IN THE EDUCATION LABOUR RELATIONS COUNCIL
Case number: ELRC361-25/26EC

In the matter between

NAPTOSA obo Zicina, Neliswa Applicant

And

Education Department of Eastern Cape Respondent

Appearances: For the Applicant: Mr. Aaron Mhlontlo (NAPTOSA)
For the Respondent: Mr. Bonisile Nkuhlu (CES: Labour Relations)
Arbitrator: Thobela Ncetezo
Heard: 14 August 2025
Delivered: 12 September 2025
SUMMARY: Unfair dismissal

ARBITRATION AWARD

Details of hearing and representation

1. The dispute was set down for arbitration on 16 August 2025. Mr. Aaron Mhlontlo who is an official of NAPTOSA represented the applicant, Miss. Nelisa Zicina. Mr. Bonisile Nkuhlu who is employed as Chief Education Specialist: HRD, represented the respondent, Education Department of Eastern Cape.
2. The proceedings which were digitally recorded were conducted in English. Both parties submitted bundles of documents marked “Applicant’s Bundle (AB) and Respondent’s Bundle (RB). They requested to submit closing arguments in writing, the last of which were received on 21 August 2025. Issue to be decided
3. I am required to decide whether the approval of the applicant’s request for early retirement constitutes an unfair dismissal.

Background to the dispute

4. The Applicant, a Post Level 1 Educator at Siyabalala High School earning R39,638.30 monthly, applied for early retirement on 12 September 2024, initially effective 28 February 2025. HR advised her in January 2025 to extend her retirement to 30 April 2025, but she received no approval by April. Later, she attempted to withdraw her retirement request to continue working until age 60. Despite this, letters dated 3 and 6 June 2025 confirmed her early retirement as of 28 February 2025. On 12 June, she requested reinstatement, and on 25 June was asked to submit a bank form and certified documents, which she did not do due to distrust. She received no further communication. She alleged that she was dismissed on 6 June and claimed that her salary for March to May was reversed.
5. The Respondent submitted that an employee wishing to end their employment must submit a formal letter, and that the required notice period for early retirement is six months. If an employee wants to withdraw an early retirement application, they must provide valid reasons, and it is at the respondent’s discretion whether to accept or decline the withdrawal. In this case, the applicant’s letter, signed by the school principal on 26 September 2024, only reached the District Office in October 2024.
6. The respondent further submitted that the applicant did not meet the conditions for withdrawal because her letter requesting early retirement was submitted late. She also failed to consult the HR Section and her trade union as required. Additionally, the withdrawal of her early retirement request should have been done at least one month before the termination of her services.

