IN THE MATTER BETWEEN:

NATU obo Msimango Thandeka Nozipho T. Applicant

And

Department of Education– KWAZULU-NATAL Respondent

Case Number: ELRC639-25/26KZN
Date of Arbitration Award: 19 August 2026

ELRC Arbitrator: T Mtolo

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 THE HEARING AND REPRESENTATION

1. This is an arbitration award issued in terms of section 138(7) of the Labour Relations Act 66 of 1995, as amended (“the LRA”), in a dispute concerning an alleged unfair dismissal referred to the Education Labour Relations Council (“the Council”) in terms of section 191(5)(a) of the LRA, read with the Constitution of the Council.
2. The arbitration was conducted over several sittings. The matter was heard on 26 January 2026, 27 January 2026, 6 February 2026, 17 April 2026, 8 June 2026 and 21 July 2026. The sittings were held at the Ndwedwe Circuit Offices of the Department of Education, save that the sitting of 6 February 2026 was set down at Ndukwentsha Secondary School and certain proceedings were conducted virtually.
3. The applicant, Ms Nosipho Thembisile Thandeka Msimango, was represented by Mr Zamangwane Khanyile, an official of the National Teachers Union. The respondent, the Department of Education: KwaZulu-Natal, was initially represented by Ms Nomfundo Ngonyama, a labour relations official. The respondent’s representation changed in the course of the proceedings, whereafter it was represented by Mr Bheka Buthelezi and Ms Ngonyama was granted observer status on application, which I dealt with by way of a ruling recorded below.
4. The services of an interpreter were used throughout the proceedings. The proceedings were digitally recorded.
5. The parties handed in bundles of documents. The applicant’s bundle was marked Bundle A and contained, among other documents, the letter of appointment and the letter of withdrawal. The signed pre-arbitration minute was marked Bundle B. The respondent’s bundle, marked Bundle C, contained Government Gazette No. 44433 of 9 April 2021 and Human Resource Management Circular 5 of 2017. Bundle D, being the applicant’s application for reinstatement in terms of section 14(2) of the Employment of Educators Act 76 of 1998, was admitted during the proceedings on a ruling recorded below.
6. Closing arguments were delivered in writing and were received by the Commissioner on 28 July 2026 and 03 August 2026.

Rulings issued during the proceedings

7. On 26 January 2026 the respondent applied for an adjournment on the basis that its witnesses had been released. The applicant did not object. I granted the adjournment, recording that the respondent’s witnesses had indeed been present in the morning.
8. During the cross-examination of the respondent’s first witness the applicant applied for the admission of further evidence, being her application for reinstatement in terms of section 14(2) of the Employment of Educators Act. The respondent opposed the application on the basis that the reinstatement application was a separate matter. I granted the application in part. The witness had, in evidence in chief, advanced a version that the applicant had not challenged her discharge or pursued a reinstatement application. That version was disputed in cross-examination. The document establishing that such an application had in fact been made was accordingly admitted substantiating or rebutting the competing versions. I ruled that the reasons advanced in that document for the applicant’s absence from work were irrelevant to this dispute and would not be considered. The document was admitted as Bundle D.
9. An application was made for observer status on behalf of Ms Nomfundo Ngonyama following the change in the respondent’s representation. The objection raised was disingenuous in that the objecting party had first raised a number of unrelated issues concerning the change of representation before advancing the objection itself. Observer status confers standing to observe proceedings only. It confers no further rights and permits no active participation, which addressed the applicant’s principal concern. The application was granted on that limited basis.
10. At the close of the evidence led on the preliminary point, the respondent applied for the evidence of its two witnesses to stand as evidence in the arbitration proper. The applicant did not object. I granted the application. The evidence led on the preliminary point was central to the respondent’s case and the same witnesses would have been recalled repeating the same evidence, which would have prejudiced the parties and the Council in respect of costs and time.
11. The applicant caused a subpoena to be issued in terms of section 142(1)(b) of the LRA for the production of the assumption of duty documentation completed by her. On 21 July 2026 the respondent undertook on the record to produce that documentation by close of business on that day. The documentation was never produced.

ISSUE TO BE DECIDED

12. I am required to determine, first, the point in limine raised by the respondent, namely whether the applicant was dismissed at all, the respondent’s contention being that what occurred was the withdrawal of a letter of employment and not a dismissal.
13. If I find that a dismissal existed, I am required to determine whether the respondent has discharged the onus of proving that the dismissal was substantively and procedurally fair and, if it has not, the appropriate relief.

