An Eastern Cape teacher who sought to stay employed by the provincial education department while in prison for allegedly kidnapping and killing his ex-girlfriend has failed in his bid to overturn his dismissal.
Grade 7 teacher Xolani Gotyi, 35, of Alice Primary School in Dikeni, has been in custody since July 2024.
He appealed against the department’s decision to dismiss him in February, arguing the process was unfair.
Kungawo Nyhweba, 19, of Golf Course in Dikeni, went missing after she was seen leaving home with two women.
The women later led police to an open space in the Ebakhwetheni area of Joza township, Makhanda, where her charred body was found.
Education Labour Relations Council panellist Catherine Willows ruled that the dismissal of Gotyi, a father of two employed by the department since 2022, was substantively and procedurally fair.
She dismissed his application. The hearing took place at the department of correctional services in Qonce.
In his application, Gotyi said the dismissal sanction was “too harsh in the circumstances and that no alternatives to dismissal were considered”.
He claimed he was denied representation, subject to an unfairly refused postponement and no chance to cross-examine during the internal hearing.
He asked to be reinstated on an unpaid basis while awaiting trial.
He was arrested on July 11 and last reported for duty on June 27.
He argued his dismissal was “too harsh as it was not fair to him and could affect the outcome of his pending criminal matter”.
The department suspended him on July 19 2024.
[Gotyi’s] version of procedural and substantive fairness are not persuasive and not grounded in a substantiated basis in law
— Education Labour Relations Council panellist Catherine Willows
Gotyi said he attended a meeting on October 9 2024 at which he was told he would be subjected to an incapacity inquiry.
The meeting date was set for October 22 and later moved to November 22.
He submitted that he had believed he would use his remaining leave days and then be placed on unpaid leave for the duration of his incarceration.
He also said he believed he had been denied bail because he was suspended.
He is due back in court on January 26 for trial.
His representatives argued the department failed to prove fairness because it did not call key witnesses, including the internal inquiry chair and the MEC who issued the final decision.
They said he had “always remained open to temporary unpaid leave while he awaits trial”, with a substitute teacher filling his post.
The department submitted that it was informed of Gotyi’s arrest by the school principal in June 2024 and then followed incapacity processes.
His employment was terminated in February 2025, and he was last paid in May.
The department argued that because Gotyi’s duties required his presence, continued employment was “highly impossible considering his right to freedom and movement were severely restricted for an indefinite amount of time”.
Willows wrote: “The obligation to consider alternatives to dismissal rests upon the [department], but there is accordingly no right on behalf of an applicant to insist that such alternatives be implemented if such in the view of the [department] are not suitable.
“Therefore, the averment of substantive unfairness on the premise of dismissal being too harsh has no grounding nor substantive basis in law.
“It is therefore my assessment based upon the versions presented that the dismissal … on the basis of incapacity encompassing impossibility of performance was fair.”
On procedural fairness, Willows said it was unclear how Gotyi believed he was denied an opportunity to cross-examine, as “in the incapacity inquiry, no evidence was led nor was any in dispute”.
“The correspondence issued to the applicant … indicated that at all junctures … the applicant was informed of his rights which was inclusive of that of representation,” she said.
“[Gotyi’s] version of procedural and substantive fairness are not persuasive and not grounded in a substantiated basis in law.
“An employer is not obligated to retain an employee who is permanently incapacitated if such employee’s working circumstances or duties cannot be adapted.”
She concluded that the department had proved the dismissal was fair “in all respects”.
Daily Dispatch
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