---
title: "13 October 2026 – ELRC258-26/27EC"
description: "IN THE EDUCATION LABOUR RELATIONS COUNCIL Case No: ELRC258-26/27EC In the matter between NTOMBOVUYO TSOLWANA Applicant and THE DEPARTMENT OF EDUCATION: EASTERN CAPE Respondent Arbitrator: Pumeza Ndabambi Date of award: 13 October 2026 SUMMARY: Labour Relations Act 66 of 1995…"
url: "https://elrc.org.za/docs/13-october-2026-elrc258-26-27ec/"
updated: "2026-10-13"
category: AWARDS
---

# 13 October 2026 – ELRC258-26/27EC

IN THE EDUCATION LABOUR RELATIONS COUNCIL

Case No: ELRC258-26/27EC

In the matter between

NTOMBOVUYO TSOLWANA Applicant

and

THE DEPARTMENT OF EDUCATION: EASTERN CAPE Respondent

Arbitrator: Pumeza Ndabambi
Date of award: 13 October 2026

SUMMARY: Labour Relations Act 66 of 1995 – Unfair Dismissal - Section 186(1)
Section 14(1) Employment of Educators Act - Discharge

ARBITRATION AWARD

DETAILS OF HEARING AND REPRESENTATION

1. This matter came before the Education Labour Relations Council (ELRC) for arbitration, in terms of section 191(5)(a) of the Labour Relations Act 66, 1995, (the LRA). The arbitration was heard on 20 August 2026 and finalised on 15 September 2026, at the Respondent’s premises in Gqeberha (Ethel Valentine Building). The Applicant, Ms Ntombivuyo Tsolwana, was represented by Advocate Rwentela, instructed by Mehlomakhulu Attorneys and the Respondent, Eastern Cape Department of Education, was represented by Ms Andiswa Mbebe, the Labour Relations Officer.
2. The parties agreed to submit written closing arguments by no later than 23 September 2026 and both parties complied.
3. The proceedings were electronically recorded

BACKGROUND TO THE ISSUES

1. The Applicant was employed as a Post Level 1 Educator from 1 October 2020, earning R26 554 per month. She was placed at Ashton Gontshi School in Kariege and was redeployed to WB Tshume Primary School in 2022 and other schools in the Nelson Mandela Bay District, which refused to take her due to her medical condition. The last school was Coega Primary School, which also did not accept her for the same reason of her medical condition. The Applicant was absent from work for a lengthy period. Her salary was withheld in April 2025.
2. The Applicant lodged an unfair labour practice dispute in January 2026. The dispute was conciliated on 24 February 2026 and was referred for arbitration on 31 March 2026. In the arbitration the Applicant was served with a notice of discharge in terms of section 14(1) of the Employment of Educators Act 76 of 1998 (EEA) and a further letter of refusal to reinstate. The Applicant was advised to lodge an unfair dismissal dispute and such a dispute was lodged and was conciliated unsuccessfully and was referred for arbitration which sat from 20 August 2026.

ISSUE TO BE DECIDED

1. Whether the Applicant’s termination was by operation of law (deemed dismissal) in terms of section 14(1) of the EEA, thereby affecting the jurisdiction of the ELRC to arbitrate the dispute.
2. The Applicant prayed for retrospective reinstatement as she argues that the discharge was premature and constitutes a dismissal that is both procedurally and substantively unfair. The Applicant bears the onus in terms of section 192(1) to establish the existence of a dismissal.

