30 September 2025 – ELRC707-24/25 KZN

Arbitrator: J.D. Vedan
Case Reference No.: ELRC707-24/25 KZN
Date of Award: 26 September 2025

In the arbitration between:

Otto Sihle Ndlovu Applicant/Employee party

and

Education Department of KwaZulu-Natal Respondent/Employer party

Applicant’s representative: Mr S. Mdunge
Tel: 078 382 3339
E-mail: sisamdunge1@gmail.com

Respondent’s representative: Mr T. Mchunu
Tel: 035-901 8729
E-mail: thabani.mchunu@kzndoe.gov.za

DETAILS OF HEARING AND REPRESENTATION:

This arbitration was held at the Empangeni High School, Empangeni on 22 May 2025 and concluded on 11 September 2025.
The Applicant, Otto Sihle Ndlovu, was represented by Mr S. Mdunge, a Union Official.
The Respondent, Education Department of KwaZulu-Natal, was represented by Mr T. Mchunu, its representative.
The parties were to submit closing arguments in writing.

BACKGROUND TO THE DISPUTE:

There were two charges levelled against the Applicant, which are as follows:

“COUNT 1

In that on or about 12 January 2023 and in that at or near Masakhane Secondary School you failed to carry out a lawful order or routine instructions without just or reasonable cause, when you failed to report on duty where you had been placed at Masakhane Secondary School. By so doing you contravened Section 18(1)(i) of the Act.

COUNT 2

In that on or about 7 July 2021 to 09 February 2022 and that at or near Amabuye Secondary School you absented yourself from work without valid reason or permission. By so doing you contravened Section 18(1(i) of the Act.”

The Respondent’s representative, Mr T. Mchunu, stated that the Department will prove that proper procedure was followed during the disciplinary process. The Applicant was given an opportunity to be heard, to lead evidence, and to question witnesses.
The Respondent claimed that there was no undue delay in bringing the charges, as there was an “ongoing engagement” with the Applicant. The Circuit Manager wrote several letters to the Applicant, instructing him to assume his duties.
The Applicant’s representative, Mr S. Mdunge, argued that the charges are based on an “inordinate delay”. He highlighted that the alleged absence was from July 2021 to February 2022, but the charges were only preferred in 2023. The representative questioned what the employer was doing during this period, especially since the Applicant was being paid a full salary.
The Applicant’s representative asserts that the employer must explain the delay, as labour relations law requires such matters to be handled within the shortest possible time to avoid prejudicing a party.

ISSUE TO BE DECIDED:

Whether the dismissal of the Applicant was procedurally and substantively unfair?

RESPONDENT’S EVIDENCE:

Sibusiso Mpanza, the Principal of Amabuye Secondary School, testified that the Applicant was his Deputy Principal. Mr Mpanza stated that the Applicant’s last day at the school was 7 July 2020, and that a page from the attendance book was missing.
Mr Mpanza tried to contact the Applicant but his calls were rejected or went to voicemail. Mr Mpanza reported the matter to the Circuit Manager and the Department of Education’s Labour Section on 10 July 2020 and 11 September 2020.
He stated that the Circuit Manager told him that the Applicant was “displaced” to Masakhane Secondary School, which is why Mr Mpanza wrote “displaced” instead of “absent” in the attendance book starting on 14 September 2020.
Mr Mpanza confirmed that the Applicant was not at Amabuye Secondary School during the charged period of 7 July 2021 to 9 February 9 2022.
Mr Mpanza also stated that he had received a letter from the School Governing Body (SGB) expressing concerns about the Applicant’s behavior. The letter detailed incidents, including one where the Applicant allegedly closed the school gates and sent learners and teachers home due to a perceived storm, and another where he left the school for forty one days without reporting it.

APPLICANT’S EVIDENCE:

The Applicant stated that his last day at Amabuye Secondary School was on 13 July 2020. He testified that on that day, three School Governing Body members “chased” him out of his office, telling him to go to the Circuit Office. He immediately called the Circuit Manager, Mr Zikhali, who instructed him to leave and go to the circuit office. After this incident, he never returned to Amabuye Secondary School.
He explained that upon his arrival at the Circuit Office, he wrote a letter requesting a transfer to another school, Tisand Technical High School. Following this, the Circuit Manager gave him a letter to be displaced to Masakhane Secondary School.
The Applicant refused to go to Masakhane Secondary School because it was in another Ward and would require him to relocate. He claimed they reached an agreement that he would be placed at another school, eThakasani Primary School.
He was given a letter to report to eThakasani Primary School on 14 January 2022. However, the Principal at eThakasani Primary School would not accept him, so he reported this to the Circuit Manager in writing.
The Applicant stated that after this, there was silence, and he was instructed to report to the Circuit Office until a placement was found. He claimed that he did so until he was charged.
The Circuit Manager then presented him with the letter for Masakhane Secondary School for a second time, which he also refused because the conditions had not changed.
The Applicant confirmed that he was not at Amabuye Secondary School during the period of absence, stated in the charges (7 July 2021 to 9 February 2022), because he had been removed from the school, and was reporting to the Circuit Office. He stated that he continued to receive his salary from 2021 until his dismissal in September 2024.

