Education departments cannot rely solely on the statutory “deemed discharge” to bypass questions about whether a teacher actually reported for duty.
Image: Freepik
Teacher absenteeism and a lack of educators are massive problems in South Africa, yet, as a recent Labour Court ruling shows, education departments cannot simply label a teacher as “automatically fired” for not reporting to work without properly testing the facts.
On an average school day, between 10% and 12% of teachers are absent, said the Auditor General in 2023.
This equates to lost teaching time of between 20 and 24 days per teacher each year, its report added. “Teacher absenteeism has persisted over many years and is higher in poorer schools,” it said.
In addition, more than 30,000 educators have left South Africa’s public schools in the past five years.
Yet, a recent ruling determined that teachers can’t simply be posted to schools they don’t want to work at – and then fired for not pitching up at that school.
The Labour Court case involved Sephiri Makhale, a mathematics teacher employed by the Free State Department of Education, who took the department to court to contest his firing because he didn’t go to the school they told him to.
In 2015, Makhale was appointed as a Post Level 1 educator at Seemahale Secondary School in Botshabelo in the Free State, teaching grades 8 to 10. In April 2019, he was transferred to Senakangweni Secondary School, where he worked until March 2021.
Senakangweni Secondary School is located in Mmakau, in the North West Province, albeit near Pretoria. Google Maps shows that the distance between the two schools is about 10km.
The Senakangweni principal at the time, Diphagoe, decided to reduce staff numbers, and he told Makhale to return to Seemahale Secondary School.
When he returned to Seemahale, the principal, Nkokoto, told him he would be transferred to Amohelang Primary School. The distance between these two schools is around 9km.
Makhale objected, arguing that he had not consented to this transfer and had always intended to report to Seemahale, the school where he was officially registered.
“I have never been appointed at Amohelang Primary School by the Department of Education,” he said in his referral to the Education Labour Relations Council (ELRC). The ELRC didn’t deal with his claim, saying it didn’t have jurisdiction.
“I have raised my decision to stop reporting at Amohelang Primary School with my SMT [school management team] of the School before leaving the School,” said Makhale.
Makhale added that “I have been denied to report on duty at Seemahale School from 3 May 2022 where I am still appointed by the Department of Education. I have also brought the matter to the Motheo District Director for intervention.”
Makhale raised these issues with the Free State Department of Education’s HR and contacted the South African Democratic Teachers’ Union in 2022 without success.
After this, he received a letter of termination dated November 11, 2022, delivered on December 7, 2022, stating his services were terminated in terms of the Employment of Educators Act.
The section that the Free State Department of Education relied on enables them to effectively fire someone who has been absent for more than 14 consecutive days.
When the matter appeared in court, the Free State Department of Education argued that because Makhale had been absent for more than 14 days, his termination did not fall under the Labour Relations Act (LRA) and that the ELRC did not have jurisdiction to hear the dispute.
The ELRC normally has the authority under the LRA to resolve disputes between teachers and their employers through arbitration, with decisions that are binding on both sides.
However, for “deemed discharges” under the Employment of Educators Act, its role is less clear because the law treats the employment as automatically ended if the teacher doesn’t pitch for work for more than two weeks.
The Free State Department argued that this meant the ELRC could not hear Makhale’s claim. The Labour Court disagreed, saying the council should have examined the facts of the case rather than dismissing it outright.
In the ruling, the court stated that the ELRC should have dealt with the matter and looked closely at whether the rules for a deemed discharge were actually met and whether Makhale had been properly dismissed by operation of law.
It added that the council should have heard evidence to determine if the legal requirements for the deemed discharge existed and if Makhale’s employment had in fact ended under the law.
The court noted that Makhale had reported to a school of his choice, Seemahale, and attempted to tender his services, but the department had refused to let him sign the register.
In addition, it said that it wasn’t as if the department didn’t know where he was.
The ruling confirms that departments cannot rely solely on the statutory “deemed discharge” to bypass questions about whether a teacher actually reported for duty.
IOL BUSINESSS