IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD AT DURBAN TEACHER’S CENTRE BOARDROOM
Case No ELRC 590-24/25 KZN
In the matter between
NAPTOSA O B O MOODLEY NAVARAJAN Applicant
and
EDUCATION DEPARTMENT OF KWAZULU – NATAL Respondent

ARBITRATOR : AS Dorasamy
HEARD : 3 AND 4 FEBRUARY 2025
DATE OF AWARD : 12 FEBRUARY 2025
SUMMARY : Labour Relations Act 66 of 1995 – Section 192(1) – alleged unfair
dismissal
ARBITRATION AWARD

PARTICULARS OF PROCEEDINGS AND REPRESENTATION

1. This matter was set down for arbitration on the 3 and 4 February 2025, the evidence was completed at the Durban Teacher’s Centre Boardroom in Durban. This matter was under the auspices of the Education Labour Relations Council (ELRC). Mr R Juguth of NAPTOSA, represented the applicant, Mr Moodley Navarajan, and Ms M Mthethwa represented the Department of Education KwaZulu-Natal. The parties were to submit written closing arguments by the 11 February 2025. The party’s submissions and the applicable provisions of the applicable circulars were considered when I arrived at my decision.

THE ISSUE IN DISPUTE

2. I am required to determine whether the respondent unfairly dismissed the applicant and dependent
   thereon the appropriate relief may be determined.

THE BACKGROUND TO THE DISPUTE

3. The applicant was dismissed after a disciplinary hearing and unsuccessful appeal hearing. He faced the following charges:
   CHARGE 1
   Mr N Moodley be charged in accordance with the Employment OF Educators Act 76 of 1998 as amended for refusing to obey a lawful instruction given by the school Principal and Deputy Principal.

RESPONDENT’S OPENING STATEMENT

4. The case is an alleged unfair dismissal matter. The employer’s case is that the applicant was fairly dismissed. All the necessary processes were followed and the intervention at the school level was done.
5. The applicant did not listen to the principal.
6. He defied the lawful instruction when he was instructed to go and teach but he continued to defy the instruction and he was charged with misconduct.
7. He was given a hearing and the outcome was issued to him.
8. He appealed the outcome and that appeal was dismissed.
9. The dispute must be dismissed.

APPLICANT’S OPENING STATEMENT

10. He concurs that the applicant was given a letter of dismissal from the Education Department. He is disputing the instruction issued for him to report and teach in the primary school as the school ranges from grade R to grade 12.
11. The applicant is a FET Maths educator and was transferred to the school as a Maths educator. He will argue that the instruction to move him to the primary school was procedurally unfair and the placement in the primary school was done as a punitive measure.
12. Whilst the applicant argued the transfer he reported on a daily basis. He was not in the classroom because he was not instructed as to what was required of him.
13. He consulted with Mrs Ndlovu who did not provide him with any assistance. It was only after seeking the advice from NAPTOSA that he proceeded to teach in the primary school. He was advised to comply with the instruction.
14. He seeks a finding that his dismissal was unfair and is seeking retrospective re-instatement.

RESPONDENT’S CASE

ASOGAN SUBRAMONY NAICKER
The salient aspects of his evidence are recorded below:

15. He is the principal of Savannah Park Secondary School hereinafter referred to as the school, a combined school from grade R to grade 12.
16. He knows the applicant who was a teacher at the school. He was teaching Maths grade 10-12 and given a teaching load and in 2020 he taught Maths in grade 6 and 7.
17. In 2020 because the Maths teacher retired he was given a Maths teaching load for grades 6 and 7. That is when the issues arose as he did not accept the teaching load.
18. He was transferred to the school on 28 July 2016.
19. On 12 December 2020 there was a staff meeting after the work loads were finalized. The applicant was called to the office to meet the SMT and he was informed of his work load for 2021, pure Maths for grade 6 and 7. He responded by indicating that he was applying for a transfer. He would be reporting to Mrs G Sing.
20. It was decided that the phases will alternate coming to school and learning from home. He had to engage with Mrs Sing. He was not declared in surplus. The PPN increased that year. The meeting at the SEC (Chatsworth Education Centre) was only for surplus educators to look at vacancies.
21. Later on Mr Ndlovu instructed the applicant to leave the meeting. The applicant returned to school.
22. In February there was a staff meeting and the applicant did not teach but sat in his car and walked around the school. This went on until Mr Ndlovu referred the matter and he was summoned to a meeting with Mr Indran Pillay.
23. On the 10 February 2021 he sent for the applicant and asked him for the reason he was not teaching his work load. The applicant asked for it in writing and he wrote to him. He took the letter and said it was nonsense and refused to sign.
24. The letter from Mr Indran Pillay was served on the applicant and he refused to comply. He did not report for duty. On page 8, the logbook entry, the applicant accepted the letter but left the school without permission (4 March 2021).He left the school at 8H50. He was told not to sign the time book if he was not teaching.
25. On page 11 the applicant refused to teach and the decision by Mr Indran Pillay was to discipline him.
26. The applicant indicated that he was not given an instruction to move him to the primary school. He refused to teach the subjects given to him.
27. When the applicant moved to the school the Maths teacher for grade 10-12 went to Dubai and he was given that workload and he spoke to him because the teacher was very good and told him to ensure that the learners produced good results. The learners went to him about a problem with Maths as he was going too fast. He was called to the office and informed of the complaint and he said he had a syllabus to complete,
28. The applicant did not have an intervention class on the weekend. The results were poor and the learners went for tuition.
29. He taught 8-9 learners and had a problem with the learners. The other teachers did not complain. At no stage did he ask for help.