Survey of evidence and arguments
Applicant’s case

7. Prior to lodging her early retirement application, the applicant visited the Government Employees Pension Fund (GEPF) office to enquire about the applicable procedure. She was informed that such an application had to be submitted at least three months before the intended retirement date.
8. She submitted her request for early retirement on 12 September 2024, which was stamped by the school principal on 26 September 2024 (AB – Page 1). She further testified that she did not receive a response from the respondent. In January 2025, she was contacted by Miss. Thonjeni, a Senior Personnel Officer, who asked her to sign certain documents and informed her that the application had been submitted late. The Applicant stated that she never received confirmation that her subsequent withdrawal was accepted, nor did she receive any payment from the GEPF.
9. While her initial application reflected 28 February 2025, she later amended it to 30 April 2025 and completed the GEPF forms with Ms. Thonjeni’s assistance.
10. On 17 April 2025, she visited the District Office and verbally informed Mrs Thonjeni that she had changed her mind and wished to retire only upon reaching the age of sixty. Ms. Thonjeni immediately attended to the matter, retrieved the applicant’s file, and recorded the withdrawal on the same letter in which the Applicant had requested an extension of her retirement date.
11. She continued reporting for duty in March, April and May 2025. However, she later discovered that her salary and benefits for these months had been reversed in her payslips (AB – Pages 19–25).
12. She returned to the GEPF office to enquire about the status of her withdrawn early retirement. There, she was informed that the respondent itself had withdrawn her retirement request and that all retirement-related correspondence would be handled directly between the HR Department and the CLO. She has not received any pension payout.
13. She received two letters from the Acting District Director, dated 3 and 6 June 2025, bearing different signatures but containing identical content. These letters informed her that her normal retirement had been approved and that her last working day would be 28 February 2025.
14. She acknowledged receipt of these communications but, in a letter dated 12 June 2025 (AB – Page 17), informed the District Director that she had reconsidered her decision to take early retirement, requested the withdrawal of her retirement application, and asked that her employment be reinstated. She admitted that she did not submit documents which were requested from by the HR Department because due to her calling she did not trust what they needed the documents for.
15. Under cross-examination, the Applicant testified that she never received a letter approving the reversal of her early retirement.
16. She further testified that, on 17 April 2025, she informed Miss. Thonjeni that she was withdrawing her early retirement application. On the same application, Miss Thonjeni recorded in handwriting that the applicant’s early retirement request should be withdrawn because she had changed her mind and would remain employed until the age of sixty (AB – Page 13).
17. The Applicant stated that she received an email from Ms. Benya requesting her to submit documents in support of her early retirement. She contacted a Miss. Mzanywa, who advised her that she was only required to bring her bank statement, and not the bank form, certified copies of her qualifications, or her identity document as requested in the email.
18. She denied ever writing on the pension withdrawal forms that she worked only until 28 February 2025, and she disputed the authenticity of the signature appearing on AB – Page 9. She maintained that she only signed for a period ending on 30 April 2025 (AB – Page 8) and further stated that the respondent had informed the GEPF that she had withdrawn her request for early retirement.
19. When she requested a letter from the GEPF confirming that her early retirement request has been withdrawn, she was told that such correspondence must come from the HR Department, which alone was authorised to communicate with them in this regard.

Respondent’s case

20. The Respondent’s witness, Mrs. Ndileka Benya, testified that she is employed as Deputy Director: Human Resources at Chris Hani East District in Ngcobo.
21. She further testified that a Post Level 1 application for early retirement must be recommended by the principal and must comply with the six-month notice requirement. The applicant’s letter dated 12 September 2024 (AB – page 1), did not meet this requirement, as it provided less than six months’ notice. Her office only received the application on 9 October 2024, leaving insufficient time to process it for retirement with effect from 28 February 2025. She further testified that a withdrawal of such a request must also be lodged within six months, accompanied by reasons, and that in this case she did not receive any withdrawal letter from the applicant.
22. According to her, by the time the applicant sent an email requesting reinstatement, she had already been removed from the system. The witness then requested her to submit a bank form and statement, as well as certified copies of her qualifications and identity document, because reinstatement would have required a full re-appointment with the approval of the delegated authority, namely the Director: HR & Administration (AB – Page 18).
23. She testified that the Applicant never provided the requested documents, which made it impossible for them to proceed with the reinstatement process. Without the original attachments from the Applicant, they could not prepare the necessary memorandum. Communication with the applicant was also difficult, as her phone was often off and she responded late to SMS and WhatsApp messages.
24. As a result, the withdrawal of early retirement could not be effected, and it was approved. In her view, the applicant would have been prejudiced had the department not proceeded with the early retirement process.
25. She confirmed that the approval letters dated 3 and 6 June 2025 (AB – Page 15) were the standard letters issued to employees once early retirement had been approved. Thereafter, an employee would be expected to complete a withdrawal document, which the department would then submit to the GEPF on their behalf.
26. Under cross-examination, she stated that upon receiving the Applicant’s early retirement application, she prepared a memorandum to the Director: HR for approval. Between October and December 2024, the respondent had no contact with the applicant and only managed to reach her in January 2025 to advise her of the requirements for early retirement.
27. It was recommended that the applicant’s early retirement take effect from 1 March 2025. She recalled that in May or June 2025, the applicant brought to the HR office a letter dated 29 January 2025 (though she was certain of the exact date) requesting an extension of her retirement date. The witness confirmed that the handwriting on the note stating that the applicant had changed her mind and would retire at sixty belonged to Miss. Thonjeni.
28. She testified further that Ms. Thonjeni gave the applicant withdrawal forms in January 2025, but the latter did not return them. The change sought at the time was to extend the retirement date to 30 April 2025. She confirmed receiving the withdrawal form only on 26 May 2025, and that the memorandum at AB – Page 2 referred to the application for early retirement by 28 February 2025.
29. She became aware only in June 2025 that the applicant no longer intended to take early retirement. Around May or June 2025, the applicant returned to HR to confirm this, and the department recalled the forms from the GEPF. However, processing of the applicant’s reinstatement as she did not submit documents which were required for the reinstatement.
30. In approving the request for early retirement, the department relied on the applicant’s initial communication when she applied for early retirement, which reflected her last day of service as 28 February 2025. The witness further testified that she did not respond to the applicant’s letter of 12 September 2024 (AB – Page 1) because by then the latter had changed her position regarding retirement.
31. The witness further testified that, had the applicant submitted the required documents, reinstatement could have been effected.

