Case Number: ELRC0037-13/14EC
Province: Eastern Cape
Applicant: NAPTOSA obo Jonas C
Respondent: Port Elizabeth FETC
Issue: Unfair Dismissal - Misconduct
Venue: Port Elizabeth
Award Date: 13 November 2013
Arbitrator: Adv L Bono
IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD AT PORT ELIZABETH
Case No: ELRC0037-13/14EC
In the matter between:
NAPTOSA obo Jonas C
PORT ELIZABETH FETC
DETAILS OF THE HEARING AND REPRESENTATION
The above matter was heard on the 15th of October 2013. Mr. Mali represented the Respondent and Mr. A Adams represented the Applicant.
The following facts are common cause:
The employee, C Jonas was called to a meeting of the 14 January 2013 to discuss a possible investigation relating to allegations against him;
On 21 January 2013, the employee received a letter advising him that the formulation of charges and institution of disciplinary hearing will be concluded within 30 days, and that the employee was relocated to Central Administration at Erica House temporarily pending the due process to be followed in the matter;
On 14 February 2013, the employee’s conclusion of investigation was extended to 14 March 2013.
On 14 February 2013, the Applicant referred the matter to the ELRC and the matter was set down for 6 May 2013.
The matter was postponed a number of times. It was however established that on or about the end of August 2013, the disciplinary hearing which was the cause of the precautionary transfer before me, commenced and was finalised on or about 14 October 2013.
The employee in this matter seeks to have his suspension / precautionary transfer, declared unfair on the basis that the employer took about nine months before instituting the disciplinary hearing.
The Employer’s case is that the suspension / precautionary transfer should remain in force until the outcome of the disciplinary hearing has been rendered.
It is common cause that the disciplinary hearing was completed on the 14 October 2013 and that by now, the outcome should have been rendered. It follows that if the employee is found guilty a sanction would be imposed and if he is found not guilty that would be the end of the matter, but whatever the finding is, the suspension / precautionary transfer would naturally come to an end.
I have taken liberty of confirming with the parties if the outcome has been rendered, and received confirmation of such. As stated above, whatever the outcome of the disciplinary hearing is, the suspension / precautionary transfer would naturally end.
Whilst I share the view that the matter is now academic, I must warn the employer that its actions of having taken such a long time in instituting the disciplinary action and the failure to advance sound reasons for such amount to unfairness. Having said that, the employee equally only showed inconvenience and not actual prejudice as a result of the delay in the disciplinary hearing.
Given the fact that this matter is now stale, I see no reason to take it any further.
The matter of the employee’s suspension / precautionary suspension has been overtaken by completion of the disciplinary hearing, consequently the employer has no basis to continue with it, and the employee should be returned to his original post.
Given above, the matter is hereby dismissed.
Signed on this 13 November 2013
Adv. L Bono