IN THE ELRC ARBITRATION
BETWEEN:

PRINCESS NTOMBEZININGI NZIMANDE “the Applicant”
and
THE DEPARTMENT OF EDUCATION – KWAZULU-NATAL “the Respondent”

ARBITRATION AWARD

Case Number: -ELRC1024-24/25KZN

Last date of arbitration: -27 June 2025

Submission of closing arguments: -04 July 2025

Date of award:- 16 July 2025

Panelist:
J Mdletshe

Education Labour Relations Council
ELRC Building
261 West Avenue
Centurion
Tel: 012 663 0452
Fax: 012 643 1601
E-mail: gen.sec@elrc.co.za
Website: www.elrc.org.za

DETAILS OF HEARING AND REPRESENTATION

1. The arbitration was set down for 25 February 2025 where parties were directed to conduct a pre-arbitration meeting. The arbitration proceeded on 24 March 2025, 24 April 2025, 16 May 2025 and the presentation of evidence was finalized on 27 June 2025.
2. The arbitration was held at Truro House, the Office of the KwaZulu-Natal Department of Education.
3. Princess N Nzimande (hereinafter referred to as the Applicant) was present and was represented by a legal practitioner, Mr MG Sibisi, who was briefed by Ayanda Shazi and associates. A bundle of documents, marked bundle B was submitted on behalf of the Applicant.
4. The Respondent, the KwaZulu-Natal Department of Education (the Department) was represented by its employee, Ms M Mthethwa. A bundle of documents, marked bundle A, was submitted on behalf of the Respondent.
5. The proceedings were digitally recorded.
6. The services of an interpreter were utilized.
7. The Pre arbitration minutes were agreed to and signed by both parties. It was read into record.
8. Both parties were granted permission to submit written closing arguments by no later than 04 July 2025.

APPLICATION FOR LEGAL REPRESENTATION

9. I was required at the onset of the proceedings, to determine whether the Applicant could be represented by a legal practitioner. The application was opposed by the department.
10. The Applicant, submitted that she required the right to be represented by a legal practitioner in the arbitration proceedings. She considered herself a lay person in the labour law field, her experience lies primarily in education. It was her view that the matter was complex in nature. An experienced legal practitioner would be well versed to deal with questions of law and to defend her matter accordingly. The department is represented by a labour relations expert, who has extensive experience in representing in arbitration proceedings. The applicant on the other hand does not have the same comparable ability as she would be unable to cross examine or make sound legal argument regarding the misconduct charges that lead to her dismissal. Not granting legal representation would largely prejudice the applicant.
11. The respondent, submitted that there are no circumstances special to warrant a departure from the general convention that would create an injustice to the applicant. It is a simple dismissal case related to misconduct. The case before the ELRC is not complex. The charges are straight forward and would not require legal interpretation. If legal representation is granted the department would be grossly prejudiced.
12. After listening to their arguments, I stood the matter down to consider ruling on the application for legal representation.

RULING ON LEGAL REPRESENTATION

13. In the circumstances detailed above, I duly took consideration of the submissions of both parties.
14. Clause 17.4.2.2.1 – 17.4.2.2.4 of the ELRC Constitution sets out the guidelines to be taken into consideration when deciding whether legal representation should be allowed in arbitration proceedings for dismissal disputes relating to misconduct.
15. The Applicant presented a convincing argument showing that the matter might be complex giving that the Applicant has no experience in conducting cross examination. It would be unreasonable to expect the Applicant to competently represent herself on a basis of comparability with the departments representative. I ruled that in the interest of fairness and justice it would be unfair to expect the Applicant to act on her own behalf and that she could be represented by a legal practitioner for the arbitration.
16. The application for legal representation was granted and the department was afforded an automatic right to legal representation.

ISSUE TO BE DECIDED

17. The arbitration is in respect of a referral by the Applicant of an alleged unfair dismissal as provided for in section 191(5)(a)(i) of the Labour Relations Act 66 of 1995 (LRA.)
18. I am required to decide whether the dismissal of the Applicant was procedurally and substantively fair and, if not, what relief ought to be granted to her. The Applicant seeks to be reinstated with retrospective effect. The dismissal itself is not in dispute.