Closing arguments by the parties

32. The applicant argued that she filed an early retirement application dated 12 September 2024, effective 28 February 2025, in line with the Employment of Educators Act. HR later advised her that the processing would only be possible by 30 April 2025. Subsequently, she informed the HR official that she had changed her mind and preferred to continue working until 60 due to improved health.
33. She further argued that her application was never approved, thus she continued rendering services and receiving a salary until May 2025, which reinforced her expectation that her withdrawal of retirement was accepted. The HR/GEPF forms had discrepancies in that, wrong termination date and missing Form 864 further complicated matters.
34. It was further argued that the respondent’s witness confirmed that the applicant indicated she no longer wished to retire, but critical witnesses were not called, leaving much of the evidence as hearsay. She cited Pamplin v WCED; National Commissioner of SAPS v SSSBC where the court emphasizes the employer’s duty to prove fairness and good faith in such matters and National Commissioner of the SAPS v SSSBC and other [2005] 26 ILJ 903 (LC) wherein the court held that the complainant must prove that there is a causal connection between the unfairness complained of and the prejudice suffered.
35. She further argued that the applicant’s documents were withdrawn from GEPF to stop processing her retirement, and HR committed to reinstating her on the system and requested further documentation for processing.
36. The respondent argued that the applicant’s termination was procedurally correct, as it was based on her own request for early retirement. It was further argued that the applicant could have been reinstated had she properly submitted a withdrawal letter with valid reasons at least a month before the retirement date; but since she failed to meet these conditions of withdrawal, the retirement proceeded as planned.
    Analysis of evidence and arguments
37. Section 138(1) of the Act provides that the commissioner may conduct the arbitration in a manner that the commissioner considers appropriate to determine the dispute fairly and quickly but must deal with the substantial merits of the dispute with the minimum of legal formalities. Section 138(7)(a) further provides that the commissioner must issue an arbitration award with brief reasons, signed by that commissioner.
38. Section 192 of the Labour Relations Act 66 of 1995, as amended (the Act) provides that in disputes of unfair dismissals an employee must establish the existence of a dismissal. Once dismissal has been established an employer has an onus to prove that the dismissal was fair.
39. The dismissal of the applicant was in dispute, and therefore the burden to prove the existence of dismissal rested with the applicant who alleged that she was dismissed after the respondent approved her request for early retirement.
40. The dispute before me related to unfair dismissal. The testimony of the applicant was that she initially applied for early retirement effective 28 February 2025 but subsequently requested an extension of the retirement date to 30 April 2025. On 17 April 2025, she notified Human Resources (HR) that she has decided to remain employed until reaching the age of 60. She continued working beyond February 2025, and the GEPF confirmed that no payout had been made, as HR managed the withdrawal of her retirement application. The Applicant later discovered that her salary for March, April, and May had been reversed. She disputed having signed for retirement effective 28 February 2025, asserting that her retirement had been set for 30 April 2025, which she later withdrew.
41. The respondent denied that the applicant was dismissed and stated that she applied for early retirement, which she initially submitted late, extended it and then made a withdrawal request. The withdrawal could not be processed due to missing documentation, and, consequently, early retirement was validly effected as of 28 February 2025.
42. The Applicant did not deny receiving an email from HR requesting the submission of certain documents required to process her reinstatement following her withdrawal of the 30 April 2025 retirement date. She explained that, due to her calling, she distrusted the request and therefore did not provide the documents.
