The Education Labour Relations Council (ELRC) has ordered the Mpumalanga Department of Education to reinstate a teacher after ruling that the department acted unfairly when it refused to implement a recommendation to return her to work.
ELRC panellist Yolisa Ndzuta found that the department unfairly dismissed N Ngcobo, represented by the National Teachers’ Union (NATU), after rejecting a recommendation made in her favour following proceedings held under Section 14(2) of the Employment of Educators Act.
The council ordered the department to reinstate Ngcobo retrospectively within 30 days and restore her employment.
Ngcobo, a teacher at Volksrust Primary School, was deemed dismissed under Section 14(1) of the Employment of Educators Act after she was absent from work for more than 14 consecutive days during 2024.
The department maintained that she had repeatedly been absent without permission and that her whereabouts were unknown after October 2024. The school principal testified that despite attempts to contact her and members of her family, the school was unable to locate her. He said the school was forced to make alternative teaching arrangements to minimise disruption to learners.
However, Ngcobo disputed the department’s version, insisting that she had been hospitalised because of medical and psychological complications and had informed her supervisor of her absence. She also submitted a medical certificate explaining the period during which she was unable to report for duty.
After being dismissed, Ngcobo exercised her rights under Section 14(2) of the Employment of Educators Act by requesting a “good cause” hearing, where employees may explain their absence and seek reinstatement.
During the hearing, the appointed chairperson accepted Ngcobo’s explanation and recommended that she be reinstated.
The department, however, rejected the recommendation.
Labour Relations Officer Johannes Mahlangu testified that the chairperson’s findings were merely advisory and that the district director retained the discretion to either accept or reject them.
He told the arbitration that the department had concerns about Ngcobo’s medical certificate after discovering it had been issued by a radiologist, whom the department argued did not qualify as an approved medical practitioner under the Personnel Administration Measures (PAM).
The department also described Ngcobo as a repeat offender who only came forward after her salary had been frozen.
Ngcobo and NATU challenged those assertions, arguing that the medical certificate had never been questioned during the good cause hearing itself and that the department only raised objections after the chairperson had already recommended reinstatement.
They further argued that the department failed to provide any rational justification for rejecting the recommendation.
In analysing the evidence, Ndzuta noted that although Section 14(2) gives the employer discretion when deciding whether to reinstate an educator, that discretion is not unlimited.
Instead, it must be exercised fairly, reasonably and after considering all relevant circumstances.
The award relied on established court judgments where it was made clear that employers must properly evaluate an employee’s reasons for absence, prior conduct, whereabouts during the absence, and whether the employment relationship has become intolerable.
The arbitrator found that Ngcobo had presented evidence explaining her absence and that this evidence had been accepted by the chairperson during the good cause hearing.
“The employer’s decision is therefore subject to the test of fairness,” the award stated.
Ndzuta concluded that the department failed to demonstrate that its decision to reject the recommendation was procedurally and substantively fair.
While the department defended the legality of the deemed dismissal under Section 14(1), it failed to justify the fairness of refusing reinstatement after good cause had been shown.
“It therefore is concluded that the applicant was unfairly dismissed,” the arbitrator ruled.
Ngcobo had asked for retrospective reinstatement, restoration of her salary and benefits, removal of her dismissal status from the PERSAL system and payment of outstanding remuneration.
The department argued only that she was not entitled to relief because her dismissal had been lawful.
The ELRC rejected that argument and ordered that Ngcobo be reinstated retrospectively within 30 days of the award.
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Sinenhlanhla Masilela
iol.co.za