BACKGROUND TO THE ISSUE

14. The following facts are either common cause or were not seriously disputed on the evidence.
15. The applicant was first employed by the respondent in 2019 as a post level 1 educator at Uyaya High School in a permanent capacity.
16. On 18 September 2023 the applicant was deemed to have been discharged from service in terms of section 14 of the Employment of Educators Act 76 of 1998 (“the EEA”) on account of absence from duty. That discharge was effected in the King Cetshwayo District.
17. On 17 January 2024 the applicant submitted an application for reinstatement in terms of section 14(2) of the EEA to the Head of Department. The application was submitted electronically and receipt was acknowledged. No written outcome was ever furnished to her.
18. On 14 February 2025 the respondent issued the applicant with a letter of appointment. The letter was signed by P.B.V. Ngidi acting on the instructions of the Head of Department: KwaZulu-Natal. It appointed the applicant permanently, subject to probation, as a post level 1 educator to teach Mathematical Literacy to Grades 10 to 12 at Qalakahle Secondary School, and required her to assume duty on 17 February 2025. The letter warned that a failure to assume duty would constitute a breach of contract entitling the respondent to terminate the contract of employment. The applicant had not applied for the post; she was contacted by Head Office in Pietermaritzburg and called in to collect the letter.
19. The applicant assumed duty at Qalakahle Secondary School on 24 February 2025. The principal, Ms Goodness Nomusa Sibisi, verified the appointment with Human Resources, assisted in completing the assumption of duty documentation and submitted it through the Circuit Management Centre to the district office. The applicant taught her allocated classes and was subject to the rules of the school in the same way as every other educator on the staff.
20. The applicant was never captured on the PERSAL system and was never paid any remuneration for the period she worked. The principal advanced her R5 000 from her own funds so that she could meet her rent, transport and grocery costs.
21. In June 2025, while investigating the reason for the applicant’s non-payment, the Acting Circuit Manager, Ms Priscilla Nelly Sithole, established that the applicant had previously been deemed discharged in terms of section 14 of the EEA in the King Cetshwayo District.
22. By letter dated 28 July 2025 the respondent withdrew the applicant’s appointment. The letter relied on Human Resource Management Circular 5 of 2017. It was transmitted to the principal by way of WhatsApp and served on the applicant in early August 2025. The applicant was afforded no hearing, was invited to make no representations and was given no reasons before the decision was taken. She ceased working shortly thereafter.
23. The applicant committed no misconduct during her service at Qalakahle Secondary School. No disciplinary process of any kind was instituted against her.
24. The applicant referred an alleged unfair dismissal dispute to the Council. The respondent raised a point in limine that no dismissal existed. It was agreed that the point in limine would be determined together with the merits in this award.

SURVEY OF EVIDENCE AND ARGUMENT

25. I have considered all of the evidence and argument placed before me. Because section 138(7) of the LRA requires an award to be issued with brief reasons for the findings, I refer below only to that evidence and argument which I regard as necessary to substantiate my findings and to determine the dispute.

