Case No: ELRC 310-24/25LP
Province: Limpopo
Applicant: Phoku Solly Matlapeng.
Respondent: Department of Education, Limpopo
Issue: Unfair Dismissal

Date of the hearing: 08 October 2024
Venue of the hearing: Sekhukhune District office, Burgersfort
Date of the award: 21st of October 2024
Closing arguments submitted on: 14 October 2024
Arbitrator: Thomas Murimisi Mahasha
Union/Applicant’s representative: Mawela N.P from Mahlakoane Attorneys
Respondent’s representative: Portia Modipa
Applicant’s address:
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Respondent’s address:
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DETAILS OF THE HEARING AND REPRESENTATION.

1) This arbitration took place in terms of the referral of the matter by the employee to the ELRC. It was heard physically on 08 October 2024 at Sekhukhune District, Burgersfort. The employee was in attendance represented by Mawela N.P, a legal representative from Mahlakoane Attorneys. The employer also attended the hearing, represented by Portia Modipa, the Assistant Director.

ISSUES TO BE DECIDED.
2) The dismissal of the employee is not in dispute. The employer argues that the employee’s termination of employment was perpetuated by the employee absence from work. The employee denied the allegations levelled against him, arguing that the employer was responsible for preventing him from reporting for work.

PRELIMINARY ISSUES.
Ex tempore ruling.
The employee submitted that the employer took unreasonable delay in charging him. I ruled that the point in limine raised can best be determined after having considered the evidence in the main case.

BACKGROUND TO THE DISPUTE.

3) The employee was appointed as an educator by the employer for a period of 12 years, earning an annual salary of R 370 242-00 per annum. The employee was evicted by learners from Kgahlanong School around April 2010. He was transferred to Marole School. He did not render services at Marole Secondary School. Around 2016/2017, he was called by Mr Nkadimeng who enquired whether the employee reported at Marole or not, It was only then that the employee informed him that he was not accepted at the school.
4) Following the discussions that he heard with the District Director, and because of unavailability of a vacant post, the employee was placed at Mandagshoek laboratory pending finalization of his transfer in March 2018. He worked at Mandagshoek laboratory until April 2021. He was immediately moved to Marole Secondary School.
5) The employer charged him for absence without permission from April 2010 to March 2018.
6) He was dismissed on 02 May 2024. The employee had a clean disciplinary record at the time of his dismissal.
7) He declared a dispute challenging the substantive fairness of his dismissal. Both parties exchanged one set of bundle of documents.

SURVEY OF EVIDENCE AND ARGUMENT.
EMPLOYER’S EVIDENCE.
8) Tsheke George Nkadimeng’s testimony was that he knew the employee since 2008 after receiving a report from the principal that he could not submit a schedule because he was held up by the employee who had not yet submitted scripts.
9) In April 2010 he heard that the employee was evicted by the learners for refusing to teach a certain subject allocated to him.
10) In 2014, the employee was issued with a transfer letter after the SGB of Kgahlanong High School indicated that they would no longer work with him. Thereafter, the employee identified Marole High School which is situated at Riba Cross. Although, he was not involved in issuing the transfer letter to the employee, he did issue a letter to Mokota. Soon after he had learnt of the employee’s failure to report at Marole High school around 2016/2017, he called him for a meeting. It was only then that the employee informed him that he was refused to work at the school by the school principal. He never received a written report from the employee about his failure to report at Marole High School.
11) He disagreed that a formal transfer of the employee took place on 22 April 2022. In April 2022, the District Director issued a letter stating that the employee could not report for work at Marole because of administrative issues. The delay in issuing a transfer letter had been as a result of the matter being handled by two offices.

12) At the conclusion of the meeting, he informed the employee that he should go and report at Mandagshoek laboratory while he was still securing a school for him, which he agreed to. The employee reported at Mandagshoek laboratory on 5 August 2018.
13) While working at Mandagshoek, the employee competed attendance registers which were later confiscated by Koma for purposes of responding to an audit query by the Auditor General.

14) He agreed that in 2011, the employee approached the ELRC on allegations of the employer’s failure to issue a transfer letter, and that a settlement agreement which was not implemented by the employer, was reached to that effect. In 2013 the employee approached the CCMA to make the settlement agreement, an award in terms of section 142A of the LRA. The agreement was certified in 2015. The employer did not implement the award.
15) In 2016, the employee approached the Labour Court for recourse. He agreed that the employee would not be having a reason to approach the Labour Court if the employer had complied with the settlement agreement.

16) The employee had been absent for a period exceeding 14 days, which the employer deems as abscondment. It is fair to charge the employee after a period of 12 years, a month before he could retire. Although absent from duty would be considered as a less serious offence, his absence had been for a long period of time which justified a dismissal.

