IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD (VIRTUALLY)

Case No: ELRC 605-25/26GP

In the matter between:

ELAIN MORRIS APPLICANT

and

GAUTENG DEPARTMENT OF EDUCATION RESPONDENT

ARBITRATOR: Monde Boyce

HEARD: 23 October 2025, 28 January 2026, 27 March 2026 and 22 May 2026

CLOSING ARGUMENTS: 29 May 2026

DATE OF AWARD: 12 June 2026

AWARD

PARTICULARS OF PROCEEDINGS AND REPRESENTATION: 

[1] This is an arbitration hearing scheduled by the ELRC for determination of an alleged unfair dismissal dispute referred by the applicant in terms of Section 191(5)(a) of the Labour Relations Act 66 of 1995 as amended (LRA). The matter was initially set down for arbitration on 22 October 2025, 28 January 2025 and was concluded on 22 May 2026. Mr I. Allis, a practising attorney, represented the applicant on all the occasions that arbitration sat. The department was initially represented by Ms A. Ngwenya who later fell sick and could not continue representing the department. Ms R. Makhuvele, the Labour Relations Practitioner in the department represented the respondent in the last sitting.

[2] I should mention that at the commencement of the arbitration hearing on 23 October 2025, the respondent raised a point in limine challenging the jurisdiction of the Council. The basis for the jurisdictional challenge was based on the fact that while the applicant referred the dispute as that of alleged unfair dismissal, her (applicant) termination was a deemed dismissal envisaged in section 14 of the Employment of Educators Act 76 of 1998 as amended (EEA). To the extent this was the case, I called for oral evidence to be led to decide the issue. The respondent began to the extent it needed to substantiate its contention that the Council lacks jurisdiction. Only Ms Ellaine Morris, the applicant, testified while the respondent led evidence of one witness, the school’s principal.

THE ISSUE TO BE DECIDED:

[3] I am required to decide whether the Council lacks jurisdiction to arbitrate and, where I find that the Council has jurisdiction, decide whether the dismissal of Ms Morris was fair or not.
If so, to determine the appropriate relief.

THE BACKGROUND TO THE DISPUTE:

[4] The applicant, Ms Ellaine Morris (“Morris”), worked for the respondent as an educator at the Athlone Girls High School which falls under the Johannesburg East District. 17 July 2025, she received a notice of termination of her services in terms of section 14(1)(a) of the EEA. On receipt of that letter and after she unsuccessfully appealed her termination in the letter she wrote to the Head of Department (HOD) on 27 July 2025. Aggrieved by the termination, the applicant referred an unfair dismissal dispute to the ELRC alleging that she was unfairly dismissed. The dispute could not be resolved at conciliation, and the applicant referred the dispute for arbitration. She seeks reinstatement as relief.

SURVEY OF EVIDENCE AND ARGUMENT:

Employer’s Evidence
[5] The employer called Mr Nakesh Salikram who testified that he is employed as the school principal at Athlone Girls High School. The applicant taught Afrikaans and English in Grades 8 and 9 at his school and was discharged from service in July 2025 because she was absent from work for more that fourteen (14) consecutive days. Page 12 and 13 of the respondent’s bundle contains a letter signed by the HOD, Mr Rufus Mmutlwana and addressed to the applicant terminating her services in terms of section 14 of the EEA and signed on 17 July 2025. In the letter, the HOD stated that the applicant had been absent from work from 03 March 2025 and for a period exceeding 14 consecutive days.

[6] Ms Morris exhausted her 26 days sick leave and when that happened and after the 28th of February 2025, he advised her to submit a new medical certificate and to submit the sick note from the doctor. He gave the applicant five (05) days to submit the leave form and the medical certificate. He waited a few days but did not receive the medical certificate. The school waited from March to May 2025 without receiving any response from the applicant. On 07 May 2025 Ms Mkhondane, the then Acting District Director, sent a letter to the applicant advising her that she had exhausted her sick leave and that the medical certificate the applicant submitted only covered the period between 13 February 2025 to 28 February 2025. In the letter, the District Director advised the applicant to furnish the school with her leave application forms covering the periods she was absent without authorisation and that failure to furnish the information could result in her discharge in terms of section 14(1)(a) of the EEA.

[7] Page 20 of the respondent’s bundle contains a follow up letter sent to the applicant by the District Director where the District Director advised the applicant that she was deemed to have been discharged because she had been absent from work for more than 14 consecutive days without authorization. The letter was couriered to the applicant but did not receive confirmation that she had received it. The letter was also emailed to the applicant on 27 May 2025. There was no response from the applicant.

[8] On 18 July 2025 the applicant’s salary was not paid, and the school’s administrator informed him that she had received a call from the applicant enquiring about non-payment of her salary. He responded by telling the administrator to advise the applicant to contact the Labour Relations Department. He believed that the applicant was not dismissed but that her discharged occurred by operation of law.

[9] He received incapacity application form signed April 2025, and this document was not sent to the school and was not complete to the extent that it was not accompanied by a medical certificate. The medical certificate was only submitted in July 2025. He received the medical certificate contained on page 25 of the applicant’s bundle during the first week of July 2025.

