Case Number: PSES82-14-15
Applicant: CB Banda
Respondent: Department of Eduation KwaZulu-Natal
Issue: Unfair Dismissal - Misconduct
Venue: Department Offices in Vryheid
Award Date: 25 June 2015
Arbitrator: KM Moodley
Commissioner: KM Moodley
Case No: PSES82-14-15
Date of Award: 25 May 2015
In the matter between:
Department of Education-KZN
Union/Applicant’s representative: S.G.E Ndunge -NATU
Address: c/o Bhekuzulu Primary School:
Respondent’s representative: In Default
Address: Private Bag X9330
DETAILS OF THE HEARING AND REPRESENTATION
1. The Arbitration was held on 13 May 2015 at the offices of the Department of Education-KZN in Vryheid.
2. The Applicant,C.B.Banda, was represented by S.G.E Mdunge.
3. The Respondent,Department of Education-KZN was in default of appearance. The Commissioner went to the Labour Relations offices of the Respondent in Vryheid to enquire about the non-attendanceof the Respondent and was advised by an official, NomsaDubazane, that the Respondent had no knowledge of the Arbitration set down for today. Therefore the Respondent would not be attending.
4. The Commissioner queried this matter with the Bargaining Council and was assured that the required notice was sent to the Respondent.Therefore I am satisfied that there was proper service of notice on the Respondent.
5. I note that the Respondent also failed to attend an Arbitration hearing set down for 3rd March 2015.
ISSUE TO BE DECIDED
6. The issue to be decided is whether the Respondent committed an unfair labour practice by issuing the Applicant with a sanction of Final Written Warning together with a suspension of two months without pay.
BACKGROUND TO THE DISPUTE AND SURVEY OF EVIDENCE AND ARGUMENTS
1. Applicant was employed by the Respondentas an Educator at the Bhekuzulu Primary School. She was employed on a full-time basis.
2. Applicant was charged for misconduct namely,for doing business with the State without having received the prior approval of the State.
3. Applicant subsequently appeared before a Disciplinary Inquiry and was found guilty of misconduct.
4. The sanction issued to the Applicant was that of a Final Written Warning together with two month’s suspension without pay.
5. Applicant did not deny that she had conducted business with the State without the approval of the State but believed that the sanction that was issued to her was too harsh.
6. Applicant therefore sought to have the sanction set aside, and replaced with a sanction that was consistent with the severity of the misconduct that she was charged for.
7. Applicant lodged a dispute with the Bargaining Council.The hearing for the Arbitration was set down for 25 May 2015.
ANALYSIS OF EVIDENCE AND ARGUMENT
8. In the absence of any evidence to the contrary from the Respondent I have to rely on the evidence of the Applicant.
9. Based on the evidence of the Applicant, which I believe to be probable, I find that the sanction imposed upon the Applicant by the Respondent was too harsh in relation to the act of misconduct committed by the Applicant.
10. Respondent bears the onus to prove that the severity of the sanction imposed upon the Applicant was in keeping with the nature of the offence committed by the Applicant.
11. As the Respondent was in default I do not have any evidence to rebut the presumption that the sanctions were not harsh.
12. On the evidence led I could find no reason to doubt the version of the Applicant.
13. I therefore conclude that the sanction imposed upon the Applicant by the Respondent was too harsh.
14. The Applicant sought to set aside the sanction imposed upon her and proposed that it be replaced with a Final Written Warning.
15. Under the circumstances I concur with this request and therefore rule accordingly.
16. I make the following award:
(16.1) That the sanction of a Final Written Warning together with Two months Suspension Without Pay, as issued to theApplicant, CB Banda by the Respondent, Department of Education-KZN, and as per letter dated 25 February 2014, is deemed to be too harsh in relation to the charge of misconduct levelled against the Applicant.
(16.2) The sanction referred to in Clause 16.1 above is hereby set aside.
(16.3) That having regard to the nature of the charge of misconduct levelled against the Applicant, the Respondent is directed to issue the Applicant with a Final Written Warning.
(16.4) The Respondent is directed to refund any unpaid salary due to the Applicant as a result of the implementation of the sanction referred to in Clause 16.1.
(16.5) The Respondent is further directed to refund the amounts referred to in Clause 16.4 to the Applicant by no later than 15 June 2015.
Dated at Durban on this the 25th day of May 2015.
COMMISSIONER: KM MOODLEY