43. Section 16(6) of the Public Service Act provides that an executive authority may, at the request of an employee, allow him or her to retire from the public service before reaching the age of 60 years, notwithstanding the absence of any reason for dismissal in terms of section 17 (2), if sufficient reason exists for the retirement. Section 10(3)(a) of the Employment of Educators Act provides that an educator shall have the right to retire on or after attaining the age of 55 years.
44. It is common cause that the response to the applicant’s request for early retirement, which was approved, was dated June 2025. There was also no dispute that the applicant reported for work after 28 February 2025 until May 2025 and that her payslips show that the salaries that she received in March, April and May have been reversed.
45. There was also no dispute with regards to the applicant’s request for early retirement by 28 February 2025, its extension to 30 April and then a withdrawal of the early retirement to retiring at sixty. There was also no dispute that the applicant was sent an e-mail requesting her to submit certain documents in order to start the process of reinstating her. The respondent stated that the withdrawal of her early retirement and her reinstatement could have been processed if she submitted the required documents.
46. The issue to be determined, in my view, is whether the approval of early retirement subsequently withdrawn by the applicant constitutes an unfair dismissal. It should be noted that the applicant had already withdrawn her request for early retirement prior to the respondent’s purported approval, whether for 28 February 2025 or 30 April 2025.
47. I am of the view that the applicant’s request to withdraw her early retirement and to remain employed until the age of sixty was considered by the respondent, who informed her that she was required to submit specific documents in order for the withdrawal and reinstatement process to be effected (AB p.18). The respondent’s witness testified to this requirement, and the applicant herself confirmed that she had not submitted the required documents. Her explanation for failing to do so, do not have merit. In consequence, the respondent proceeded to confirm the approval of her early retirement application in letters dated 3 and 6 June 2025.
48. The applicant communicated her change of mind to early retirement before she received a response from the respondent that her retirement had been approved. I believe that the outcome would have been different had the applicant submitted the documents that were required to effect her reinstatement. Although termination letters were issued on 3 and 6 June, the respondent remained willing to consider her request to withdraw her early retirement as of 25 June. However, according to her testimony, she chose not to submit the necessary documents to facilitate her reinstatement.
49. I am of the view that the approval of her early retirement was a consequence of her failure to submit the required documentation. I therefore find that the applicant has failed to establish, on a balance of probabilities, an existence of dismissal.
50. On the issue of the reversal of the applicant’s salary for the months of March, April and May, I find that such reversal would be unfair. The applicant’s evidence that she reported for duty and rendered services during this period was not disputed. It follows that, having performed her duties, she is accordingly entitled to remuneration for those months, and the employer is not entitled to effect a reversal of her salary.
51. Section 74(2) of the Basic Conditions of Employment Act 75 of 1997, as amended, provides that if an employee institutes proceedings for unfair dismissal, the Labour Court or the arbitrator hearing the matter may also determine any claim for an amount that is owing to that employee in terms of this Act if…

(a) the claim is referred with section 191 of the Labour Relations act 66 of 1995;
(b) the amount had not been owing by the employer for linger than one year prior to the dismissal and;
(c) no compliance order has been made, and no other legal proceedings have been instituted to cover the amount.

52. Based on the above reasons, I accordingly make the following award;

Award

53. In terms of Section 74(2) of the BCEA, the respondent, Department of Education: Eastern Cape is ordered to reimburse the applicant, Nelisa Zicina her salary that was reversed in March 2025, April 2025 and May 2025 by no later than 2 October 2025.
54. The application for unfair dismissal is dismissed.

Signature:

Commissioner: Thobela Ncetezo
Sector: Education