Case Number: PSES 340-03/05 WC
Province: Western Cape
Applicant: M VENTER (NUE)
Respondent: DEPARTMENT OF EDUCATION WC
Issue: Unfair Dismissal - Constructive Dismissal
Award Date: 7 April 2005
Arbitrator: DEPARTMENT OF EDUCATION WC
EDUCATION LABOUR RELATIONS COUNCIL
In the matter between
NUE obo MALCOLM VENTER APPLICANT
DEPARTMENT OF EDUCATION WESTERN CAPE RESPONDENT
Case Ref. No. PSES 340-04/05WC
DETAILS OF HEARING AND REPRESENTATION
This is the ruling in the matter between NUE obo Malcolm Venter (“Applicant:”) and the Department of Education Western Cape (“the Department”).
The matter was set down for conciliation/arbitration at the Department’s offices on 16 November 2004 and 24 February 2005. Argument in the form of written submissions was received on 24 March 2005.
Sandy Smart (“Smart”) the Executive Officer of NUE represented Applicant.
Brenton Joseph (“Joseph”) a State Law Advisor represented the Department.
ISSUE IN DISPUTE
The dispute was referred in terms of S 186 (2) (b) of the Labour Relations Act 66 of 1995 as amended (“the LRA”). I have to consider whether the Department’s conduct in relation to disciplinary action short of dismissal falls under the jurisdiction of the unfair labour practice definition. If jurisdiction were granted, I would have to determine whether an unfair labour practice has been committed.
Applicant commenced employment within the Department during January 1971. He is currently employed in the capacity of Head Master of Edgemead High School.
Applicant was charged on three counts of misconduct. A third charge was withdrawn. Applicant was found not guilty on 11 March 2004. No sanction or disciplinary action was instituted or taken against Applicant.
Applicant is disputing the fairness of the disciplinary process and seeks compensation.
The Department raised the question of jurisdiction of the ELRC to arbitrate the dispute. It argued that as no disciplinary action was taken against Applicant, an unfair labour practice could not have been committed. It was agreed that the parties would submit written submissions (in support of verbal submissions) to address this jurisdictional point. Applicant raised counter argument in support of his request to grant jurisdiction.
Argument in the form of written submissions was received. This determination flows there from.
SUMMARY OF EVIDENCE
COMMON CAUSE EVIDENCE
Applicant has no prior record of misconduct.
The Department received a letter of complaint from Mr. M Davids (“Davids”) the father of a learner known as Mogammed Waheed Davids in which it was alleged that Applicant assaulted the learner. Correspondence was dated 2 July 2003. The Department received a second letter dated 24 July 2003 This correspondence addressed the same issue. Davids also addressed a sworn affidavit to the South African Police Services regarding the alleged incident.
During November 2002 there was an “altercation” between Applicant and Meg Mitchelle (“Mitchelle”). Mitchelle was an employee of the Head Office of the Department. Both Applicant and Mitchelle raised a grievance that lead to further correspondence and meetings between the parties.
These events culminated in the Department issuing Applicant with a charge sheet. The first charge sheet was served on NUE and subsequently served on Applicant on 15 September 2003.
The first charge related to the alleged assault of the learner Mogamed Waheed Davids. The second charge related to alleged “abusive” or alternatively “improper’” conduct towards Mitchelle.
A third charge related to Applicant’s alleged “discriminatory” or alternatively “abusive” language towards learners. This charge was withdrawn.
A pre hearing took place on 16 October 2003 and subsequent disciplinary enquiry commenced on 22 October 2003.
The Presiding Officer agreed that the charges (leveled against Applicant) were too vague and requested that the charge sheet be amended.
The charge sheet was re-drafted. This was re-served on Applicant on 10 November 2003. (Applicant’s submissions reflected that it was served on 14 October 2003).
A fresh disciplinary enquiry was convened during November and December 2003 (and concluded on 8 December 2003) with a different Presiding Officer and different Investigating Officer. Applicant was notified on 11 March 2003 that he was found not guilty and no sanction was imposed. The finding was served on NUE and not Applicant personally.
Applicant raised a grievance regarding the disciplinary process. He was also aggrieved at the “veracity” of the Department’s submissions and the delay in finalizing the disciplinary process, and particularly the fact that the Mitchelle incident took place a year prior to the disciplinary enquiry.
The Department responded to Applicant’s grievances on 4 October 2004.
