Panellist: Nolundi Shezi
Case Number: ELRC59-26/27KZN
Date of Award: 09 July 2026

In the matter between:

Kalayvan Govender Applicant

and

Department of Education KwaZulu Natal Respondent

APPLICANT’S REPRESENTATIVE None

FIRST RESPONDENT’S REPRESENTATIVE Ms Jabu Dumisa (Labour Practitioner)

Details of Hearing & Representation

1. This dispute related to non-payment of salary was referred to the Education Labour Relations Council (ELRC) and it was scheduled for arbitration on 23 June 2026. The arbitration was conducted on MS Teams, a virtual platform.
2. The Applicant, K. Govender, was initially represented by Ms Magashree Ramsaroop, alleged legal representative. A ruling was issued on record that she failed to prove her locus standi in these proceedings. The applicant then represented herself.
3. The Respondent, the Department of Education KwaZulu Natal, was represented by its Labour Practioner, Ms Jabu Dumisa.
4. The Respondent’s representative submitted one page document as its documentary evidence and called one witness to testify in support of the Respondent’s case. Whilst the applicant was the only one who testified, she did not call any witness or submit any documentary evidence in support of her case.
5. The matter was digitally recorded and completed the same day. The parties requested to submit written closing arguments, which was granted and due on 30 June 2026. However, only the Respondent submitted its closing arguments on the given deadline. The applicant failed to submit her closing arguments.

Preliminary issue

6. A determination had to be made regarding the applicant’s representative, Ms M. Ramsaroop, who submitted that she was the applicant’s legal representative. However, she submitted that she was employed by the Standard Bank as a full-time employee.
7. The parties were allowed to make oral submissions in relation to the locus standi, and ruling was issued on record that Ms Ramsaroop had no locus standi to represent the applicant during these proceedings.

Issue to be decided

8. The issue to be decided is whether the non-payment of the applicant’s salary on 15 April 2026 constitutes an unfair labour practice in terms of Section 186(2)(a) of the Labour Relations Act, 66 of 1995 (the LRA), as amended. If successful, to determine the appropriate relief.

Background

9. The applicant is a former employee of the Department of Education KwaZulu Natal. She was dismissed by the Respondent in January 2025 after a formal disciplinary hearing for misconduct related to submission of the fraudulent certificate (qualification).
10. She then filed an appeal in terms of section 25(2) of Employment of Educators Act 76 of 1998 (“EEA 76 of 1998”), read with paragraph 9(2) of Schedule 2.
11. It was not clear when she filed her appeal, as submitted the application was filed directly to the office of the MEC.
12. The Respondent’s representative submitted a copy of the outcome of appeal from the office of the MEC dated 20 January 2026. The MEC upheld the dismissal and the appeal was dismissed.
13. The applicant continued working until 15 April 2026 when she did not receive a salary, hence this claim for non-payment of salary for this month. Survey of Evidence and Argument
    Applicant’s case
14. Ms Kalayvan Govender (referred to as Ms Govender) testified under oath that she was not given the dismissal letter, but it was emailed to her on 20 June 2026. From January to May 2026, she had no idea that she was dismissed.
15. She had received her salary in full for the period January to March 2026. She did not receive her salary on 15 April 2026. She contacted the Human Resources department at Thula House; she was informed that there was a case against her. The Thula House advised her to contact her district in Pinetown.
16. She contacted the Pinetown district the ER told her she did not know the reason why her salary was withheld. However, she was not going to call anybody from the district HR to testify during these proceedings.
17. She then left the school on 16 April 2026 as she was not paid her salary. She only received the letter of the outcome of appeal dated 20 January 2026 on 03 June 2026.
18. She worked from 15 March 2026 till 15 April 2026, and she was not paid her salary for the month, hence her claim for non-payment of salary.
19. During cross-examination she submitted that she did not know she was dismissed up until 03 June 2026. Her attorney was the one phoning the HR department enquiring about her outstanding salary.
20. She appealed against the sanction of dismissal, and her attorney was the one who sent the letter to the office of the MEC. The MEC rejected her appeal application. But she only received a copy of the outcome from the MEC on 03 June 2026 from Mr S. Makhanya.
21. If she had received the outcome of the appeal in January 2026, she would not have continued working, neither was she going to be paid from January to March 2026. She continued working until her salary was stopped in April 2026, hence she left the school on 16 April 2026.
22. She did not believe there was an administrative error from the side of the Department as she received her pay slips for all the months she was paid. She had provided a service to the Department hence she was paid from January to March 2026.
23. When asked questions of clarity by the commissioner the applicant conceded that the reason she filed an appeal application with the MEC was because she was dismissed. She was dismissed at the beginning of January 2025 and that was when she received the decision of the chairperson for the internal hearing.
24. She had been waiting for the outcome of the appeal since 2025 and she did not receive the outcome in January 2026.
25. She believed the Department owed her the salary for April 2026 plus her birthday bonus to a total of R40000-00.