BACKGROUND

19. The Applicant was a Post Level 1 educator at Zamakahle High School. She was dismissed following a formal disciplinary hearing at which she was charged with and found guilty of the following two charges of misconduct:
    Charge 1-“On or around the 5th of September 2022 you allegedly unjustifiably prejudiced the administration, discipline or efficiency of the “school”. In that you refused to honour the revised duty load (Mathematics grade 8 and Natural Science grade 8 & 9) given to you by Mr Khomo in his capacity as the school principal. You thus committed an offence in terms of Section 18 (1)(f) of the Act; and
    Charge 2-“It is alleged that on or about 5th of September 2022 you failed to carry out a lawful order or routine instruction without just or reasonable cause. In that you refused to accept the revised duty load assigned to you by Mr Khomo the school principal. You thus committed an offence in terms of Section 18(1)(i) of the Act.”
20. The Applicant lodged an appeal against the outcome of her disciplinary hearing but she was notified by way of a letter on 12 December 2024 that her appeal had been rejected.
21. It is common cause that at the date of her dismissal, the Applicant’s gross monthly remuneration was R38 355, 55.
22. The Applicants case was that she was not guilty of the charges leveled against her she only challenged the manner and time of the lawful instruction. She challenged the procedural fairness of the dismissal. She complained she was not given adequate time to prepare, the notice to attend the disciplinary hearing denied her access to the evidence that the Respondent relied on when drafting the charges. She claimed she was denied her right to legal representation at the disciplinary hearing. In addition, she complained that Respondent had been inconsistent in applying the rule and believed the sanction of dismissal was considerably harsh.
23. The Respondents case was that the principal was acting in his scope of responsibility when he issued a lawful instruction to the Applicant. The applicant failed to honor the instruction by accepting the duty load given to her by the principal. Internal intervention was sought, failing such, the Applicant’s insubordination had to be reported to the district. The respondent fairly dismissed the Applicant under the circumstances.

SUMMARY OF EVIDENCE
As it is required that an award with brief reasons is issued, the salient points tendered under oath by the witnesses are recorded below.

