In the arbitration between:

CM BACELA APPLICANT

and

THE EASTERN CAPE EDUCATION DEPARTMENT RESPONDENT

ARBITRATION AWARD

1 .
The Arbitration arose following the dismissal by the Department of Mr Bacela from his position as a teacher employed by the Department at Masibulele Primary School, Needs Camp, District of East London. Such dismissal was effective as from 1 April 1998. The Department was represented by Miss Poswa and Mr Bacela appeared on his own behalf.

2 .
The terms of reference given to me as Arbitrator appear from Annexure “B” to Resolution No. 7 of 1997, being the Arbitration Agreement as agreed by stake holders in education, these terms of reference reading:-

“The term of reference of the Arbitrator shall be to arbitrate any dispute referred to him and to award a remedy which he considers fair and/or appropriate in order to settle the dispute.”

3 .
Mr. Bacela’s services were terminated in accordance with the provisions of Section 14 of the Employment of Educators Act 1998 read with Section 10 of the Educators Employment Act No. 138 of 1994 the relevant portions of which provide:-

“An Educator appointed in a permanent capacity who is absent from work for a period exceeding 14 consecutive days without permission of the employer shall, unless the employer directs otherwise, be deemed to have been discharged from service on account of misconduct, with effect from the day following immediately after the last day on which the Educator was present at work..”

4 .
The relevant legislation provides that the employer may on good cause shown and not withstanding anything to the contrary contained in this Act approve the reinstatement of the Educator and the Educator’s former post or in any other post on such conditions relating to the period of the Educator’s absentee from duties or otherwise as the employer may determine.

5 .
Miss Poswa, on behalf of the Department called the Principal of Masibulele Primary School, Nozipiwo Ntintelo to give evidence and it is clear from the evidence given both by her and as established by records and documentation kept by her that Mr Bacela had a long history of absenting himself from school, without good cause or without submitting good cause and without complying with the laid down procedures.

6 .
In fact his absenteeism from school caused such a problem both in the school and in the community that meetings were held between Educational authorities and community forums in an endeavour to resolve the issue and it is apparent from the evidence given and established that both the school Principal and Educational authorities want to extraordinary lengths in an endeavour to resolve Mr Bacela’s problems and to persuade him to comply to educational norms and procedures, but to no avail.

7 .
Miss Poswa then called Mr Hendrik Greeff, the District Manager for Education in the East London District who gave evidence as to the steps and procedures followed by the Department in investigating the complaints against Mr Bacela which finally resulted in the dismissal of Mr Bacela as from 1 April 1998, confirming the discharge of his service from such date in term of the provisions of Section 14 of the Act as aforementioned.

8 .
During the year of 1998 it was evident that he was away from school without notification or advice as from 10 April 1996 to 16 May 1996 and again from 16 August 1996 to 25 October 1996. Again from 21 February 1997 up until 25 March 1997. Again during 1997 from 21 April 1997 to 28 April 1997. From 26 May 1997 to 30 May 1997. From 22 July 1997 to 20 October 1997 and again from 23 October 1997 to 19 November 1997.

9 .
For certain periods of the later mentioned periods Mr Bacela handed in medical certificates which booked him off for the period of 2 November 1997 to 30 November 1997 and 23 October 1997 to 31 October 1997. These certificates had not previously been handed to the school Principal in terms of required procedure.

10 .
In giving evidence Mr Bacela was unable to show a satisfactory response to the evidence given by the Department. He merely stated that he had been away and stayed away from school because of misunderstandings between himself and the school Principal and as he had not been well on several occasions. He contradicted himself as to whether he had been physically ill or disturbed by relationship difficulties. Nevertheless it was evident that he exhibited a disregard for the educational authorities and the authority of the school Principal and for procedures to be followed.

11 .
In the circumstances and in view of the evidence as established at the Arbitration I am of the opinion that the Department acted fairly and properly confirming the termination of service of Mr Bacela and I accordingly award that such termination of service be upheld.

12 .
That I accordingly confirm my Award as Arbitrator as set out above.

________________________
J E BAX
ARBITRATOR – INDEPENDENT MEDIATION SERVICES SOUTH AFRICA

EDUCATION LABOUR RELATIONS COUNCIL
ARBITRATION AWARD

CASE NUMBER PSES EAR000030 EC
APPLICANT MR C M BACELA
RESPONDENT DEPARTMENT OF EDUCATION
NATURE UNFAIR DISMISSAL
ARBITRATOR J E BAX
DATE OF ARBITRATION
VENUE

REPRESENTATION:

APPLICANT IN PERSON
RESPONDENT MISS POSWA

AWARD:

1 In the circumstances and in view of the evidence as established at the Arbitration I am of the opinion that the Department acted fairly and properly confirming the termination of service of Mr Bacela and I accordingly award that such termination of service be upheld.

DATE OF AWARD 26 AUGUST 1999