Respondent’s case

26. The respondent’s case, as set out in its opening statement, was that the applicant had been issued with a letter of offer of employment dated 14 February 2025. She had previously been discharged in terms of section 14 of the EEA and her appeal against that discharge was still pending. She had failed to disclose her record to the respondent when she received the offer. An educator who has been discharged is prevented from re-employment for the period prescribed in Government Gazette 44433, which the respondent contended was one year. The offer of employment was withdrawn once it was established that it had been made on incorrect information. The respondent contended that for the appointment of an educator to be final the educator must be captured on the PERSAL system; that the applicant could not be so captured because of her prior discharge; and that the respondent was in addition required to obtain approval from the Office of the Premier and from National Treasury. The respondent submitted that the applicant was never appointed and was never dismissed, and that section 28 of the Constitution, which protects the best interests of the child, was engaged because the applicant had misled the respondent as to her status. The respondent sought the dismissal of the referral.
27. The respondent called two witnesses.
    Ms Priscilla Nelly Sithole
28. Ms Sithole testified under oath that she is the Acting Chief Education Specialist and Acting Circuit Manager for the Ndwedwe Circuit Management Centre, a position she assumed in 2023. She knew of the applicant, who had been appointed at Qalakahle Secondary School with effect from 17 February 2025 as reflected in the letter of appointment. She learnt of the appointment some weeks later at a meeting. In the course of an audit, she followed up to establish whether the applicant and other newly appointed educators had been paid in the following month. At the time the respondent was experiencing financial difficulties. She was informed by Human Resources that there was a problem with the processing of the applicant’s payment, whereas the payments of the other educators appointed in the same period presented no difficulty.
29. She testified that the first step required for an educator to be paid and to be permanently and gainfully employed is capture on the PERSAL system. In July 2025 she established that the applicant had previously been discharged. This led her to Human Resource Management Circular 5 of 2017, which she understood to require the prior approval of the Head of Department before a previously dismissed educator may be employed. She testified that when it was discovered that the applicant had been rejected by PERSAL, the matter was escalated to the director and to the Head of Department, and that one cannot approach the Head of Department directly. She testified that the respondent had received no information from the applicant that she had been discharged, and that it was the principal who obtained the discharge letter from the applicant. The discharge had been effected in the King Cetshwayo District and not in the Ndwedwe Circuit, which is why the respondent did not pick it up.
30. She testified that she caused enquiries to be made as to whether the applicant had disputed her discharge or applied for reinstatement and was informed by the principal that the applicant had not done so because she had been refused the attendance register by her former principal. She testified that the respondent had gone above and beyond in attempting to have the applicant paid and properly employed, that the matter of PERSAL was beyond her control, and that in July 2025 the withdrawal letter was received.
31. Under cross-examination Ms Sithole confirmed that she is employed by the respondent as an Acting Circuit Manager. She confirmed that it is not the function of a Circuit Manager to appoint educators and that appointments and reinstatement applications do not fall within her functions. She confirmed her familiarity with Government Gazette 44433 and confirmed that she had quoted Circular 5 of 2017, which was relied on in the withdrawal letter. Referred to clause 5.2.3 of the Gazette, she confirmed that the System Change Control request is made once an appointment has been recommended. When it was put to her that the absence of PERSAL capture does not mean that there was no appointment and no letter of appointment, she declined to agree.
32. She confirmed that she first learnt of the applicant’s discharge in early June 2025 after investigating why the system could not capture her, and that she received the withdrawal letter in July 2025. She conceded that her evidence that the applicant had not applied for reinstatement was information relayed to her by the principal, as she does not liaise with educators but with principals.
33. Referred to the letter of appointment in Bundle A, Ms Sithole conceded that the letter appointed the applicant permanently on probation, that it placed her at Qalakahle Secondary School, that it was authored and signed by the respondent, that the applicant reported for duty, that she was not barred from performing her duties and that she worked for several months. She conceded that the withdrawal letter was issued in August 2025 before the PERSAL process had been concluded.
34. She conceded that the applicant committed no misconduct and that there was accordingly no basis for a disciplinary hearing. She testified that to her understanding there was no platform for a hearing because the applicant had committed no misconduct, and that the withdrawal was based on the misconduct committed in the King Cetshwayo District. She testified that she could not comment on whether the respondent was required to institute disciplinary or incapacity proceedings because, on her version, the applicant was not fully employed, not having been captured on PERSAL. She accepted that the withdrawal letter brought the employment to an end.
