Case Number: PSES429-13/14NW
Province: North West
Applicant: Matheu Matthews Selane
Respondent: Department of Education: North West
Issue: Unfair Dismissal - Misconduct
Award Date: 1 April 2014
Arbitrator: E Maree
Panellist: E Maree
Case Number: PSES429-13/14NW
Date of Award : 1 April 2014
In the ARBITRATION between
Matheu Matthews Selane
Department of Education – North West
Applicant’s representative In Person
Applicant’s address Fax 086 731 8749
Respondent’s Representative Ms. B. Phuswane
Respondent’s address Fax 018 388 1703/2590
DETAILS OF HEARING AND REPRESENTATION
1 The arbitration was heard on the 27th of March 2014 at the premises of the North West Department of Education situated at no 10 Nelson Mandela Drive, Mafikeng.
2. The applicant acted on his own behalf while the respondent was represented by Ms. B. Phuswane, an officer from Labour Relations.
3. The bundle of documents submitted on behalf of the respondent was not disputed.
ISSUES TO BE DECIDED
4. The applicant was demoted subsequent to being found guilty on charges of misconduct which sanction was changed to 3 months’ unpaid suspension by the MEC subsequent to an appeal.
5. I have to determine if the sanction of 3 months’ unpaid suspension constitutes an unfair labour practise and to determine appropriate relief in the event that a finding is made in favour of the applicant.
SURVEY OF EVIDENCE AND ARGUMENT
The evidence/submissions/arguments submitted by and on behalf of the parties are summarised and not reflected verbatim.
THE APPLICANT’S EVIDENCE
6. The applicant, MATHEU MATTHEWS SELANE under oath testified that:
a] He had been employed by the respondent since 1981 as education specialist earning R31 000, 00 per month;
b] He had been found guilty subsequent to a disciplinary hearing on 5 charges of misconduct and demoted. He lodged an appeal to the MEC and the sanction was changed to 3 months unpaid suspension;
c] The sanction was unfair for the reasons set out in his letter of appeal to the MEC;
d] The chairperson ‘blatantly refused’’ to allow him to state the origin of the alleged misconduct, arrived late on the day of hearing and had a ‘’pre-briefing’’ with the director who was also the main complainant and main witness;
e] The chairperson –who was ‘’clearly influenced’’ by the director during this pre-briefing, did not greet him, did not introduce himself and refused him the opportunity to ask questions and to ‘’elaborate on delicate issues’’. The other witness were not prevented from ‘’driving their points home’’;
f] The chairperson further did not consider his closing arguments or his mitigation;
g] Although his previous record was not submitted during the hearing, the chairperson referred to it in his outcome. The case against him was a ‘’built up’’ by the director. This is clear from the fact that he [applicant] submitted a grievance against the director on 4 July 2011 and the charges against him came about during 2012. The chairperson was also on the same level as him which is irregular and also had ‘’no clue’’ about the operational function and structure of the unit.
THE RESPONDENT’S EVIDENCE
7. On behalf of the respondent, JOHANNES MASEKOAMENG under oath testified that:
a] He is the Deputy Chief Education Specialist and acted as the chairperson at the applicant’s disciplinary hearing;
b] He considered the evidence presented by both parties and reached a decision based on this. He also considered the closing arguments of both parties as well as mitigating and aggravating factors. This is clear from page 11 – 13 of the findings. He explained to the parties that closing arguments is not an opportunity to raise new evidence and/or arguments but that they should concentrate on the merits as presented during evidence. The applicant’s claim that he did not consider his mitigation is untrue and only based on the fact that he [applicant] does not agree with the sanction;
c] He did not have a pre-briefing with the director before the hearing or at any other time and thus at no time discussed the case with him;
d] At the outset of the hearing, he introduced himself and gave the parties an opportunity to introduce themselves. The applicant was unrepresented and when he questioned him about this was told that he ‘’does not want a representative’’;
e] The witnesses of the respondent testified and when afforded the opportunity to cross-examine them, the applicant did not do so, but testified. He explained to the applicant that he had to ask questions in cross-examination and will be afforded the opportunity to testify;
f] The applicant indicated that he had lodged a case with the public protector and he told the applicant that this does not impair the right of the respondent to take disciplinary steps against an employee;
SURVEY OF ARGUMENTS
8. Oral arguments were submitted by and on behalf of the parties that had been considered during the rendering of this award. Relevant parts will be referred to during the analysis of evidence.