Under cross examination he stated as follows:

30. The applicant came to his school on CTT (Compulsory Temporary Transfer). He was additional to Merebank Secondary school. He asked the applicant if he was interested to come to his school as he needed a Maths teacher.
31. He was used where the need arose. He was placed to teach Maths and moved from grade 10 to 12 and another teacher placed in his place. He was not performing at that phase.
32. The applicant did not take his teaching load because he wanted to go to another school. He was surplus at all schools. It is strictly on the PPN (Post Provisioning Norms) and not teaching performance.
33. He was called in November to a SMT meeting where he was told his services were to be used in grades 6 and 7 and he said he was applying for a transfer. There was no-one to accept that load. The other teachers were given their work loads.
34. In 2020 he assisted in teaching grades 6 and 7 and did not complain because there was a need. They used the teachers to cater for the curriculum load.
35. He did not conduct matric interventions. The current teachers have lessons on Saturday and Sunday.
36. There was no dialogue and he misrepresented that he was surplus. He wanted to go to another school.
37. He was in his car but did not go to the class. He refused to engage with them. All efforts to engage with the applicant was in vain. He would leave the school without permission.
38. The teaching load was to be given by Mrs G Sing but he had left school.
39. When he came to school he would sign the register and sit in his car.
40. From 10 February 2021 he did not go to do his workload. He went back because his union told him to go and teach.

MRS LINDIWE MADLALA
The salient aspects of her evidence are recorded below:

41. She is the Deputy Principal at the school since 2006 and knows the applicant as an educator at the school.
42. The applicant did not go to the class but came to school and did not teach.
43. She and Mr Madlala went to him as they were sent by the principal to call him. When they went to him, he took the letter and said it was nonsense. He did not go to the office and they reported this to the principal.
44. The PPN went up and the school needed three teachers and he was at meeting when this was discussed.
45. The applicant went to the CTC when he was not supposed to be there.

Under cross examination she stated as follows:

46. He never went to teach in the classroom. There was a need for a Maths teacher in the primary school and he was identified to teach. He was approached at meeting and was offered to teach Maths.
47. He was reporting to school but sat in his car. The teachers did want to carry his load because it was unfair.

EMMANUEL XOLANI MADLALA
The salient aspects of his testimony are recorded below:

48. He is the HOD at the school since July 2019 and knows the applicant because he reported to him.
49. He went to the applicant and reported that he should go to the principal’s office. He wanted the request in writing. He went back to the office for the letter. He went with Mrs Madlala to deliver the letter. The applicant went through the letter and said it was nonsense. The applicant refused to sign and he went back to the office but a copy was left with the applicant.
50. The applicant was not reporting to class but sitting in the computer room and then sat in his car.

Under cross examination he stated as follows:

51. He was reporting to Mrs G Sing and he said he was looking to take a transfer.

GEETHA SING
The salient aspects of her testimony are recorded below.

52. She is the HOD at the school and knows the applicant as he was doing Maths in grades 6 and 7.
53. The principal asked the Heads to have a meeting to hand out the time tables. The applicant did not attend the meeting and when she looked for him, he was leaving the school. He was at the staff meeting where the phase meeting was discussed.
54. The applicant went to her to get the work load. She took him to the class. Before that the teachers were serving relief in his place.