35. Referred to page 7 of the Gazette, she conceded that the prevention period in respect of an educator deemed discharged under section 14(1)(a) is one year. She maintained that notwithstanding the lapse of that period the matter must still be submitted to the Head of Department and to Treasury for unblocking, and that the applicant was eligible after one year but that the procedure still had to be followed.
36. She conceded that the applicant’s employment records would be held in the respondent’s internal records. She conceded that the applicant acted in good faith in responding to the letter, that the respondent allowed her to teach learners and that she was removed when the withdrawal letter was handed to her. She stated that she would agree that the withdrawal was unfair only if the applicant had been fully employed.
37. In re-examination Ms Sithole testified that the appointment was withdrawn because the applicant could not be captured on PERSAL on account of her prior discharge under section 14, which she had not disclosed, and that in her view no disciplinary hearing was called for because the applicant had done nothing that would have warranted one.
    Ms Goodness Nomusa Sibisi
38. Ms Sibisi testified under oath that she has been the principal of Qalakahle Secondary School since 19 May 2019. On 31 January 2025 an educator who taught Mathematical Literacy retired. She received a call advising that the applicant had been appointed to commence at the school. She obtained the letter of appointment, sent it to the respondent and Human Resources confirmed the appointment. She assisted the applicant in locating accommodation, sent her quotations, met her and put her in contact with other educators living in the area for transport to school.
39. She testified that she completed the assumption of duty documentation and submitted it together with all other relevant documentation to the Circuit Manager and the Circuit Management Centre, from where it proceeds to the district office. The applicant informed her that she had not been paid. She followed the matter up repeatedly, telephoned the Human Resources and Finance departments at the district office and was told that there were no documents for the applicant, notwithstanding the submissions she had made and of which she keeps copies. She was informed to resubmit when the schools closed.
40. She testified that she travelled with the applicant to the district office. She was told that there was no vacancy on her staff establishment, and that three educators reflected on the establishment who were no longer at the school would be removed and the applicant’s details entered. While travelling she received a message from a senior clerk advising that the applicant had been discharged and that this was the reason she could not be paid or entered on the establishment. She submitted a formal report thereafter. She had advanced the applicant R5 000 of her own money.
41. She testified that she enquired of the applicant whether she had a prior dismissal, that the applicant confirmed that she did and furnished her with the section 14 discharge letter, which she forwarded. She asked the applicant whether she had a letter permitting her to return to service and the applicant told her that her previous principal had lost the time book and that she could not apply for reinstatement. The following day she received the letter withdrawing the appointment from the Circuit Manager by way of WhatsApp, photocopied it and gave it to the applicant. She informed the School Management Team and met with the applicant, who was directed to Human Resources. The applicant did not return to school thereafter. This occurred at approximately the second week of July.
42. Under cross-examination Ms Sibisi confirmed that she is responsible for the day to day management of the school and that she deals with educators when they arrive with a letter of appointment. She confirmed that the applicant reported to the school with an appointment letter, having telephoned in advance, and that she telephoned Human Resources who confirmed the appointment. She confirmed that the letter before her is valid.
43. She confirmed that the applicant was allowed to assume duties, that she performed the duties of a post level 1 educator, that she treated her as she treated every other educator, that the applicant was subject to the rules of the school and that she remained part of the teaching staff. She confirmed that the applicant started at the school on 24 February 2025 and left in approximately July 2025.
44. She confirmed that the applicant committed no misconduct. She confirmed that she did not remove the applicant and that she had received no instruction to remove her prior to the withdrawal letter. She confirmed that the subject of the letter was the withdrawal of the appointment, that it was an instruction of the respondent and that it effectively meant that the applicant could no longer work. She confirmed that if an educator signs an assumption of duty form it means that the educator is appointed and may assume duties.
45. Referred to clause 5.2.3 of Bundle C, she confirmed that she understood that approval from Treasury must be sought through the System Change Control process once a deemed discharged educator has been recommended for appointment, and that the applicant would have been appointed had that request been made. She confirmed that any disclosure by the applicant would have been an administrative matter for the district and not for the school.
46. There was no re-examination. The respondent closed its case on 8 June 2026.