ANALYSIS OF EVIDENCE AND ARGUMENT
9. Section 186 [b] of the Labour Relations Act 66 of 1995 defines an unfair labour practice as follows:
 Unfair labour practice means any unfair act or omission that arises between an employer and an employee involving –
[b] the unfair suspension of an employee or any other unfair disciplinary action short of dismissal in respect of an employee’.
10. In order to proof that the sanction imposed constituted an unfair labour practise the applicant had to show that there was no fair reason for the sanction and that he was not given an opportunity to state his version of events before the sanction was imposed.
11. The applicant’s attack on the sanction imposed revolved around the procedural aspect thereof and extensive evidence was led in this regard.
12. The applicant did not aver and thus adduced no evidence that the sanction was not for a fair reason. In other words he never testified that the finding of guilt on 6 charges of misconduct was unfair in that he was not guilty of any or all of those charges.
13. The applicant testified that the procedural defects are inter alia found in the conduct of the chairperson who had a pre-briefing with the director, came late, failed to introduce himself and denied him the opportunity to state the origin of the charges against him. It was further averred that the chairperson did not consider his closing arguments and mitigation and refused him an opportunity to ask questions and to ‘’elaborate on delicate issues’’. The applicant also took issue with the fact that he was on the same level as the chairperson and stated during cross examination regarding this aspect that he ‘’read in some book’’ that the chairperson had to be of a higher rank than the complainant.
14. During cross-examination the applicant stated that he ‘did not know’’ what the chairperson and the director discussed in the office as he ‘’was not there’’ but that he ‘’presumed’’ that they were discussing his case and due to the ‘’behaviour of the chairperson afterwards’’. When questioned what this ‘’behaviour’’ was the applicant stated it was the fact that he was not greeted by the chairperson when he entered the boardroom. Upon being asked to explain why he ‘’must’’ be greeted by the chairperson, the applicant explained that although he ‘’does not know the chairperson he is a black person like me, and must greet’’.
15. The applicant could not recall [when asked to explain] what questions the chairperson refused him to ask. He explained that he was allowed to cross-examine but that it was ‘’limited’’. The applicant was also unable to explain how the outcome/sanction would have differed had the chairperson considered his closing and admitted that he raised issues in his closing that ‘was new’’ as he ‘’was not allowed to say it at the hearing’’.
16. The evidence of the respondent’s witness, Mr. Masekoameng stands undisputed as the applicant refused to ask questions when given the opportunity to do so during cross-examination.
17. It was explained twice to the applicant that he must question the evidence of Mr. Masekoameng if the does not agree with it and must put his own version if it differs. It was also explained twice that a failure to do so, has the effect of crucial evidence standing undisputed and that it thus has to be accepted as such. To this the applicant responded ‘’then accept it as such’’.
18. Mr. Masekoameng testified that he had no pre-briefing with the director, introduced himself as did all the parties present, considered all evidence as well as closing arguments of both parties and mitigation and aggravation. Regarding the closing arguments he indicated to the parties that this was not the time to introduce new evidence but to concentrate on the merits of the evidence presented.
19. The witness also testified that the applicant was given ample opportunity to cross-examine but did not do so as he started testifying. He then informed the applicant to cross-examine as he will later be given an opportunity to testify.
20. Mr. Masekoameng submitted that the applicant informed him that he had referred the matter to the public protector and that he had indicated that this does not impact on the authority of the employer to institute disciplinary proceedings.
21. The applicant had the onus to proof on a preponderance of probabilities that the 3 months’ unpaid suspension was unfair by showing that the reason was unfair and that he had no opportunity to state his case.
22 It was already stated that the applicant did not dispute the reason for the sanction in that he never testified that he was not guilty of the charges. His only averment regarding this issue was that the charges were brought about as reaction to his grievance against the director. This allegation was not substantiated in any way.
23. The applicant’s attack on the alleged procedural irregularities was dealt with in detail and it seems that his view of the irregularities is merely his presumptions that led to his view. These presumptions were not substantiated and thus remain assumptions.
24. The respondent’s evidence regarding the procedure followed and the explanation of each of the applicant’s contentions stands unchallenged.
25. The applicant did not prove that the respondent committed an unfair labour practise by imposing a sanction of 3 months unpaid suspension.
26. The applicant did not proof that the actions of the respondent constituted an unfair labour practise and the dispute is subsequently dismissed.
DATED AT PRETORIA ON THIS 1st DAY OF APRIL 2014