Case Number: ELRC453-25/26KZN
Panelist: Lungile Matshaka
Date of Award: 15 October 2025

In the ARBITRATION between

NATU obo Msimango, Thembisile Thandeka

(Applicant)

And

KZN DEPARTMENT OF EDUCATION
(Respondent)

DETAILS OF THE HEARING AND REPRESENTATION

1. This is an award following an arbitration hearing held virtually on the 18th of September 2025 involving the Applicant, Ms. NTT Msimango, represented by NATU Union official, Ms. Zama Khanyile, whilst Mrs. Nomfundo Ngonyama, represented KZN Department of Education.
2. The proceedings were digitally recorded, and witnesses gave evidence under oath.
3. The parties requested and were enabled to submit closing arguments by the 26th of September 2025.

ISSUES TO BE DECIDED

4. I am required to decide whether the Respondent committed an unfair labour practice in failing to pay the Applicant all her salary under section 186(2) what was due to her from end of February 2025 to end of August 2025. SURVEY OF EVIDENCE AND ARGUMENT
5. The Applicant’s evidence revealed that she was previously discharged by the Department of Education in terms of section 14 of the Employment Act 76 of 1998. Subsequent to that she appealed to her discharge, whereby pending the appeal, the Applicant without consent unlawfully and intentionally applied for the new post within the Department of Education.
6. On or about July 2023 the Applicant got absent from work due to illness where she furnished her application for leave to the school and had provided proof that she needed to seek medical attention. The Applicant was seen by treating Doctor and underwent medical treatment at Nkandla KwaZulu-Natal.
7. It is trite law that if an educator has been discharged by the Department he or she is prohibited to work within the Department for a specified period. In this case the Applicant failed to disclose her record of misconduct to the Department and therefore she offered the letter of appointment
8. Acting in good faith and relying on this official communication, the Applicant assumed her teaching duties and rendered services at Qalakahle Secondary School from February to August 2025. Despite her rendering duties during the said period, she was not remunerated.
9. Upon her return from leave she was served with a dismissal letter in terms of Section 14 of Employment Educator’s Act (Deemed dismissed). The Applicant was then advised in terms of Section 14(2) of the Act she make an Application for reinstatement to the Head of the Department showing good cause and reasons for absenteeism and good cause why she should be reinstated.

ANALYSIS OF EVIDENCE AND ARGUMENT

10. It is common cause that the dispute between the parties relates to non-payment of a salary in terms of the Labour Relations Act. It is further common cause that the Applicant, Ms. Msimango, was offered a letter of appointment by the Department of Education on 7 February 2025.
11. She was previously charged by the Department of Education in terms section 14 of the Employment Act of Education Act No 76 of 1998. Subsequently she appealed discharge, whereby pending the appeal Ms. Msimango without the consent unlawfully and intentionally applied for the new post within the Department of Education.
12. The Respondent submits that the Applicant failed to disclose her record of misconduct to the department and therefore she was offered the letter of employment. The Labour Court in Cape Ferreira Mainliner (PTY) LTD v McWade and others (2020) BLLR 199(LC) upheld the review application stating that an employee may be required to disclose information not specifically requested, if that information is material to the decision to employ, or where a question is asked that a less honest and a complete answer might form the basis for a dismissal when the truth is ultimately discovered.
13. In conclusion, I have no reason not to accept the Respondent’s argument that the decision in Cape Ferreira Mainliner (supra) that the employee may require to disclose information not specifically requested, if that information is material to the decision of the employer. Hence, I accept the Respondent’s version that the Applicant intentionally failed to disclose her record of misconduct to the Department of Education.
14. On a balance of probabilities, as a reasonable decision maker, I am convinced that the Applicant intentionally failed to disclose her record of misconduct to the Department of Education.

AWARD

15. In the light of the above exposition and in my own sense of fairness and justice, I do not find that the Respondent committed an unfair labour practice and therefore the matter is hereby dismissed.

Signature:

Panelist: Lungile Matshaka