The Respondent’s case

24. Mr Zamadoda Khomo (Khomo) is the Principal of Zamakahle High School.
25. He explained that in 2021 the grade 12 Mathematics final results were of great concern. The school had 7 learners who wrote the final exam and the school obtained a zero percent pass rate for the said subject. As the school principal he had to seek an intervention to tackle the situation at hand. He sought services of a new educator who was employed to assist with the situation.
26. In September 2022, he changed Applicants duty load. He instructed her to teach natural science for grade 8 and grade 9, as well as, mathematics for grade 8. She refused to accept his instruction. At the time, she was teaching grade 12 mathematics.
27. As the Applicant was a member of SADTU he requested that the site shop steward and its committee have a discussion with Applicant in relation to the revised duty load that he required her to fulfil. The details of this request was addressed in a letter, at page 2 of bundle A, that was dated 20 September 2022 .In response to his request, he received a letter, at page 4 of bundle A. Ms Zulu, the site shop steward, advised him that the site committee had attempted to engage with the applicant, however their efforts had failed.
28. Khomo requested for the head of department, Mr Zungu to have a discussion with the applicant in respect to the revised duty load. During September 2022, in a letter, at page 3 of bundle A, a written response was given to Khomo. Zungu had advised Khomo that his efforts had failed as Applicant refused to accept the revised duty load that was offered to her.
29. A meeting was held in September 2022 with Khomo, Zungu and the Applicant. Both Khomo and Zungu attempted to get applicant to accept the duty load. She refused to accept it and left the meeting.
30. Khomo held back from escalating the situation. He made a decision to implement the revised duty load in the New Year as this was commonly when changes were made. At the beginning of 2023, Applicant again refused to accept the revised duty load. It was at this point that Khomo escalated the situation to the district employee relations. The letter, at page 1 of bundle A, is dated 08 February 2023, it addressed the encounters with the applicant.
31. The Personal Administrative Measures (PAM), outlines the job description of the principal. One of his core duties and responsibilities is to ensure that the workloads are equitably distributed amongst staff. The official duty load for a PL1 educator is 27 hours per week. Khomo had allocated Applicant with a revised duty load that amounted to 22 hours per week.
32. Mr Sithole, the new educator was allocated to the Applicant’s previous grade 12 learners in September 2022. Khomo stated that the implementation of the Applicant’s revised duty load did not result in the grade 12 learners being abandoned. She was allocated her revised duty load and was never considered as surplus. During this time, Applicant taught natural science, grade 8 and 9. She refused to teach grade 8 mathematics. As a result, other educators were asked to assist with the class. The average duty load of educators at the school was 24 hours, due to the Applicant’s refusal, other educators were prejudiced as they had to take on more hours of work as learners could not sit idle and not be taught.
33. Applicant was dismissed during July 2024. As she appealed the sanction of dismissal. As a result of this process she resumed work as usual. She was presented with a duty load that included natural science for grade 8 and grade 9 and technology, grade and 8 and grade 9. Yet again, she refused to accept the duty load. She claimed that she knows nothing about technology. Khomo found this to be strange as he was aware that she taught the subject in 2016.
34. Khomo in a letter, at page 12 of bundle A, dated 12 August 2024, reached out to the district labour relations, requesting the department to speed up the process as yet again Applicant refused to accept the duty load. This having a direct effect on the school as Applicant was only willing to teach natural science which amounted to a 12 hour weekly duty load. He needed her to take up more work in order to have a complete complement of working hours.
35. He was unaware of any details associated to the Applicants belief that her dismissal was directly linked to her refusal to partake in social activities whilst Mr Duma was the school principal.