Employee’s Evidence
[10] The applicant, Ms Ellaine Ruth Morris, testified that she was employed as the Post Level 1 English teacher at Athlone Girls High School since 01 January 2015. She has more than 30 years’ experience as an educator. According to the respondent, she was dismissed on 17 July 2025 as per the HOD’s letter. She was given an opportunity to appeal. She came to know about her dismissal when her salary was not paid during school holiday. On enquiring from the departmental officials, she was informed that her salary was not paid because the school did not receive her medical certificate and PILIR forms. The letter from the HOD dated 17 July 2025 was the first letter she received advising her of the dismissal. While she was said to have been absent from 01 March 2025 she had submitted her leave form. She was booked off sick from 01 March 2025 to 14 December 2025.

[11] She did not understand how she could be said to have been absent if the principal signed her PILIR forms. The principal, Mr Salikram would never have signed the forms if the medical certificate was not valid. When the principal called the medical doctor about the medical certificate she had submitted, she went back to the doctor who issued another medical certificate. Her doctor, Doctor Kazadi, issued another medical certificate. She followed all the procedures and appealed the dismissal because she had done nothing wrong. She believed her termination to be unfair to the extent that Ms. Ngwenya, from the Labour Relations Department had asked her to submit her medical certificate and the PILIR form within seven days and to the extent the termination was effected before the expiry of the seven days she was given.

[12] Before her termination she had been incapacitated since 2022. When she submitted her appeal, her submission was accompanied by the medical certificate. Ms Ngwenya responded that she was not happy with the medical certificate, and she went to her doctor who re-issued the medical certificate. The contents of the HOD’s response to her representations on the issue of the leave are wrong to the extent that the principal recommended her leave. She did not receive the letter advising her of her unauthorised absence, and which letter is contained on page 16 of the respondent’s bundle and only saw this document during the exchange of bundles of documents in the arbitration proceedings. The couriered letter regarding her absence also did not reach her. She stays 2 kilometres from the school and did not understand why Mr Salikram had to go to a courier company. She believed Mr Salikram did not want her to receive the correspondence.

[13] The PILIR forms were submitted to the school, and the principal signed the forms on 02 June 2025 where he supported the application. Mr Salikram was aware that he was in the process of termination and claimed that he did not receive the medical certificate, but he could not have supported the application without a medical certificate. The letters about her unauthorised absence were sent in May 2025 but Mr Salikram signed her PILIR form in June 2025. She could not understand how Mr Salikram failed to inform her about the absence when he signed her PILIR form. The email sent by the department were never received as they were sent to an incorrect email. While Mr Salikram stated that the email address the school had always used is a Yahoo email, her correct email address was the Ymail address as could be seen on page 32 of her bundle. The department had always used the email address morriselaine@ymail.com. She did not understand why the emails were sent to an incorrect email address, and she believed that Mr Salikram misled Ms Ngwenya and wanted to get rid of her.

[14] Her relationship with Mr Salikram was not pleasant, and he was always very antagonistic towards her. Mr Salikram would attack her and tell her that she was faking the medical certificates. The working environment was not pleasant. She and Mr Salikram had a lot of issues, and he had accused her of undermining her authority when she challenged his decision of not allowing a girl with an afro into the class.

[15] The letter contained on page 1 of her bundle states that she had resigned from work when she never did. To the extent that she was said to have failed to comply with the request for submissions of the PILIR document and a medical certificate, she complied with all the requests for submission of documents. On 04 March 2025, she was in contact with the department’s officials. The school had called her doctor to confirm the authenticity of the medical certificate she submitted, and the doctor confirmed its authenticity. The department’s reliance on section 14 was misplaced. The department first stated that her services were terminated in May 2025 and in June 2025 and stated in another letter that she had resigned. She had never been verbally contacted or contacted via email to say that she must return to work.
[16] She had always been in contact with Ms Mangole who would have advised her of the absence if she was absent. Mr Salikram decided to use a courier to send the two letters and also gave Ms Ngwenya an incorrect email address. When she enquired about non-payment of her salary, Mr Salikram never told her that she had been absent without authorisation. She never received any charges and was never made to attend a disciplinary hearing to explain her absence.

ANALYSIS OF THE EVIDENCE AND ARGUMENT
[17] In terms of section 14(1)(a) of the EEA, an educator who is employed on a permanent basis and who absents him/herself without permission for a period exceeding 14 consecutive days is deemed to be discharged. Thus, it is now trite that where an educator’s termination occurs in terms of section 14(1) of the EEA such termination does not amount to dismissal envisaged in terms of section 186(1) read with section 191(1) of the LRA. Courts have since developed the law on the application of this section and have, in a number of judgments including the recent judgment in the case of Nkabinde . In Nkabinde the Court held that:

“It is now trite that the section 17(3)(a)(i) deemed-dismissal provision does not require a decision in order to operate – it operates automatically in terms of the law if the requirements of the section are met. And where they are met, there is no dismissal for the purposes of the LRA and the bargaining council thus has no jurisdiction over an unfair dismissal dispute ”.