SURVEY OF EVIDENCE AND ARGUMENT
Applicants’ Version

1. The version of the Applicant was led her own testimony and a bundle of documents, summarised below:
2. Ms Ntombovuyo Tsolwana (the Applicant) testified that she worked at WB Tshume Primary School in 2022 and was hospitalised due to a stressful working environment. The stressful conditions she worked under entailed:
   a. No working space, she had no class of her own and could therefore not relax;
   b. She was constantly monitored;
   c. Overcrowding in classes with 54 - 56 learners with not enough desks and chairs;
   d. Incident where a learner was injured when learners fought over desks and chairs and pushed her;
   e. Parents meeting held where the environment was not conducive for the Applicant to speak on what transpired and was accused of not being able to control learners;
   f. Learners were suspended and the Applicant continued to work in such a stressful environment;
   g. She was constantly chased out of the staff room and had to go around the school;
   h. There was also a communal desk in the staff room.
3. The Applicant was driven to hospital exhibiting signs of a panic attack. She shared a class with another Educator who would ignore her request to make way for her to teach. In that space one colleague noticed that the Applicant was out of breath and could not talk. She saw a doctor and the diagnosis was a panic attack. She was referred to a specialist and was admitted to hospital in August 2022 and spent a month. She did not exhibit these symptoms before starting at that school. The Principal visited her in hospital and brought her temporary incapacity leave (TIL) forms that were submitted to the department and also attended to her when the sick leave was extended. The Principal told her she was redeployed to Khanyisa Special School about January or February 2023. The email instructed her to report to Khayisa in February 2023. She told the Principal that her leave would end in February 2023 and she could only report in March to the new school. This decision was communicated to her without any prior consultation about redevelopment and without being given any choice of schools.
4. After her TIL leave ended on 6 March 2023. the Applicant reported to Khanyisa Special School and met the Principal who was concerned if she would be able to teach at the school as it is a special school for blind children. The Applicant did not have Braille, and the Principal took her to the department offices and the Applicant was redeployed to Enkululekweni Primary School in Motherwell. A letter was written to Mrs Khaphela, the EDO.
5. The Applicant went to Enkululekweni in the same month of March 2023. On arrival there the Principal said he had no idea that the Applicant would be coming to the school as he was not notified. She spent a day there and was shown around the school. The Principal contacted his EDO and told the Applicant to go back to the department’s offices and ask for a change of placement. The Applicant wrote to Mrs Khapela who then told the Applicant to report to Coega Primary School.
6. This whole ordeal caused a lot stress to the Applicant and she was rejected for her medical reasons. She was off sick for a long time and was directed to gradually return to work. No Principal wanted to take the Applicant because of her medical condition. The Applicant wrote to her Occupational Therapist (OT) about the issue.
7. On 16 March 2023, the Applicant received a placement letter from WB Tshume Primary School to Coega Primary School and was required to report on 19 March 2023, a date on which schools were closing. She reported on the day, schools closed. She returned on 12 April 2023 and met the Deputy Principal, Ms Ralane, who was aware about the placement. She told her to wait for the Principal and spoke to her about subjects.
8. On 16 May 2023 the Applicant wrote a letter to the Respondent’s Labour Relations department. In the said letter she raised issues she encountered on her arrival at Coega Primary School, regarding piercing questions she was asked by the Deputy Principal, for example:
   a. Where do you leave?
   b. How old are you?
   c. Do you have a boyfriend?
   d. Are you married?
   e. When did you start your spiritual journey (ukuthwasa)?
   f. Don’t you use muti, because people who use muti make me sick, I already have a headache.