EMPLOYEE’S EVIDENCE.
17) Matlapeng Solly Phoku’s testimony was that he reported at Marole in 2010. Upon his arrival, he was not accepted by the school principal of Marole Secondary school because there was no approval.
18) In 2011, he went back to Kgahlanong. The principal of Khahlanong refused to accept him because he was already released.
19) He lodged a dispute with the ELRC. A settlement agreement was reached in terms of which the employer was to place him. The employer failed to comply with the settlement, prompting him to invoke section 142A provisions. After the settlement was made an arbitration award, he took the award to show the principal of Marole, who still refused to accept him. He approached the labour court.

20) He did receive the letter which is purported to be a transfer letter. It was for that reason that he took the very same letter to Marole. After being refused, he was placed at Mandagshoek laboratory whereby he signed attendance registers which were later confiscated by Makole. On 05 March 2018, he was instructed to leave Mandagshoek to report at Marole, which he refused to do.
21) On 26 August 2021, he was informed by Makola that the employer wanted to verify him. He went to Lebowakgomo for physical verification by the Auditor General and submitted attendance registers.

22) Although he was not absent, he was charged for unauthorized absence on 25 February 2011. There was nothing possible he could do to report for work. He was only transferred on 21 April 2022 after a period of 12 years. He moved to Marole with immediate effect on 21 April 2022.
23) Thobejane (the principal of Marole) refused to allow the Applicant to commence duties at the school. Following his refusal to report at Marole, his salary was frozen from June 2022 to October 2022.He resumed duties at Marole on 31 October 2022.

ANALYSIS OF ARGUMENTS AND FINDINGS.

24) In my analysis, I only considered relevant evidence and arguments presented by both parties.
25) Section 192 (1) and (2) of the Labour Relations Act, no 66 of 1995 (as amended)(LRA) provides: “In any proceedings concerning any dismissal, the employee must establish the existence of the dismissal. If the existence of the dismissal is established, the employer must prove that the dismissal is fair”.
26) It is common cause that the employee’s dismissal was for a reason related to misconduct. It was alleged that he had been absent from duty without permission since 2010.

27) In terms of Schedule 8 of the Code of Good Practice: Dismissal, herein referred to as the “Code”, the employee must be given an opportunity to state his case and to cross examine witnesses. The employee agreed that the employer complied with all the procedural requirements envisaged by the Code. The employee’s argument was on the basis of two factors, a delay in instituting disciplinary proceedings and that the employer should be prevented from asserting a right that contradicts their previous conduct or promises.

28) It was clear from the evidence presented that the employer delayed in instituting disciplinary proceedings against the employee. He was charged in 2023 for the some of the incidents that took place in 2010. I agree with the employee that the delay is excessive.
29) The Employment of Educators Act no 76 of 1998 (as amended) (EEA) provides for prompt and fair disciplinary action. In a nutshell, it is a procedural requirement to conclude disciplinary proceedings within the shortest possible timeframe.

30) In National Education Health & Allied Workers Union v University of Cape Town and Others (2003) (3) SA 1 (CC), the court recognised the principle of speedy resolution as follows: “ By their nature labour disputes must be resolved expeditiously and be brought to finality so that the parties can organize their affairs accordingly. They affect our economy and labour peace. It is in the public interest that labour disputes be resolved speedily”.
31) In this case, there was no plausible explanation why disciplinary proceedings were instituted eleven years after the commission of the alleged acts of misconduct. I do not agree with the employer that it was not aware that the employee did not report at Marole Secondary School. The employer was aware that the employee had not been reporting at Marole School as early as 25 February 2011 when it granted him unpaid leave from the 19th April 2010 to the day he would reporting for work. There was no reason provided why the employee was not charged then or shortly thereafter.

32) The employer was aware that the situation had been the same during late 2010, when the employee referred a dispute to the bargaining council about his transfer. It was also made aware when it reached a settlement agreement to transfer the employee not later than 01 March 2011.
33) As if that was not enough, the employer was also made aware of the ongoing dispute about the employee’s transfer on March 2013 when the employee approached the CCMA to have a settlement agreement made an arbitration award in terms of section 142A of the LRA. The said award was certified by the Labour Court on 20 October 2015. The employee went further to approach the Labour Court in February 2016 to make the award an order of the court. Once again, it cannot be true that the employer was not aware that the employee had not been reporting at Marole Secondary school and the reasons for such a failure. On the basis of all the reasons provided above, I find that there was no reason for the employer, not to institute disciplinary proceedings promptly.
34) The next issue to be determined was whether or not there was a reason for dismissing the employee.

35) It was alleged as per the charge sheet that he had absented himself from Marole Secondary School for 1 390 days during the period April 2010 to March 2018. The employee denied the allegations levelled against him. He maintained that he could not report at Marole Secondary school because of the factors beyond his control.
36) The employer had a duty to prove on a balance of probabilities that the employee committed the alleged misconduct. The employer’s sole witness testified that the employee was evicted by the learners in April 2010 and that he was issued with a transfer letter in 2014. The employer painted a picture that it would have done something about the employee’s situation, if it was made aware of his challenges.
37) There was no evidence as to where the employee was placed from the date of his eviction to the day the transfer letter was issued. I do not agree with the employer because if so, it would have done something the very same day the employee referred a dispute to the ELRC. Instead, the employer waited for over 11 years and only decided to charge the employee just a month before he could retire.
38) It was not disputed that the employee was denied access to Marole Secondary School by the school principal. I do not agree with the employer that the employee was wrong by not informing Nkadimeng about the challenges he encountered when reporting at Marole. It was not disputed that other senior departmental officials, notably, the school principal who represented the Head of Department was aware.

