Case Number: PSES 702-14/15
Province: Free State
Applicant: Molehe Stephen Ntsetshe
Respondent: Department of Education Free State
Issue: Unfair Labour Practice - Suspension
Venue: Department of Education Office in Welkom
Award Date: 22 September 2015
Arbitrator: Minette van der Merwe
Arbitrator: Minette van der Merwe
Case Reference No.: PSES 702-14/15
Date of award: 22 September 2015
In the arbitration between:
Molehe Stephen Ntsetshe Applicant/Employee party
Department of Education – Free State Respondent/Employer party
Applicant’s representative: Ms LM Molatseli (Attorney from Phatsoane Henney Inc.)
Fax: (051) 400 4161
Respondent’s representative: Mr PM Tladi (Respondent’s Representative)
Fax: 086 520 1324
DETAILS OF HEARING AND REPRESENTATION:
 The arbitration took place on 03 August 2015 and was finalized on 10 September 2015 at the Department of Education Office in Welkom.
 Both parties were present and represented.
 No interpretation was required. The proceedings were recorded mechanically as well as with written notes.
BACKGROUND TO THE DISPUTE:
 The matter was scheduled for Arbitration in terms of section 186 (2)(b) of the Labour Relations Act (Act 66 of 1995). The Applicant challenged the three month unpaid suspension he was sanctioned with as a result of a disciplinary hearing.
 The parties agreed to submit closing statements in writing on or before 17 September 2015. The Respondent’s closing statements were filed one day late, and at the time of the issuing of this award, no closing statements were received on behalf of the Applicant. It must be stated that closing arguments did not have an impact on the evidence, and as such the omission to submit closing arguments on behalf of the Applicant did not adversely impact my decision.
ISSUE TO BE DECIDED:
 I had to determine whether actions of the Respondent in sanctioning the Applicant with a period of three months unpaid suspension as a result of a disciplinary hearing constituted an unfair labour practice, or not, in terms of section 186 (2)(b).
 The onus vested in the Applicant to prove that the Respondent exercised its discretion, and that such discretion exercised was unfair towards the Applicant.
 The Applicant sought the three month unpaid suspension to be uplifted and he be refunded.
 No points in limine were raised by either of the parties. The Applicant’s fourth witness that was served with a subpoena to testify on 10 September 2015 was abroad at the time of the arbitration. A request for postponement was made on behalf of the Applicant in order to secure that witness’s presence. The application was refused as the witness was not crucial, and the evidence sought from his testimony could be provided by another witness.
SURVEY OF EVICENCE AND ARGUMENTS:
Evidence from the Applicant :
The first witness, Molehe Stephen Ntetshe, testified under oath as follows:
 He was the Deputy Chief Education Specialist for Physical Resource Planning (herein after referred to as “DCES: PRP”). He referred this dispute because he was not prepared to execute the new duties assigned to him during 2013, and he was subsequently charged for his refusal.
 He was charged as follows: “You have contravened section 18(1)(i) of the Employment of Educators Act, Act 76 of 1998, when you failed to carry out a lawful order or routine instruction without just or reasonable cause, in that you failed to execute duties assigned to you as DCES: SMGD section during 2013 to date at Lejweleputswa District.”
 He took up employment with the Respondent on 14 April 1996, and until 28 April 2010 he was the DCES: SMGD, where after he was transferred to DCES: PRP. He testified that this initial transfer was executed in a sound and procedurally fair manner. He received communiqué on 29 April 2010, signed by Mr RS Malope the Head of Education that he was transferred and he worked as DCES: PRP until present.
 From 30 April 2012 he submitted his itineraries but it has never been signed off. He addressed the issue, and did not get work assigned in the district as a DCES: PRP. A matter was referred to the ELRC which was heard on 22 September 2013 where parties agreed to meet and resolve the issue. He then received communiqué from the Respondent stating that he was DCES: SMGD and not DCES: PRP, but he disputed that testified that he was not informed of the change to his title and duties. He testified that he wrote to the Respondent informing it that he was not DCES: SMGD but that he was DCES: PRP. Page 39 of “A” was a letter written to him by Mr Mokgobo the District Director dated 17 May 2013, informing him of the following “Due to operational capacity and structural requirements of the Department of Education, the only available placement for you is in a School Management and Governance Development (SMGD) post.” SADTU was also informed about it as per page 40 of “A”. He responded on 10 June 2013 with a letter as per page 38 of “A”, to which he never received any response. No consultations were ever held with him regarding the change in structure and his new placement, and he deemed the transfer to have been done procedurally unfair.
