therefore my finding that on the basis of the evidence presented by the Respondent, it has successfully been able to prove on a balance of probabilities, that the dismissal of the Applicant was under the circumstances substantively and procedurally fair.

AWARD

95. I find that dismissal of the Applicant was substantively and procedurally fair.
96. The Applicant’s claim is hereby dismissed.

GRACE MAFA-CHALI
ELRC PANELLIST

Commissioner: Jacques Buitendag
Case No.: ELRC1042-25/26WC
Date of Award: 7 April 2026

In the Arbitration between:

SADTU OBO M FELIX
(Applicant)

and

DEPARTMENT OF EDUCATION OF WESTERN CAPE
(Respondent)
 
PARTICULARS OF PROCEEDINGS AND REPRESENTATION

1. The arbitration hearing held under the auspices of the Education Labour Relations Council (ELRC) took place virtually on the Teams platform on 17 March 2026. The proceedings were digitally recorded.
2. The Applicant Mr. M Felix was presented by Mr. J Adams of SADTU. Ms. V Mortlock represented the Respondent, the Department of Education of the Western Cape.
3. At the conclusion of the proceedings the parties requested the opportunity to submit written closing arguments. I received the closing arguments of the Applicant on 23 March 2026 and the closing arguments of the Respondent on 24 March 2026.

THE ISSUE IN DISPUTE

4. I must determine whether the Respondent’s conduct constitutes an unfair labour practice involving disciplinary action short of dismissal and if so, I must determine the appropriate remedy.

BACKGROUND TO THE ISSUE

5. The Applicant is employed as a Departmental Head at Groenberg Secondary School.
6. The Respondent charged the Applicant with multiple allegations of misconduct in terms of sections 18(1)(r) and 18(1)(q) of the Employment of Educators Act, 76 of 1998 (EEA) concerning his conduct towards learners during the 3rd term of 2024.
7. The disciplinary hearing commenced in February 2025 and was conducted in August 2025. Mr. Williams, the chairperson of the disciplinary hearing, found the Applicant guilty on charge 1 and charges 4 to 19.
8. Charge 1 concerns an allegation that the Applicant contravened section 18(1)(r) of the EEA in assaulting a learner by hitting the learner (allegedly with a plank) on his hand. The Applicant denied the allegation.
9. Charges 4 to 19 concern allegations that the Applicant contravened Sections 18(1)(r) and 18(1)(q) of the EEA in assaulting 8 learners by hitting them on their heads and locking them in a classroom. The Applicant pleaded guilty to these allegations.
10. The chairperson decided on the following sanction:
    “One month suspension without pay in terms of Section 18(3)(f) of Chapter 5 of the Employment of Educators Act, 76 of 1998 effective 01 October 2025;
    Plus
    Final Written Warning in terms of Section 18(3)(d) of Chapter 5 of the Employment of Educators Act, 79 of 1998 valid for Six (6) months.”
11. The Applicant served his period of unpaid suspension from 15 November 2025 – 15 December 2025.
12. On 4 December 2025 the Applicant referred a unfair labour practice dispute to the ELRC. A certificate of non-resolution of the dispute was issued on 15 December 2025 whereafter the dispute was set down for arbitration.

SUMMARY OF EVIDENCE AND ARGUMENT

13. I have considered all the evidence and argument. Because section 138(7) of the Labour Relations Act, 66 of 1995, as amended (LRA) requires an award to be issued with brief reasons for the findings; I shall briefly summarize the evidence and argument that I regard as necessary to substantiate my findings in the determination of the dispute. If I do not refer to particular evidence and argument, it does mean that I did not consider it.