Applicant’s case

47. The applicant’s case, as set out in her opening statement, was that she was unfairly dismissed as a result of the respondent’s conduct in appointing her permanently, allowing her to assume duties, failing to remunerate her and thereafter unilaterally withdrawing the appointment. She contended that the central question is whether the respondent’s conduct amounts to lawful withdrawal of an appointment or to a dismissal in terms of the LRA, and that once an employee has assumed duties the employer can no longer rely on the concept of a withdrawal of appointment. In law and in substance, she submitted, the respondent’s action amounts to a termination of employment and is therefore a dismissal, whatever label is attached to it. She contended that the dismissal was procedurally unfair in that no hearing was held, no reasons were put to her and the audi alteram partem principle was disregarded; and substantively unfair in that she relied on an official appointment letter issued by the respondent and rendered her services in good faith. She sought a finding of unfair dismissal, reinstatement into a permanent post, reimbursement of the salary for the period worked and any further relief the Council deems fit.
    Ms Nosipho Thembisile Thandeka Msimango
48. The applicant testified under oath that she was first employed in 2019 as a post level 1 educator at Uyaya High School in a permanent capacity. She was discharged in September 2023 in terms of section 14 of the EEA while she was ill, as reflected in Bundle D. She did not at any stage resign.
49. She testified that in or about February 2025 she received a telephone call from Head Office in Pietermaritzburg calling her to come and resume duties at Qalakahle Secondary School. She was given a letter of appointment by the district which set out the nature of the post and the subject she was to teach. She contacted the principal, who told her to come and resume work on the Monday while accommodation was being arranged. She resumed duties on 24 February 2025 and was allowed to do so. She worked from February 2025 to August 2025 and performed the duties of a post level 1 educator.
50. She testified that she was never informed that the appointment had been made in error. She assumed that she had been re-employed because she had submitted an application for reinstatement in January 2024. She believed the appointment to be valid because she was called by Head Office Human Resources, received the appointment letter and commenced work.
51. She testified that she was not paid for her work. When she realised that she had not been paid she informed the principal, who enquired from the district and was told that the assumption of duty forms had been lost and that the submission had to be redone. She was again not paid in July. In August she received the letter of withdrawal from an official of the Ndwedwe Circuit Management Centre. She was afforded no representation, no reasons were sought from her and she was informed to stop working. This affected her because she had incurred debt for rent, transport and groceries. She testified that the manner in which the matter was handled was unfair in that she was not given a chance to explain what had happened or how she came to be re-employed. She seeks to return to work and to receive the salary for the months she worked.
52. Under cross-examination the applicant confirmed that she had been discharged in the King Cetshwayo District. She testified that she disclosed her prior discharge in the documentation she completed on assumption of duty, which was submitted to the district office. It was put to her that she had not disclosed it. She maintained that she had been called by Head Office and that she disclosed the discharge in the documentation she completed. She testified that the first set of documents was lost and that a second set was signed in July, in which she again disclosed the discharge.
53. She confirmed that she was not given an opportunity to make representations before her appointment was withdrawn. She testified that when she applied for reinstatement, she received an acknowledgement of receipt and was told that she would receive the outcome in due course, without any indication of the manner in which she would be notified, and that she understood the telephone call advising her of the appointment to be that outcome. She testified that she did not know why she had not been paid, and that when it was explained to her that this was due to blocking on the system, she maintained that the error lay with Human Resources because she had disclosed her discharge.
54. In re-examination she confirmed that she did not apply for the post, that the appointment letter raised a reasonable expectation that her reinstatement application had been successful, and that she received a withdrawal letter which furnished no reasons.
55. The applicant closed her case.
    Closing arguments
56. Both parties delivered written closing arguments, which were received by the Commissioner on 03 August 2026 and which I have considered.
57. It must however be noted that in its closing argument the respondent recorded that it had not complied with the undertaking it gave on the record on 21 July 2026, and that it was not in possession of the assumption of duty documentation, being the documents completed by the applicant upon her appointment.

