Case Number: PSES 633-03/04 FS
Province: Free State
Applicant: S P MSIMANGA (SADTU)
Respondent: DEPARTMENT OF EDUCATION FS
Issue: Unfair Dismissal - Constructive Dismissal
Arbitrator: L J LEKALE
ARBITRATOR : L J LEKALE
CASE NO : PSES 633-03/04 FS
DATE OF AWARD:
In the arbitration between:
SADTU obo S. P. MSIMANGA : EMPLOYEE PARTY
DEPARTMENT OF EDUCATION FREE
STATE : EMPLOYER PARTY
EMPLOYEE’S REPRESENTATIVE : MR L. D. LEPUTLA
TELEPHONE NO. : 082 961 7092
FAX. : (058) 303 1704
EMPLOYER’S REPRESENTATIVE : MS A. RUDMAN
TELEPHONE NO. : 082 853 1363
FAX NO. : (051) 404 4388
1. DETAILS OF HEARING AND REPRESENTATION:
1.1 The arbitration hearing took place in Phuthaditjhaba on the 18th March 2004;
1.2 The union was represented by Mr L. D. Leputla, while the employer party, on its part, was represented by Ms A. Rudman.
2. ISSUE TO BE DECIDED:
2.1 The question to be determined was whether or not the union member suffered unfair labour practices at the hands of the employer as contemplated by section 186 (2) (b) of the Labour Relations Act (the Act);
2.2 In the event of the aforegoing question being decided in the affirmative, I was required to direct the employer party to refund the union member all the monies deducted from his salary with interest calculated at the prescribed rate of interest.
3. BACKGROUND TO THE ISSUE:
The union referred a dispute concerning alleged unfair labour practices to the ELRC on behalf of its member during November
2003 and gave the dates on which the disputes allegedly arose as being the 02nd September 2002 to the 04th September 2003, the 03rd February 2003 to the 05th February 2003 and the 10th February 2003 to the 11th February 2003.
An unsuccessful attempt at conciliation was, thereafter, made on the 16th February 2004.
4. SURVEY OF EVIDENCE AND ARGUMENT:
The parties adduced oral evidence and, further, submitted documentary evidence by mutual consent.
4.1.1 DOCUMENTS SUBMITTED:
(a) Exhibit A : The employer’s bundle of documents;
(b) Exhibit B : The union’s bundle of documents.
4.1.2 ORAL EVIDENCE:
A. The union’s version:
The educator, Shenyana Petrus Msimanga, testified under oath to, inter alia, the following effect:
(a) between 2002 and May 2003 he was employed as an educator at Maanankoe Secondary School;
(b) from the 02nd September 2002 to the 04th September 2002 he was ill and could not report for work;
(c) he, however, contacted the principal telephonically in the morning of the 02nd September 2002 to report that he was ill;
(d) when he returned to work on the 05th September 2002 he completed the prescribed leave forms and submitted a medical certificate as required;
(e) he was, however, amazed when deductions were effected on his salary for the days in question;
(f) on the 02nd February 2003 he was once again ill and he informed the principal accordingly per telephone in the morning and submitted relevant medical certificate later;
(g) the principal was not happy when he called her and intimated that he was always ill;
(h) one Nteo was his Head of Department (HOD) at the relevant time;
(i) he was not aware of the leave procedures at the relevant time and only came to know about them after he was transferred to Phiri Intermediate School;
(j) it was a lie that he was found at the shebeen on the 02nd September 2002. On that day he was ill at his house in Tsiame.
B. The employer’s case:
Teboho Abner Nteo, testified to the following effect, among others:
(a) he is employed as an HOD for natural sciences at Maanankoe Secondary School;
(b) he was the educator’s HOD during the relevant period;
(c) the educator was aware of the leave procedures because relevant circulars were discussed in meetings which he (the union member) attended;
(d) one such meeting was held on the 28th April 2002 when leave procedures were specifically discussed;
(e) on the 02nd September 2002 he was approached by learners in his office and informed that the union member was at a shebeen drinking liquor;
(f) the union member’s subject was supposed to be moderated by the Learning Facilitator (LF) that day and he proceeded to the laboratory where the educator used to keep the learners’ portfolios to check them out;
(g) he, however, could not gain entry because the laboratory was locked. He, thereupon, requested leave from the principal to go to the union member to collect the keys;
(h) he found the union member at the shebeen drinking beer and requested the keys from him;
(i) the educator did not have the keys on him and pointed out that they were at his parental home;
(j) he went back to school to report the incident;
(k) the principal decided that they should go and take the union member home to collect the keys;
(l) he, the principal and two (2) members of the School Governing Body (SGB) proceeded to the shebeen where they learnt that the union member had already left;
(m) they followed the educator to his parental home and caught up with him along the road;
(n) the educator still had beer in this possession;
(o) the principal did not inform him that the educator had phoned in the morning;
(p) on the 03rd September 2002 he went to the union member’s parental home at 10:00 and found him in bed;
(q) he persuaded the educator to come to school and not to exacerbate the situation and the latter undertook to come to school in thirty (30) minutes’ time after he had washed;
(r) the union member, however, failed to fulfil his promise;
(s) on the 04th September 2002 he went to the union member’s residence with two members of the SADTU site committee. They talked to the educator as his fellow comrades and beseeched him to come to school;
(t) when the union member eventually came to school he submitted a medical certificate and completed leave forms;
(u) he recommended leave without pay because he knew that the educator was not ill;
(v) the School Management Developer (SMD) also had meetings with the educator during which the latter freely conceded that he was irresponsible and asked for forgiveness;
(w) the union member further wrote a letter to the principal asking for mercy in respect of absenteeism and, further, requesting that leave without pay not be recommended.
