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15 September 2026 – ELRC3-26/27LP

ARBITRATION AWARD

Commissioner: M.E. Dikotla

Case Number: ELRC3-26/27LP

Date of Award: 09 September 2026


 In the matter between

SADTU obo Mohlaki Alexius Mashiane: Applicant

And

Education Department of Limpopo: Respondent

DETAILS OF HEARING AND REPRESENTATION

  1. This is an arbitration award in the matter between SADTU obo Mohlaki Alexius Mashiane (employee party) and Education Department of Limpopo (employer party). The arbitration was heard at the offices of the Department of Education in Polokwane on 23 July 2026 and 31 August 2026.
  2. The employee was represented by MM Seopa, a SADTU full time shop steward. On the other hand, the employer was represented by NE Nyathela, its deputy director: labour relations.
  3. The proceedings were electronically recorded.
  4. Both parties submitted bundles of documents. The employee’s bundle was designated as ‘A’ and the employer’s bundle was designated as ‘R’.
  5. Both parties undertook to submit their written closing arguments on 02 September 2026. At the time of issuing this arbitration award, I had not yet received the Respondent’s closing arguments.

ISSUE TO BE DECIDED

  1. I am required to determine whether the employee was dismissed or not.

BACKGROUND TO THE ISSUE

  1. The employee was employed as chief education specialist. He commenced employment on 01 January 1988. On 27 November 2025, he submitted an application for Early Retirement Programme (ERP) in terms of circular no. 300 of 2025. On 03 March 2026, he submitted a letter to the employer, indicating that he was withdrawing his application of the ERP. This was declined by the employer. He unsuccessfully lodged a grievance against the employer’s decision. His employment was subsequently terminated on 31 March 2026. At the time of his termination of employment, he earned R86 052.90 per month. He then referred an alleged unfair dismissal dispute to the Education Labour Relations Council (ELRC).
  2. He sought compensation

The following facts are common cause:

  1. The director general of the Department of Public Service and Administration (DPSA) signed circular number 38 of 2005 on 13 October 2025. The subject of the circular reads: Incentivized early retirement programme without penalization of pension benefits in terms of section 16 (6) of the Public Service Act, 1994, and the voluntary exit programme for employees in the public service.
  2. All the employees who were interested to apply for this Early Retirement Programme (ERP) were invited to submit their applications from 15 October 2025 to 30 November 2025.
  3. The Limpopo Department of Education signed circular number 300 of 2025 on 17 November 2025. This circular substantially mirrored that of the DPSA. According to this circular, the due date for the employees to submit their applications was 27 November 2025.
  4. The employee submitted his application on 27 November 2025. The Limpopo member of the executive council (MEC) signed off the approved ERP applications on 05 December 2025 for submission to the National Treasury for funding.
  5. The employer’s human resources department created a WhatsApp group for the employees who had applied for ERP. On 23 February 2026, the employer sent a WhatsApp message to the employees who had applied for ERP, inviting them to attend a meeting to complete the pension fund forms at Block A, Office Number 69. The employee did not attend this meeting.
  6. On 03 March 2026, the employer received a letter from the employee, stating that he was withdrawing his ERP application. On 25 March 2026, Mr Seshibe, the head of department (HOD), wrote a letter to the employee, informing him that his request for the withdrawal of his application for ERP was declined. The employee received this letter on 27 March 2026.
  7. On 23 February 2026, the HOD wrote a letter to the employee, informing him that his application for ERP was approved with effect from 01 April 2026. This letter was received by the employee on 27 March 2026.
  8. The employee subsequently referred a dispute to the Education Labour Relations Council (ELRC), claiming that he was unfairly dismissed by the employer.

SURVEY OF EVIDENCE AND ARGUMENTS

Employee’s case

Mohlaki Alexius Mashiane testified under oath as follows:

  1. He applied for ERP and received an approval from the HOD on 27 March 2026. The HOD’s letter was dated 23 February 2026. On 27 February 2026, he wrote a letter of withdrawal of his application for ERP, and submitted it to the employer on 03 March 2026. This letter was received my Mr LM Langa on behalf of the employer. Langa told him that they would consider it and said nothing about the approval.
  2. Reference was made to Menge Motuku’s WhatsApp group message of 23 February 2026, which was sent to the employees who would be retiring (page 51 of R). He did not immediately notice this message. He noticed it during the week as he was on sick leave at the time. When the message came to his attention, he did not know that he was required to attend the meeting because he had not yet received an approval of his ERP. He did not regard himself as a retiree. He did not know the purpose of the WhatsApp group which was titled, ‘Head Office Retirement’.
  3. Reference was made to the third paragraph from the bottom of page 13 of A. He did not serve any notice to start from April 2026 to June 2025. He was terminated before serving a period of three (3) months’ notice. Reference was made to the last paragraph on page 13 of A. When he wrote the withdrawal letter to the HOD, he did not have any approval letter.
  4. Reference was further made to page 15, item 7. The second block of e mails on page 51 of R was read into the record. He is not sure if these messages were directed to him.
  5. Under-cross examination, he testified that he was not sure if he received circular number 38 of 2025 timeously as his laptop was stolen. He saw the document for the first time during the arbitration. He did not receive the document on page 13 of R. He saw the document on page 11 of A for the first time on 02 March 2026 when it was given to him by Langa, Motuku and Molope.
  6. When asked about what happened on 02 March 2026, his response was that there was a meeting convened by Molope, the chief director, Langa, the director, and Ms Motuku. They wanted to know if he was going because they had advertised his post. He told them that because of his financial situation, it was not the right time for him to leave. They then told him that if the HOD has already approved his application, he could not withdraw. He added that he was not given a letter from the HOD. He then submitted the withdrawal letter the following day.
  7. He conceded that the executive authority had to approve the names for submission to the National Treasury before 01 December 2025 in terms of page 23 of R, paragraph 13.3.2.
  8. He was aware that the employees whose applications have been approved were going to leave on 31 March 2026. He maintained that as at 23 February 2026, he was not aware that he was part of the employees whose applications have been approved.

Employer’s case

Boyi Cedric Zitha testified under oath as follows:

  1. He is employed as a deputy director: human resources. Reference was made to paragraph 11 of page 12 of R. The employee submitted his application for early retirement before the closing date. Reference was made to paragraph 13.3.2 of page 23 of R. Reference was further made to the last paragraph of page 13 of A. The last day of approval by the executive authority was 01 December 2025.
  2. On 03 March 2026, the employer received a withdrawal letter from the employee (page 53 of R). The withdrawal should have been submitted before 01 December 2025. The documents on pages 11-48 of R were shared with all the employees. They communicated the final approval from National Treasury through the WhatsApp and also wrote individual letters to employees.
  3. Reference was made to the letter which informed the employee of the approval of his application on page 49 of R. The letter was signed by the HOD on 23 February 2026. Reference was made to the WhatsApp communication of 23 February 2026 on page 51 of R. The employee was part of the WhatsApp group. The employee was aware that his application was approved; hence he was invited to attend a meeting on 23 February 2026, for the withdrawal of benefits. Reference was made to paragraph five 5 of page 66 of R.
  4. Under-cross examination, the witness testified that the early retirement applications were sent to the MEC for approval, and thereafter to the National Treasury for funding. The final approval would include approval by the MEC and the National Treasury. He maintained that the employee was informed of the approval through the WhatsApp communication and a letter on 27 March 2026.
  5. He conceded that the approval letter came after the withdrawal letter was received; however, the outcome of his application was communicated before 27 March 2026. The employee was invited to the meeting on 23 February 2026 to be assisted with the completion of the forms for pension benefits. He further testified that the employee did not attend the meeting and approval letters were issued to the employees who were present.