36. Under cross-examination Khomo testified that the Applicant had not taught grade 12 mathematics for a while until he had requested her to take up this duty at the beginning of 2021. He stated that the grade 12 mathematics learners in 2021 and 2022 all displayed a similar attitude, they were cooperative and well disciplined. He vehemently refuted that the 2021 grade 12 mathematics learners were under the influence of drugs and that they had a low knowledge of basic mathematic principles. Prior to 2021 Applicant taught grade 10 and 11 Mathematics, if learners lacked knowledge this should have been reported. The department has a bench mark of 75% pass rate, anything below this would deem an underperformance. Therefore the 2021 final mathematics results came as a surprise. Ordinarily, an educator would need to account for such a result. However, as the principal he elected to seek advice from the subject advisor in order to make necessary changes to improve the results going forward. An Interim decision to support the Applicant was made whilst awaiting the commencement of the new educator, Mr Sithole. Neighbouring school educators gave support in this regard. This in no way was a punitive act against the Applicant. The interventions coupled with the addition of Mr Sithole resulted in an improvement of the Mathematics pass rate, as in 2022 65% was achieved, 75% in 2023 and 85% in 2024.
37. It was put to Khomo that the Applicant had not refused to take up the revised duty load and that she merely wanted an explanation as to why there was a change. He refuted the Applicants version explaining that he had to go to lengths to get the matter dealt with. If it were different, it would have been amicably resolved within the parameters of the school. He was directed to a letter, at page 1 of bundle A, Khomo is the author of the letter. In point 6 of the letter , it writes inter alia, “I have made many endeavors to coerce the teacher in vain resulting to the school placed on adverse reporting” Khomo stressed that he had endeavored to persuade the Applicant to view the change in Applicants duty as a benefit in aid of the school.
38. Sizakele Zulu (Zulu) is a post level 1 educator at Zamakahle High School. In 2022, she was the SADTU site committee secretary at the school. She testified to the following effect:
39. Khomo called a meeting with the SADTU site committee, informing it that its member, the Applicant had refused to accept the duty load allocated to her. He requested for them to speak to her.
40. Flowing from the above meeting, Zulu hand delivered a meeting invitation letter to the Applicant, at page 5 of bundle A. The meeting was to address the conduct of Applicant and to obtain her side of the story. On 28 September 2022, Zulu, the site committee chairperson and a member were present for the meeting scheduled for 09:30, however, the Applicant did not appear. Feedback was given to Khomo in a letter, at page 4 of bundle B. In her letter, Zulu, inter alia, states “Miss PN Nzimande destroyed the invitation letter after she read it”
41. Mzwandile Zungu (Zungu) is the Department head for Science at Zamakahle High School.
42. Zungu explained that the duty load is drawn up by the principal. In his capacity he only gives advice.
43. On 05 September 2022, a new educator substituted the Applicant for Mathematics. In a meeting, Khomo in his presence informed the Applicant about this occurrence and that her duty load would be changed. After a while, he learned that the Applicant was not happy about the change. He hosted numerous informal meetings with the Applicant in an attempt to convince her to accept the necessary changes. After his efforts had failed, he wrote a letter to Khomo, at page 3 of bundle A, informing him about the current status of the matter. The more he thought that the Applicant was aligned to the changes, the perspective changed when she met with Khomo. He believed that the Applicant had another agenda that he was not privy to, which resulted in her misleading stance in respect to situation.
44. Under cross examination, he was directed to point 1.60 of the minutes of the disciplinary hearing, on page 10 of bundle B, which reads “Mr Zungu stated that it was not fair that Ms Nzimande’s teaching load was given to another educator. She was deserving of another chance.” He replied that he could not recall saying that, however, stated that changes in subjects, especially in regard to mathematics often happen and that the same had similarly transpired with a different educator. He tried explaining this to Applicant in a hope that she would accept the duty load.
45. It was put to him, if he would accept that it was fair that the Applicant was stopped in the passage way, on her way to teach grade 12 Mathematics by Khomo, who advised her to immediately stop teaching mathematics for grade 9, 10, 11 and 12. He replied, no.
46. Again under cross examination he testified that he could not recall the final end of year pass rate for grade 12 mathematics in 2022. He was unable to pin point whether the improved pass rate should be apportioned more to the Applicant or Mr Sithole.
47. He further stated under cross examination, that during the Applicant’s appeal process, he did not personally allocate the Applicant with a new duty load. He was, however, aware that Khomo had offered the Applicant a plan B duty load, that included technology. She refused to accept the duty load on the basis that she did not major in technology.
48. It was put to Zungu, that the Applicant did accept this plan B duty load. He replied he did not have the final say in respect of the Applicant’s duty load, the final decision rested with the principal of the school.