A. The union’s submissions:
Mr Leputla submitted in writing to, inter alia, the following effect:
(a) the union member’s salary should be paid in full because he submitted medical certificates;
(b) the employer ignored the medical reports.
B. The employer’s submissions:
Ms Rudman submitted to the following effect, among others:
(a) it was clear from the evidence of Nteo that the union member was not ill during the relevant period;
(b) it was, further, clear that the union member conceded in writing that he acted irresponsibly;
(c) the union member was counselled and given numerous opportunities to correct his behaviour;
(d) there was no unfairness on the part of the employer.
5. ANALYSIS OF EVIDENCE AND ARGUMENT:
The onus was on the union, as the referring party, to show that its member was a victim of unfair labour practice relating to a disciplinary action short of dismissal by proving the following on a balance of probabilities:
· that there existed no fair and/or valid reason for the deductions made on his salary; and
· that the deductions were effected in an unfair.
A. Substantive unfairness:
The union had to show that there existed no fair reason for the disciplinary measure imposed. The measure in question was leave without pay for the days in question.
In establishing this the union had to show that:
· its member complied with the leave procedures;
· its member submitted a valid medical certificate.
The employer contended that the union member was not ill during the relevant period and that he did not comply with the leave procedures.
The parties were in agreement on the following salient points of fact:
· that the educator was absent from work from the 02nd September 2002 to and including the 04th September 2002;
· that the educator submitted a medical certificate in respect of the relevant period.
The parties were in dispute over the following points of fact and/or law:
· whether or not the union member was in fact ill during the relevant period; and
· whether or not the medical practitioner booked the educator off sick during the relevant period;
· whether or not the educator complied with the leave procedures.
When all was said and done I was not satisfied that the educator was ill during the relevant period. The aforegoing prevailed because of the credible and reliable evidence adduced by the employer with regard to the educator’s whereabouts on the 02nd September 2002. The witness who testified for the employer in this regard made a good impression as a witness. The same could not be said about the educator.
I was, further, not satisfied that the medical practitioner booked the educator off sick during the relevant period. In this regard it should be noted that the medical certificate contained in Exhibit A as document number 7 only certified that the educator reported that he was absent from work on the 02nd September 2002 and that he first consulted the doctor on the 04th September 2002. The physician was, thus, not the union member’s alibi with regard to the 02nd and 03rd September 2002.
I was, furthermore, not satisfied that the union member complied with leave procedures relating to reporting to the principal that he was ill. The aforegoing prevailed because it was clear from the minutes of the meeting held with the SMD on the 14th February 2003 that the educator reported that he was always sick and could not report to the School Management Team (SMT) because he did not have the school’s telephone numbers. It was, therefore, difficult to accept that he phoned the principal to report his illness.
The union, therefore, failed to show that the conduct of the employer in docking the educator’s salary was unfair.
B. Procedural unfairness:
The union had to show that the disciplinary measure of docking the educator’s salary was effected in an unfair manner by proving, on a balance of probabilities, that it was “arbitrary capricious or inconsistent” (see SACCAWU v Garden Route Charlets (Pty) Ltd  3 BLLR 325 (CCMA)).
I was satisfied from the evidence of the employer’s witness as well as Exhibit A that the educator was given an opportunity to make representations before the measures were taken. Letters were sent to the union member inviting him to respond in writing why the period of his absence should not be regarded as leave without pay.
In conclusion I was not satisfied that the procedure was unfair.
6.1 In the premises the union member was not a victim of unfair labour practice;
6.2 I make no order as to costs.
EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER PSES 633-03/04 FS
APPLICANT S P MSIMANGA (SADTU)
RESPONDENT DEPARTMENT OF EDUCATION FS
NATURE SALARY / UNFAIR LABOUR PRACTICE
ARBITRATOR L J LEKALE
DATE OF ARBITRATION 18 MARCH 2004
APPLICANT MR L D LEPUTLA (SADTU)
RESPONDENT MS A RUDMAN
1 In the premises the union member was not a victim of unfair labour practice;
2 I make no order as to costs.
DATE OF AWARD