 He was not satisfied with being charged for misconduct, and the charge sheet referred to his previous position, not his current one as PRP, which fact he did escalate to the Director. The disciplinary hearing was held on 27 February 2014. He deemed the charge to have been unlawful as he was not a SMGD and could not be charged for offenses related to it. He was found guilty of the charge against him. In September 2014 he received a letter dated in July 2014, which informed him of the sanction against him, which was three months unpaid suspension. He appealed the outcome on 11 September 2014 and on 15 December 2014 he noticed that he did not receive a salary, and then realized that the sanction was imposed. On 17 December 2014 he wrote a letter to the District Director, to which he received no response. He approached the High Court to challenge the sanction, but the case was later withdrawn. He maintained that he was not a SMGD and could not have been charged and found guilty for not executing such duties.
 He testified that he expected the Respondent to consult with him on the matter, and he never received any feedback from his queries. He felt victimized during the entire process, and the sanction was too harsh. He was not aware of any operational requirements that warranted his unlawful transfer. He deemed the transfer as a demotion, yet his salary stayed the same and he had the same level of authority and seniority.
 Under cross-examination he testified that the Head of Education has the highest authority in the Department of Education, and at district level the District Director had the highest level of authority, and the Director determines how the district is managed. Page 14 of “C” was signed by the Superintendent General, which was the letter of his transfer to DCES: PRP on 26 April 2010. Page 11 of “C” was signed by the Superintendent General, which was the letter informing him of his transfer to DCES: SMGD on 12 September 2013. He did not answer when asked why he challenged the signatories on the different letters and their authority to issue same, but responded that he maintained that he was a DCES: PRP, and denied that he was given page 11 of “C”. He testified that he had knowledge of page 12 of “C” which made reference to operational capacity and structural requirements. He testified that he agreed that the District Director had the authority to transfer him and that it was an instruction and he agreed that he did not execute the instruction, but instead addressed page 7 of “C” to the Director, dated 28 June 2013. He did not respond when he was asked if he deemed his tone of addressing the Director on page 17 of “C” as appropriate. He testified that he did not accept that he was transferred to DCES: SMGD. He denied having ever seen page 18 of “C” dated 06 February 2013, in which he was instructed as follows: “You are hereby expected to meet with Mr SR Leepo, CES : Management and Governance by tomorrow, 07 February 2013, to received allocations of Schools as SMGD”.
 He testified that he was aware of page 19 of “C”, dated 27 September 2012, which read: “The last consultation was done on 21 September 2012. During this consultation meeting once again the District Director informed you about available options and you once again indicated your displeasure about the structure of the Department which excluded PRP.” He confirmed the consultations alluded to in this document. He testified that page 8 of “C”, which was the organogramme of the district office, was the new structure, and that only two Property Officers was included in the structure. He testified that he had a teaching qualification. When it was put to the Applicant that he was transferred to a department where his qualifications were more suited, he responded to say that the Respondent did not consult him in the process. He testified that the PRP department was done away with on 01 October 2010 and did not form part of the structure anymore. He testified that he submitted his itineraries as per pages 21 – 23 of “C” as a PRP as he did work as a PRP during June and July 2012. He testified that he wrote page 24 of “C” to the Director in response to birthday wishes he received from the Director. He deemed the response appropriate as the Director had been ignoring him yet forwarded birthday wishes, and he considered the actions as hypocritical. He conceded that the tone of the letter was insubordinate and that the Respondent could take disciplinary action against him for it.
 During re-examination he testified that there was no consultations done as alluded to in page 19 of “C”. He denied receipt of page 18 of “C”.
The second witness, Frans Kraalshoek, testified under oath as follows:
 He was the Deputy Director: Human Resources for the Xhariep District Office, and was involved in all employment and personnel matters. He testified that the internal grievance process used to be that grievances were submitted to the Deputy Director: Human Resources, but the process recently changed so that internal grievances were submitted to the specific District Director.
 He carried knowledge of page 44 of “A” and his office acknowledged receipt thereof as per page 41 of “A”. He forwarded page 44 of “A” to the then District Director for his attention. If the complaint was against the District Director himself, the Applicant should have approached his immediate supervisor for assistance, and follow the appropriate channels. He personally advised the Applicant on the appropriate process throughout. He was not involved in the matter further, but believed it received attention, and he did not deem it necessary to intervene.
