Education department employee wins legal battle because her dismissal took too long

07 February 2019 - 17:31 By ERNEST MABUZA
subscribe Just R20 for the first month. Support independent journalism by subscribing to our digital news package.
Subscribe now
The Constitutional Court has ruled in favour of an employee whose disciplinary proceedings took extraordinarily long. The court said her dismissal was procedurally unfair.
The Constitutional Court has ruled in favour of an employee whose disciplinary proceedings took extraordinarily long. The court said her dismissal was procedurally unfair.
Image: Gallo Images / Daily Sun / Themba Makofane

The Constitutional Court has come to the aid of an Eastern Cape educator who was  eventually dismissed more than five years after misconduct was noted by her employer.

The highest court in the land on Thursday set aside an earlier order by the Labour Court and found that the dismissal of Thandiwe Stokwe was procedurally unfair.

The matter has now been sent back to the Labour Court for a decision on an appropriate remedy - to reinstate, re-employ or pay compensation to Stokwe.

Stokwe was employed by the Eastern Cape education department as deputy chief specialist in the learners with special needs education section.

When her boss Piet Spies fell ill in January 2008, she temporarily stepped into one of his roles as co-ordinator of the scholar transport section.

During his absence, a transport provider contracted to the department unilaterally terminated its services with immediate effect, effectively leaving some learners stranded.  

Stokwe awarded a "temporary" service contract to her spouse, the director of a company that rendered transport services to the department for four months until a new service provider was appointed following a tender process. 

She was charged with misconduct in July 2010 due to the appointment of her spouse's company and received a letter months later, in June 2011, saying that she was dismissed.

Stokwe asked for reasons for her dismissal and lodged an internal appeal which was eventually dismissed early in 2014. The dismissal then took effect.

Stokwe referred an unfair dismissal dispute to the Education Labour Relations Council, which in August 2014 found her dismissal to be substantively fair.

She failed to have the arbitration award set aside in the Labour Court in 2016.

On Thursday, the Constitutional Court found that her dismissal was procedurally unfair owing to the extraordinary delay by the department of education in instituting and concluding the proceedings.

"It is beyond question that [Stokwe's] disciplinary process was not completed within the shortest possible time frame given the excessive delay which remains essentially unexplained by the department," said acting justice Xola Petse.

Petse said the Employment of Educators Act provided that a disciplinary hearing be held within 10 working days after a notice containing the charges was delivered.

Despite this, Stokwe's disciplinary hearing took place months later.

"Given the lackadaisical approach adopted by the employer in prosecuting the charges, it is not surprising that the appeal – which was lodged in August 2011 – was decided only in February 2014."

Petse remitted the matter back to the Labour Court to decide on the appropriate remedy.


subscribe Just R20 for the first month. Support independent journalism by subscribing to our digital news package.
Subscribe now