ANALYSIS OF EVIDENCE AND ARGUMENTS:

Section 188(1)(b) of the LRA requires that a dismissal be effected in accordance with a fair procedure. The evidence shows that:

23.1. The Applicant was issued with a notice of disciplinary hearing.

23.2. He was represented and afforded the opportunity to state his case and cross-examine witnesses.

23.3. The disciplinary process complied with the Code of Good Practice: Dismissal (Schedule 8, Item 4).

The Applicant argued that the delay in bringing charges prejudiced him. While disciplinary processes should be initiated without unreasonable delay, I am satisfied that the Respondent’s explanation of ongoing engagement regarding the Applicant’s placement reasonably accounts for the delay. Importantly, the Applicant suffered no financial prejudice as he continued to receive his salary throughout.
I accordingly find the dismissal to be procedurally fair.
Section 188(1)(a) of the LRA provides that a dismissal is substantively fair if it is for a fair reason related to the employee’s conduct or capacity.
The Applicant was repeatedly instructed to report to Masakhane Secondary School. The employer has the prerogative to deploy Educators to schools where their services are required. The refusal to comply with a reasonable and lawful instruction constitutes insubordination and misconduct.
The Applicant’s explanation that he was waiting at the Circuit Office is not supported by independent evidence. His absence from July 2021 to February 2022 is proven on a balance of probabilities.
Lawful Transfer: The employer, in this case, the Education Department of KwaZulu-Natal, has the legal right to transfer an Educator who is additional to the staff establishment. While permanent transfers require a School Governing Body’s recommendation, temporary transfers do not. The employer provided the Applicant with a list of vacancies to choose from for a transfer, but he did not follow the required procedures.
Insubordination and Disrespect: The Applicant repeatedly disobeyed lawful instructions from his Supervisor, the Circuit Manager. He refused to sign and acknowledge letters with instructions, citing a supposed unproven agreement with the Circuit Manager. His actions demonstrate a blatant lack of regard for his Supervisors and the Department’s processes. He also has a long history of gross insubordination and misconduct, having been found guilty of a similar offense in 2018.
In TMT Service and Suppliers (Pty) Ltd v Commission for Conciliation Mediation and Arbitration and others [2018] ZALAC 36, if was held that the enquiry into the gravity of the specific insubordination consider three aspects. The action of the employer prior to the deed, the reasonableness of the institution and the presence of wilfulness by the employee. The Labour Appeal Court in TMT Service further held that to the extent that insubordination involves a defiance of authority, such a defiance can be proven by a single act of defiance, and that the employer’s prerogative to command its subordinates is the principle that it protected by the class of misconduct labelled insubordination.
Failure to Follow Procedure: The Applicant did not report for duty at the schools he was assigned to. He failed to use available grievance procedures to address his concerns. He did not file leave forms to account for his absence, which lasted for two hundred and eighteen days. His refusal to sign the placement letter and report for duty at the new schools demonstrate a deliberate choice not to comply with established procedures.
Unjustified Absence: The Applicant’s primary reason for not reporting to the new school was the distance, which the Respondent argues is a “fair and reasonable distance” of approximately twenty one kilometres. His personal inconvenience does not justify his failure to follow clear instructions. The Applicant did not provide any evidence to justify his absence or bring witnesses to support his claims.
Hearsay and Lack of Evidence: The Applicant’s testimony is largely based on “bare denial” and “hearsay” because he relies on private conversations with the Circuit Manager, who was not present at the hearing.
Prejudice to Children: The Applicant’s prolonged absence prejudiced the interests of the children he was supposed to teach, which is a right enshrined in Sections 28 and 29 of the Constitution.
The dismissal of the Applicant was justified for several reasons.
The Applicant’s conduct undermined the employment relationship, prejudiced service delivery, and occurred while he continued to draw a salary. Dismissal was an appropriate sanction in line with Schedule 8 of the LRA, which recognises that gross insubordination may justify dismissal for a first offence.