Case Number: ELRC555-25/26MP
Panellist: GEORGE GEORGHIADES
Date of Award: 12 JUNE 2026
In the dispute between:
NKANYANA, MAUREEN NTOMBIKAYISO (Union/Applicant)
And
MPUMLANGA EDUCATION DEPARTMENT
(Respondent)

ARBITRATION AWARD

DETAILS OF HEARING AND REPRESENTATION

1. The arbitration hearing was held over 4 days, being 20 November 2025, 27 January 2026, 21 April 2026 and 01 June 2026, relating to an alleged unfair dismissal in terms of section 191(5)(a) of the Labour Relations Act 66 of 1995 (“LRA”).
2. Both parties were present at the arbitration hearing. The applicant was represented by Mr. Reuben Makhubedu, the applicant’s legal representative, while the respondent was represented by Ms. Frieda-Marie Rieger, Employee Relations Officer of the respondent.
3. Both parties relied on the same evidence bundle compiled by the respondent.
4. The arbitration was conducted in English and digitally recorded. Ms. Sharon Maunatlala assisted with interpretation services.
5. Both parties submitted closing arguments in writing. I have considered all the evidence provided by both parties in the arbitration hearing, in my award.
   PRELIMINARY ISSUES
6. At the commencement of the arbitration hearing, the respondent’s representative raised two preliminary points.
7. The first preliminary point related to whether a formal employment relationship existed between the parties, advancing that the applicant was not formally appointed, only having received a conditional offer, while the second preliminary issue that followed on from the first, being whether a dismissal took place.
8. Parties were requested to make submissions in terms of these preliminary issues, whereafter, a jurisdictional hearing was rendered on 02 February 2026.
9. The outcome of the ruling was that:
   9.1 An employment relationship existed between the applicant, Maureen Ntombikayiso Nkanya and the respondent, the Education Department of Mpumalanga.
   9.2 The withdrawal of the offer of employment by the respondent constituted a dismissal.
   ISSUES TO BE DECIDED
10. I am required to determine whether the dismissal of the applicant was fair and if so, to apply the appropriate relief.