ANALYSIS OF EVIDENCE AND ARGUMENTS

  1. Section 192 of the Labour Relations Act (the Act) provides:
    (1) In any proceedings concerning any dismissal, the employee must establish the existence of the dismissal.
    (2) If the existence of the dismissal is established, the employer must prove that the dismissal is fair.
  2. In this case, the existence of the dismissal is in dispute. Therefore, the onus in on the employee to prove on a balance of probabilities that in fact he was dismissed by the employer.
  3. It is common cause that the employee submitted an application for ERP on 27 November 2025. On 03 March 2026, the employee submitted a letter to the employer, indicating that he was withdrawing his application for ERP. This was declined.
  4. The employee’s contention is that he received the approval letter from the HOD after he had already submitted his withdrawal letter. His assertion is that when he submitted the withdrawal letter to the employer on 03 March 2026, he did not know that his application for ERP was approved as this was not communicated to him.
  5. I must indicate from the outset that the employee did not come across as a credible witness. He was clearly not candid.
  6. Firstly, I need refer to what circular no. 38 of 2025 of DPSA provides. Paragraph 5 states: ‘It must be noted that the authority to grant early retirement (ER) without pension penalties, is vested within the relevant line department Executive Authority (EA) in terms of Section 16 (6) of the Public Service Act (PSA), 1994, as amended or other sector legislation. This means that every EA has the discretion to approve or decline ERP requests for employees from the age of 55 to 59 years without pension penalties and VEP for employees aged 60 to 63, which are based on reasonable criteria set by the department’.
  7. This PSA circular was replicated by the employer in paragraph 2.2 of its circular no: 300 of 2025. The employer’s circular states that the authority to grant early retirement (ER) without pension penalties is vested within the relevant line EA/HOD (Executive Authority / Head of Department.
  8. According to the October 2025, DPSA determination and directive, departments were required to submit the names of approved cases by the executive authority to the NT from 1 December 2025 (page 23 of R, paragraph 13.3.2). In this case, the MEC, as the executive authority, approved the application on 05 December 2025. The HOD, Maropene Seshibe, approved the application on 07 December 2025, as the delegated authority (page 67 of R). After the approval of the applications, the department sent a request for funding to the National Treasury. The MEC and the HOD approved the employee’s application on 05 December 2025 and 07 December 2025 respectively. Paragraph 5 of the employee’s application read:’ I understand that once my application has been approved by the final approval authority, I cannot retract my application’. Paragraph 5 does not state that once the approval has been communicated to the employee, an employee cannot retract an application. It states that once an application has been approved by the final approval authority, an employee cannot retract an application. In this case, the final approval authority approved the employee’s application in December 2025, and he only submitted his withdrawal letter on 03 March 2026.
  9. The employee testified that he was advised by his financial advisor and his spouse that he should not go ahead with the ERP in December 2025. If indeed he was advised in December 2025, why did he wait until 03 March 2026?
  10. The employee claims that he became aware of the approval of his ERP application after receiving a letter from the HOD on 27 March 2026. This is improbable.
  11. The employer testified that it created a WhatsApp group for the employees who had applied for ERP. It was undisputed that the employee was part of this WhatsApp group. On 23 February 2026, at 07h25, Menge Motuku, sent the following WhatsApp message to the group:’ Colleagues, kindly be informed that we have arranged a gathering today for retiring employees to assist them with completing their pension forms. Details are as follows: Date 23/02/2026. Venue: Block A, Office No.69. Time 10:00 AM. Please attend and offer your support. Thank you.’
  12. The employee testified that on 23 February 2026, he reported for duty but left earlier as he was not feeling well. He stated that he did not immediately see the WhatsApp message. He added that he saw the message during the week as he was on sick leave at the time. I find it hard to believe this. There was no evidence that he was too ill, to such an extent that he could not read the messages nor communicate with anyone. He averred that when he saw the message, he did not know that he was required to attend the meeting as he did not regard himself as a retiree. According to him, this was so because he did not receive an approval of his ERP application.
  13. I must indicate that the employee is not an unsophisticated person. He is an educated person who had occupied a fairly senior position. He was part of the WhatsApp group and the message was very clear and unambiguous. Firstly, he knew that he had applied for ERP. So, why would he not regard himself as a retiree? Secondly, the fact that the message refers to them retirees, and the request for them to come and complete the pension forms, clearly communicates the approval of their application. An employee whose ERP application had been declined would not be invited to a meeting where pension forms would be completed. Clearly, he had to have known at this stage that his application was approved. If indeed he was not sure, why did he not immediately call Motuku to seek clarity? A reasonable person would have done so.
  14. The employee testified that on 02 March 2026, he attended a meeting which was convened by Molope, Langa and Motuku. There was no evidence that the employee sought clarity from Motuku about the meeting that took place on 23 February 2026. One would have expected the employee to seek clarity from Motuku first as he did not attend the meeting. Instead, he testified that they (Molope, Langa and Motuku) wanted to know if he was going because they had advertised his post. This is not probable. It is unlikely that he would be called to attend a meeting, only to be asked such a question. They could not have asked him such a question if indeed they had already told him that his post was advertised? It would not make sense because the ERP process was at an advanced stage. He was aware that the last day of the retirees was going to be 31 March 2026.
  15. Surely, the trio (Molope, Langa and Motuku), as senior employees of the employer, were already aware that the employee’s application was approved and there would be no reason to hide this information from him. He further claimed that he told them about his financial situation and thereafter, they told him that if the HOD has already approved the application, he would not be able to withdraw the application. The probability is that he was told that he could not withdraw because the HOD had already approved his application. I am saying this because he testified that he saw the DPSA Annexure D (pages 11-15 of A) for the first time in this meeting. This document explains, amongst others, the conditions under which an employee can withdraw from the ERP. In saying all that I have, I am convinced that when the HOD’s approval letter was given to him on 27 March 2026, he already knew that his application was approved.

AWARD

  1. I find that the employee, Mohlaki Alexis Mashiane has failed to establish the existence of the dismissal.
  2. The ELRC lacks jurisdiction to entertain the matter.

ELRC Panellist:
ME Dikotla