Respondent’s case

26. Mr Musawenkosi Dlamini testified under oath that he is employed by the Respondent as Internal Investigator under the department Internal Control, Fraud and Ethics Management. His role includes investigating fraud and corruption alleged done by the Department employees.
27. He knew the applicant. After he received the outcome of an appeal he communicated with the district in Pinetown on 08 April 2026. When he sent the letter to the district, they were given an instruction not to process payment.
28. The pays slips are issued earlier in the month, which could be the reason why the applicant received a pay slip for April 2026.
29. It was not possible that district HR would not know about the outcome of appeal sent to them in April 2026 as the letter was sent to the Acting Director of the district. HR would have communicated with the affected person, in this case the applicant.
30. The letter from the MEC was dated 20 January 2026, therefore, it was an error on the side of the Department not to process it. The applicant was not supposed to have got a salary for the months February and March 2026. He had given an instruction that the money be recovered.
31. The district was notified about the recovery of the paid salary as it was not due to the applicant.
32. During cross-examination Mr Dlamini stated that it was correct that he sent communication to the district on 08 April 2026.
33. The applicant had filed an appeal directly with the office of the MEC, therefore, they should have communicated to her directly using the email address she had provided to them. Hence, he gave the instruction for recovery of the salary as he was of the impression that the office of the MEC had communicated the appeal outcome directly with her.
34. It puzzled him that if the applicant had not received any communication from the office of the MEC, why would she stop working immediately (16 April 2026), as she could have continued working and then enquired about her unpaid salary.
35. When asked questions of clarity by the commissioner Mr Dlamini stated that the applicant was dismissed by the Department in January 2025.
36. He had not seen the appeal outcome up until April 2026, which was communicated by Mr Tulo from the office of the MEC.
37. After he received the appeal outcome, he prepared submission for the Pinetown district to implement the outcome. As indicated, he was under the impression that the office of the MEC had communicated the outcome with the applicant as she had filed the appeal application directly with them. He did not know if the office of the MEC had communicated the outcome with Pinetown district.
38. In its closing arguments, the Respondent argued that the applicant failed to present evidence confirming her version which meant the commissioner should rely on her assertions. The outcome of an appeal presented by the Respondent was evidence that the applicant could not deny that she was dismissed by the presiding officer and appealed against the sanction.
39. The Respondent’s witness testified that the appeal letter was dated 20 January 2026, of which he communicated with the district on the 8th of April 2026, hence the applicant was not paid her salary.
40. They argued that the appeal was filed with the office of the MEC directly and believed that the outcome of the appeal was sent directly by the MEC office using the email address she provided when filing the appeal. Therefore, the fact that she got paid after the outcome was pronounced was an administrative error on the side of the Department and such monies were to be recovered as submitted by its witness.
41. The applicant was employed by the appointment letter, and her services were supposed to be terminated through a letter as per letter issued by the MEC.
42. The applicant tried so hard to avoid admission of receipt of the outcome of appeal, when she was the one who appealed directly to the MEC and the outcome was communicated to her directly.
43. The Respondent argued that the applicant was not supposed to be paid for the period after the outcome of appeal was pronounced. The letter of appeal was the last source of document that was used by the Respondent to terminate the employment and/or implement the sanction as pronounced.