Under cross examination she stated as follows

55. The applicant was present at the staff meeting. He did not tell her about being unhappy and she took him to the class. Time was lost because he did not teach in the beginning of the year. The Maths results were generally low.
56. He had problem with discipline.

APPLICANT’S CASE
NAVARAJAN MOODLEY
The salient aspects of his testimony are recorded below:

57. His qualifications are M+4 Maths and Technical Drawing grades 8 -12, B Ed Maths Education UDW. He was teaching for 22 years. He taught Maths and Maths Literacy in 2007 and taught the subjects allocated to him.
58. He discussed with his principal his loading in December 2020 and had two meetings with the principal in his office. The first meeting the principal called him and told him that he had to move an educator to the primary school and that it would affect him. He was asked to think about it.
59. The meeting closed and a little later he was called to a second meeting and was told that he would be given grades 6 and 7 Maths. Thereafter the meeting closed.
60. For the meeting of the 10 December 2020 (second meeting) there was no agenda or minutes given to him.
61. The letter from Mr Indran Pillay was given to him by Mr B Ndlovu in the office and that he would not take any questions. He read the contents and he took the letter to his then union PSA who told him to wait for further developments.
62. He was at the CTC during a meeting and tried to contact Mr Ndlovu and then went back to school.
63. His salary was paid for February and the March salary was withheld.
64. When he reported to the classroom in April, he did not teach for 15 days.
65. In the beginning of 2021, he went to school and signed the register and this went on for some time (3/4 weeks). The learners were alternating and he went to school every day.
66. The other teachers came on alternative days.
67. On the first week of April Ms Roselyn Dixon from NAPTOSA came to the school and he met with her. She advised him to go to the class otherwise his salary would be stopped. He went to Mrs Sing and asked her for his load and she took him to the classroom.
68. When he did not report to the classroom he was ignored by the management and he waited for the investigation. The principal was aware that he was meeting with his union.
69. The class that he did not report to were without an educator for 15 days until the date of his dismissal.
70. He felt the sanction was harsh.

Under cross examination he stated as follows:

71. The sanction was harsh and he reported to school everyday and was not given any warnings. The letter from the Department was not clear. This was the only letter given to him.
72. Mr Ndlovu came with the letter and only delivered the letter.
73. He waited for his union.
74. There was a disciplinary hearing after he was served with the allegations, charges and given time to prepare and be represented. He got the outcome of the Disciplinary Hearing as it was emailed to him. He appealed but was unsuccessful.
75. The principal assigns duties for teachers.
76. The principal gave him a lawful instruction to go and teach grades 6 and 7. He defied the instruction. The principal reported him to the District Director who instructed him to go to his class.
77. He went to work and did not go to class and teach.
    .
    CLOSING ARGUMENTS 78..The parties submitted written closing arguments which were considered in arriving at my decision. The parties must be complimented for submitting comprehensive arguments.

ANALYSIS OF EVIDENCE AND ARGUMENT

  79.    This matter relates to the alleged unfair dismissal of the applicant.
  80.  The applicant challenges the procedural and substantive aspects of his dismissal and believes 

that he was unfairly dismissed and prays for retrospective re-instatement with back pay.
81. The respondent contends that dismissal was substantively fair. Further that dismissal was the
appropriate sanction considering the charges and the fact the applicant was found guilty of the
charge.
82. I have taken cognizance of the decision in Sweeney/ Transcash [2000] 6 BALR 712 (CCMA)
where the commissioner held that arbitration hearings constitute a rehearing de novo on the
merits. The award must accordingly be based on evidence led at the arbitration, not on the record
of the disciplinary hearing if necessary.
. The arbitrator must determine whether the
dismissal is fair in the light of the evidence admitted at the arbitration.
83. The arbitrator is not merely reviewing the evidence considered by the employer when it decided to
dismiss but to determine whether the employer acted fairly. This does not prevent the arbitrator
from referring to any enquiry record in so far as it is admitted as evidence in the arbitration.
84. In this matter it is clear from the submissions submitted by the parties that the following may be
reasonably gleaned.
85. The Code of Good Practice: Dismissal promotes progressive discipline, it distinguishes between
single acts of misconduct that may justify the sanction of dismissal and those that may do so
cumulatively. The Code identifies gross dishonesty, willful damage to property, endangering the
safety of others, assault and gross insubordination as examples of what may constitute serious
misconduct that may justify dismissal as a result of a single contravention
86 In this matter it is clear from the submissions submitted by the parties that the following may be
reasonably gleaned.
The applicant was given a notice to attend a disciplinary hearing, attended the hearing
and he was found guilty after a hearing and received his letter of dismissal.

