Arbitrator: Themba Godfrey Chobokoane
Case Reference No.: ELRC1156-25/26FS
Date of award: 18 June 2026

In the Arbitration between:

Daniel Johannes Christiaan Marais Applicant

and

Department of Education – Free State Respondent

DETAILS OF HEARING AND REPRESENTATION

1. The arbitration proceedings for an unfair dismissal dispute referred in terms of section 191(1)(a)(i) of the Labour Relations Act, 66 of 1995, as amended (LRA), were held on 20 April 2026 in Bloemfontein, and 21 May 2026 in Zastron, and concluded on 22 May 2026 in Bloemfontein at the Respondent’s premises. The parties agreed to submit the closing argument on 28 May 2026.
2. The Applicant, Mr Daniel Johannes Christiaan Marais, was represented by Ms Cynthia Farrell, the Suid Afrikaanse Onderwys Unie (SAOU) Provincial Secretary. The Respondent, Department of Education – Free State, was represented by Mr Thulo Tsunke, an Assistant Manager; Labour Relations of the Respondent.
3. The proceedings were digitally recorded, and typed notes were kept. The interpretation services were not required.

ISSUE TO BE DECIDED

4. The dispute was referred in terms of section 191(5)(iii) of the Labour Relations Act, 66 of 1995, as amended (the LRA), as a claim of unfair dismissal for unknown reasons.
5. The Respondent challenged the existence of a dismissal.
6. I was called upon to determine whether the Applicant was dismissed, as alleged. Only once the Applicant is able to establish the existence of a dismissal does the onus shift to the Respondent to prove the fairness of the dismissal in terms of section 192 of the LRA.
7. The Applicant sought to be retrospectively reinstated. The Applicant submitted a bundle of documents marked A (herein referred to as A), and the Respondent submitted a bundle of documents marked R (herein referred to as R).

BACKGROUND TO THE ISSUE

8. He was working as a Departmental Head from 2 June 2025 until he was told to no longer report for duty on 10 July 2025. His salary was R36 270.00 per month on salary level 08 (R435 240.00). The Applicant worked from 2 June 2025 to 10 July 2025 and never received his salary. He worked five days per week, from Monday to Friday. He was on a 12-month probation period for a permanent contract of employment.
9. Parties further listed the common cause as follows: The Applicant was previously employed by the Respondent, and resigned pending the finalisation of the disciplinary hearing in December 2006. The Applicant in 2025 then applied for the position of School Departmental Head (HOD). He went through the recruitment process, and he was then appointed. Mr Peacy Hendricks, the Assistant Director, Recruitment and Selection, then wrote a letter on page 12R (promotion: Departmental Head: (PL2) salary level 08) appointing the Applicant to the position of Department Head at Zastron Combined School. The Applicant then accepted the appointment and signed the appointment letter on page 12R on 9 May 2025. The Applicant also signed the contract of employment on pages 13 to 20R on 9 May 2025. The Applicant subsequently received the signed assumption of duty on page 21R. It was signed by the Principal on 28 May 2025, and signed by the Circuit Manager on 28 May 2025. The Applicant reported for duty on 2 June 2025 and continued to render service until he was told by the Principal to stop reporting for duty because there was an issue with his appointment on 10 July 2025.