39) The employer was, therefore, aware of the situation that the employee was in. He was at all material times prepared to render his employment services. The employee did not protest against the employer’s decision of placing him at Mandagshoek laboratory. I agree with the employee’s arguments that the employer should be held accountable for his failure to report at Marole or Kgahlanong.
40) The Supreme Court of Appeal in Kooij v Middleground Trading 251 CC (SCA) highlighted that “where performance of an obligation by a party to an agreement becomes impossible after conclusion of the agreement, that party is discharged from liability if it was prevented from performing its obligation by supervening impossibility, but not if the impossibility was due to its own fault”.
41) The conduct of the principals of Marole Secondary School and Kgathlanong Secondary school, respectively, constituted a supervening impossibility, which only the employer could deal with. The employee could not have forced himself into any of the schools without the assistance of the employer.
42) The employee denied being served with a transfer letter dated 23 August 2011 which was following the settlement agreement concluded on 25 November 2011. There was no evidence that the employee received the alleged transfer letter that sought to comply with the settlement agreement.

43) It appears that the employer expected the employee to formally report of the predicament he had with the principal of Marole Secondary school. I agree with the employer that he did not do so.
44) It is, however, my considered view that such an omission would not justify a dismissal considering that the employer was aware that the employee had shown in more ways than one that he was not happy that his transfer could not secured. Even if it could be accepted that the employee had been absent during the days alleged in the charge sheet, the employer would in fact, have condoned the absence. It would in fact have waived its right to discipline him.
45) The obvious possible reason why the employee could not be charged as early as 2010, could be that the employer knew and accepted the fact that the employee was not allowed to report for work by the principals of both schools.

46) Mr Nkadimeng could not confirm that the employee was served with a transfer letter in 2014. He could only confirm that the letter was released by his office. From the time he was denied access to Marole Secondary school until 5 March 2018, there was no evidence that he was successfully placed or transferred. It was only on 05 March 2018, that he was instructed to report at Marole Secondary school.

47) It is clear that as of 21 April 2022, the employee’s transfer had not yet been finalized. If finalized, there would be no reason for the employer to write a letter to the principal of Marole Secondary School. The letter read as follows “the educator above was released from Kgahlanong Sec School in 2010/04/20 to Morole Secondary School after receiving an acceptance letter from Marole dated201/04/12. However, due to administrative issues and other matters he was not released to Marole on the above said dates. In order to give practical effect to the ELRC settlement agreement concluded between Mr Phoku MS and the Department in 2011/08/19, and recent instruction from the Auditor General, we therefore hereby formally transfer him from Kgahlanong Sec to Marole Sec with immediate effect”.
48) The contents of the letter referred to above are clear. By writing the letter referred to above, the employer acknowledged that there were challenges which prevented the transfer since 2010. It was evident that the letter sought to inform the principal of Marole that the employee was being formally transferred with immediate effect.
49) The employer’s contention that the employee’s failure to report at Marole Secodary School since April 2010 had been deliberate, is therefore, neither here nor there.

50) There was no reason to charge the employee for absence without permission during any period before 5 March 2018.
51) It would only have been fair for the employer to charge the employee for absence without permission on 5 March 2018 when he refused to report at Marole Secondary School.
52) The question is whether dismissing the employee under the circumstances was fair or not. I find that it was not fair for the employer to dismiss an employee who had been in wilful absence for just one day.
53) I find the dismissal to be procedurally and substantively unfair.
54) In terms of section 193 (1) of the LRA, there are three possible remedies for an employee whose dismissal is found to be unfair, namely, reinstatement, re-appointment or compensation. I find retrospective reinstatement to be a fair remedy. In giving effect to my award, I have additionally considered that the employee only has one month left before he is due to retire.

AWARD.
55) The employer is ordered to reinstate the employee without loss of benefits and in terms of the terms and conditions that were in existence prior to the date of the Applicant’s dismissal, being the 02 May 2024.
56) The Respondent is ordered to pay the Applicant the sum of five and a half months salary. The said amount is calculated as follows: R30 853-53 x 5 = R154 267-65 + R15 426-77 = R169 694-41.
57) The employer is further ordered to pay the amount of R 30 853, 53 for the last month of Applicant’s salary before he proceeds on retirement. This is R169 694-41 + R30 853-53 = R200 547-94
58) The total amount of R 200 547-94 (less any provision for income tax due and payable to SARS) must be paid to the employee not later than the 30th of November 2024.
59) The employee is ordered to report for duty at Marole Secondary School on 31 October 2024 at 07:30.

MAHASHA TM
ELRC COMMISSIONER