SUMMARY OF ARGUMENT
1. The lack of a proper investigation during the disciplinary process led the Department to arrive at “unsubstantiated” conclusions.
2. Applicant views the Department’s conduct in a serious light in view of the effect it has had on the employment relationship. The conduct of the Department caused prejudice to the employment relationship. Applicant does not trust the Department to deal with him fairly.
3. The Department failed to follow the provisions of the Employment of Educators Act 76 of 1998 (“the Act”) and the LRA. The purpose of the prevailing legislation is to be corrective and not punitive. In the event that an employer does not follow statute, employees have a right to challenge this. One cannot divorce certain parts of the disciplinary process. An employee is entitled to an investigation prior to the decision to take disciplinary action against that employee.
4. Where the disciplinary process is punitive (such as the issuing of a charge sheet and holding of a disciplinary enquiry) in nature, it can become a sanction. Any action within the disciplinary process can fall under the jurisdiction of the unfair labour practice provision. Disciplinary actions may also include “non punitive” conduct and therefore disciplinary action taken prior to a disciplinary enquiry may also be considered.
5. There were insufficient grounds to institute disciplinary proceedings against Applicant. There should be an assessment of the seriousness of misconduct and thereafter an election of the formal or less formal route of disciplinary action. The Department failed to consider that the learner was “lying”. The Investigating officer and Presiding Officer had prior experience with the same learner where he had proved to be untruthful. Davids harboured a “personal vendetta” against the school due to the previous expulsion of his elder son. The lack of “sufficient” or “good” grounds to proceed with disciplinary action renders the Department’s conduct unfair. Labour court decisions support this view.
6. Applicant’s long service and unblemished disciplinary record was not considered. He was a loyal employee for over thirty years.
7. The Mitchele charge should have been handled in a different way (such as through mediation or following the grievance process). The Investigating Officer conceded this.
8. The unsubstantiated charges and holding of a formal disciplinary enquiry took place at an inappropriate time when Applicant needed the Department’s support. The school was under pressure over a “highly publicized” racial incident. The Department’s release of a press statement regarding the allegation of assault put Applicant in a “bad light”.
9. Applicant has a “constitutional” right to fair labour practice. The provisions of Schedule 8 contained in the LRA protect employees from “arbitrary action”.
10. The Department’s right to discipline was not disputed. The grounds for deciding on a formal disciplinary enquiry “in the absence of substantive evidence” was disputed and regarded as unfair.
11. The provisions of S 186 (2) (b) provide the background to Applicant’s claim that “all the actions and decisions with regard to the discipline process are open to scrutiny”. The Department has an obligation to look at “corrective” discipline in preference to a “punitive” approach.
12. Looking at definitions it is clear that “disciplinary action” refers to a process of doing something to ascertain whether someone has obeyed the rules or a code of behaviour and not merely punishment for not having done so. The jurisdiction of the unfair labour practice provision does not restrict itself to a narrow definition of “findings and sanctions”. It is applicable to the “whole” disciplinary process. It could not have been intended that an employer could treat an employee in any way it wished, provided the outcome did not result in a sanction.
13. The Department was not consistent. It dealt with other serious cases in a different way such as the application of “progressive” discipline.
14. Even in the context of a disciplinary enquiry, the integrity of the employment relationship has to be preserved. The extent, to which the Department was willing to go to arrive at a finding of guilt, was prejudicial to Applicant and had a negative effect on the employment relationship. The Department failed to apologize to Applicant or express regret. Applicant feels humiliated and demotivated to the extent that he is contemplating early retirement.
15. Applicant’s claim for compensation flows from the Department’s failure to agree with Applicant’s proposals for resolving the matter prior to arbitration. Applicant’s claim is for twelve months’ compensation. Applicant lodged this dispute in an attempt to make the Department aware of its treatment towards employees with the intention that the Department should review its disciplinary procedures.
The Department’s Argument
1. The Department attaches a “wider” definition to the concept of the unfair labour practice definition in terms of S 186 (2) (b). The process prior to the sanction being imposed cannot be construed as disciplinary action as defined in terms of S 186 (2) (b) of the LRA.
2. The relief sought by Applicant is “unattainable” as there was no disciplinary action taken against Applicant. The dispute is therefore ‘misplaced”.
3. The provisions of the Act provide that the form of disciplinary procedure to be followed must be “determined” by the employer.
4. The complaint of alleged assault was not disputed. The allegation was sufficient to warrant a formal disciplinary process. An investigation took place prior to the enquiry.