SURVEY OF EVIDENCE AND ARGUMENT

10. The testimonies, under oath, are fully captured on the digital recording, and a copy of the digital recording is available on request from the ELRC. Below is a summary of the evidence. If evidence is not captured herein, it does not mean that it was not considered.
11. Bundle “A” was submitted into evidence by the Applicant, and “R” by the Respondent. Evidence of the Applicant
12. The Applicant, Daniel Johannes Christiaan Marais (“the Applicant”), testified that on page 40A (page 12R) it was a letter of appointment from the District Director: Xhariep Education District and in paragraph 1 it was stated that “I have pleasure in informing you that approval has been granted in terms of section 6(1) of the Employment of Educators Act, 1998 for your promotion on 12 months’ probation starting from date of assumption of duty in the post of Departmental Head: Post level 2 at Zastron Combined School.” He signed the contract of employment. On page 41A, it was the contract of employment between him and the Respondent. He signed the contract of employment, and the Respondent also signed. He went through the recruitment process, and he was then appointed. He reported for duty on 2 June 2025 at Zastron Combined School. He was then told by the Principal that he could no longer report for duty on 10 June 2025 because there was an issue with his appointment. He was called by the school Principal and the SGB Chairperson. The Principal told him he was told by the District Office that there are problems with his appointment, and he should not return to the School until further notice. He then wrote to the school requesting a written explanation. He then received the call from Mr Percy Hendrecks, the Head of HR at Xhariep District. He told him that he can no longer return to school because of the answers he gave in the Z83 form. He then asked him to put the issue in writing, but he told him that he could not put it in writing because it was an internal issue of the Respondent.
13. He referred to page 56A of the Collective Agreement FSCA 1/2019, and he read paragraph 2.8: “Applicant’s education qualification will be verified, and a probity check will be performed.” He read 4.15.5 on page 59A stating “The interview committee must ensure that a probity check of each shortlisted candidate’s credentials (authenticity of the CV, qualifications, and all other documents) must be done by the Resource Person before the interviews”. All his credentials should have been checked before the interview. When he was appointed, the collective agreement was properly followed.
14. On page 40R (12A), he read paragraph 2 and stated that his appointment was subject to the stipulations in the contract of employment attached to the letter of appointment. He was not dismissed from public service for misconduct. He was charged with misconduct, he was then found guilty, there was no sanction, and he appealed the guilty finding, and before the outcome of the appeal, he then resigned in December 2006. He was not aware that if he resigned pending the disciplinary process, it amounted to a deemed dismissal for misconduct, he was only made aware of the deemed dismissal provision four weeks before arbitration.
15. During cross-examination, the employer representative referred to section 14(1)(d) of the Employment of Educator Act 76 of 1998 (EEA), and he agreed that his employment fell under section 14 of EEA. He also stated that he answered all the questions in the Z83 form honestly because he had resigned.
16. On page 1R, it was the Z83 form. When filling out the Z83, the questions were
17. “Have you ever been dismissed for misconduct from the Public Service? He ticked “No”.
18. “Do you have any pending disciplinary cases against you? He ticked “No”.
19. Have you resigned from a recent job pending any disciplinary proceedings against you? He ticked “No”.
20. Have you been discharged or retired from the Public Service on grounds of ill-health or on conditions that you cannot be reemployed? He ticked “No”.
21. It was put to him that when he ticked No on Z83, he misled the Respondent and was deprived of an opportunity to properly take an informed decision. He stated that he answered all the questions honestly because he had resigned from the Respondent 20 years ago. It was not recent, as stated in paragraph 3 above, when he resigned, it was 20 years ago. He was never dismissed from public service. He was never informed by the Respondent that his resignation in 2006 was deemed a dismissal for misconduct. The answers in Z83 were correct.

Evidence of the Respondent:

18. The first witness of the Respondent, Mr Izak David Steyn (“Mr Steyn”), testified that he was the Principal at Zastron Combined School. He has been employed as a Principal since 1 March 2020. He knows the Applicant professionally. He was allocated to be a resource person and participated during the shortlisting, but could not participate during the interviews. If he was aware that the Applicant resigned while there was a pending disciplinary process, he would have advised the panel on the issue for follow-up to be made.
19. The interviews took place, and the recommendation was made to the District for the Applicant to be appointed. The appointment documents were prepared and sent to him on 9 May 2025, and the Applicant was called to sign. The resumption of duty was on 1 June 2025, and he stated on 2 June 2025, and at the end of June 2025, he had not received his salary. He then made a follow-up with the District, he spoke to Mr Hendricks, and Mr Hendricks told him they cannot appoint the Applicant because there was an error in the persal system. On 10 July 2025, they, he, and the SGB Chairperson called the Applicant and explained that there was a problem with his appointment, and he could not be allowed to continue rendering his services. On page 18A, the Applicant then wrote the letter to the SGB Chairperson, Mr De Kock, on 11 July 2025.
20. The second witness of the Respondent, Mr Garrith Perceval Hendricks (“Mr Hendricks”), testified that he was the Assistant Director, Recruitment and Selection. He was responsible for the appointment, termination, and payment of allowances to Educators. He issued the appointment letter on page 40A (12R). They used the Z83 form to appoint the person after they were successfully recommended by the SGB. The recommendation would be approved by the District Director or delegated person based on the information that was provided in the Z83 form. They received the recommendation from the SGB for the appointment of the Applicant as a successful candidate. The recommendation was approved, and the appointment letter and contract of employment were issued. The Applicant signed, and they issued the resumption of duty. They affected the appointment of the Applicant after all the documents were received. When they wanted to appoint the Applicant on the persall system, they discovered that the Applicant’s name was blocked. They then went on the Z83 to investigate how they could have missed the information on their part. They found that they correctly relied on the information provided by the Applicant on the Z83. They then immediately informed the Principal to inform the Applicant to stop working immediately, until they discover what happened for the Applicant’s name to be blocked on the persal system. It could take about a month to load the new employee on the parcel. The Applicant’s recent work with the Respondent was in 2006 and should have ticked yes when he was asked whether he resigned recently pending the disciplinary proceedings against him. They could have resolved the problem had the Applicant stated yes on the four questions in the Z83, and they would have still appointed him. Removing the blockage from the system can take a long time. It can take years to remove a blockage against a person’s name on the system.
21. They discovered that on the question of whether he was dismissed from the public service, the Applicant ticked No on Z83, when he was supposed to tick Yes, because he was deemed dismissed when he resigned pending the disciplinary process in 2006. If there were four yesses in the Z83, they would have addressed the issue to have it confirmed that they can proceed to appoint. Because of how the Applicant filled the Z83 form, they could not properly analyse the application of the Applicant.
22. In terms of section 14 of EEA, when a person resigns pending the finalisation of the disciplinary process, he/she is deemed dismissed for misconduct. The Applicant resigned while there was a pending disciplinary process against him in 2006. The Applicant’s resignation meant that he was dismissed in terms of section 14 of the EEA. They could not have been aware of the fact that the Applicant was deemed dismissed, they only became aware when they had to appoint the Applicant on the persal because his name was blocked. The Applicant never requested the blockage to be removed.
23. Had the Applicant answered yes to all four questions, he would have still been shortlisted. They would have sought information from him to ask him why he stated yes to the four questions. They would have explored the merits, and they would have checked what the persal stated. They would have asked the delegated authority whether to have the blockage removed, and they would have received the outcome before they could issue the letter of appointment and the contract of employment. Only one yes on the four questions, it would have made them investigate. The Respondent could have still appointed the Applicant while the answers to the questions were yes.

ANALYSIS OF EVIDENCE AND ARGUMENT

24. Parties had submitted their respective closing arguments. The closing arguments were considered but will not be repeated herein.