In terms of the guidance provided in the Avril Elizabeth Home for the Mentally Handicapped v
CCMA as per A van Niekerk AJ the following is of importance:
Where there is no established procedure in the work place the standard required is the one referred to in the Code. This requires no more than the following:
(a) The conduct of an investigation;
(b) Notification to the employee of any allegations that may flow from that investigation; and
(c) An opportunity, within a reasonable time, to prepare a response to the employer’s allegations with the assistance of a trade union representative or fellow employee; and
(d) Communication of the decision taken including the reason for the dismissal; and
(e) A reminder of rights to refer a dispute to the CCMA or to a bargaining council or to dispute resolution procedures established in terms of a collective agreement.
In deciding whether a procedure was fair commissioners should not adopt an overly technical
approach and should bear in mind that the purpose of the recommended procedure is to provide an
opportunity for dialogue and reflection regarding whether a fair reason for dismissal or some other
sanction exists.
87. In respect of the charge, the applicant was found guilty and dismissed. The Courts have held that “As long as the factual allegations made in the charge sheet or part of it, are proved, and as long as those factual allegations that have proved, constitute some form of misconduct in the workplace, the employee may be convicted of misconduct. (Woolworths v CCMA (LAC) 2011; NUM v CCMA (LC) 2011; FNB v CCMA (LC) 2010.
88. As a consequence of the above I believe that the procedural aspect of the dismissal to be fair.
89. The applicant was charged with an act of misconduct and was subjected to a disciplinary hearing.
90. The question arises whether the above-mentioned infractions/ misconduct if are such that it
warrants dismissal.
91. Although it is the prerogative of the employer to set standards that the employee is expected to
render service it must do so in keeping with the guiding principles of the LRA.

        THE RELEVANT LEGAL PRINCIPLES     

92.     It is trite law that the courts will only interfere with the employer’s decision if it is grossly unreasonable.
93.   Prior to the Constitutional Court’s decision in the Sidumo- case the CCMA applied the “reasonable 
        employer” test to determine whether a specific sanction, issued by an employer, was fair. The
        “reasonable employer” test provided to employers a lot of flexibility to dismiss employees for misconduct, as employer’s decision to dismiss were “protected” from scrutiny by the CCMA based on the Nampak and Country Fair Foods cases.
 94.  The Constitutional Court replaced the “reasonable employer”-test, which required a measure of deference to the decision of the employer, with that of the “reasonable decision maker”-test, which required an answer to the following question:
Is the decision reached by the commissioner one that a reasonable decision-maker could reach?
The CCMA will thus no longer merely approve the decision taken by employers. The Sidumo-case further warns employers and chairpersons about the dangers of adopting a strict, narrow approach to imposing the sanction of dismissal.
95.    It is indeed the employer’s prerogative to set the rules applicable to his/her workplace according to its operational requirements.  
96.    Employers must remember, as was highlighted in the Sebotha- case, that the role of chairpersons is to ensure fairness, and not to merely approve the decision of the employer. Even though some chairpersons might be full-time employees of the employer, such persons are required to act as an impartial body when chairing a disciplinary hearing.
97.    Van Niekerk AJ in the Avril Elizabeth Home- case was very critical about the “criminal justice” model of disciplinary proceedings and stated that the LRA recognized that “workplace efficiencies should not be unduly impeded by onerous procedural requirements.  

   APPLICATION OF THE LAW TO THE FACTS
98.    The applicant faced one charge, was found guilty and dismissed. 

. . The sanction is within the guidelines.

99. The applicant was an educator for twenty-two years.
100. He was not declared in excess and was given a teaching load but reported to school, did not teach but sat in the computer room or his car.
101. He left the school without permission.
102. He only went to teach after being advised to do so. The children were without a teacher for about 15 days. The education of the learners was compromised.
103. He was correctly found guilty of the charge.
104. I see no reason to interfere with the findings and sanction of the presiding officer.
105. I find the dismissal of the Applicant substantively and procedurally fair. .
106. The applicant is not entitled to any relief. AWARD
107. The application is dismissed

DATED AT DURBAN ON THIS 12th DAY OF FEBRUARY 2025.

A S DORASAMY (ARBITRATOR)