Case Number: PSES 378-13/14LP
Applicant: SADTU obo Sekgotha L .S
Respondent: Department of Education: Limpopo
Issue: Unfair Dismissal - Misconduct
Award Date: 22 August 2014
Arbitrator: Nomsa Mbileni
IN THE EDUCATION LABOUR RELATIONS COUNCIL
SADTU obo SEKGOTHA L .S APPLICANT
DEPARTMENT OF EDUCATION LP RESPONDENT
1. DETAILS OF THE HEARING AND REPRESENTATION
1.1 The above hearing was concluded on the 15th July 2014. The parties further agreed that written closing arguments will be submitted on or before the 22nd July 2014. The hearing was held at the offices of the respondent in Polokwane.
1.2 The applicant is Lefetja Samuel Sekgotha appeared and was represented at the arbitration by Mr. Thamaga an official of SADTU. The respondent is Department of Education in Limpopo it was represented by Ms. Netshitungulu its employee.
2. ISSUE TO BE DETERMINED
2.1 Whether the respondent committed an unfair labour practice by finding the applicant guilty of misconduct and issuing a sanction of suspension without pay for 3 months. Whether it was unfair for the respondent to proceed with the disciplinary hearing in the applicant's absence.
3. BACKGROUND TO THE ISSUE
3.1 The applicant is employed by the respondent as an Educator. On the 14th February 2014 a hearing was held in his absence and he was found guilty of misconduct.
3.2 He was issued with a sanction of suspension from employment for 3 months without pay. He appealed against the sanction and his appeal was dismissed and a further 1 (one) month salary was added to the sanction as a fine.
3.3 The applicant referred a dispute of unfair Labour practice to the Council for resolution. The dispute could not be resolved through conciliation and he has requested that it be resolved through arbitration.
4. SUMMARY OF EVIDENCE AND ARGUMENT
4.1 On behalf of the respondent three witnesses were led in evidence. The essence of their evidence was that a workshop was organised by the respondent for its employees who were also members of the trade Union SADTU. A person who introduced himself as the Chairman of SADTU in Steiloop Branch came to the workshop and ordered the participants to abandon the workshop and go back to their respective workplaces.
4.2 The facilitators tried to intervene to no avail. The witnesses stated that the person was merely identified as the Chairperson of Steiloop Branch of SADTU. They were then informed by the co-ordinator of the workshop that his name was Sekgotha. The applicant was then charged with misconduct and the initial notice of disciplinary hearing was served on him on the 25th January 2014. The matter was postponed on the 25th January 2014 because the Union SADTU wanted to discuss the matter with the Head of Department (HOD).
4.3 The matter was further set-down on the 14th February 2014. The applicant was served with his notice through his Principal. He failed to attend and the matter continued in his absence. He was found guilty and was given a sanction of suspension without pay for 3 months. He appealed against the sanction and the appeal outcome was that he further forfeit a month's salary.
4.4 According to the applicant the Principal called him when he was already on his way home to inform him of the notice of the 14th February 2014 for a continuation of the disciplinary hearing. He told the principal that he had already left and also that it was not his responsibility to serve him with the notice. It was supposed to have been done by Mr. Mello.
4.5 The following day the principal did not give him the notice. He was surprised when Thamaga from the Union told him that the hearing was proceeding in his absence on the 14th February 2014. He denied that he disrupted the workshop.
4.6 A witness of the applicant Mr. Phuti William Mokobane testified that around the 31st July 2012 a workshop was organised by the respondent for Educators. The office of SADTU in Steiloop received complaints from its members who were attending the workshop. They stated that the material used at the workshop was not sufficient to cover all the employees. Further that catering was inadequate for all the persons who were attending.
4.7 He testified that he, as the Deputy Chairman of the branch went to investigate with the Secretary. He (Mokobane) addressed all the participants in the workshop with the permission of the facilitator. He then advised that the workshop cannot continue given the complaints and the circumstances under which it was held. He advised the participants to rather return to their respective workstations. He denied that the applicant was at the workshop.
5. ANALYSIS OF EVIDENCE AND ARGUMENT
5.1 It is common cause that the respondent had organised a workshop for its employees. It is further common cause that the workshop could not proceed because someone who identified himself as the Chairperson of SADTU Steiloop caused the workshop to be cancelled.
5.2 In terms of the evidence that has been presented through the witnesses of the respondent, the applicant is not the person who came and dismissed the participants. The witnesses identified a person who is of a lighter complexion than the applicant and who is well built. It would appear then from the evidence before me that proper investigations were not done. None of the witnesses before this arbitration indentified the applicant as the person who disrupted the workshop. It would appear that the respondent relied on the fact that the chairperson of Steiloop branch is the applicant.
5.3 The evidence of Mr. Mokobane was that he together with Secretary of the Steiloop Circuit, were assigned to deal with the complaints. Further that Mr. Mokobane testified that he addressed the participants and Mr. Sekgotha was not present. I cannot therefore find the basis on which the applicant was found guilty. It could well be because the hearing was held in his absence and the witnesses could not identify him.
5.4 A further enquiry is whether the applicant was served with a notice to attend the disciplinary hearing on the 14th February 2014. His own version was that he was telephoned by his principal and was told that the notice was delivered at the Circuit office. The principal was given the notice when she went to the Circuit office. The applicant argued that the notice was supposed to have been delivered by Mello.
5.5 There is no evidence led that suggest or confirm that only Mello could serve the notice on the applicant. The Principal is his manager at school and she is therefore the person with authority. The applicant was aware that there was a notice informing him of the date of the pending hearing. He elected not to collect the notice when he was well aware that it had been left with the Principal. It cannot be blamed on the respondent that the hearing proceeded in his absence. The applicant could have avoided the adverse finding against him had he attended the hearing.
5.6 I therefore find that the hearing was procedurally fair but substantively unfair. In coming to an appropriate award I have taken into account his blameworthy regarding failure to receive the notice and failure to attend the hearing.
6.1 I accordingly order that the respondent set aside the conviction of the applicant Mr. Samuel Sekgotha and pay back to him an amount equal to two month’s salary calculated at his rate of remuneration at the time that the sanction was issued.
6.2 The total amount payable to Mr. Sekgotha by the Department of Education Limpopo is R32 689.20.
6.3 The award has to be complied with by the 15th September 2014.