5. The Department’s decision to investigate and charge Applicant falls within the ambit of management’s prerogative. The Department did not act “arbitrarily” or attempt to “pile up” the charges. The Department acted within the provisions of the LRA as well as the Act.
6. The problems with the charge sheet and all processes leading up to the disciplinary enquiry were remedied during the process. The “flaws” in the process have not “prejudiced” the employment relationship. At all stages within the process, Applicant continued to be employed within his position of Principal of the school.
7. Applicant did not suffer any prejudice within the employment relationship. If no disciplinary action was taken, it is unclear what relief Applicant can seek. There is no “appropriate” remedy in this case.
ANALYSIS OF EVIDENCE AND ARGUMENT
In essence Applicant argued that he has the right to challenge all the actions and decisions of the Department. Applicant can prove that the Department’s actions were not fair were not consistently applied and therefore “prejudiced” the employment relationship.
I consider it reasonable that an employee should be entitled to challenge an employer’s actions and decisions, especially where it has a direct bearing on the employment relationship. He is entitled to fair labour practice. An employer does not have “cart blanche” to behave in a totally inappropriate manner. However in the current set of circumstances, I have not found that Applicant has selected the appropriate forum to deal with his unhappiness and dissatisfaction with the Department’s conduct. There are other avenues available to him.
With due regard to the sensitive nature of the allegation of assault on a learner, I regard it as reasonable for the Department to institute a formal disciplinary process. I consider such an allegation to be sufficient grounds, irrespective of the Department’s prior knowledge and experience with the learner concerned. It would be remiss of the Department to fail to attend to the allegation with the seriousness it deserved. Corrective action is not always appropriate. The provisions of the LRA and Act do not preclude the Department from following this approach.
Had the Department found Applicant guilty and imposed a sanction where there was insufficient grounds to arrive at such a conclusion, I may have viewed the outcome differently. In the absence of the Department imposing a sanction, I am unable to conclude that an unfair labour practice has been committed. I have arrived at this conclusion with due regard to the provisions of the LRA as well as the Act.
I have also noted that the provisions of schedule 8 of the LRA does not prescribe that an employer must conduct an investigation prior to holding a disciplinary enquiry or hearing (see item 4 (1) of Schedule 8 of the LRA).
I agree with the finding of Commissioner Dave Wilson (in IMATU obo Falck & Another v City of Cape Town (Helderberg administration) (2003) 12 CCMA) that where an employee is found not guilty, there is no prejudice to him/her, and should not have a claim. If one were to regard all disciplinary procedures as disciplinary action short of dismissal, every employee who attends a disciplinary enquiry would have a potential claim. In the current case it is common cause that no sanction was imposed.
I therefore do not find that the disciplinary process (prior to sanction) falls under the jurisdiction of the unfair labour practice jurisdiction as contemplated in S 186 (2) (b) of the LRA. I do not believe that this was the intention of the unfair labour practice provision.
I have considered Applicant’s submissions and clearly noted that he was aggrieved with the Department’s handling of the matter. Even if I were to regard the disciplinary process as falling within the provisions of the unfair labour practice jurisdiction, it would be extremely difficult for an arbitrator to interfere in the employer’s prerogative to take disciplinary action in the manner it considers appropriate. Even if I were to disagree with the Department’s approach, this would not be sufficient cause to establish the onus of unfair conduct. An arbitrator may not easily substitute his/her opinions for that of the employer, even where the employer does not follow the most suitable approach.
Having found that the disciplinary process in the current set of circumstances falls outside of the provisions of the unfair labour practice definition, the ELRC lacks jurisdiction to arbitrate the dispute.
It is therefore not necessary for me to determine whether the Department’s conduct was fair or not. The Department’s decision in finding Applicant not guilty and not imposing a sanction appears to be well founded.
I find in favour of the Department.
The ELRC lacks jurisdiction to arbitrate the dispute.
for the ELRC
7 APRIL 2005.
EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER PSES 340-03/05 WC
APPLICANT M VENTER (NUE)
RESPONDENT DEPARTMENT OF EDUCATION WC
NATURE JURISDICTIONAL ISSUE
ARBITRATOR H MOFSOWITZ
DATE OF ARBITRATION 24 MARCH 2005
APPLICANT MS S SMART (NUE)
RESPONDENT MR B JOSEPH
1 I find in favour of the Department.
2 The ELRC lacks jurisdiction to arbitrate the dispute.
DATE OF AWARD 7 APRIL 2005