J K Mohammad “the Applicant”
and
DEPARTMENT OF EDUCATION – KWAZULU-NATAL “the Respondent”

ARBITRATION AWARD

Case Number: PSES988-18/19KZN

Last date of arbitration: 16 August 2018

Date of award: 26 August 2019

J KIRBY
ELRC Arbitrator

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 HEARING AND REPRESENTATION

1. The hearing of the arbitration commenced on 20 June 2019 and it continued on 16 August 2019, on which day the leading of evidence was finalized. The parties requested and were granted permission to submit written closing arguments by 21 August 2019.
2. The hearing was held at the offices of the Hlabisa Circuit Office of the Respondent. The Applicant, Mr J K Mohammad, appeared in person and was represented by Mr S P Magaya, an official of the Educators Union of South Africa. Mohammad testified and a bundle of documents, marked exhibit B, were handed in on his behalf.
3. The Respondent, the KwaZulu-Natal Department of Education, was represented throughout the hearing by its employee, Mr Zitha, who also testified on behalf of the Respondent. Mr Zitha called one other witness and handed in a bundle of documents marked exhibit A.
4. The proceedings were digitally recorded.

TERMS OF REFERENCE AND ISSUES TO BE DECIDED

5. The arbitration is in respect of a referral by the Applicant of an alleged unfair dismissal as provided for in section 191(5)(a)(iii) of the Labour Relations Act 66 of 1995 (LRA.)
6. I am required to decide whether the dismissal of the Applicant was unfair and, if so, what relief ought to be granted to him. The Applicant disputes the procedural and substantive fairness of his dismissal

BACKGROUND

7. The Applicant was employed as an educator at Igugulesizwe Secondary school (the school.)
8. A disciplinary hearing was held on 27 May 2013. Mr M T Zitha, the Respondent’s representative, was the chairperson of the hearing, at which the Applicant was charged with having been absent from work without permission since 28 March 2013. The Respondent did not rely upon the deeming provision of section 14(1)(a) of the Employment of Educators Act 76 of 1998 (EEA) although the Applicant had allegedly been absent for more than fourteen consecutive days. After hearing the evidence of William S’Manga Nhlenyama (Nhlenyama,) the principal of the school, the disciplinary hearing imposed the sanction of dismissal.
9. Notice of the disciplinary hearing had been sent by registered post to the Applicant at the postal address of P O Box 69, Jozini. This is also the postal address of the school. The Applicant denied having received notice of his disciplinary hearing.
10. When the Applicant returned to the school during June 2013 he learnt that he had been dismissed. He filed an appeal by way of a letter dated 4 July 2013. The Applicant’s appeal was turned down on 15 February 2019 and he was dismissed with effect from 1 March 2019. The Applicant continued to teach at the school while his appeal was pending.
11. The Applicant challenged the procedural and substantive fairness of his dismissal. He denied having received notice of his disciplinary hearing and alleged that as a shop steward, his trade union should also have been notified of the Respondent’s intention of disciplining him. While the Applicant initially challenged the evidence submitted by the Respondent to establish that he had been absent, it became common cause that the Applicant had been absent from the school since 28 March 2013 until he returned to the school in June 2013. The Applicant alleged that he had been granted leave on 27 March 2013.