The Applicant’s case

14. The Applicant, Mr. Felix, testified that he was responsible for discipline at the school.
15. In respect of charge 1 the Applicant testified that during one of the periods he went to the men’s bathroom where he encountered Mr. Uren and a learner. Mr. Uren informed him that the learner had skipped class. The Applicant testified that he had a talk with the learner about his poor discipline and his future. He was later informed that the learner accused him of hitting him with a plank. The Applicant testified that there were no planks in the vicinity of the bathroom and that he did not hit the learner with a plank. He pointed out that the learner first claimed that he was hit twice and later changed his version to say that he was hit three times.
16. In as far as charges 4 to 19 is concerned the Applicant testified that he pleaded guilty to the allegations. The Applicant explained that it was on a Friday afternoon that Mr. Sauls informed him that the Grade 9H class is causing disciplinary problems. He decided to keep the learners after school for detention. As the learners walked into this classroom, he hit each of them behind the neck / back area. At one stage he had to go the bathroom, and he decided to lock the learners in the classroom until he returned about 5 to 10 minutes later. The Applicant acknowledged that his conduct on this day was unacceptable.
17. The Applicant submitted that the chairperson’s sanction was not implemented in October 2025 and that he suffered financial hardship because of a deduction of monies when he was at work and because of his suspension from work without pay. He confirmed that monies deducted from his salary for days that he worked was refunded by the Respondent. The Applicant submitted that the chairperson’s sanction was unfair and that a written warning would have been a more appropriate sanction.
18. Mr. Uren testified he and a learner who skipped his class were on their way to the Applicant’s classroom when they encountered the Applicant rushing to the bathroom. They followed the Applicant into the bathroom. Mr. Uren testified that after the Applicant used the bathroom, he explained to the Applicant the disciplinary challenges that he is having with the learner. The Applicant then verbally reprimanded the learner.
19. Mr. Uren testified that he later learned that the learner accused the Applicant of hitting him with a plank. Mr. Uren testified that he would not have allowed the Applicant to inflict corporal punishment on the learner. He is adamant that the Applicant did not hit the learner with a plank.

The Respondent’s case

20. Mr. Achillies is a Labour Relations Officer employed by the Respondent. Mr. Achillies testified that he met with the Applicant on 23 September 2025 to inform him of the sanction and that the Respondent is considering implementing the suspension without pay in November 2025. He did not inform the Applicant of the exact date of when the suspension will commence. When Mr. Felix informed him that his representative has lodged an appeal, he informed the Applicant that a sanction cannot be implemented if an appeal was lodged. Mr. Achillies testified that he later learned that the appeal was submitted outside the prescribed timeframe.
21. Mr. Parnell, the Principal of Groenberg Secondary School testified that the educators are aware of the “Abuse no more” principle. Educators are also aware that parents must be contacted prior to learners serving detention.
22. In as far as charge 1 is concerned, Mr. Parnell testified that a learner reported to him that he was assaulted by the Applicant. He requested that the learner file a written complaint.
23. Regarding the implementation of the suspension without pay, Mr. Parnell confirmed that he received an email from the Directorate Labour Relations on 15 September 2025 in which the Directorate requested that he meet with the Applicant to establish when the Applicant would be going on suspension. Mr. Parnell testified that he did not meet with the Applicant because he was not supplied with a written report.
24. Mr. Parnell confirmed that the Applicant approached him on 14 November 2025 when he did not receive his salary. The Applicant thereafter served his unpaid suspension from 15 November – 15 December 2025.
25. Mr. Parnell testified that he did not receive a final written warning to be placed on the Applicant’s personal file at the school.
26. The chairperson of the Applicant’s disciplinary hearing, Mr. Williams, confirmed that he found the Applicant guilty of charges 1 and charges 4 to 19 based on his evaluation of the evidence and the Applicant’s guilty plea on charges 4 to 19.
27. Mr. Williams testified that it was agreed that aggravating and mitigating arguments would be included in the closing arguments of the parties. It was put to Mr Williams that he did not request mitigating arguments from the Applicant after he made the guilty finding, which is in contravention of Schedule 2, item 17(a) of the EEA.
28. Mr. Williams confirmed that the Applicant’s suspension without pay should have been implemented with effect from 1 October 2025 as per his report.