9. The further basis for the letter was that whenever she reported at Coega Primary she would be told to go back to WB Tshume or go home. The Applicant submitted her Doctor’s letter and contacted the Doctor to amend her letter and declare her to be fit for work. The Applicant also felt that the Deputy Principal’s commentary was not suitable for the workplace as it was offensive and discriminatory and they would have made other Educators to see the Applicant differently. She was particularly offended by the comment to the effect that she made the Deputy Principal sick and she felt the rejection. Ms Ralane also spoke to another Educator in Afrikaans about the Applicant’s traditional beads, in Afrikaans, after which they laughed.
10. In the said letter the Applicant also raised the fact that the Principal of Coega Primary. Mr Mbombela told the Applicant that she should not have come back to school until she receives a word from the department and that Mr Mbombela would take the matter up with the union. On 12 April 2023 Mr Mbombela wrote to Mr Zamisa, the then EDO for Coega Primary, reporting that the Applicant reported to his school and presented a Doctor’s report that she must be allocated Grade 4 classes and if possible have an assistant. Mr Mbombela, in the letter indicated that the Allocation for the Applicant was as follows: -
    a. Social Sciences - Grade 4a, b, c, and d;
    b. Social Sciences - Grade 6a, d;
    c. Life Orientations - Grade 7a and b.
11. He mentioned in the letter that they cannot re-do their allocation for the year and that the Applicant’s requested could not be granted and further that they have overcrowding issues in the classes that are detrimental to the Applicant’s health. He concluded that the Applicant could not cope in their environment. Mr Mbombela requested that she be kept in her previous school until she is placed in a school that is favourable to her health and suggested that the DTT must consider the Applicant’s medical report when placing her to a school.
12. The Applicant wrote back and communicated her decision to Mr Mbombela that she was wiling to be of assistance to the school until they receive a response from the EDO and handed the letter on 14 April 2023. The Principal (Mbombela) said that she must speak tot he EDO’s for Khanyisa Special School and WB Tshume Primary. The Applicant wanted to report to Coega Primary until she is placed at another school.
13. The Applicant was given a letter by Mr Mbombela, the essence of which was that he had reported the Applicant’s matter to the SADTU Regional Office Bearers meeting held on Friday, 14 April 2023, for them to take the matter to the District Task Team (DTT) to try and find a school that would be conducive to the Applicant’s health. She agreed with the Principal for SADTU to assist her find a school. The Applicant reported to work on 17 April 2023 and she was given a letter.
14. The Applicant on 18 April 2023, wrote a letter to the OT and another Dr Smith, requesting to be cleared as fit to work. On 19 April 2023 the Applicant wrote to Mrs Khaphela through Whatsapp informing her that the Principal of Coega Primary (Mbombela) said she must report to her previous school. The Applicant further wrote to the Principal on 20 April 2023, requesting to report to the school until her issue is resolved. On 12 May 2023 the Applicant further wrote to Mrs Khaphela that she was at the school and was being sent back by the Principal, who also refused to communicate in writing regarding his reasons for not accepting the Applicant.
15. The Applicant was further ultimately cleared by her OT to be fit for work, an attempt she initiated to save her job. When she took the clearance letter to the Principal of Coega Primary he told the Applicant to go home, wait for the department and refused to receive the medical report. The Applicant reported that to Mrs Khaphela, who told her she had no space at WB Tshume and must report to Coega Primary. Coega Primary said she must go to WB Tshume. The Applicant was still in contact with the Principal of Coega Primary by 20 April 2023 and offered her services to the department.
16. On 12 May 2023 the Applicant was in contact with the Respondent’s Mrs Khaphela at the start of the school working hours. In the said Whatsapp communication the Applicant advised Mrs Khaphela that she was instructed by Mr Mbombela to leave the school (Coega Primary) three times by 08h29 and the Applicant informed Mrs Khaphela that the situation was humiliating. Mrs Khaphela did not respond. On arrival at the school on 12 May 2023 Mr Mbombela asked the Applicant what she was doing there and told the Applicant to ask Mrs Khaphela to call him. He said that Mrs Khaphela had his contacts. Mrs Khaphela told the Applicant to go to the departmental offices and took her to HR.
