18 August 2025 – ELRC1415-24/25NW

Case Number: ELRC1415-24/25NW
Commissioner: Simon Beesnaar
Date of Award: 08 August 2025

In the ARBITRATION between

Goliath, Katelin Deslin
(Union/Applicant)

And

DEPARTMENT OF EDUCATION – North West
(Respondent)

Union/Applicant’s representative: Ms. Lerato Motlhabi – Legal Rep (MANGENA INC)
Union/Applicant’s address:

Telephone:
Telefax:
E-mail:

Respondent’s representative: Ms. Boitumelo Phuswane – Manager : Labour Relations
Respondent’s address:

Telephone:
Telefax:
E-mail:

DETAILS OF THE HEARING AND REPRESENTATION

This is the ruling in the arbitration between Goliath Katelin Deslin, the Applicant and the North West Department of Education, the respondent.
The referral is in terms of section 191 of the Labour Relations Act, 66 of 1995 as amended (herein referred to as “the LRA”) and the award is issued in terms of section 138(7) of the LRA.
The arbitration was scheduled on 21 July 2025 and concluded on 22 July 2025 in Vryburg. Further that the parties requested to submit in writing Heads of arguments (HOAs) no later than 25 July 2025 and request was granted.
While the Applicant made an application for legal representation, she represented herself on the first day of the hearing. Her legal representative from MANGENA & ASSOCIATES INC was present on 22 July 2025. The respondent was represented by Ms. Boitumelo Phuswane in her capacity as Manager – Labour Relations.
The parties submitted into evidence bundles of documents which were accepted for what they purported to be. The Applicant’s bundle is referred to herein after as Annexure “A” and the respondent’s bundle as Annexure “R”.
The proceedings were conducted in English and were manually and digitally recorded. Mr. Brian Banga assisted the Applicant in Afrikaans as an Interpreter.

ISSUES TO BE DECIDED

The dispute is whether the respondent made continued employment intolerable, thus leaving the Applicant with no choice but to resign. It must further be determined whether the Applicant was forced to resign from her post.
The dismissal is in dispute as held by the respondent.
Finally, should the dismissal be held to have been unfair, to determine the appropriate remedy.

BACKGROUND TO THE DISPUTE

The Applicant was an Educator, Post level 1 at Vaaloewer Combined School. She started on 29 January 2024. She earned R 22 000.00 per month and resigned on the 15 October 2024.
She resigned amidst allegations of misconduct against her. It is common cause that it was discovered during moderation on 5 October 2024 that she misrepresented the learner’s marks on the mark sheet. She resigned after one of her colleagues (Ms Benn) reported the matter to the Labour Department in the absence of the Principal.
She filed a grievance on 16 October 2024 after her request to withdraw her resignation was declined. It was indicated that her resignation was processed and finalised. Aggrieved by the respondent’s decision, she approached her legal representative for assistance.
The dispute was then referred to the Council on the 19 March 2025, alleging constructive dismissal in terms of section 186(1)(e) of the LRA for conciliation. Conciliation was scheduled on 8 May 2025 and failed to resolve the dispute. The Applicant then requested that the matter be resolved through arbitration.
The relief sought by the Applicant in the circumstances is retrospective reinstatement.

