IN THE EDUCATION LABOUR RELATIONS COUNCIL

CASE NUMBER: ELRC 1054-24/25 EC

In the matter between:

NAPTOSA obo NGANGOMHLABA SONTSELE
(Union / Applicant)

And

DEPARTMENT OF EDUCATION- EASTERN CAPE
(Respondent)

ARBITRATION AWARD

PANELIST: BONGANI MTATI

DATE: 12 MARCH 2025

DETAILS OF THE HEARING AND REPRESENTATION

1. This arbitration hearing was held on the 7 March 2025 at the Department of Education at Bizana and the Applicant was in attendance represented by Mr Mhlontlo NAPTOSA official and the Respondent’s representative was not in attendance but attended by resource person Mr Z Nozulela who made application for postponement of the arbitration only and not representing the respondent.
2. It was reported by Mr Nozulela that they were aware of the arbitration date and venue as they received notice of set down, but their representative was sick and unable to attend arbitration.
3. l proceeded with the hearing on default basis in terms of section 138 (5)(b)(i) of the Labour Relations Act no.66 of 1995 as amended (the Act) as postponement application was refused.
   PRELIMINARY ISSUE
4. The resource person of the respondent raised a preliminary of his application to postpone the arbitration due to absence of their representative who was reported off sick and unable to attend arbitration hearing.
5. He submitted that the respondent has no other person to proceed with the case as their representative as she submitted her medical certificate dated 5 March 2025 at work and further forwarded it to ELRC for application of postponement of the arbitration.
6. He finally stated that he requests that the arbitration is postponed to another date.
7. The applicant objected to the application for postponement by questioning lack of details of the medical certificate concerning declaration of fitness to work or not and further raised issue of absence of the main witness of the respondent as outlined in the affidavit of the representative applying for the postponement of the arbitration.
8. The applicant further stated that application for postponement was submitted to ELRC and refused by the General Secretary, so viewed current application as frivolous and mischievous, so submitted to be dismissed and proceed with arbitration.
   RULING
9. I ruled that arbitration shall proceed as endorsed by the Council by refusing postponement of the arbitration which was further confirmed by Mr Koma when phoning him.
10. Therefore, the postponement application by the respondent is refused and proceeded with arbitration on default basis as there was no representation for the respondent.

ISSUE TO BE DECIDED

11. I am required to determine whether the Applicant’s dismissal was procedurally and substantively fair. Should I find that the dismissal was not fair, I will be required to determine an appropriate relief.
    BACKGROUND TO THE ISSUE
12. The Applicant was employed by the Respondent on the 01 July 2008 as an educator at Madikizela Senior Secondary School and transferred to Emdeni Senior Primary School (SPS) up to his dismissal.
13. At the time of his dismissal, the Applicant was earning R33 252-25 per month and was dismissed on the 14 January 2025.
14. The Respondent is the Department of Education Eastern Cape as institution that employs educators and providing learning and teaching to public schools in the province.
15. The Applicant is seeking for retrospective reinstatement.
16. The proceedings were manually and electronically recorded.

SURVEY OF THE EVIDENCE AND ARGUMENTS

Witness: Ngangomhlaba Sontsele

17. He testified that he was served with a notice of the disciplinary inquiry with charges in terms of Employment of Educator’s Act76 of 1998 alleged with two counts being displayed disrespect towards others in the workplace or demonstrated abusive or insolent behavior towards Mrs Makhosi Ngcbo by insulting and calling her with names.
18. He submitted that count 2 of his charge was intimidation or victimization of fellow employees, learners and students in that he shouted Mrs Ngcobo in public next to Linomap butchery in Bizana and further grabbed her in the chest and her motor vehicle steering wheel demanding her to give him information of the meeting held at school.
19. He disputed all the two counts of charges claiming that he never did such misconducts levelled against him and knew Mrs Ngcobo as her colleague, relative and close friend who assisted one another generally.
20. He finally stated that he prays to be reinstated retrospectively to his post at Emdeni Senior Primary School.
    ANALYSIS OF EVIDENCE AND ARGUMENTS
21. In terms of section 188 of the LRA,(1) a dismissal that is not automatically unfair is unfair if the employer fails to prove:
    (a) that the reason for dismissal is a fair reason
    (i) Related to the employee’s conduct or capacity, or
    (ii) Based on the employer’s operational requirements, and
    (b) That the dismissal was effected in accordance with a fair procedure.
22. In this case only Applicant’s version is before me and l am required to assess the reliability and relevance of the Applicant’s version, as there is no evidence before me testified by the Respondent due to being absent
23. It is apparent from the Applicant’s undisputed evidence that he was dismissed unfairly, as he was dismissed for displaying disrespect towards others or demonstrated abusive or insolent behavior and victimizing or intimidating by shouting and grabbing Mrs Ngcobo in the chest, but disputed the allegations with submission that he was the colleague, friend and relative to Mrs Ngcobo, so would not do such alleged misconducts.
24. l have no reason not to admit his uncontested evidence.
25. Item 7 of schedule 8 of the LRA requires that an employee must be dismissed only if he or she contravened a rule regulating conduct in the workplace. In this case l find that the Applicant did not breach the rules as he disputed that he breached the rules as charged with two counts of misconduct as mentioned above.
26. Therefore, l find that Applicant’s dismissal was substantively unfair as had no challenge to the procedure followed in the inquiry.
27. Considering relief of reinstatement sought by the Applicant, l have no justification not to grant such relief as provided in terms of section 193 of the LRA.
    REMEDY
28. In this case the Applicant sought retrospective reinstatement and l am satisfied that the Applicant was substantively unfairly dismissed, which justify me to grant remedy of retrospective reinstatement.
29. Therefore, l conclude that l retrospectively reinstate the Applicant to his original post of being an educator with back pay of an amount of R66 504-50.
30. The amount in paragraph 29 is based on the salary of the applicant being R33 252-25 per month, months not receiving his salaries being February and March 2025, severity of unfairness being substantive unfairness and period not working being February and March 2025.
31. The respondent, Department of Education, Eastern Cape is ordered to reinstate the applicant to his original post of being an educator at Emdeni SPS with similar terms and conditions prior to his dismissal.
32. I therefore make the following award:

AWARD

33. The dismissal of the Applicant Ngangomhlaba Sontsele was substantively unfair.
34. The Applicant’s application for unfair dismissal is granted.
35. The applicant is ordered to report at Emdeni Senior Primary School at 08H00 on the 24 March 2025.
36. The Respondent, Department of Education Eastern Cape is ordered to back pay an amount of R66 504-50 (Sixty Six Thousand Five Hundred and Four Rand Fifty Cents) to the Applicant, Ngangomhlaba Sontsele on or before 20 May 2025.

Signature:
Panelist: Bongani Mtati