Case Number: PSES 4035 NW
Province: North West
Applicant: T THABENG
Respondent: DEPARTMENT OF EDUCATION NW
Issue: Unfair Dismissal - Constructive Dismissal
IN THE EDUCATION LABOUR RELATIONS COUNCIL
HELD AT KLERKSDORP
Case no. PSES 4035NW
In the matter between
THABO THABENG Applicant
DEPARTMENT OF EDUCATION
NORTH WEST PROVINCE Respondent
1 In and during November 2000 the applicant, Mr Thabeng was suspended in terms of section 20(1) of the Employment of Educators Act, 1998 (Act No. 76 of 1998) (“EEA”).
2 He was suspended with pay pending the institution of a disciplinary inquiry on a charge of misconduct relating to sexual offences against learners at Nkang-Mahlale Secondary School, at which school he is a teacher.
3 The matter was referred to the Education Labour Relations Council in March 2002, as an unfair suspension in terms of Item 2(1)(b) of the Labour Relations Act of 1995 as amended.
4 Mr. Thabeng represented himself and Mr. De Meyer represented the Respondent.
5 Mr Thabeng gave the following evidence:
5.1He was suspended from duty with pay pending a disciplinary hearing regarding a charge of sexual misconduct perpetrated against learners in a school where he taught.
5.2 The suspension was effected on 16 November 2000 whereafter he made representations to the Department of Education – North West Province (“DOE-NW”).
5.3 The Department of Education responded and confirmed the suspension with effect from 16 January 2001. The suspension continued with pay.
6 The disciplinary tribunal was established in and during December 2001 and after its deliberations did not deliver a finding. Despite several requests and directions, the disciplinary tribunal did not deliver its finding.
7 The disciplinary tribunal reconvened on 11 June 2002 at Klerksdorp.
8 By then he had already lodged a dispute with the Education Labour Relations Council (“ELRC”) to hear a dispute about his unfair suspension.
9 The basis for referral of the dispute was his opinion that having heard the evidence before it the disciplinary tribunal was obliged to deliver a finding and by not doing so it had in fact taken a decision to suspend him for a second time.
10 He acknowledged and it is common cause that the disciplinary tribunal reconvened on 11 June 2002 in Klerksdorp and based on the evidence before it found the applicant guilty of the misconduct that recommended a sanction less than dismissal. The Head of Department who received the documentation that was before the tribunal and having considered it decided to terminate the services of Mr Thabeng.
11Mr Thabeng submitted that his suspension was unfair and that the arbitrator appointed by the Bargaining Council had the power to uplift his suspension, essentially because the disciplinary tribunal had not issued its decision within a short period after the 6 December 2001.
12 He stated that the employer failed to give reasons as to why he was not informed of his rights and that he was entitled to his rights to appeal against his suspension.
13He also complained that he had been suspended twice.
THE DEPARTMENT’S SUBMISSIONS
14 The Department argued that the EEA, specifically, section 20(1) –
“Suspension of educators determines that subject to the provisions the employer may at any time before or after the charging of the educator with misconduct, suspend an educator from duty on such condition as the employer may determine.”
15 In terms of section 24(2)(a), if the disciplinary tribunal found an educator guilty, the employer may after having considered all the documents related to the inquiry, caution or reprimand, impose a fine, reduce the salary and discharge the educator from service.
16 The applicant was suspended pending an investigation. The tribunal could not complete its task on 6 December 2001 to decide on the applicant’s guilt or otherwise and decided to continue the hearing after further investigations.
17 It completed this task in June 2002 and made its recommendation.
18 There was no second suspension.
19 In and during July 2002 the applicant was informed by the HOD that he had been dismissed. He appealed against this outcome. The appeal has not yet been heard.
ANALYSIS OF EVIDENCE AND ARGUMENT
20 The matter before me is the unfair suspension of Mr Thabeng.
21Mr Thabeng was suspended in November 2000. He took no issue with this suspension even though the disciplinary tribunal sat for the first time on 6 December 2001. He subsequently sought a decision from the disciplinary tribunal which had in the meanwhile ordered a further investigation into the matter and reconvened in and during June 2002 where further evidence was submitted during the hearing.
22 The applicant received all his benefits, when he was suspended with pay.
23 Given that the nature of the offence related to sexual misconduct against learners of the school where he taught, it was appropriate that his suspension included conditions which prevented his presence from the premises of Nkang-Mahlale Secondary School.
24 He was given the opportunity to make representations regarding the suspension.
25 These representations were regarded by the department and the suspension was confirmed in January 2001.
26 If I had not been faced with the fact that the applicant had been dismissed by the time this matter came to arbitration, I would have found that there was no unfair suspension and therefore no unfair labour practice that was committed by the department.
27 Having regard to the fact a dismissal has occurred, the lifting of a suspension would have no force and effect as the employment relationship between the parties has been terminated by the employer.
28 The applicant has appealed and in the circumstances must await the outcome of the appeal and if unsuccessful, challenge his unfair dismissal in accordance with the Constitution of the Education Labour Relations Council and in terms of the Labour Relations Act of 1995 as amended.
The application is dismissed.
EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER PSES 4035 NW
APPLICANT T THABENG
RESPONDENT DEPARTMENT OF EDUCATION NW
NATURE UNFAIR LABOUR PRACTICE / SUSPENSION
DATE OF ARBITRATION
APPLICANT IN PERSON
RESPONDENT MR DE MEYER
Application is dismissed.
DATE OF AWARD