17. The Applicant was told at HR that if Mr Mbombela had no reasons to kick her out the Applicant must remain at the school as HR cannot change the placement without any written reasons as the changes would take time. The Applicant was told by HR to go back to the school and Mr Mbombela did not want to write any reasons. The attendance register of the school did not have the Applicant’s name whilst the Secretary said she would include the Applicant’s name. Mr Mbombela told the Applicant to leave. The Applicant went to the staff room and tried to call Mrs Khaphela. The Deputy Principal of Coega Primary told the Applicant that they should not have kept her at the school. The Applicant could not get hold of Mrs Khapela. Another lady at the school told the Applicant to leave. The Applicant left and stood outside the gate.
18. The Applicant never signed an attendance register as it did not have her name and she believed they were in a process of taking her to another school. She reported for work from 12 April 2023. She was not welcomed at the school. The environment was cold and the looks were telling her to leave. On 12 May 2023 the Applicant took a video of herself outside the gate of the school at 09h23, and such a video was presented for the record showing the Applicant at the school’s parking lot.
19. The video recording was made after she was chased out. Mrs Khaphela told the Applicant that she had to spend at least three hours so that it would be recorded as a school day. After she left the school the Applicant went to the department and met Mr Zamisa, the EDO for Coega Primary School and was also looking for Mrs Khaphela. She was taken to Mrs Zamisa by the Secretaries and was not told that it was Mr Zamisa. The Applicant was made aware by Mr Zamisa that he was aware of the Applicant’s back and forth with Coega Primary. He enquired about his Doctor’s letter and told the Applicant that the department did not have the resources of Educator Assistants (EAs). When the Applicant spoke of EA’s, Mr Zamisa was annoyed and told the Applicant she was wasting his time and left her. She sent a letter to Labour Relations about that on 16 May 2023.
20. Given Mr Zamisa’s attitude the Applicant felt she was discriminated against based on her health. She suffered a lot of stress. Mrs Khaphela’s advice was for the Applicant to spend at least three hours at the staff room. Up to the end of May2023 the Applicant was communicating with the department and visited the offices on a number of occasions, met Secretaries and administrators and got no assistance.
21. The Applicant wrote a letter on 31 May 2023 to the national offices of the department regarding the challenges she faced in her redeployment and was advised to visit the nearest district office to report the matter in an email response dated 3 June 2023. The Applicant further provided google maps timelines to confirm her whereabouts on 12 April 2023, 14 April 2023 and 17 April 2023. The Applicant therefore disagrees with the HoD’s letter stating that her whereabouts were not known. The Applicant was never contacted by the department and has not changed her contact details. She was further never subjected to a disciplinary process. She assumed duty based on the department’s instructions to report at Coega Primary School.
22. The Applicant was further hospitalised and the whole ordeal of her redeployment cost her peace. She is hurt by the allegations that she was not honest about her whereabouts and that she went to work for one day. She tried everything to resolve her issue with her employer. The situation was very stressful that she almost lost her life. In March 2025 the Applicant fell into a coma for about 46 days and could not go to her employer. Her family (mother and father) came to the offices of the Respondent to report the matter. She was discharged in June 2025. She was hospitalised between March and June 2025. She was discharged from hospital in June 2025. Her salary was stopped in April 2025 whilst she was in a coma and she lost her memory on what transpired during that period. She remained a mental health patient from 2022 after the incident at WB Tshume Primary School.
23. This issue affected her negatively financially and to this day she is hounded by a number of institutions that did not receive their payments, as the medical aid stopped paying for her medical bills and is under tremendous pressure from such institutions.