SUMMARY OF EVIDENCE AND ARGUMENTS

Respondent’s case

12. Nhlenyama testified that the Applicant simply stayed away from the school. He had not submitted any leave application forms and did not contact Nhlenyama to inform him of his whereabouts. Under cross examination he denied that the Applicant had submitted the leave forms, copies of which are included in exhibit B. No such leave had been approved by him.
13. The Applicant taught mathematics to approximately three hundred grade 12 learners. He was head of the mathematics department. While his appeal was pending the Applicant continued to provide good service as an educator.
14. Nhenyama had been to the residence of the Applicant looking for him but he had not been present. He also asked known acquaintances about the whereabouts of the Applicant but nobody knew where he was. The only address for the Applicant in his personal file is that of P O Box 69, Jozini to which notice of his disciplinary hearing was sent. This address is also the address of the school. The address in Lenasia listed on the copies of leave application forms was unknown to Nhlenyama and had not previously been used by the Applicant. Nhlenyama denied that he had ever been contacted by the Applicant during his absence from school. Nhlenyama had reported the Applicant’s absence after had had been absent for four days.
15. Moses Thembinkosi Zitha (Zitha) is employed as a deputy director. He was the chairperson of the Applicant’s disciplinary hearing. He satisfied himself that the Applicant had been notified of his disciplinary hearing by way of registered post. He had considered the evidence of Nhlenyama and found that it established that the Applicant had been absent without leave. He had considered it to be aggravating factors that the Applicant taught a key subject like mathematics and that the learners at the school were from extremely poor households for whom education provided an escape from poverty.
16. Zitha denied that he was prejudiced against the Applicant. He had only met him for the first time at the conciliation of this dispute.
17. Zitha did not know the reasons for the period of time it took for the Applicant’s appeal to be finalized.

Applicant’s case
18. The Applicant had been feeling ill in the beginning of 2013. He discussed his position with Nhlenyama and on 27 March 2013 it was agreed that he should go on sick leave. On 27 March 2013 he submitted an application form for temporary incapacity leave, which had been completed by Dr V O Ngxongo as his attending doctor. The form is included in the bundle of documents submitted by the Applicant, exhibit B, and it records that Dr Ngxongo first saw the Applicant in respect of his incapacity on 1 February 2013 and last saw him in that regard on 15 April 2013. The form indicates that the Applicant consulted with Dr N gxongo on seven occasions including 6 and 15 April 2013. Copies of medical certificates allegedly completed by Dr Ngxongo which indicate that the Applicant consulted with Dr Ngxongo in respect of depression on 15 April and 16 May 2013 are included in exhibit B. In addition to the medical certificates of Dr Ngxongo, copies of three medical certificates allegedly completed by Dr Oni are also included in exhibit B. These certificates indicate that the Applicant also consulted with Dr Oni in respect of depression on 15 April and 16 May 2013. Despite the medical certificates of Dr Oni indicating that he was consulted by the Applicant for depression, the Applicant testified that he had seen Dr Oni for back pain. No explanation was forthcoming from the Applicant as to why he would have consulted with two doctors on the same days for the same complaint. The Applicant had travelled from Lenasia to consult with the doctors in Jozini. All these medical certificates were allegedly submitted by the Applicant to Nhlenyama on 27 March 2013. Before he had submitted his leave application forms to Nhlenyama he had made copies of the first page of the forms. He had not had sight of page two of the said forms on which approval of his leave applications would have been recorded. Nhlenyama was not in the habit of returning the leave approval forms to his staff.
19. Both the abovementioned medical certificates of Dr Oni have facsimile transmission inscriptions indicating that they were faxed on 3 July 2013. A copy of a third medical certificate allegedly completed by Dr Oni records that the Applicant consulted with him on 28 March 2013. This certificate is, however, dated 2 July 2013.
20. The Applicant averred that after he had returned to the school and learnt that he had been dismissed, Nhlenyama had admitted to him that he had submitted leave application forms before he had gone on sick leave. This version was not put to Nhlenyama when he had testified.
21. The Applicant submitted that Nhlenyama was motivated by jealousy to have him dismissed. Nhlenyama has a teaching diploma whereas the Applicant has a Master’s degree in mathematics. There had never been any prior animosity between the Applicant and Nhlenyama.
22. The Applicant submitted copies of documents that indicated that he had provided SARS with the same postal address as that given on his leave application forms. The SARS document recording this postal address also, however, indicates that it was sent to the same address to which the notification of his disciplinary hearing had been sent.