The Applicant’s case

49. The Applicant stated that she has a B.Ed. Honours degree in mathematics and physical sciences. She started working as educator at Amatshezulu high school on 07 March 1994 .She accepted a Post Level 1 position at Zamakahle high school in October 2014.
50. During February 2021, Khomo requested that Applicant teach grade 12 Mathematics, she agreed. She taught the same learners Mathematics in grade 11, in the previous year. They were not cooperative and very problematic as some consumed drugs. She informed Khomo about this, despite her efforts and the assistance from neighboring school educators, the school obtained a zero percent mathematics final year pass rate in 2021. In the same year in question, physical science obtained a final year pass rate of 20 percent, Life science 37 percent and accounting 10 percent. The overall pass rate achieved for the school was 65 percent.
51. In 2022 she taught grade 12 mathematics. She had taught the very same learners from grade 8 right through to grade 12. She set a target to achieve a final year pass rate of 60 percent. She gave extra tuition to the learners in order to achieve her anticipated result. At this time, she had a 27 hour weekly duty load. She brought to Khomo’s attention that she was overloaded whereas other educators on average had a 15 to 21 hour weekly duty load. Khomo promised her that he would seek the services of a new educator.
52. On 30 August 2022, whilst on her way to the grade 12 mathematics class Khomo called her to his office. In the presence of Mr Zungu, Khomo told her that he will be giving her a new duty load as the new educator had arrived (Mr Sithole). The new duty load comprised of Natural science grade 8 and 9 and grade 8 Mathematics. She questioned why Khomo took away her grade 12 mathematics learners as she had already completed the year syllabus. Mathematics was also her major. She could not understand why this class was given to Mr Sithole. Khomo ignored her.
53. The Applicant claimed that she did not refuse the duty load that was given to her by Khomo. The date indicated on the disciplinary charge sheet was not when Khomo presented her with the new duty load. On 05 September 2022, she was invigilating tests and at no point did Khomo address her. She reiterated that the discussion took place on 30 August 2022.
54. She stressed that it would have been impossible for her to refuse the new duty load in respect of natural science, as she was already teaching it for grade 8 and 9.She did not refuse to teach grade 8 mathematics. She had gone to the grade 8 mathematics period, however, she found Mr Manzi in the class. She realized that he had not been advised about the changes. She left the class.
55. She stated that the official lacked the necessary expertise to represent herself at the disciplinary hearing. She sought the services of an attorney however was denied legal representation. She was advised regardless to utilize SADTU even though she did not trust the union as they had let her down previously in respect to a grievance.
56. The Applicant appeared confused when she was required to testify in respect of her representation at the disciplinary hearing. After being directed to the relevant documents she testified that she was not well represented by SADTU. She was first represented by Yeni, then Ngwengwe. Ngwengwe subsequently passed away. When the hearing proceeded she was represented by a SADTU observer, Mbambo. She claimed that he was a secretary and only had experience in note taking. He had advised her that he did not have exposure in representing members at disciplinary hearings. She claimed that she was represented by persons who had no knowledge.
57. The Applicant appealed her dismissal. On 13 May 2024 Khomo issued her with a revised duty load, whilst she awaited the outcome to her appeal. She accepted it. The following day Zungu conveyed that Khomo instructed him to issue the Applicant with the revised duty load, it consisted of natural science for grade 8 and 9, Maths grade 9A and technology grade 9B. She expressed to Zungu that she had accepted it, but informed him that she had challenges with teaching technology as it was not one of her majors. She explained that she taught technology in 2018, due to challenges with the subject it was removed from her.
58. After the school holidays, she returned to work but did not work in the first week. During the second week, Khomo had implemented a further change to the revised duty load that was previously presented to her. This duty load comprised of four technology classes. She expressed to Khomo that she had accepted the duty load that Zungu had previously given her. She informed him in respect to her challenges with technology, despite this, she was told to forget about the duty load that was given by Zungu.
59. Under cross examination, she stated when the duty load was changed she went to teach grade 9A mathematics, however, Mr Manzi was in the class, the preceding days she had to invigilate. When the fourth term commenced, the situation was the same, she found Mr Manzi in the classroom so she went back to the staff room. It was put to her that she blatantly refused to accept the duty load given to her by the principal and that in the past she had taught technology. She replied that she did not, she only communicated that she had a challenge with technology. Prior, she had only taught technology for two months.
60. She further stated under cross examination that Khomo’s instruction was unreasonable as she had completed teaching the grade 12 mathematics syllabus and that her credit was taken away from her. She was questioned on her definition of abandon, as placed in the contents of her ELRC referral, at page 16 of bundle A, that “she was dismissed by the dept of education for refusing to obey an unreasonable instruction to abandon the grade 12 maths learners”. She replied that the learners had approached her to ask why she had left them at this particular time of the year. However, in the same breath she acknowledged that an educator was allocated to these same learners. The learners told her that there was a new educator and asked her how they would learn this new educator’s strategy. She continued to deny that she did not refuse the instruction, but felt that Khomo could not allocate her with any subject, since she did not major in technology.
61. Under cross examination she further acknowledged that she was aware that a principal as the head of a school, assigns duty loads. She complained that other educators were given lesser duty loads in comparison to her. At first she stated that her duty load was 25 hours per week, at a later stage she stated it was 30 hours per week. It was brought to her attention that her revised duty load was 22 hours per week, she then acknowledged this.
62. Under cross examination she acknowledged receipt of the notice to attend the disciplinary hearing with the specified misconduct allegations and the details thereof. She was advised of her rights and was given an opportunity to prepare. She was issued with an outcome and sanction and that the sanction was only implemented once the outcome of the appeal was rendered. At the disciplinary hearing she was a SADTU member in good standing and was initially represented by the SADTU branch secretary. However, on the preceding days of the disciplinary hearing she maintained that she was represented by a person who had no knowledge but was forced to continue.