Deemed dismissal

25. Section 14(1)(d) and (ii) of the Employment of Educators Act (EEA) states the following;
    (1) An educator appointed in a permanent capacity who –
    (d) while disciplinary steps taken against the educator have not yet been disposed of, resigns or without permission of the employer assumes employment in another position.
    shall, unless the employer directs otherwise, be deemed to have been discharged from service on account of misconduct, in the circumstances where –
    (ii) paragraph (c) or (d) is applicable, with effect from the day on which the educator resigns or assumes employment in another position, as the case may be.
26. The incident that triggers the application for section 14 of the EEA is the incident relating to the resignation by the Applicant that took place in December 2006. I am not called upon to determine the case that arose in December 2006, but I am called upon to determine whether there was a dismissal on 10 July 2025 when the Applicant was told to stop working for the Respondent.
27. The Applicant testified that he was not aware that, in December 2006, when he resigned pending the finalisation of the disciplinary hearing, the conduct amounted to deemed dismissal for misconduct. The Applicant testified that he only became aware of the provisions of section 14 of the EEA four weeks before the arbitration. There is no evidence presented by the Respondent that they never accepted the resignation. There was also no evidence showing that the Respondent informed the Applicant that they did not accept his resignation, and he was deemed dismissed for misconduct. But the central point is that the deemed dismissal that happened in December 2006 as a dispute is not before me, had it been the reason for the Applicant to refer the case, condonation from December 2006 would have been required. The only link with the incident that happened in December 2006 was when the appointment of the Applicant had to be loaded on the persal system of the Respondent, and because of their system, they could not load the appointment of the Applicant. It was asked during the testimony of the Mr Hendricks whether the failure of the Applicant to state Yes on the four questions, amounted to dishonesty, and if yes, why they could not follow the disciplinary processes, he responded that that could have been refer to legal, he did not have an answer as to whether the failure of the Applicant to state yes on the four questions in Z83 amounted to dishonesty. I accept that the Applicant was deemed dismissed in terms of the provision of section 14(1)(d) of the EEA for resigning from the Respondent in 2006, because the Applicant resigned before the disciplinary steps were concluded. I also accept that the only relation to the incident that happened in 2006 is that the Applicant’s appointment could not be loaded on the persal system on 10 July 2025 because of the blockage on the system. While the reason for the Applicant’s being stopped from working arose from the incident in 2006, the last date the Applicant worked for the Respondent was on 10 July 2025, and the Applicant was not deemed dismissed for misconduct on 10 July 2025. The Applicant was allegedly dismissed for failing to disclose on his Z83 that he was dismissed for misconduct in 2006, pending the finalisation of the disciplinary steps in terms of section 14(1)(d) of the EEA. I therefore conclude that the incident on 10 July 2025 arose from filling the Z83 incorrectly, not the deemed dismissal that took place in December 2006.