CLOSING ARGUMENTS

29. The written closing arguments of the parties are on record. I have considered it and I do not find necessary to repeat it here in full. I shall only provide a brief summary.
30. Mr. Adams argued that the Respondent committed an unfair labour practice concerning disciplinary action short of dismissal, inter alia the following basis: The Applicant was unfairly found guilty of charge 1; The chairperson has not requested for arguments in mitigation after he found the Applicant guilty; the Applicant was not informed in writing of the sanction; the chairperson imposed the suspension without pay from 1 October 2025- 31 October 2025 but the Respondent unilaterally changed the date to 15 November – 15 December 2025; the Applicant suffered financial prejudice as result of an unlawful change to the implementation date of the suspension period and the deduction of salary; furthermore the sanction was unfair and disproportionate.
31. The Applicant’s claims the following relief: a) The guilty finding on charge 1 be set aside; b) the sanction in respect of charges 4-19 be set aside; alternatively that it be reduced to a written warning; c) the suspension without pay be declared substantively and procedurally unfair; d) that the final written warning be declared a nullity because it was never communicated to the Applicant as required by the EEA and PAM; e) that the Applicant be awarded full financial restitution of all salary withheld and deductions made unlawfully.
32. Ms. Mortlock argued that the disciplinary action against the Applicant was fair. She however submitted that the sanction imposed by the chairperson was too lenient and that the Applicant ought to have been dismissed.