Analysis of Evidence:

44. The applicant referred a dispute with the ELRC under section 186(2) of the LRA. Although the non-payment of salary is not listed under this section, one may assume that she relied on the meaning, any unfair act or omission that arises between an employer and an employee.
45. The Employment of Educators Act No.76 of 1998 (EEA 76 of 1998) regulates the professional employment, salaries, and specific conditions of service for educators employed by the state.
46. Paragraph 6(2) of the terms and conditions of employment for educators under the EEA 76 of 1998 states that an educator who renders service at an office from the first working day up to and including the last working day of a month shall be paid a salary with effect from the first day of the month in question up to and including the last day of such month.
47. The state employees are paid on the 15th day of each month, which is the salary for that particular month. Therefore, I find the submission by the applicant that she is owed from 16 March 2026 to 15 April 2026 to be incorrect.
48. The case of Gauteng Department of Education v N. Cawe and Others, JR 1973/12, LC, examined the jurisdiction of the ELRC in disputes where educators claimed unpaid benefits, affirming the strict processes that must be followed when dealing with employee compensation and disciplinary actions.
49. It is important to note that in this case the employee has been terminated by the Department of Education, KwaZulu Natal. As indicated, she filed an appeal in terms of section 25 of EEA 76 of 1998.
50. The Respondent’s version that the applicant filed appeal directly with the MEC remained unchallenged, and the applicant’s testimony was that her legal representative filed the appeal with the office of the MEC on her behalf.
51. The letter of the outcome of appeal from the office of the MEC was dated, 20 January 2026. I find it improbable that this outcome was not communicated to the applicant in January 2026. She alleged that she only received the copy on 03 June 2026 at 10h45, however, she failed to provide any supporting evidence for this version.
52. She was dismissed in January 2025, she already benefitted from the prolonged appeal, which was only finalized in January 2026, a year later after the sanction was pronounced by the chairperson of the internal disciplinary hearing.
53. The Respondent’s witness testified that the appeal letter was not communicated by the office of the MEC to the Department, he had to make an enquiry, and he was provided with a copy dated, 20 January 2026. On receipt of the copy of the appeal outcome, he then communicated it with the district on the 8th of April 2026, hence the salary was stopped immediately.
54. The applicant’s version is that when she realized that her salary was not paid, she stopped working immediately, that is, she never went back to work from 16 April 2026. I find this to be an abnormal behavior for the person who alleged she never received an appeal outcome. She submitted that she called the human resources office and district enquiring about her unpaid salary. However, no evidence was provided in support of this version.
55. I agree with the Respondent’s argument that the payment of the applicant’s salary for the two months, February and March 2026, was an administrative error on the side of the Department. She had no authority to continue rendering services as there was no longer any employment relationship between the two parties. Therefore, paragraph 14(2) of the terms and conditions of employment for the educators under the EEA 76 of 1998 becomes applicable.
56. In Danster v Department of Education Eastern Cape (2021), an educator was not paid for over 9 months, with the department citing an unexplained block on the Persal system. The ELRC ordered the department to pay the applicant all her entitled remuneration, as no valid reason for non-payment was provided.
57. In this matter, I find that the Respondent has discharged the onus of proof as it has provided the valid reason for the non-payment of the applicant’s salary for the month of April 2026.
58. In the circumstances, I find that the applicant failed to prove her entitlement to the payment of the salary for the month of April 2026.
    Award
59. The applicant has failed to prove that the Respondent committed an act of unfair labour practice for the non-payment of salary for the month of April 2026.
60. The application is dismissed.

DATED 09 JULY 2026

Commissioner Nolundi Shezi