Respondent’s Version

1. The version of the Respondent was led through two witnesses and a bundle of documents, summarised below.
2. Mrs Charlene Sonja Gabriel (Mrs Gabriel) testified that she was appointed as Circuit Manager from 1 August 2024 in Algoa 3 Circuit. Coega Primary School fell within her circuit. She took over from Mr Zamisa and received no handover regarding the Applicant’s matter. She first heard of the matter just before 25 March 2025 when there was a DTT meeting. She received a call from Mr van Vuuren, the CMC Head: Central when he asked her about the Applicant’s whereabouts. She then checked her school and called the Principal, Mr Mbombela and checked if the Applicant assumed duty. Mr Mbombela told her the Applicant was not at his school.
3. Mrs Gabriel called the other school, WB Tshume Primary School and the Principal told her that she was not at that school. On 25 March 2025 she wrote a letter. She also asked HR’s leave section. There was no assumption of duty for her. She went back to Mr Mbombela and asked him to write a letter. She verified the attendance register and there was nothing, during her visits. She checked the assumption of duty and asked for leave records from the leave section. She found no documents regarding her absence and no one gave her any information regarding the Applicant’s absence. The first date she got from the Mr Mbombela was 12 April 2023, as the date the Applicant came to report for duty and did not stay for the day. Mr Mbombela mentioned to her that the Applicant had a medical issue and could not teach the subjects. Nothing happened after 12 April 2023.
4. Mrs Gabriel was told by Mr van Vuuren that the Applicant must be ‘Absconded’. She then went to HR and did her ‘homework’. She wrote the abscontion letter, based on the information she received. When she started as Circuit Manager she was not aware of the Applicant’s existence. She tried to call the Applicant’s number and did not go through. She went on the information she received from Mr Mbombela as the other school had no knowledge of her whereabouts.
5. After the letter, the Applicant’s mother and father informed her that the Applicant had been hospitalised for three years. They left a note with her Assistant.
6. Under cross-examination Mrs Gabriel confirmed that she started in August 2024 and checked with the Principal if he knew and further checked if she was at school and confirmed that she was at school on 12 April 2023 for a few hours. She did not get information from Mr Mbombela that the Applicant brought a letter from her Doctors confirming her fitness to work. The Applicant was not on the attendance register for 2025,the only year she checked. She also did not visit the school in 2025 and believes the Applicant’s name would appear on the attendance register. She did not check the 2023 attendance register. The Applicant’s parents came to the department after her salary was stopped and did not bring medical records or at least to her.
7. She noted the contents of Mr Mbombela’s letter confirming he did not want the Applicant. She definitely called the Applicant and wanted to know her, contacted two Principals and thought she was done and wrote the letter to Labour Relations on 25 March 2025, to the effect that the Applicant had been absent and her whereabouts were unknown. After her letter of March 2025 the matter was out of her hands. She cannot tell whether the school made any efforts to locate the Applicant. She further confirmed that in terms of the days that the Applicant was at the school up to 2 May 2023 the number of school days is 12 days.
8. Mrs Gabriel further, under cross-examination noted the Applicant’s efforts, through correspondence with the department and efforts to report at the school, and concluded that the department did not take the correct steps in managing the matter. She further noted the fact that when the Applicant’s salary was stopped she was in a coma.
9. Mr Vuyisile Barrington Mbombela (Mr Mbombela) testified that he is the Principal of Coega Primary School. He met the Applicant when she came to his school with a placement letter on 12 April 2023. He was aware of the redeployment and he had a vacancy. As a receiving Principal he must welcome the Educator. He met her with his Deputy Principal and allocated duties.
10. The Applicant gave him a Doctor’s letter with recommendations for her to be allocated lower grades and have an Assistant (EA). He informed the Applicant that she was not matching the position as he needed someone who could teach Social Sciences in grades 4a and 4d, 6a and 6b and Life Orientation for Grade 7. He informed the Applicant that he could not meet the Doctor's recommendations. He advised the Applicant to sleep over the matter and respond in writing. They agreed and the Applicant left.
11. He assumed that if the Applicant left his office, she left the school. Had she not produced the Doctor’s letter she would have been led to class to get ATPs and textbooks to prepare. He is guided by Collective Agreement 4/2016 on the process of accepting redeployed Educators. He had to look at the placement letter to see if it was a temporary (dates to be specified) or permanent. If it is not a temporary position he would receive a letter, welcome her and provide allocation, involvement of Curriculum heads and the SGB must sign the recommendation. Once all these are done he would sign the Assumption of Duty and take it to HR.
12. The Applicant came the following day to submit her written response. He received the letter and informed the Applicant to report to the District office and that he would make a submission to the Circuit Manager. He advised further that she must report at her previous school and that her matter muser to go back to the DTT to reconsider the school’s operational requirements and Educator’s profile. He thought that the DTT did not have the medical report to see that the Applicant did not meet his profile and further instructed her to report to the District so that she is not between two schools and that he would also take her matter to the unions, as they are part of the DTT.
13. Mr Mbombela wrote a letter to the Circuit Manager and attached the Applicant’s written response. The Applicant’s response was that she was declining the allocation until she was cleared by her Doctor and that she would be at school and be of assistance. His decision was based on the following:
    a. An Educator is redeployed from a school to another school;
    b. If redeployment is not finalised the Educator remains at the school until it is finalised;
    c. A placement letter alone does not complete the redeployment process;
    d. It becomes complete once the SGB signs the redeployment;
    e. If the Educator cannot meet the operational requirements of the receiving school, the department must keep and match her;
    f. In terms of the lawful process of allocation of duties he was not in a position to keep the Applicant at Coega Primary School.
    g. Mr Zamisa was the Circuit Manager of his school and Mrs Khaphela was the Circuit Manager of the school the Applicant came from.
14. Mr Mbombela disputed the Applicant’s allegations that up until 17 April 2023 him and his Deputy Principal raised concerns. The Applicant rejected the allocation and he told her to go back to the District. The Applicant came back and said Mrs Khaphela said she must remain at Coega Primary School. He told the Applicant that Mrs Khaphela is not his Circuit Manager and that the Applicant did not meet his school’s operational requirements. Her redeployment needed to be redone and asked her to tell Mrs Khaphela to call him. Mr Mbombela asked for the matter to go back to the DTT so she is match and placed in another school.
15. Mr Mbombela said that if the Applicant was at the school on 12 May 2023, he would have been at his office. He has no knowledge of her presence. He only met the Applicant in the school on 12 and 13 April 2023 as he released her on the 13th and he was in no position to write any letter. Mr Mbombela disputed the Applicant’s google timeline as the school’s address is Polska Street, Wells Estate as it shows the clinic’s address which is adjacent to the community hall.
16. Mr Mbombela therefore confirmed that the Applicant went to the school as per placement letter. He did not know beyond the two days and became aware of the issues when asked to account for her attendance and he could not. There was not SGB recommendation and no Assumption of Duty.