PRELIMINARY ISSUES
Applicant’s submissions –

At the outset of the arbitration proceedings there was an application for postponement by the Applicant, Ms. Goliath. The reason for the application was that her legal representative was not available. She requested that the arbitration hearing be rescheduled to a later date.
It was submitted that after she applied for legal representation, there was no response from the Council in that regard. Her legal representative was waiting to hear whether the application would be granted or not, hence she could not attend.
It was further her submission that would allow the parties an opportunity to exchange the bundle of documents and to convene and finalise the mandatory pre-arbitration conference. And that she was not familiar with the Council processes.
Respondent’s submissions –
Ms. Phuswane vehemently opposed the application for postponement disputing the submission that the Applicant was not familiar with the processes. Further that the parties were notified back on 23 June 2025, and she was consistent in reminding the Applicant’s legal rep about the Pre-arb conference but to no avail.
She concluded by saying that the legal representatives ought to know and be familiar with the Council Rules and that there was no acceptable reason as to why her representative was not available and found no reason why the arbitration should be postponed.
ANALYSIS OF THE SUBMISSIONS
In deciding whether to grant postponement of the arbitration or not, I am guided by the Rules for the Conduct of proceedings before the ELRC (the ELRC Rules) that regulates how to postpone an arbitration and/or how to bring such an application before the Council.
An application for postponement must be made timeously and as soon as the circumstances which may justify an application become known to the Applicant. However, in cases where fundamental fairness and justice justify a postponement, the Council / the Commissioner may in appropriate cases allow a postponement even though the application was not made on time.
The application must always be bona fide and not used simply as a tactical manoeuvre for the purpose of obtaining an advantage to which the Applicant is not legitimately entitled. The Council / Commissioner has a discretion whether an application for postponement should be granted or refused. The discretion must always be exercised judicially and for substantiated reasons and should never be exercised capriciously or on incorrect principles.
An application brought on the scheduled date of the arbitration should only be considered if it is shown that good cause exists for treating it as urgent application in respect of which the requirements of Rule 31 may be dispensed with in terms of Rule 31 (8). I have considered the submissions made by the Applicant and the respondent’s opposition and decide as follows
In an urgent application, the Commissioner or the Council may dispense with the requirements of the Rules and may determine an application in any manner it deems fit, provided that the Commissioner or the Council informs the parties on how the process will be conducted and gives the parties an opportunity to be heard.
Both the Applicant and the respondent were indeed given an opportunity to make their representations which were thoroughly considered when a determination on the matter was made. I noted that the application for postponement was opposed.
In Carphone (Pty) Ltd v Marcus NO and others (JA 52/98) [1998] ZALAC 11; (1998) 19 ILJ 1425 (LAC) (handed down on 1 September 1998), it was held that the granting of an application for postponement is not a right. It is an indulgence granted by the Court in the exercise of a judicial discretion (it is submitted that this also applies to proceedings before the CCMA/Council).
It is important to note that arbitration proceedings must be structured to deal with the dispute fairly and quickly (see section 138(1)) of the LRA). Further that the proceedings must be conducted with a minimum of legal formalities. The ability to make costs orders to counter prejudice in good faith postponements is severely restricted.
When it comes to considering a request for a postponement, considerations for prejudice will ordinarily constitute the dominant component of the total structure in terms of which the discretion will be exercised. I should weigh the prejudice which will be caused to the Respondent in such an application if the postponement is granted against the prejudice which will be caused to the Applicant if it is not.
While the Applicant requested postponement, she came with two of her own witnesses. The fact that the Respondent Rep travelled all the way from their Provincial Head Office in Mahikeng cannot be taken lightly. She also brought in two witnesses and there are financial implications.
I see no reason why the Applicant’s legal rep was not in attendance because according to the Council Rules, there was no need for an application for legal representation in the first place based on the nature of the dispute (Constructive Dismissal).
While the employee’s Legal Rep was not present as she submitted, she was reassured that it was not unprecedented to proceed with arbitration when one or the other party is unrepresented. The important aspect of the ‘helping hand’ principle was explained to ensure that the issues in dispute are properly ventilated (see Nkomati Joint Venture v CCMA & others (2019) 40 ILJ 819 (LAC).
In light of the foregoing, I am not persuaded that the employee made a good case for postponement, and I am of the view that it is not in the interest of justice to grant the application.
In the circumstances I make the ruling here after –

RULING

The application for postponement is refused and I order that the arbitration continue.

SURVEY OF EVIDENCE AND ARGUMENT
Respondent’s evidence –

Ms. KD. Goliath stated that on 4 October 2024 that Ms Wessie came to collect the learners’ answer sheets from her. An hour later she was called in and was informed that the marks she entered on the mark sheet did not correspond with those on the SAMS (system). She was further informed that was serious misconduct that she had committed.
The Labour Relations Unit was notified, and she was advised to resign before the disciplinary action could be taken against her. The School Principal was not there at the time. She spoke to one of her colleagues who told her she was made aware of the incident. She was also called in and was informed about the situation.
Further that her colleague was told to speak to her about the seriousness of the misconduct and to advise her to rather resign. What happened would make her lose her job and end her career. She told her that she was going to think about it. The following day, which was on Saturday, her colleague called the School Principal as to whether the Applicant should come to work on Monday.
The Principal told her that he knew nothing, and she must come to school on Monday. She came to school on Monday, but she was not feeling well because of what happened. She went to the doctor on Wednesday and was booked off sick. Mr Kujane from LR Unit told her that Mr. Makhado from the Circuit Office would be investigating. She finally resigned on the 15 October 2025.
Kujane asked her to come see him. He wanted money to save her from losing her job. She then filed a grievance after the respondent failed to consider her request to withdraw her resignation. She maintained that she was forced to resign. She then approached her legal rep for assistance and referred the dispute to the Council for a constructive dismissal.
Under cross examination she conceded that she was not dismissed, but she resigned. There was no reason for the dismissal because she resigned. She insisted that she was forced to resign, and no procedure was followed. Further that she feared that she could lose her registration with the Council. The principal also told her that he was made aware of the seriousness of the allegations.
The Principal and her Union SADTU proposed to two options to choose from, one to carry on with her job to allow investigation on the allegations or to resign. She decided to take the second option of resigning.
Ms. Vinzelle Damons worked at the same school before she resigned. It was couple of years before the Applicant was appointed. She had a problem of disciplining the learners and her Departmental head was always on her case. She did not get any support from her Superiors in terms of dealing with the school children.
Due to that situation, she was left with no choice but to resign. Under cross examination, she confirmed that she never worked with the Applicant and could not testify on the circumstances that led to her resignation.
Ms. Fechendria Benn stated that on 4 October 2024 Ms. Wessie called her in to her class. She informed her about some of the assessments of the Applicant which were not marked and that some of the marks were wrong. While they were having that discussion, Mesdames Keepile, Rousouw and Saunders came in. they also told her that Ms. Hoffman who did the moderation, came across two of the Applicant’s assessments which were not marked but there were marks allocated on the mark sheet.
They told her about the seriousness of the matter. That the Applicant could lose her job and her registration with the Council (SACE). They asked her to advise her to resign. She must write a resignation letter and sent it to the School Principal. She felt uncomfortable because she did not know how to speak to the Applicant about the matter.
She went to the Applicant and told her that Ms. Keepile said she must resign. They spoke about the Applicant’s assessments which were not marked. She then became worried as to why she should advise her to resign because they can all make a mistake. They are human. She called the Principal and informed her that he was not aware of the incident. Further that the Applicant must come to school on Monday, the following week.
On that Monday morning Mesdames Keepile, Rousouw asked her why she did not resign. She felt that they were putting pressure on her to resign. Further that it was unfair on her because she was not even given a warning beforehand. Under cross examination she conceded that the Applicant was not dismissed but she resigned. Annexure A1 was read into the records. Further that the allegations against the Applicant were serious.