ANALYSIS OF EVIDENCE AND ARGUMENT

63. In terms of section 192 of the LRA the onus is on the Respondent to establish that the dismissal was procedurally and substantively fair.
64. I am tasked to weigh the evidence of the witnesses and make a determination on credibility and probability of evidence. Both parties submitted closing arguments in writing that will also form part of the analysis. This is not an easy task but as an arbitrator I am required to make such a finding. Where there are material disputes of facts it raises issues of credibility and reliability, and whether the evidence is “flagrant, frivolous and vexatious”. Sangoni AJA stated as follows in Edcon Ltd v Pillemer NO &Others (2008) 29 ILJ 614 (LAC) at par 21:
65. “If the commissioner made a decision that a reasonable decision maker could not reach, he/she would have acted unreasonably which could then result in interference with the award. This, in my view, boils down to saying the decision of the commissioner is to be reasonable. To my understanding the dictum in Sidumo is not about shifting from the ‘reasonable employer test’ in favour of the so-called reasonable employee test. Instead, meaningful strides are taken to refocus attention on the supposed impartiality of the commissioner as the decision maker at the arbitration whose function it is to weigh up all the relevant factors and circumstances of each case in order to come up with a reasonable decision. It is in fact the relevant factors and the circumstances of each case, objectively viewed, that should inform the element of reasonableness or lack thereof”.
66. I am therefore required to make a determination based on all the relevant factors that will direct me to a reasonable finding. In this regard an arbitrator is required to have regard to the principles applicable to resolving disputes of fact, as described in Stellenbosch Farmers’ Winery Group Ltd & another v Martell et Cie & others 2003 (1) SA 11 (SCA), wherein Nienaber JA (supra at para 5): stated

“To come to a conclusion on the disputed issues a court makes findings on (a) the credibility of the various factual witnesses; (b) their reliability; and (c) the probabilities. As to (a) the court’s finding on the credibility of a particular witness will depend on its impression about the veracity of the witness. That in turn will depend on a variety of subsidiary factors, not necessarily in order of importance, such as (i) the witness’ candour and demeanour in the witness box, (ii) his bias, latent and blatant, (iii) internal contradictions in his evidence, (iv) external contradictions with what was pleaded or put on his behalf, (v) the probability or improbability of particular aspects of his version, (vi) the calibre and cogency of his performance compared to that of other witnesses testifying about the same incident or events. As to (b), a witness’ reliability will depend, apart from the factors mentioned under (a)(ii), (iv) and (v) above, on (i) the opportunities he had to experience or observe the event in question and (iii) the quality, integrity and independence of his recall thereof. As to (c) this necessitates an analysis and evaluation of the probabilities and improbabilities of each party’s version on each of the disputed issues. In the light of its assessment of (a), (b) and (c) the court will then, as a final step, determine whether the party burdened with the onus of proof has succeeded in discharging it. The hard case, which will doubtless be the rare one, occurs when the court’s credibility findings compel it in one direction and evaluation of the general probabilities in another. The more convincing the former, the less convincing will be the latter. But when all factors are equipoised probabilities prevail”.