ANALYSIS OF EVIDENCE AND ARGUMENT

1. Section 185 of the LRA states that every employee has a right not to be unfairly dismissed and subjected to unfair labour practice, giving effect to section 23 of the Constitution of the Republic of South Africa.
2. Section 192 of the LRA provides as follows: In any proceedings concerning any dismissal, the employee must establish the existence of the dismissal, per subsection 1. Subsection 2 states that if the existence of a dismissal is established, the employer must prove that the dismissal is fair.
3. In this matter, dismissal is disputed and the Applicant bears the onus to prove the existence of a dismissal. The Applicant received a letter confirming his discharge from service dated 5February 2026, discharging her from service in terms of section 14(1)(a) of the Employment of Educators Act, 1998 , as amended (EEA) with effect from2 May 2023.
4. Section 14(1)(a) of the EEA provides that:
   “An educator appointed in permanent capacity who-
   (a) is absent from work for a period exceeding 14 consecutive days without permission of the employer; shall, unless the employer directs otherwise,be deemed to have been discharged from service on account of misconduct, in the circumstances where___
   (i) Paragraph (a) or (b) is applicable, with effect from the day following immediately after the last day on which the educator was present at work;
5. The Applicant does not agree with the rationale of the Respondent that he was discharged in terms of section 14(1)(a) of the EEA and claims that she was dismissed and that such dismissal is not preceded by any procedure.
6. In considering the events leading to the decision to discharge the Applicant it is common cause that the Applicant was redeployed from WB Tshume Primary School to Coega Primary School. She was received by Mr Mbombela as the Principal of the receiving school. The Applicant presented a medical report, with recommendations of ‘light duty’ and according to Mr Mbombela on that basis she rejected the allocation of duties and as such she did not meet his school’s operational requirements. He further stated that he did not report to Mrs Khaphela as she was not an EDO for his school.
7. In this matter the DT embarked upon a process and finalised it, the outcome of which was the redeployment of the Applicant to Mr Mbombela’s school. Such a redeployment was accepted by the Applicant and she reported to Coega Primary School. The duty of the school was to receive the Applicant and deal with the operations, in view of her health challenges. It was not for Mr Mbombela to reject the redeployment, he should have then contacted the department and deal with the DTT on the Applicant’s issue. It cannot be that he would hide behind technicalities of not signing an assumption of duty and SGB signatures. It shows he had no interest in accepting the Applicant.
8. The Respondent in this matter failed to address this issue, having been brought to their attention that the Applicant is sent back to them. Mrs Khaphela failed to properly address Mr Mbombela on the matter. Mr Mbombela had no powers to send the Applicant back to WB Tshume, as there was reason for the Applicant to be removed from that school. He was placed in his school and should have complied with that. Any matter arising out of the Applicant’s redeployment should have been dealt with by him, the Applicant and the Respondent through appropriate channels provided by the Respondent in view of the collective agreement regulating redeployment.
9. What confirms that he rejected the redeployment is confirmed by a mere attendance register that excluded the Applicant from the beginning, before issues of allocation were even discussed. This is further an issue regulated in PAM H.3.1 where it provides that the employer may determine that an attendance register be kept in which an educator must record the time of his/her arrival at and departure from his/her place of duty. This requirement was not complied with when it comes to the Applicant.
10. The second issue is that the Applicant was placed at Coega Primary School and all necessary placement documentation had to be completed and filed of record. This was also not done and no one could account for the Applicant. The Applicant got clearance from her medical doctors that she was fit to work and still she was rejected by Mr Mbombela. The department on the other hand expected the Applicant to contend with the conflicting decisions regarding her employment status at Coega Primary. When she was faced with serious health issues it was difficult to account for her because there was not proper documentation in place to trace her place of work.