SUMMARY OF ARGUMENTS
23. The Respondent submitted that the dismissal of the Applicant was procedurally and substantively fair.
24. It was common cause that the Applicant was absent from the school from 28 March 2013 and he remained absent until sometime after his disciplinary hearing.
25. With regards to the defence of the Applicant that he had submitted leave application forms supported by medical certificates before he had gone on leave, the Respondent submitted that this was a fabrication. All the alleged medical certificates are dated after 28 March 2013, on which day the Applicant alleges he went on leave, and thus he could not have submitted them together with the leave application forms before he went on leave. Further, the medical certificates indicate that both Dr Ngxongo and Dr Oni saw the Applicant on 15 April 2013 and 16 May 2013 for depression. No explanation was provided as to why the Applicant would see two doctors for the same ailment on the same day. While the Applicant had alleged that he saw Dr Oni for back pain, this was contradicted by the alleged medical certificates of Dr Oni that record that he was treating the Applicant for depression. It was submitted that the alleged medical certificates were fabricated after the Applicant had learnt of his dismissal.
26. No evidence was submitted that the alleged leave forms had been approved. Nhlenyama had denied having received the application for leave forms.
27. With regards to the address used by the Respondent to notify the Applicant of his disciplinary hearing, it was submitted on behalf of the Respondent that it had used the only address that it had on record for the Applicant. It was evident from documentation submitted by the Applicant that he had previously used the same postal address in communication with SARS. If the Respondent had intended to deny the Applicant the right of a fair hearing, it could simply have proceeded to act in terms of the deeming provision of section 14(1)(a) of the EEA. The Respondent did not do so and sent the Applicant notification of his disciplinary hearing to the only known address that it had on record for him.
28. The Respondent has no record of the Applicant having been a shop steward and no evidence to substantiate this claim was submitted by the Applicant.
29. It was submitted on behalf of the Applicant that the Respondent had failed to establish that the dismissal of the Applicant was procedurally and substantively fair. It was submitted that the evidence of Nhlenyama was unsatisfactory and that no evidence had been submitted to support his evidence that he and others at the school were unaware of the Applicant’s whereabouts after 27 March 2013.
30. There had not been a breakdown in the trust relationship and this was illustrated by the evidence of Nhlenyama that the Applicant had continued to provide excellent service during the approximately six year period of appeal. This charge of absence without leave is the only disciplinary infraction of the Applicant. The Applicant, as a mathematics educator, is a scarce resource for the Respondent and he should be allowed to continue teaching.