67. The two charges of misconduct were centered around the fact that the Applicant unjustifiably prejudiced the administration, discipline or efficiency of the school by refusing to honour the revised duty load ( Mathematics grade 8 and natural science grade 8 and 9) (charge 1) and that she failed to carry out a lawful order or routine instruction without just or reasonable cause as she refused to accept the duty load assigned by Mr Khomo the school principal (charge 2), hereby committing an offence in terms of section 18 (1) (f) and (i) of the Employment of Educators Act 76 of 1998.
68. It is common cause that Zamahahle High School obtained a zero percent final year pass rate for mathematics in 2021 and that the Applicant was the educator responsible for teaching the subject to the 7 learners in grade 12.
69. It is common cause that Khomo instructed the Applicant to honour a new duty load on or about 05 September 2022. It is common cause that a new educator Mr Sithole was employed on or about the same time and that he took over the grade 12 mathematics class.
70. The Respondents version was put forward by Khomo, Zulu and Zungu. The witnesses were clear and unambiguous when testifying. Khomo testified that the department had an established benchmark of 75% in respect to the pass rate of a subject. When the school achieved zero percent he had to seek necessary advice and implemented an intervention strategy to improve the previous year’s results. A new educator was employed as part and parcel of this strategy, the neighboring schools and its educators assisted too, in aid to improve the performance of the school and its learners in respect to mathematics. He testified that his job functions, inter alia, is to ensure the workload is equitably distributed, he is also advised by the departmental heads. As such these endeavors lead to him revising the duty load of the Applicant. I find that Khomo acted correctly in his capacity of principal. The Personnel Administrative Measures (PAM) solidifies this, as the principal is required to ensure that the school is managed and in compliance with the applicable legislation, regulations and personnel administration measures as prescribed. Mr Khomo exercised his prerogative as the head of the school to make the necessary changes in respect to the calamity that the school was faced with post the 2021 mathematics results. The results were dismal to say the least, urgency around this would be of paramount priority to the principal. The Applicant stated that the learners were not cooperative and were on drugs, however, there was not a single incident report launched by Applicant to seek assistance from the school management in order to tackle this challenge in an attempt to remedy and or address the fact of the said learners affecting the function and productivity of the educator in teaching and or completing the syllabus. If the situation of the learners were as dire as the Applicant depicted, I certainly believe that she would have done more based on the seriousness of her said allegation. I find it hard to comprehend that this would be the sole reason for the class of 2021 achieving a zero percent pass rate.
71. Khomo testified that Applicant refused to accept the duty load. His evidence was corroborated by evidence of Zulu and Zungu. After failing to convince the Applicant to see the benefit of the change for the betterment and aid of the school he reached out to the SADTU site committee as Applicant was a SADTU member. Zulu testified that she destroyed the meeting invitation in her presence and that Applicant did not attend the meeting on 28 September 2022. Zungu testified that she refused to accept the duty load too, he had numerous meetings with the applicant however, it seemed to ultimately not progress even when he thought they were in alignment. He confirmed that he only provided advice to the principal and that the principal was ultimately responsible for drawing up the duty load. Khomo stated the change in duty load was not a punitive measure, but merely a decision to benefit the school.
72. In Khomo’s letter, dated 8 February 2023 the use of the word coerce is mentioned. I believe that this word cannot be viewed in isolation in respect to the crux of the entire letter. The contents of the letter must be measured holistically. Khomo’s intention was clear, he required intervention from employee relations as his endeavors had failed due to the Applicant refusing to accept the revised duty load. Under cross examination, he clarified this point by stating that he tried to persuade the applicant to see the benefit of the change he needed implemented.
73. The Applicant denied that she refused the revised duty load. She testified that she went to the grade 8 mathematics class, however, she found Mr Manzi teaching the class and therefore left. She did not understand why she was removed as the grade 12 mathematics educator. She believed that she was not given sound reason and only wanted to be provided with an explanation as she believed that she had completed the syllabus for the year and that she was merely left with revision in order to polish the learner’s knowledge before their actual examinations. Under cross examination she acknowledge the role of a PL1 educator and that of the principal.
74. The duties of a PL 1 educator are embedded in PAM .The document does not streamline an educators duties to a specific grade or subject. The instruction from Khomo was clear unambiguous and reasonable as it fell well within the ambit of the Applicant’s job description. The outright disregard for her job function and defiance of Khomo’s authority is dismaying. Khomo was patient under the circumstance in an aim to aligning the Applicant to the goals and strategy of the school. Discussions were held with the Applicant on various occasions over approximately 5 months. I believe the Applicants view was quite frankly convoluted by her dissatisfaction of being removed as a grade 12 mathematics educator. Both parties adduced evidence that she had not taught the said grade for a period of time. I find it hard to understand why she needed further explanation or evidence in respect to the necessary changes. She was convinced that she needed to remain as a grade 12 mathematics educator, despite the fact that the 2021 mathematics pass rate was zero percent. This perception of remaining as a grade 12 mathematics educator is quite prevalent as In her referral and closing arguments she sought to be reinstated as a mathematics educator for grade 9 -12. The Applicant does not attain such type of authority to dictate such within the schooling environment, neither does a commissioner have such powers to reinstate the Applicant back into the position of a specified grade or subject. I believe she projected the same attitude to the school management and that indeed she wanted nothing to do with grade 8 mathematics. It is my view that the Applicant’s continual refusal to honor the duty load and to carry out this reasonable instruction given to her by Khomo, persisted for an unduly excessive duration. Due to this, the administration of the school was in deed affected, Khomo had to rely on other educators to fill in for the classes that the Applicant refused to teach. She in turn felt no remorse and elected to just nonchalantly sit in the staff room whilst others picked up the duty load. In my view, Khomo was left with no other alternative but to act.
75. In this instance, it is my view that the Applicant was unable to demonstrate or provide a sufficient evidentiary basis to support her persistent denial that she did not refuse the revised duty. She was not a credible witness as I believe that she conveniently tailored her version as she went along. She failed to offer an actual version in answer to the evidence of the Respondent. As pointed out by the courts, consistent denial does not constitute an alternative persuasive version and undue weight should not be attached to this as opposed to detailed, consistent, corroborated, and essentially unchallenged evidence presented by the Respondent. The Respondent demonstrated with sufficient evidentiary material the case against the Applicant, on a balance of probabilities. The Applicant has been unable to disprove the Respondents version.