11. The issue of the Applicant only resurfaced when Mrs Gabriel became aware of the issue and in the absence of proper and correct documentation could also not account for the Applicant. Based on the little information she received she then informed Labour Relations. The Applicant had raised her issues with Labour Relations and was not responded to in terms of guidance on grievance procedures of the department. There was therefore no proper investigation on the circumstances surrounding the Applicant’s disappearance. This is also coupled with the fact that the Applicant herself failed to inform the department timeously of her health challenges, although at some point she was in no position to inform the Respondent herself as she was in a coma. There is an attempt from her parents recorded by Mrs Gabriel that she was hospitalised and that was not followed up in terms of the applicable leave provisions.
12. I, find therefore that the failure to properly investigate the Applicant’s whereabouts, even when there was information to the effect that she was hospitalised, and at some point in a coma, is the cause of the challenges that this matter is tainted with. It is met with a rash decision to discharge her in order for the Respondent to be free from accounting for the actions taken by Coega Primary School in refusing to accept the Applicant, who is not the first employee of the Respondent to have health challenges, with an employer that is properly regulated and organised to manage such issues.
13. In this regard, I find that the Applicant’s discharge in terms of section 14(1)(a) of the EEA was premature and that it constitutes a dismissal. The Applicant has therefore discharged the onus to prove that she was dismissed and that such a dismissal, based on the circumstances outlined above is both procedurally and substantively unfair.
14. Coming to the remedy, section 193(1) of the LRA provides that if the Labour Court or an arbitrator appointed in terms of this Act find that a dismissal is unfair, the Court or the arbitrator may order the employer to reinstate the employee from any date not earlier than the date of dismissal.
15. The Applicant prayed for a remedy of reinstatement. In line with my finding of procedural and substantive unfairness, it follows that the Applicant must be granted the remedy she wished for, on a retrospective effect, on the basis that the decision to discharge her was incorrectly applied as it did not meet the number of days provided for in section 14(1)(a) of the EEA which rendered it a dismissal. A further consideration is the consequences of the backdated dismissal to 2 May 2023, which may have the Applicant indebted to the Respondent in terms of salary received in the period in question that had to be recovered from her.The Applicant must be paid backpay from the date of dismissal, as provided for in section 193(1) of the LRA.
16. The Applicant earned a salary of R26 554 per month at the time of her dismissal on 2 May 2023. The period to be counted is therefore 41 months. The total amount due to the Applicant is R1 106 754.00. The amount also includes any benefits that are due to the Applicant and subject to any statutory deductions.
17. In the circumstances, I make the following award:

AWARD

1. The Applicant, Ms Ntombovuyo Tsolwana, has succeeded to discharge the onus as required by section 192(1) of the LRA to establish the existence of a dismissal and that such a dismissal was procedurally and substantively unfair.
2. The Respondent, Department of Education - Eastern Cape, is ordered to reinstate the Applicant, Ms Ntombovuyo Tsolwana, on the same or similar terms and conditions that governed the employment relationship prior dismissal.
3. As a result of the retrospective nature of the reinstatement the Applicant, Ms Ntombovuyo Tsolwana, is entitled to backpay equivalent to R1 106 754.00, which the Respondent, Department of Education - Eastern Cape must pay to the Applicant, Ms Ntombovuyo Tsolwana, by no later than 20 November 2026.
4. The Applicant, Ms Ntombovuyo Tsolwana, must report for duty on 1 November 2026 at the Respondent’s District office in Nelson Mandela Bay, and be properly placed.

PUMEZA NDABAMBI
PANELLIST: EDUCATION LABOUR RELATIONS COUNCIL