ANALYSIS OF THE EVIDENCE AND ARGUMENT

58. Section 192(1) of the Labour Relations Act 66 of 1995 places the onus on the applicant to establish the existence of a dismissal. Once a dismissal is established, section 192(2) places the onus on the respondent to prove that the dismissal was fair. I have considered the evidence in its totality, the documentary evidence, the credibility and reliability of the witnesses, the probabilities and the submissions of the parties.
    Whether a dismissal existed
59. The respondent contended that the applicant’s appointment was merely withdrawn because it could not be implemented on the PERSAL system, and that no dismissal occurred. Section 213 of the Act defines an employee as a person who works for another and who is entitled to receive remuneration. The test is entitlement, not receipt. The applicant received a written appointment letter dated 14 February 2025, assumed duty on 24 February 2025, taught her allocated classes, was subject to the direction of the principal and to the rules of the school, and committed no misconduct. The respondent’s own witnesses confirmed each of these facts. Capture on the PERSAL system is an administrative process; it is not the source of the employment relationship. The withdrawal terminated an existing employment relationship at the instance of the employer and constituted a dismissal within the meaning of section 186(1)(a). The point in limine is dismissed.
    Whether the applicant remained prevented from re-employment
60. The applicant was deemed discharged in terms of section 14(1)(a) of the Employment of Educators Act 76 of 1998 on 18 September 2023. The determination published under Government Notice 331 in Government Gazette 44433 of 9 April 2021 fixes the mandatory period of prevention for such a discharge at one year, calculated from the date of discharge. That period had expired before the applicant was appointed in February 2025, and the respondent’s witness accepted that she had become eligible for re-employment. The dismissal cannot be justified on the basis that the applicant remained prohibited from being re-employed. She was not.
61. The expiry of the prevention period does not, however, determine the dispute. It fixes when a former educator becomes eligible for re-employment; it does not dispense with the procedure prescribed for such re-employment. Clause 4.5.1 of the determination requires that, where a discharged educator applies, intends applying or is an applicant for a post and for re-employment, prescribed documents be attached, the first being the discharge or deemed discharge letter. The obligation survives the expiry of the prevention period. That the applicant did not respond to an advertised vacancy does not remove her from the operation of the determination, which extends to an educator who is an applicant for a post and for re-employment.
    Whether the applicant disclosed the section 14 discharge
62. The applicant’s evidence was that she disclosed the discharge in the assumption of duty documentation submitted to the district. The principal’s evidence was that she herself completed and submitted that documentation, that she followed up repeatedly because the applicant was not being paid, and that the previous discharge emerged only during those enquiries, whereupon she asked the applicant directly and the applicant furnished her the discharge letter. The Acting Circuit Manager’s evidence was that the discharge came to the district’s attention during the investigation into why the applicant could not be captured on PERSAL. I resolve the conflict by reference to credibility, reliability and the probabilities, as set out in Stellenbosch Farmers’ Winery Group Ltd and Another v Martell et Cie and Others 2003 (1) SA 11 (SCA).
63. I do not draw an adverse inference against either party from the loss of the first set of documents, although those documents were central to the dispute and the respondent, as custodian of its own records, asserted that they had gone missing. The difficulty for the applicant lies elsewhere. Documentation was completed and submitted a second time. More importantly, the principal continued to pursue the applicant’s payment without knowledge of the prior discharge. It was only when the PERSAL impediment prompted further investigation that the discharge emerged and the letter was produced in July 2025 at least four months into her role.
64. Had the discharge been disclosed at the outset, the probabilities are that it would have been apparent before that investigation, it is unlikely that the principal would later have had to enquire about it or obtain it again from the applicant, because the discharge letter was not incidental: it was the very document expressly required by the determination. The respondent’s witnesses conceded every fact favourable to the applicant, which lends weight to their evidence on the one issue they did not concede.
65. The applicant led no evidence that she attached the discharge letter or disclosed, at the start of her re-employment, that she had been deemed discharged in another district. On the probabilities, the discharge emerged only after the second set of documents was submitted and HRSS could not capture her on PERSAL. I am therefore not persuaded that a contrary finding is justified.
66. The respondent’s administration was deficient. It issued the appointment letter, lost documentation, permitted the applicant to assume duty and allowed her to teach for several months without resolving her status. Those failures are substantial, but administrative inefficiency and non-disclosure are not mutually exclusive, and the respondent’s poor administration does not convert an unproved disclosure into one that must be presumed. I find, on a balance of probabilities, that the applicant did not disclose her previous section 14(1)(a) deemed discharge when she was considered and processed for re-employment. It is unnecessary to find that she acted fraudulently or deliberately concealed it, and I make no such finding.
    Whether the non-disclosure furnished a fair reason
67. In Eskom Holdings Ltd v Fipaza and Others (2013) 34 ILJ 549 (LAC) the Labour Appeal Court held that there is no general duty on a prospective employee to volunteer the reasons for the termination of previous employment, and that a material non-disclosure depends upon the existence of an identifiable duty to disclose. The present matter is distinguishable. The respondent does not rely on an implied expectation that the applicant ought to have volunteered an adverse fact. The determination expressly requires the discharge letter as part of the re-employment process, and the materiality of the information is therefore established by the prescript itself and not by inference. That approach accords with Intercape Ferreira Mainliner (Pty) Ltd v McWade and Others [2020] 2 BLLR 199 (LC), where the Labour Court recognised that information not specifically requested may require disclosure where it is material to the employment decision.