ANALYSIS OF EVIDENCE AND ARGUMENT

This is a referral in terms of section 191 of the LRA. The Applicant seeks retrospective reinstatement should I find in her favour. In determining the dispute between the parties, I considered the provisions of the LRA and the Code of Good Practice: Dismissal (herein referred to as “the Code”) and came to the following findings.
While the Applicant referred the dispute to the Council alleging that the respondent made continued employment intolerable, it is further her allegation that she was forced to resign. I noted that the respondent placed the dismissal allegations in dispute, that there was no dismissal.
It is common cause that the Applicant was made aware of the seriousness of the allegations against her on 4 October 2024. After moderation was done on her assessments, it was discovered that wrong marks were allocated to learners and that some assessments were not done. That in my view is misrepresentation that constitutes serious misconduct.
In proceedings challenging any dismissal, it is the employee who bears the onus to prove that she was dismissed, and the employer who must prove that the dismissal was fair. A ‘constructive dismissal’ occurs when the employee resigns because her employer made her continued employment intolerable. Whilst it might seem that it is always unfair to make continued employment intolerable, our Courts have stressed that a constructive dismissal is not inherently unfair.
Arbitrators determining constructive dismissal disputes accordingly undertake the usual two-stage enquiry: firstly, did the employee’s resignation amount to a dismissal, and secondly, if so, was the dismissal fair? In order to prove that a resignation amounted to a constructive dismissal, the employee must show that: (a) s/he terminated her employment; (b) his/her reason for so doing was that continued employment had become intolerable; and (c) it was the employer who caused continued employment to become intolerable.
The test for intolerability is objective (see Westcor SA (Pty) Ltd v Mey and Others (2023) 44 ILJ 397 (LC) (handed down on 22 November 2023). The Court assesses both the circumstances themselves and the employee’s response thereto. In the circumstances, I do not find that Applicant’s resignation amounted to a dismissal in the first place. The Applicant and her third witness conceded that there was no dismissal. The testimony of the Applicant’s second witness did little to nothing to assist in proving her claims against the respondent.
While the Applicant also stated that she was forced to resign, I find that to be just an averment without substance. There was no evidence whatsoever to prove that she was forced to resign as alleged. It was the Applicant’s own testimony that she was given two options by the School Principal and the Union SADTU given the seriousness of the allegations she was faced with.
It was just an afterthought in my view when she filed a grievance after she resigned, to have her resignation rescinded. After she was informed that her resignation has been processed and finalized, she found it convenient to allege that she was forced to resign. She opted to resign in fear of losing her registration with the professional body SACE and losing her career permanently. In a constructive dismissal there can be no forced resignation. The circumstances must be demonstrated to be ‘insufferable and too great to bear’ and be such that no reasonable employee can be expected to put up with them.
We are confronted in here, whether objectively speaking, the facts which would give the Council jurisdiction to entertain the dispute exists. The crux of the matter is whether the Applicant was constructively dismissed or not. As already indicated in paragraph 53 above there is no dismissal.
I further find that she was not forced to resign as alleged. It was the choice she made. In her letter of resignation, there is no indication that it was done under any form of duress.
I considered both the Applicant’s testimony and the Respondent’s submissions and conclude that while the Applicant submitted that she has been dismissed, and or forced to resign, the allegations has not been substantiated.
Having regard to the full conspectus of all relevant facts and circumstances of the matter, I make the ruling hereafter –