Mkhwanazi v MEC for the Department of Education, KwaZulu-Natal (D 1425/19) [2022] ZALCD 16; [2022] 6 BLLR 558 (LC) (8 April 2022)

Mkhwanazi v MEC for the Department of Education, KwaZulu-Natal (D 1425/19) [2022] ZALCD 16; [2022] 6 BLLR 558 (LC) (8 April 2022)

The court found that the jurisdictional requirements for deemed dismissal under section 14(1) of the Employment of Educators Act were not met. The applicant was not absent without permission, as she was instructed to leave her school and await a disciplinary hearing. The respondent failed to comply with the Circular's requirement to formally notify the applicant and place her on terms regarding possible deemed dismissal. The communications from the respondent did not satisfy these procedural requirements. Furthermore, the applicant tendered her services in December 2017, and the respondent failed to provide any explanation for not accepting this tender or for not reinstating her. There...

Citation
[2022] ZALCD 16
Parties
Applicant: Edith Thembisile Ntombiani Mkhwanazi; Respondent: MEC for the Department of Education, KwaZulu-Natal
Court
Labour Court Durban
Jurisdiction
South Africa
Judgment Date
8 April 2022
Case Number
D 1425/19
Procedural Posture
Review Application / Judgment
Outcome
Application granted. The applicant is not deemed dismissed. Alternatively, the respondent's decision of 12 November 2019 is reviewed and set aside and substituted with reinstatement.
Judges
Whitcher
Legal Topics
Deemed Dismissal, Jurisdictional Facts, Legality Review, Good Cause Reinstatement, Employment of Educators Act, Rationality of Decision
Labour Law Administrative Law Deemed Dismissal Jurisdictional Facts Legality Review Good Cause Reinstatement Employment of Educators Act Rationality of Decision

Case Brief

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Parties

Edith Thembisile Ntombiani Mkhwanazi

Applicant

MEC for the Department of Education, KwaZulu-Natal

Respondent

Procedural Posture

Review Application / Judgment

Legal Issues

  1. 1 Whether all jurisdictional requirements for deemed dismissal under section 14(1) of the Employment of Educators Act were met.
  2. 2 Whether the respondent's decision not to reinstate the applicant was rational and lawful.
  3. 3 Whether the applicant was absent without permission as required for deemed dismissal.

Ratio Decidendi

The court found that the jurisdictional requirements for deemed dismissal under section 14(1) of the Employment of Educators Act were not met. The applicant was not absent without permission, as she was instructed to leave her school and await a disciplinary hearing. The respondent failed to comply with the Circular's requirement to formally notify the applicant and place her on terms regarding possible deemed dismissal. The communications from the respondent did not satisfy these procedural requirements. Furthermore, the applicant tendered her services in December 2017, and the respondent failed to provide any explanation for not accepting this tender or for not reinstating her. There...

Court Disposition

Application granted. The applicant is not deemed dismissed. Alternatively, the respondent's decision of 12 November 2019 is reviewed and set aside and substituted with reinstatement.

Orders

  • The applicant is not deemed dismissed.
  • In the alternative, the respondent's decision of 12 November 2019 is reviewed and set aside and substituted with the decision that the applicant is reinstated retrospectively to 4 August 2017, taking into account any salaries paid to the applicant from 4 August 2017.