19 May 2026 – ELRC345-25/26LP

IN THE ELRC ARBITRATION

IN THE MATTER BETWEEN

NKUNA XIHLUKE LLOYD APPLICANT

AND

DEPARTMENT OF EDUCATION, LIMPOPO RESPONDENT

Case No: ELRC 345-25/26LP
DATE OF THE AWARD: 14 MAY 2026
ELRC ARBITRATOR: THOMAS MAHASHA
:
DETAILS OF THE HEARING AND REPRESENTATION.

1) The arbitration hearing took place in terms of the referral of the matter by the employee to the ELRC. It was heard physically on 04 May 2026 at Mopani West, Peace Street number 27 at Tzaneen. The employee appeared unrepresented. The employer also attended the hearing represented by Portia Modipa, Assistant Director: Grievances and Disputes Resolution, an employee of the Department of Education, Limpopo.

ISSUES TO BE DECIDED.
2) The issue of determination is whether the employee’s claim for non-payment of a salary should be sustained or not.
3) If so, to order the appropriate relief.

BACKGROUND TO THE DISPUTE.

4) The employee is a CS1 educator appointed as such at Ntwanano Primary School. During the period of the alleged non-payment of the salary, Netshidzivhani Gavaza Margareth was the School Principal she could retire during December 20225. The School Principal reports to the Circuit Manager, who in turn reports to the District Director.
5) The school has officials who administer leave applications.
6) The school has an attendance register which must be signed by staff members at 07:30 and 14:30.
7) The employer did not pay the employee’s salary on 30 and 31 May 2023, and 01 June to 5 June 2023.
8) He declared a dispute seeking payment of the salary.

SURVEY OF EVIDENCE AND ARGUMENT.
EMPLOYEE’S EVIDENCE.
9) Lloyd Xihluke Nkuna testified that he was on duty on 01 June 2023 to 5 June 2023 as shown by the attendance register. He denied that he took an unauthorized leave.
10) He sent the application for leave of absence to Circuit office.on 19 February 2024. He sent a reminder on 21 February 2024. He was then reminded to attach proof of registration.
11) Although he was aware that leave forms must be signed by the School Principal, his application was sent to the circuit by the school. He also made an application to the District office. The fact that he was on study leave is confirmed by his sworn affidavit.
12) He was physically stopped from signing the attendance register by Mr Muhlari M, who displayed violence behaviour towards him.
13) He requested the employer to furnish him with attendance registers for 31 May 2024, 3 June 2024 to 05 June 2024 and 25 August 2025 to prepare for an arbitration.
14) He agreed that the correct reporting times on the attendance register was written by Muhlarhi M. He could not remember the times he left the school.
15) Hs application was never responded to by the employer.

EMPLOYER’S EVIDENCE.
16) Maguluza William Muhlari testified that he is currently serving as an Acting School Principal at Ntwanano Primary School. He is responsible for controlling time book. It is the employees’ responsibility to record reporting and knock off times.
17) He is the one who recorded reporting times for the employee because he was advised by the Circuit office not to leave open spaces when administering the time book. The applicant did not inform the office that he was leaving. There is a different register which is completed by the staff members who arrive late for work. He agreed that the employee did report for work during recorded times, but left without informing anyone. When recording reporting times, he could not record departure times because he did not see the times at which the employee left because he was in class.
18) Although he spoke to the applicant about late arrivals, there was no improvement.
19) He denied threatening to assault the applicant and denying him access to sign attendance register.
20) He was never served with proof of the applicant’s sickness,nor was he furnished with a request to amend reporting and knock off times. He only received an email from the applicant to reschedule the class time table to accommodate him. He could not re-do class time table because he had no medical reports to justify rescheduling.

21) Netshidzivhani Gavaza Margareth testified that the applicant did not report for work on 6 August 2024 and 08 August 2024. He did not submit an application for leave of absence, but instead took unauthorized leave.
22) He refused to submit his application of absence to the administrator, warning her not to get involved, threatening to hit her with a spade. She personally took steps to approach the applicant and requested for application of leave of absence forms. The applicant refused to submit the forms. At times, the applicant would just look at her laughing. She involved the Circuit Manager. The applicant did not change his behavior. He never knocked off at 14:30.
23) The applicant submitted his leave application to the Circuit and District offices respectively. She is the one responsible for submitting application forms to the Circuit office after recommending and signing the forms.

ANALYSIS OF ARGUMENTS AND FINDINGS.