ANALYSIS OF EVIDENCE AND ARGUMENTS

33. In terms of section 186(2)(b) of the LRA, unfair disciplinary action short of dismissal in respect on an employee falls within the meaning of an “unfair labour practice”. The onus is on the Applicant to prove, on a balance of probabilities, an unfair act or omission on the part of the Respondent that gives rise to an unfair labour practise.
34. The Applicant took issue with the guilty finding on the 1st charge. The Applicant denies that he has assaulted the learner in the men’s bathroom. His evidence, which was corroborated by Mr. Uren, is that he encountered Mr. Uren and the learner at or near the men’s bathroom where Mr. Uren informed him that the learner had skipped class. They then reprimanded the learner. The Applicant’s evidence that there were no planks in the vicinity of the bathroom was not challenged and the Respondent did not call the learner to testify during this arbitration or present any other material evidence to refute the version of the Applicant that he had not assaulted the learner. A transcript of the disciplinary hearing was also not presented into evidence to be considered. I have no reason to question the credibility of the evidence in respect of charge 1 that was presented by the Applicant and Mr. Uren during this arbitration. I also accept Mr. Uren’s testimony that he would not have allowed the Applicant to inflict corporal punishment on the learner. I accordingly find that the Applicant has presented sufficient evidence to prove that he was unfairly found guilty of charge 1.
35. The Applicant pleaded guilty to charges 4 to 19. The Applicant admitted that has assaulted the learners by hitting them behind the head or neck area as they entered his classroom and that he has conducted himself in an inappropriate manner by locking the classroom with the learners inside when he left the classroom, albeit for a relatively short period.
36. The Applicant challenge the fairness of the sanction, being a one-month suspension without pay coupled with a final written warning valid for 6 months. The Applicant argues that a written warning would have been a more appropriate sanction. In this regard the Applicant also takes issue with the alleged failure of the chairperson to request mitigating arguments after the guilty finding and before deciding on the appropriate sanction. In as far as the procedure is concerned Schedule 2, item 17(a) of the EEA provides that “Before deciding on a sanction, the presiding officer must give the educator an opportunity to present evidence in mitigation.”
37. On the other hand, the Respondent’s representative argued that the sanction was lenient and that the Applicant ought to have been dismissed.
38. In terms of Schedule 2 of the EEA the chairperson is clothed with the responsibility to determine the appropriate sanction. His /her decision then becomes the final decision of the employer.
39. An arbitrator is not vested with a discretion to decide or impose an appropriate sanction short of dismissal in cases of workplace incapacity or misconduct. The arbitrator’s primary duty in disputes such as these is to determine whether the employer’s sanction is fair. The determination of an appropriate sanction is a matter which is largely within the discretion of the employer and a decision-maker should embark upon the reasoning process of assessing a sanction by recognising that, within limits, the employer is entitled to set its own standards of conduct in the workplace having regard to the exigencies of its business subject to the requirement that the sanction imposed by the employer must be fair. The decision-maker should appreciate that the question of sanction for misconduct is one on which reasonable people can readily differ. There is a range of possible sanctions on which one person might take a different view from another without either of them being castigated as unreasonable. The test to be applied is whether the sanction was reasonable. If the sanction falls within a range of reasonable options, the decision-maker should generally uphold the sanction, even if the sanction is not one that the decision-maker himself would have imposed. Only if there is a striking disparity between the employer sanction and the one which the decision-maker would have imposed should the decision-maker interfere.
40. I have considered the mitigating arguments presented by the Applicant’s representative. The argument includes reference to the Applicant’s 20 years of service with a clean disciplinary record; no injuries sustained by the learners; no malicious intent; remorse shown; and a positive contribution by the Applicant to the school.
41. I also had regard to the fact that the chairperson indeed considered mitigating factors which is reflected in his comprehensive report. He inter alia considered the Applicant’s years of service; his clean disciplinary record; the remorse shown by the Applicant; that no evidence was presented that the learners sustained any injuries; and that the Applicant was allowed to continue with his duties after the Respondent became aware of the allegations.
42. I had regard to the South African Schools Act, Act 84 of 1996 and the National Education Policy Act, Act 27 of 1996 which prohibits corporal punishment in schools. I have also considered that the South African Constitution states that the best interest of the child shall be paramount in any matters affecting the child (section 28(2)). In this regard the Constitutional Court in Governing Body of the Juma Musjid Primary School v Essay 2011 (8) BCLR 761 CC, held that section 28 of the Constitution impresses an obligation on all those who make decisions concerning children to ensure that the best interest of the children enjoy paramount importance. Courts and administrative authorities are constitutionally bound to consider the effect their decision will have on children’s lives.
43. I find the sanction of a one-month suspension without pay coupled with a final written warning valid for 6 months to fall within a range of reasonable options. The sanction is upheld, even though the sanction may not be one that I would have imposed.
44. Commissioners have a wide discretion to determine the appropriate remedies in unfair labour practice cases. In Booysen v SAPS and another [2008] 10 BLLR 928 (LC) at 933 Cheadle AJ noted that unlike the list of remedies for unfair dismissal, the remedies for unfair labour practice are not limited to the ones specifically mentioned in the LRA.
45. The Applicant took issue with what can be described as the administrative actions by the Respondent post the chairperson’s sanction. In this regard the Applicant took inter alia issue with the suspension without pay not being affected from 1 October 2025 as per the chairperson’s report but instead from 15 November to 15 December 2025; that the Applicant has not been formally informed in writing of the final written warning; and that the final written warning does not appear on the Applicant’s personal file at the school.
46. I considered the apparent lack of clear communication with the Applicant subsequent to the chairperson issuing the sanction and I have considered all the intricate complexities in this dispute to arrive at the appropriate remedy. Substance over form ought to be preferred. The substance in this case is that the Applicant committed, and admitted, to serious misconduct and that the Respondent (as per the chairperson’s decision) opted for corrective disciplinary action in the form of imposing a one-month suspension without pay and a final written warning valid for 6 months on the Applicant.
47. I find the appropriate remedy is to set aside the guilty finding on charge 1 and to confirm that the sanction of a one-month suspension without pay coupled with a final written warning is fair in as per charges 4 to 19 is concerned.

AWARD

1. The Applicant has discharged the onus of proving that the Respondent, the Department of Education Western Cape committed an unfair labour practice concerning disciplinary action short of dismissal. The finding that the Applicant is guilty of charge 1 is set aside and expunged from the Applicant’s record.
2. The sanction of a one month suspension without pay coupled with a final written warning valid for 6 months is fair in so far as charges 4 to 19 is concerned.
3. I make no order as to costs.

ELRC Panellist: Jacques Buitendag