The Education Labour Relations Council (ELRC) ruled that the Mpumalanga Department of Education must reinstate a teacher because the department acted unfairly by refusing to honor the recommendation for her return to work.
Decision in the N Ngcobo case
ELRC member Yolisa Ndzuta found that the Department unfairly dismissed N Ngcobo, who was represented by the National Association of Teachers Union (NATU), after rejecting a recommendation in her favor made following an inquiry under Section 14(2) of the Educators Employment Act.
The Council ordered the department to reinstate Ngcobo retroactively within 30 days and restore her workplace. Ngcobo, a primary school teacher at Volksrust, was deemed dismissed under Section 14(1) of the Educators Employment Act due to being absent from work for more than 14 consecutive days in 2024.
Positions of the Parties
The Department argued that she had been repeatedly absent without permission, and her whereabouts were unknown after October 2024. The school principal testified that despite attempts to contact her and her family, the school could not locate her, and they had to arrange alternative lessons to minimize disruption to student learning.
However, Ngcobo disputed the department's version, insisting that she was hospitalized due to medical and psychological complications and had informed her supervisor of her absence. She also provided a medical certificate explaining the period during which she was unable to perform her duties.
Proceedings
After her dismissal, Ngcobo exercised her rights under Section 14(2) of the Educators Employment Act, requesting a hearing on 'good cause,' where employees can explain their absence and request reinstatement. At the hearing, the appointed chairperson accepted Ngcobo's explanation and recommended her reinstatement.
Nevertheless, the department rejected this recommendation. HR officer Johannes Malangu stated that the chairperson's findings were merely advisory, and the district director retained the right to accept or reject them. He informed the arbitration that the department had concerns regarding Ngcobo's medical certificate after discovering it was issued by a radiologist, whom the department believed was not a qualified medical practitioner according to the Personnel Administration Measures (PAM).
The department also characterized Ngcobo as a persistent violator who only made contact after her salary was frozen. Ngcobo and NATU refuted these claims, stating that the medical certificate was never questioned during the good cause hearing, and that the department raised objections only after the chairperson had already recommended reinstatement.
Council's Findings
Analyzing the evidence presented, Ndzuta noted that while Section 14(2) grants the employer discretion in deciding on an educator's reinstatement, this discretion is not unlimited. Instead, it must be exercised fairly, reasonably, and after considering all relevant circumstances.
The ruling relied on established case law, which mandates that employers must properly assess the reasons for an employee's absence, their prior conduct, their whereabouts during the absence, and whether the employment relationship became intolerable. The arbitrator concluded that Ngcobo had provided evidence explaining her absence, and this evidence was accepted by the chairperson during the good cause hearing.
The ruling stated: 'The employer's decision is therefore subject to review for fairness.' Ndzuta concluded that the department failed to demonstrate that its decision to reject the recommendation was procedurally and substantively fair. Although the department defended the legality of the alleged dismissal under Section 14(1), it could not justify the unfairness of refusing reinstatement after good cause had been demonstrated.
The arbitrator ruled: 'It is therefore concluded that the applicant was dismissed unfairly.' Ngcobo sought retroactive reinstatement, restoration of salary and benefits, removal of the dismissal status from the PERSAL system, and payment of outstanding remuneration. The department merely argued that she was not entitled to compensation because her dismissal was lawful. The ELRC rejected this argument and ordered Ngcobo to be reinstated retroactively within 30 days of the ruling.