CONSISTENCY

76. No evidence was led by the applicant to show that other educators are, in fact, guilty of unjustifiably prejudicing the administration, discipline or efficiency of the school or that any educator failed to carry out a lawful instruction or routine instruction without just or reasonable cause and that the school and or department had in actual fact elected not to discipline them.

PROCEDURAL FAIRNESS

77. With regards to the procedural fairness of the dismissal it is not in dispute that the Applicant was dismissed following a formal disciplinary hearing. It is further not in dispute that she was allowed to appeal against the sanction of the disciplinary hearing.
78. The Applicant contended that she was not given adequate time to prepare, that she was denied her right to legal representation at the disciplinary hearing and that she was denied access to the evidence that the respondent relied on when drafting the alleged charges. Under cross examination she however acknowledged receipt of the details of the notice of disciplinary hearing and that it had a description of the alleged charges. She further acknowledged that she was given an opportunity to prepare and that she received the sanction of the disciplinary hearing. It must be noted that the Applicant was served with the notice of disciplinary hearing on 08 May 2023, the matter was postponed for various reasons on different occasions, and the disciplinary hearing only proceeded on 10 August 2023. I find it hard to comprehend that a period of three months would be regarded as unfair for a period of preparation. The disciplinary code for educators indicates that an educator may choose to be represented at a disciplinary hearing by a fellow educator or a representative of a trade union, it makes no provision for an automatic right to legal representation. I find that the refusal to legal representation was not unfair. The applicant was represented by SADTU at the disciplinary hearing, her contention was that she felt she was represented by an official who lacked the necessary knowledge as she believed he did not know anything. She was informed of her right to representation, the applicant was represented by a SADTU official, she was in good standing with the union and as such, she exercised her right of choice to proceed with the trade union.
79. In Light of the factors mentioned above, I find that the dismissal of the Applicant, Princess Ntombeziningi Nzimaande, by the Respondent, the Department of Education – Kwazulu-Natal was procedurally and substantively fair. I make the following award.

AWARD

80. The dismissal of the Applicant, Princess Ntombeziningi Nzimande, by the Respondent, the Department of Education – Kwazulu-Natal, was procedurally and substantively fair.
81. The application is dismissed.

J Mdletshe
Arbitrator 16 July 2025
ELRC1024-24/25 KZN