68. A further aspect of Fipaza requires attention. The Labour Appeal Court there reasoned that there was no new or unknown information to disclose, the previous dismissal having been effected by the same employer. It may be said that the position here is comparable, the applicant having been discharged by the same provincial Department which later appointed her, albeit in a different district. That does not assist her. The determination does not make the duty of disclosure dependent on whether the employing Department already holds the information. Clause 5.2.2 requires the former employing Department to assist in the confirmation of the details relating to the discharge. That provision, in my view, presupposes that the officials processing the prospective re-employment must first be alerted to the previous discharge before any such confirmation can be sought. The scheme therefore contemplates precisely the situation where the information exists somewhere within the administration but is not before the officials processing the appointment.
69. The applicant relied on her application for reinstatement in terms of section 14(2), submitted on 17 January 2024. The evidence establishes that the application was made, and I reject any suggestion that it was not. What the evidence does not establish is that it was ever approved. No decision of the Reinstatement office reinstating her was produced. Nor is the February 2025 appointment consistent with the implementation of such a decision. Reinstatement ordinarily restores the employment relationship previously terminated. What occurred here bore the objective features of a fresh appointment, a re-employment rather than the implementation of a decision under section 14(2): the applicant was appointed permanently on probation, at a different school and in a different district, and underwent a fresh assumption of duty process. Her belief that her difficulties had been resolved may have been genuine, but fairness falls to be tested against the objective facts.
70. Had the required disclosure been made, the respondent would have been placed in a position to confirm the discharge and to complete the prescribed process before the applicant assumed duty. Instead she rendered services while the Department proceeded on an incomplete understanding of her status, and the difficulty emerged only when the PERSAL system prevented ordinary processing. The respondent has established a fair substantive reason for terminating the employment relationship, and the dismissal was substantively fair.
    Procedural fairness
71. Whatever terminology the respondent attached to its decision, the consequence was the termination of an existing employment relationship, and fairness required that the applicant be informed of the concern and afforded a reasonable opportunity to respond before the decision was taken. She was not. She was not confronted with the allegation of non-disclosure, and she was given no reasons and no opportunity to make representations. These were material matters. The respondent’s view that the withdrawal was administrative rather than disciplinary does not answer the enquiry; the right to be heard is not confined to misconduct. Nor does the applicant’s own non-disclosure excuse the omission, because once the respondent discovered it, nothing prevented it from affording her an opportunity to respond. The dismissal was procedurally unfair.
    Relief
72. This dispute is confined to the fairness of the dismissal. No finding is made concerning any claim for remuneration in respect of services rendered. Any such claim may be pursued separately in the appropriate forum.
73. Section 193(2)(d) of the Act provides that reinstatement or re-employment need not be ordered where a dismissal is unfair only because the employer did not follow a fair procedure. Reinstatement accordingly does not arise. The remaining question is compensation. Section 194(1) requires that compensation, where awarded, be just and equitable in all the circumstances, A finding of procedural unfairness does not of itself require that compensation be awarded. In Johnson and Johnson (Pty) Ltd v Chemical Workers Industrial Union (1999) 20 ILJ 89 (LAC) the Labour Appeal Court declined to award compensation notwithstanding that the dismissals before it were procedurally unfair. The discretion is one to be exercised judicially upon the circumstances of the particular dismissal.
74. The respondent’s procedural failure was serious and is attributable to it alone, as was its deficient administration. Against that, the dismissal was nevertheless substantively fair, and the procedural defect did not render the underlying reason for the termination unfair. The applicant rendered approximately five months of service. She did not disclose information which the determination expressly required her to furnish and which conditioned the process by which her re-employment could be effected, and she thereby contributed materially to the circumstances that led to the withdrawal. Compensation is a solatium and is not intended to punish an employer merely because a procedural defect occurred. Weighing these considerations, I am not persuaded that an award of compensation is just and equitable, and I exercise my discretion to award none.
    FINDINGS
75. An employment relationship came into existence and its withdrawal constituted a dismissal in terms of section 186(1)(a) of the Act. The point in limine is dismissed.
76. The one year period of prevention had expired before the applicant’s appointment, but its expiry did not dispense with the prescribed re-employment procedure.
77. The applicant did not disclose her previous section 14(1)(a) deemed discharge when she was considered and processed for re-employment; the discharge letter was furnished only after the PERSAL impediment prompted enquiries into her previous employment status.
78. The application for reinstatement in terms of section 14(2) was made but was never approved, and the February 2025 appointment did not constitute its implementation.
79. The respondent has discharged the onus under section 192(2). The dismissal was substantively fair.
80. The applicant was afforded no opportunity to make representations before the decision was taken. The dismissal was procedurally unfair.
81. No compensation is just and equitable in the circumstances.

AWARD

82. The point in limine raised by the respondent is dismissed.
83. The dismissal of the applicant, Ms Nosipho Thembisile Thandeka Msimango, by the respondent, the Department of Education: KwaZulu-Natal, was substantively fair.
84. The dismissal of the applicant was procedurally unfair.
85. No compensation is awarded to the applicant.
86. There is no order as to costs.

19 August 2026

ELRC Panelist
Thandeka Mtolo