Case Number: PSES 194-13/14 LP
Applicant: SADTU obo MM Ragati
Respondent: Department of Education: Limpopo
Issue: Unfair Dismissal - Misconduct
Award Date: 14 September 2013
Arbitrator: MA Hawyes
PSES 194-13/14 LP
Date of Award:
14 September 2013
In the ARBITRATION between
c/o South African Democratic Teachers Union
P O Box 2049
015 297 4648
015 297 2450
113 Biccard Street
015- 633 5469
086 275 5445
1. DETAILS OF HEARING AND REPRESENTATION
1.1 The matter was scheduled for arbitration in Polokwane on 4 September 2013.
1.2 A Union official from the South African Democratic Teachers Union (SADTU) Mr. M.H Makhafola represented the Applicant.
1.3 Ms. T. Netshitungulu represented the Respondent.
2. ISSUE IN DISPUTE
Whether the various sanctions imposed upon the Applicant for misconduct are fair in all the circumstances of this case.
It is common cause that Applicant slapped five learners for making a noise in class. Applicant was charged for a contravention of section 18 (1) (a) of the Employment of Educators Act and after pleading guilty was found guilty as charged.
It is also common cause that Applicant has 18 years’ service with the Respondent and at the time of this misconduct he had a clean disciplinary record.
The Chairperson of the disciplinary enquiry (Mr. G. Netshifhefhe) imposed the following sanction:
Three months suspension without pay and an additional fine of R12000 which was payable over 24 months @ R500 per month.
3. APPLICANTS EVIDENCE AND ARGUMENT
3.1 Mr. Makhafola addressed me from the bar and no evidence under oath was led.
3.2 Makhafola indicated that Applicant had pleaded guilty to the charge out of his own volition and had clearly demonstrated remorse for his actions. Applicant appreciated that he had been found
guilty of a very serious charge notwithstanding the fact that no learner had been hurt.
3.3 Makhafola argued that the combination of sanctions was too harsh given the circumstances of this case.
3.4 I was advised that the Applicant’s three months sanction was implemented before Applicant had an opportunity to appeal. After spending three months at home without salary the Respondent
conceded its procedural mistake and paid the Applicant for the three months that he was on suspension.
3.5 The re-payment of the R12000 had been implemented after Applicants appeal was finalized.
4. SURVEY OF RESPONDENTS EVIDENCE AND ARGUMENT
4.1 The Chairperson of Applicants disciplinary enquiry (Mr. Netshifhefhe) testified under oath and Ms. Netshitungulu addressed me as well.
4.2 Initially Netshifhefhe argued quite strongly for the retention of his original sanction but he later conceded that due to an administrative glitch the Applicant had already served three months
suspension prior to the disciplinary processes being exhausted.
4.3 Both Netshifhefhe and Netshitungulu conceded that an amendment to the sanction would not be out of place and they requested me to consider the alternatives.
4.4 Netshifhefhe conceded further that whilst he wanted to send out a clear message of the seriousness of the misconduct and ensure that the sanction acted as a deterrent the imposition of three
months suspension would occasion undue hardship to persons dependent upon the Applicant.
5. ANALYSIS OF EVIDENCE AND ARGUMENT
5.1 After having considered the parties very useful submissions I believe that interference in the original sanction imposed is warranted.
5.2 Applicant has effectively served a three months unpaid suspension. The fact that he was subsequently paid his salary after the Respondent discovered its mistake does not detract from the fact
that Applicant served out a three months unpaid suspension.
5.3 To confirm the sanction as it stands is to condemn the Applicant and his family to all the hardships of yet another three months off work without pay.
5.4 The sanction must be fair, should act as a strong deterrent and serve to punish the Applicant himself. If it is possible to achieve these objectives without punishing other persons then I should
seriously consider such a sanction.
5.5 I mentioned to the parties the idea of replacing the three months suspension with a final written warning. Both parties welcomed the suggestion as a sanction which would adequately address
the exigencies of this case.
5.6 After consideration I agree that this is the correct course of action.
6.1 The sanction imposed upon the Applicant is as follows:
6.2 R12000 re-payable in 24 monthly installments of R500.
6.3 A final written warning.
The Respondent is ordered to amend their records accordingly.
6.4 No order as to costs is made.
Date: 9 December 09
Commissioner: M.A. Hawyes