BACKGROUND TO THE DISPUTE
Common Cause issues

11. The applicant was appointed as a Grade “R” educator at Mpikaniso Primary School after having undergone a recruitment process and having been offered a letter of appointment on 10 February 2025.
12. She commenced her duties on 17 February 2025, after completing and submitting her EDU 4 documents on the same date.
13. On 23 July 2025, the Acting District Director, Dr. KS Khomola, issued the applicant with a Withdrawal of Offer letter, which the respondent believed was “… occasioned by errors detected when processing your appointment.”
14. The respondent offered to pay the applicant for the period from February 2026 to July 2026. Despite this undertaking, the applicant was not paid for this period.
15. The annual salary scale for the position for which the applicant had applied and for which was worked until her dismissal, was R 256 395.00 per annum.
16. The applicant sought to be reinstated, should I find in her favour.
    Issues in Dispute
17. The applicant alleged that the dismissal was unfair, as the appointment letter issued to her confirmed that all recruitment processes had been concluded and that the offer of appointment was formally made.
18. The respondent claimed that errors, of which none were proven to have been evident, were the reason for the respondent’s withdrawal of the offer of employment, five months later.
19. The respondent disputed this, submitting that errors were detected during the processing of the applicant’s appointment and that the respondent was lawfully permitted to withdraw its offer of employment.
    PARTIES’ SUBMISSIONS
    The respondent’s submissions
20. The applicant’s nature of appointment was that of a substitute, temporary educator.
21. The applicant’s post was a school-based post, that could not exceed a period exceeding 12 months, as confirmed in B14.2.1.2 and B14.2.2.2 of Personnel Administrative Measures (PAM).
22. On 23 July 2025, the applicant was issued a “Withdrawal of Offer of Appointment” by the Acting District Director. This was an administrative correction of an irregular and unlawful process of appointment, due to errors having been detected during the appointment process.
23. The respondent was lawfully permitted to withdraw an offer of employment, in cases where errors were found to have occurred. In this instance, the respondent exercised this discretion, offering the applicant payment for her services from February 2026 till July 2026.
    The applicant’s submissions
24. Pursuant to an application for a Grade “R” post at Mpikaniso Primary School, a formal offer was made by the respondent on 10 February 2025. She complied with all administrative processes as required in the offer letter. She commenced with her duties on 17 February 2025.
25. On 23 July 2025, the Acting District Director, Dr. KS Khomola, issued the applicant with a Withdrawal of Offer letter citing errors that were found during her appointment processes. No errors were listed. She submitted that no errors were evident in as far as her application for the post for which she had applied.
26. She was not paid for the period for which she worked at the school, being from February 2025, till end July 2025.
27. She sought to be reinstated to the post from which she was removed.
    ANALYSIS OF PARTIES’ ARGUMENTS AND SUBMISSIONS
28. I considered all relevant evidence and arguments raised by the parties and in line with section 138(7) of the LRA requiring me to provide brief reasons, I have therefore only referred to evidence and arguments that I regard necessary to substantiate my findings and resolve the dispute.
29. Section 188 of the LRA provides that a dismissal is deemed to be unfair if the employer fails to prove that the reason for dismissal is for a fair reason, related to the employee’s conduct.
30. Dismissal was not in dispute and as per the provisions of section 192 of the LRA, the onus of proof was on the respondent to prove on a balance of probabilities that the applicant’s dismissal was substantively fair.
31. Section 188 of the LRA provides that a dismissal that is not automatically unfair (in terms of section 187) is unfair if the employer fails to prove that the reason for the dismissal is a fair reason based on the misconduct or incapacity of the employee, or is based on the employer’s operational requirements, and that the dismissal was effected in accordance with a fair procedure.
32. Any person considering whether the reason for dismissal is a fair reason or whether or not the dismissal was affected in accordance with a fair procedure, must consider any relevant items contained in schedule 8 of the Code of Good Practice, issued in terms of the LRA.
33. In this instance, the OFFER OF APPOINTMENT made by the respondent stated that, “I am pleased to inform you that your application for an advertised post has been successful. Consequently, the Department is making a formal offer of employment with the following particulars” (underlining my own emphasis).
34. This clearly infers that the advertising and selection process was concluded by the respondent and that no errors were detected.
35. The only lawful conditions under which the offer could be withdrawn, were if any errors were detected and if the applicant did not successfully obtain security clearance. Neither of these conditions were prevalent.
36. Based on the above and in the absence of any evidence submitted by the respondent to prove that there were any errors detected during the processing of the applicant’s appointment, the dismissal is found to be unfair.
37. Turning to an appropriate relief for the unfair dismissal, it is prudent that the post for which the applicant applied, be considered. This was a temporary position as a substitute educator, which could not exceed 12 months.
38. As the post was offered to the applicant in February 2025, it follows that even if the applicant remained in the employ of the respondent, the term of the appointment could not have extended beyond the end of January 2026.
39. I am not empowered or authorised to extend the duration of a post or position beyond its initial date. As such, in this case, the occupation of the post would have ended automatically at the end of January 2026. Reinstatement is therefore not a possible relief.
40. On 23 July 2025, the Acting District Director, Dr. KS Khomola, issued the applicant with a Withdrawal Offer letter, wherein the respondent undertook to pay the applicant for 5 months, from the date of her appointment, being 10 February 2025, until the end of June 2025. This was despite the withdrawal letter only having been issued to the applicant on 23 July 2025.
41. However, in the absence of any fair reasons for the dismissal of the applicant and her having occupied the post for three months, from February 2025, for which she was not paid, the applicant is hereby awarded compensation in the amount of R 256 395.00 (two hundred and fifty-six thousand three hundred and ninety-five rand), being the remuneration that the applicant would have received for 12 months.
42. This amount calculated for a 12-month period includes the 5 months offered by the respondent for the time that the applicant worked and for which the applicant was not paid.
    AWARD
43. Based on the aforesaid, the following award is made:
    1.1 The dismissal of the applicant, Maureen Ntombikayiso Nkanyana, by the respondent, Department of Education Mpumalanga, was unfair.
    1.2 As a result of the unfair dismissal, the respondent is ordered to pay the applicant in the amount of R 256 395.00 (two hundred and fifty-six thousand three hundred and ninety-five rand).
    1.3 The respondent is ordered to pay this amount to the applicant, into her bank account as per the respondent’s records, by no later than 07 July 2026.
44. The ELRC is ordered to close its file in this matter.

George Georghiades
ELRC Panellist