Whether the Applicant was dismissed

28. In terms of section 192(1) of the LRA, the onus vests in the Applicant to prove the existence of a dismissal in dismissal disputes.
29. It was common cause that the Applicant went through the recruitment process, and he was then appointed. The letter of appointment was sent to the Applicant. He signed and accepted the appointment. The contract of employment was also attached to the letter of appointment in terms of paragraph 2 of the letter of appointment, and the Applicant signed the letter of appointment and contract of employment on 9 May 2025. The resumption of duty was also issued to the Applicant after it was signed by the Principal and the Circuit Inspector. The Applicant commenced working for the Respondent on 2 June 2025. The Applicant worked for the month and some days in July 2025, until he was told to stop working on 10 July 2025. There is no formal communication stating the reasons for his being stopped from working. When the Applicant was stopped from working, there was no intention by the Respondent for him to report for duty. It was clear that the conduct of the employer was dismissal, and no reasons were communicated to the Applicant for his dismissal. He was just told that there was a problem with his appointment. The Applicant stated that it was for the first time, four weeks before the arbitration was made aware that his resignation in 2006 was deemed dismissal in terms of section 14 of the EEA. He did not know the provisions of EEA that he was dismissed because he was deemed dismissed by the Respondent in 2006. The Respondent’s evidence was that the Applicant misled them by ticking NO on the four questions that required him to disclose that he had previously been dismissed, and he resigned pending the disciplinary process. It was the evidence of Mr Hendricks that had the Applicant disclosed that he was dismissed or resigned pending the finalisation of the disciplinary process, they would have still proceeded to shortlist him, and when deciding to appoint, a request to lift the blockage would have been made to the delegated authority. The other evidence was that for the person’s name to be removed or unblocked on the parcel system could take years.
30. The Applicant was appointed, and he started to work on 2 June 2025 until he was told to stop working on 10 July 2025. The employer decided to stop the Applicant from working, which was a clear decision to dismiss. The Applicant was never informed of the allegations against him, he was not given an opportunity to state his case in response to the allegations and the only time he got an opportunity to know the real issues was because he was deemed dismissed in 2006 was in the arbitration, there was no evidence that showed there was request to remove the blockage of the Applicant’s name to the delegated authority, there was no evidence that show such request been refused by the delegated authority. While this is not clear, the evidence of Mr Hendricks was that the blockage does not mean the person cannot be shortlisted, but the understanding was that before the appointment, the Applicant’s name should have been cleared.
31. I conclude that the Respondent had correctly shortlisted the Applicant based on the information that he had stated in the Z83, and it was only when the Respondent had to appoint the Applicant on the persal system that it was discovered that he had been deemed dismissed in 2006. The Respondent, upon their discovery of their inability to appoint the Applicant on the persal system, decided not to follow the correct procedure, as at the time the Applicant was an employee of the Respondent who had worked for a month and some days. While on the other side, I find that the Applicant was employed in terms of the Employment of Educators Act as stated in paragraph 1 of his contract, and it is an essential piece of legislation that he ought to have known, I find it highly unlikely that when he applied for the position of Department Head he did not know that his name could have been listed as an employee that is deemed dismissed for misconduct. The testimony of the Applicant must be truthful in the arbitration. I conclude that the Applicant was aware of that when he resigned pending the disciplinary steps, got listed as an employee that was deemed dismissed, and when he filled the Z83, because of such knowledge of EEA, he should have stated Yes on the question relating to previous dismissal. The Applicant was an employee of the Respondent from 2 June 2025 to 10 July 2025, and he could not be dismissed without a proper procedure. Because the failure by the Applicant to disclose that he was dismissed for misconduct, whether knowingly or negligently omitted to state yes on the Z83 on whether he was previously dismissal and his failure to disclose that he resigned pending the disciplinary hearing, contributed to the employer’s inability to appoint him on the persal system. Mr Hendricks, in good faith, stated that the Applicant could have been shortlisted while his name was listed as an employee who was dismissed for misconduct, and could still be employed, but there must be a request by the delegated authority to have his name removed or the blockage lifted. It is clear from the evidence of Mr Hendricks that the Applicant, due to a system, could not be employed on the persal system, which is what led to the dismissal of the Applicant. There was a valid reason for the dismissal which arose from the employer’s inability to appoint the Applicant on its system due to the Applicant failure to state Yes on the questions, it was for the employer to decide whether to institute disciplinary procedures for the alleged dishonesty based on the Applicant’s failure to disclose that he was dismissed in terms of section 14 of the EEA, but it is my view that the Respondent failed to follow a fair procedure before dismissing the Applicant. In the case of Sol Plaatje Municipality v SALGBC and others, case number PA12/19, the Labour Appeal Court, when dealing with charges, it concluded that the employees in that case were dishonest, while dishonesty was never the charge they faced in their hearing. It is also my view that the person who was appointed as an HOD cannot claim ignorance when it comes to the provisions of the EEA, and claiming that he only knew the provisions of the EEA four weeks before the arbitration cannot be true, also relying on paragraph 1 of his contract stating that he was employed in terms of the EEA. I therefore find that the Applicant was dismissed, and further find that the dismissal of the Applicant was procedurally unfair because the Respondent failed to follow a fair procedure.
32. The Applicant was not paid his salary from 2 June 2025 to 10 June 2025. I conclude that he was entitled to a salary for all the days he worked for the Respondent. The Respondent must pay the Applicant in terms of the following calculations;
    Salary for June 2025 (Full salary); R36 270.00 X 1 = R36 270.00
    Salary for July 2025 (8 days); R36 270.00 / 4.33 / 5 X 8 = R13 402.30
    Total; R36 270.00 + R13 402.30 = R49 672.30
33. I will therefore order the Respondent to pay the Applicant compensation equivalent to 2 months, calculated as follows;
    R36 270.00 X 2 = R72 540.00

AWARD

34. The Applicant, Daniel Johannes Christiaan Marais, was able to establish the existence of a dismissal, and I find the dismissal of the Applicant substantively fair and procedurally unfair.
35. The Respondent, Department of Education – Free State, is ordered to pay the Applicant compensation equivalent to two months, amounting to R72 540.00 (Seventy-two thousand five hundred and forty rand).
36. The Respondent is further ordered to pay the Applicant his salary from 2 June 2025 to 10 July 2025, amounting to R49 672.30 (Forty-nine thousand six hundred and seventy two rand thirty cent) less whatever deductions the Respondent is obligated to make in terms of law or contract.
37. The Respondent must pay the amounts in paragraphs 35 and 36 (R72 540.00 + R49 672.30 = R122 212.30) above by no later than 20 July 2026.

Themba Godfrey Chobokoane
ELRC Panelist