24) At common law, an employee who does not work, is not entitled to be paid in terms of the well-known principle “no work, no pay”, which originated from the maxim “exception non adimpleti contractus”
25) The only exception to this rule in terms of the common law, is where an employee actually shows up for work, remains there and tenders his services, but the employer does not provide him with work. In such circumstances the employer is obliged to pay him.
26) The only changes to common law position, is to the extent that in terms of the Basic Conditions of Employment Act No 75 of 1997, an employer is compelled to pay an employee whilst away on annual leave and certain other leave periods which is not necessary to discuss at length for present purposes.
27) The periods of paid leave and paid sick leave are however, specifically determined and prescribed by legislation.
28) In the case of educators, the applicable legislation is paragraph 8(1) of Chapter J of PAM (Personnel Administrative Measures).
29) Chapter 17 of PAM provides:

“17. Special Leave for study purposes.
17.1. Special Leave may be granted to an educator for an approved course of study and for a period approved by the employer, on conditions as approved by the employer, including leave with full or partial pay or without pay.
17.2. If special leave with full or partial pay for study purposes is granted to an educator in terms of sub-paragraph 17.1, the employer may call for periodic progress reports in respect of the educator’s studies and such educator shall enter into an agreement with the employer in a form approved by the employer in terms of which he or she undertakes to serve the employer immediately after completion of the period of special leave for study purposes…..”
Chapter 18 of PAM provides:
” an educator may be granted special leave for examination purposes with full pay for each day on which such educator sits as a candidate for an examination approved for this purpose by the empoyer plus one additional day of special leave for study purposes for each such day of examination which may be taken on the working days immediately prior to the days of examination.”
The provisions of PAM referred to above requires of educators to seek approval before taking leave. The employee did not seek or get permission of absence
My honest impression is that he is and has been busy for the past years, to play a cat and mouse game with the employer, which has now backfired on him.
There is no evidence at hand to suggest that the employee was incapacitated and could not work during the period of his absence. His absence seems to be unaccounted for.
30) The excuse which employee has raised for his failure to work during 06th and 7th August 2024 was that he had applied for leave of absence. However, applying for leave of absence and being permitted to take leave are two different things with two different outcomes.
31) To expect tax payers to fully pay an employee who deliberately decides not to render services, is seriously asking too much.
32) The employee had no right to decide when to report for work and when not to. The contractual obligation that exists between the parties, is that of rendering services and to be remunerated for such services. The employee had dismally failed to prove a claim for entitlement to be paid salaries for 31 May 2024, and 1 June 2024 to 05 June 2024.
33) He had in fact agreed that he did not record reporting times and that such times were recorded by Mr Muhlari. He could have been at the school during the early hours of the days in question. He did not dispute the fact that he left without permission. Blaming the employer for not knowing the times he left the school is uncalled for, especially because he was simply passing the buck.
34) It was not disputed that the employer had a register (departure register) to control educators who would arrive late for work or depart earlier. It was therefore, the employee’s responsibility to not only fill in the register, but also to seek permission before leaving early.
35) It was clear that the employee was not prepared to be held accountable. He did as he wished. He was in my view, grossly insubordinate, an act which the employer could have rightly subjected him to a disciplinary enquiry.
36) His demand for changing the class time table to accommodate him was baseless. There was no evidence presented to prove that he suffered from sickness that required of the employer to reasonably accommodate him by allowing him to work flexi hours. He did not present a medical report or any other form of evidence to the School Principal to justify his demand.
37) In National Union of Metal Workers of SA v Vetsak Co-operative Ltd and Others 1996 (4) SA 577(A) Smalberger JA said at 589C-D
“ Fairness comprehends that regards must be had not only to the position and interests of the worker, but also those of the employer, in order to make a balanced and equitable assessment. In judging fairness, a court applies a moral or value judgement to establish facts and circumstances…..”Demands for reasonable accommodation at the expense of learners was not in the best interest of children”
38) The attendance registers submitted by the employee were themselves devoid of his signatures and knock off times. He can only blame himself for not showing accountability by filling in the attendance register.
39) Allegations that he was physically denied access to sign attendance registers were not backed by evidence. Even if it could be accepted that he was physically denied access, such a claim would fail on the basis that the register was not kept by William Muhlari, but a junior employee in a separate office.
40) There was no justification for leaving the workplace without informing anyone, or at least why he could not sign the departure register. When he reported at work the following day (s), he still did not explain to the Principal why he left earlier.
41) He was advised on several occasions to submit an application for leave of absence, which he refused to do.
42) It is clear that the educator was hell-bent to undermining the principal’s authority.
43) There was no reason provided why he could not inform any of the educators about his departure.
44) Given the factual findings I have made, and given the fact that fairness is essentially a value judgment which involves fairness to both the employee and employer, I am satisfied that the employer did not act unfairly by applying the “no work, no pay principle”.
45) The employee had failed to prove on a balance of probabilities that the employer had acted unfairly by not paying him for the days 6 and 7 August 2024 and 1 to 5 June 2024.