ANALYSIS OF EVIDENCE AND ARGUMENT

31. It is common cause that the Applicant was not on duty at the school from 28 March 2013 until he returned to the school sometime after his disciplinary hearing. The Respondent avers and needs to prove on a balance of probabilities, that the Applicant did not have a valid reason or permission to be absent.
32. Nhlenyama, the school principal, testified that the Applicant had not applied for or been granted leave. He denied having received the leave application forms as alleged by the Applicant. He was clear in his evidence. It was submitted on behalf of the Applicant that Nhlenyama was motivated by malice in bringing this false charge against the Applicant. This allegation is, however, not borne out by the evidence that the Applicant and Nhlenyama had worked without incident before the Applicant had allegedly been absent without permission and for the almost six years that it took to finalize the Applicant’s appeal. The Applicant further testified that after his disciplinary hearing and whilst he was preparing his appeal, Nhlenyama had acknowledged that he had received leave application forms from him. This allegation goes to the core of the Applicant’s defence but this alleged acknowledgement was not put to Nhlenyama when he testified. I accordingly accept the evidence of Nhlenyama and reject that of the Applicant in this regard.
33. The Applicant testified that he kept copies of page one of his leave application forms as proof that he had submitted the forms. He admits that he has not had sight of completed page two of these forms on which approval of his leave applications would have been recorded. He did not receive the completed approved leave forms before he absented himself.
34. The Applicant alleges that he submitted leave application forms and an application form for temporary incapacity leave together with supporting medical certificates before he went on leave. This evidence is, however, not supported by the medical certificates themselves which are all dated after 28 March 2013, from which date the Applicant acknowledges he was absent from the school. If the medical certificates are correctly dated, they could not have been submitted by the Applicant prior to 28 March 2013. The one alleged medical certificate of Dr Oni is dated 2 July 2013. There would be no reason to date the medical certificate 2 July 2013 if he had in fact seen the Applicant on 28 March 2013 as alleged by the Applicant. The other two alleged certificates of Dr Oni have facsimile transmission inscriptions of 3 July 2013. The Applicant submitted his appeal on 4 July 2013. The application for temporary incapacity leave has also allegedly been completed by Dr Ngxongo indicating that he consulted with the Applicant on 6 and 15 April 2013. If these consultations did in fact take place, then the form could not have been submitted by the Applicant when he allegedly applied for leave. The evidence of the Applicant that the leave application forms as supported by the relevant certificates were submitted before he went on leave is contradicted by his own evidence that he travelled from Lenasia to Jozini to consult with the doctors on 15 April 2013 and 16 May 2013. The certificates of Dr Ngxongo and Dr Oni indicate that they both treated him on the same days for depression. The Applicant testified that Dr Oni treated him for back pain. No explanation was forthcoming as to why his medical certificates indicated otherwise. Dr Ngxongo and Dr Oni were not called as witnesses by the Applicant. For all of the abovementioned reasons I do not attach any weight to the content of the said medical certificates. The available evidence indicates that the medical certificates were sourced by the Applicant in preparation for his appeal.
35. In light of all of the abovementioned I find that the Respondent has established that the Applicant did not have permission to be absent from work.
36. No evidence was led by the Applicant to support his averment that he was a shop steward at the time of his disciplinary hearing and thus that his trade union at the time ought to have notified of his hearing. The Respondent denied that it had any record of him having been a shop steward. I am satisfied that the Applicant was not a shop steward at the relevant time.
37. The Applicant avers that he was denied an opportunity to defend himself at his disciplinary hearing as the Respondent sent the notification of the hearing to a postal address that it knew the Applicant was not using. He submits that the correct address for contacting him was listed on his leave application forms. On the other hand the Respondent alleges that it sent the notification to the only address that it had on record for the Applicant. This was done after Nhlenyama had made unsuccessful informal enquiries as to the whereabouts of the Applicant. As indicated above, I accept the evidence of Nhlenyama that he did not receive the leave application forms from the Applicant. As such the Respondent would not have been aware of the Lenasia address and it made use of the only address that it had on record for the Applicant.
38. An unusual feature of this case is the length of time of almost six years that elapsed from the lodging of the Applicant’s appeal until he was notified that it had been unsuccessful. Throughout this period the Applicant continued to work at the school. This would indicate that when the Applicant was ultimately dismissed on 1 March 2019 there may not have been an irretrievable breakdown in the employment relationship. Neither party made submissions in this regard. As already indicated, I find that the Applicant did not submit leave application forms to Nhlenyama before he was absent from work. at the time of his disciplinary hearing the Applicant had been absent for almost two months and he admits that he only returned to work after another month’s absence. The Applicant did not take the hearing into his confidence and give an explanation as to the reasons for him having been absent from work since 28 March 2013. Instead he fabricated a defence to the misconduct charge of the Respondent. This fabrication is indicative of the Respondent not being able to trust the Applicant and that there has been an irretrievable breakdown in the trust relationship. Having regard to the considerable period of time that the Applicant was absent, the effect his absence would have had on the learners and the decision taken by the Applicant to fabricate evidence in an attempt to justify his absence, I am satisfied that the dismissal of the Applicant in terms of section 18 of the EEA.

AWARD

39. The dismissal of the Applicant, J K Mohammad, by the Respondent, the KwaZulu-Natal Department of Education, was procedurally and substantively fair.
40. No order is made in respect of costs.

J Kirby
Arbitrator 26 August 2019
PSES988-19/20 KZN