[18] Courts have now thrown a caution against commissioners ruling on jurisdiction without conducting a factual enquiry as to whether requirements in terms of the provisions of section 17(3)(a)(i) had been met. The LAC in Makade v Public Health And Social Development Sectoral Bargianing Council and Others stated that the requirements for the operation of the deeming provisions in terms of section 17 of the PSA are that: (i) The person concerned must be an employee, (ii) The employee must have absented himself or herself from his/her official duties; (iii) The absence of the employee must have been without permission from the Head of Department and; (iv) The period of absence must have exceeded one calendar month” .

[19] While the Courts, in the above cited cases dealt with the deeming provisions in terms of section 17 of the Public Service Act, the principles apply in the present matter. The requirements for the operation of the deeming provisions in terms of section 14 of the EEA are that an educator must be appointed in a permanent capacity, must have been absent without the permission of the employer for a period exceeding 14 consecutive days. Where these requirements are met, termination of an educator’s employment occurs by operation of the law. As already alluded to, the caution by the Courts is that the decision on the jurisdiction in respect of deeming provisions must follow a factual enquiry.

[20] I must mention that in the present case, while I had secured agreement that the jurisdictional point be dispensed with by way of stated cases, it became clear, on receipt of the written submissions by the parties, that oral evidence was required to properly consider the issue and, to the extent that was the case, I issued a ruling directing the Council to set the matter down for hearing of oral evidence.

[21] The respondent’s case is that the applicant was not dismissed but that deeming provisions of section 14 of the EEA kicked in after the applicant became absent for a period exceeding 14 consecutive days. I hasten to mention that serving before me was not an instance where the applicant had absconded and dismissed for absconsion, in which case the requirements for absconsion would have been met before her dismissal. It is not in dispute, as evidence shows, that the applicant was employed in a permanent capacity as an educator. It is also not in dispute that the applicant was absent for a period exceeding 14 consecutive days. At issue is the question of whether the applicant had permission to be absent for the period she was not at work.

[22] The applicant’s refrain throughout the proceedings was that she was on sick leave and that for the periods she is said to have been absent without permission, she had submitted medical certificates. During cross-examination and on a proposition put to Mr Salikram that the medical certificate covering the period that the applicant was said to be absent was sent to the school, Mr Salikram emphatically denied that the school received the medical certificate. Important to mention is that the applicant, during her evidence in chief and during cross-examination, did not provide any proof of her having submitted the medical certificate to the principal. On being pressed on the issue, the applicant was evasive and could not remember if she gave the medical certificate to Annah or Sam.

[23] As at the conclusion of the arbitration process, the applicant had not called either Sam or Annah to confirm that she in fact presented the medical certificate to the principal at the school. During cross -examination, Mr Salikram stated that had he received the medical certificate, the substitute teacher who taught in Ms Morri’s place would have been paid. It was further his response that he only received the medical certificate in July 2025. According to Mr Salikram, the department would not pay the substitute educator because the required documents, i.e. the leave forms, medical certificates and PILR forms were not received. If the applicant submitted the medical certificate as she suggested in March 2025, there would have been no need for Mr Salikram to dispute same as submission of such a medical certificate would have assisted the school insofar as payment of the substitute educator. For this reason, I cannot find that the applicant accounted for her absence from 03 March 2025.

[24] Letters were sent to the applicant on 15 and 27 May 2025 respectively advising her that her absence was unauthorised, and these letters were sent via courier and email. But the applicant did not respond to these letters. She claimed that she did not receive these letters, but it is my finding that, on a preponderance of probabilities, the applicant did receive the correspondence sent. The address that was used to courier the letters is, on the applicant’s own version, her address. The email that had been sent to an incorrect email address was subsequently sent to the applicant’s correct email address after Mr Salikram brought to Annah’s attention that the email address initially used was incorrect.

[25] While the applicant argued that Mr Salikram could not have signed the PILIR forms if he did not have the medical certificate, Mr Salikram stated that when he received the PILR form, it was not accompanied by a medical certificate and that he received this form in May 2025, long after the applicant ought to have submitted the medical certificate covering her absence, which was the 3rd of March 2025. Mr Salikram further stated that he submitted the PILR form because the substitute educator would not have been paid if he did not and that, as the principal, he had to complete the form and forward it to the relevant office despite it being submitted late and that it was not his responsibility to terminate the applicant’s employment.

[26] It fell on the applicant to proof that her absence was authorised, and she needed to do so by presenting as such evidence as would show that her absence was with permission from the employer. As already alluded to, as at the 3rd of March 2025, the applicant had not presented the medical certificate to the school. While she maintained that she did, she provided no proof that the medical certificate was received by the school and, as already stated, she was not sure who she gave the medical certificate to and she failed to provide proof that whoever she gave the medical certificate to delivered it to the school. Thus the requirement to the effect that for deeming provisions to kick in, absence must be without the permission of the employer, is met. In the circumstances, it is my finding that the requirements for operation of the deeming provisions have been met.

[27] In the premises, I make the following award:

AWARD

[28] The Council lacks jurisdiction to arbitrate the applicant’s dispute.

Monde Boyce – Senior Panelist: ELRC