 Under cross-examination he testified that he was aware of the Applicant’s allegation of unfair treatment by the District Director, as testified to in evidence in chief. He testified that the district did not have a PRP division and only has two Property Officers, and as such the Applicant did not function under PRP.
 No re-examination was done.
The third witness, Motsedisi Gladys Malebo, testified under oath as follows:
 She was an Employee Health and Wellness Councillor employed by the Respondent. She knew the Applicant as he approached her department for assistance for a challenge he experienced with the Manager of the district. He required psychological support for the fact that PRP was phased out and he was dissatisfied with his new placement. Her colleague took over the matter, and she was not further involved.
 Under cross-examination she testified that there was no longer a PRP division as it was phased out. The Applicant used to be DCES: PRP. She testified that anyone who refused to execute the Head of the Department’s instructions would face disciplinary action. The District Director was the overseer of the district, and a refusal to execute his instructions would lead to disciplinary action.
 During re-examination she testified that page 11 of “C” was dated 12 September 2013, and it was put to her that the alleged transfer occurred in 2012.
Evidence from the Respondent:
The first witness, Moshoeo Samuel Mokgobo, testified under oath as follows:
 He was the District Director for the Lejweleputswa district. The Applicant was and still is an Employee of the district and reported to him. He recognized the notice for a disciplinary hearing issued to the Applicant as per page 5 of “C”, and the charge related to the Applicant’s failure and refusal to execute his duties as a SMGD. He was referred to page 7 of “C” and testified that it was the organogramme of the district. The organogramme indicated that School Management fell under SMGD. There was no PRP division after the amendments to the structure of the Respondent, and it was phased out so that there were only two Property Officers left, who possessed the required experience and knowledge. The reason for the amendments was that the people in the PRP department were mostly qualified as Educators and as such could not effectively function in the division without the necessary and appropriate qualifications and experience in infrastructure. The Applicant did not have the necessary knowledge or experience.
 He met with the Applicant personally and explained the changes in the structure. Page 12 of “C” was a letter issued to the Applicant after various consultations. The letter was drafted and signed by him personally and was in response to the Applicant expressing his dissatisfaction with the changes. The Applicant was therefore aware of all developments. The Applicant did not heed to the instruction given to give his services to the SMGD division, and as such he was charged with misconduct. Pages 16 the Applicant refused to sign in acknowledgement of, and page 17 of “C” was the response from the Applicant. At that time the Applicant knew that the PRP division was no longer in existence and that he fell under the SMGD division. Page 19 of “C” was read into record and he testified that the Applicant was fully aware of the impending changes and the content of the document. He did not sign pages 21 – 23 of “C” as the Applicant tried to submit itineraries under the PRP division which was phased out. The Applicant’s constant insubordinate behaviour in this regards undermined his office, and the Applicant was requested to submit the correct information. He has been very patient and the Applicant abused his patience with him.
 He sent the Applicant a standard birthday wish as per page 25 of “C”, to which he responded as per page 24 of “C” in an insulting, belittling and insubordinate manner. The conduct of the Applicant was unbecoming of someone on his level of seniority. He showed no respect for anybody.
 Under cross-examination he testified that he personally handed page 11 of “C” over to the Applicant and read its contents to him, and as such his allegation that he did not receive it was untrue. He testified that his negligence to note on page 11 of “C” that the Applicant refused to sign, as he did so on other documents in evidence, was an oversight on his part, but did not mean that he did not hand the letter over to the Applicant personally. Only he and the Applicant were present in his office during that incident. He testified with the Applicant about the impending changes and his ultimate transfer from the start of the process, and issued confirmatory letters. The Applicant then was insistent that the transfer letter be signed by the Head of the Department, as it was with his previous transfer. He then complied and obtained a letter from the Head of Department which was dated after the actual transfer. It did not impact on the validity of the instruction. He testified that the Applicant was kept in the loop of all developments and could not say that he was unaware. He testified that he had delegated authority from the Head of Department to transfer the Applicant, and that the transfer was lawfully executed.
 During re-examination he testified that he worked well with the Applicant until the phasing out of PRP. Various other Employees were also affected by this and were transferred; not only the Applicant. The Department of Education did not raise any concerns regarding the transfers. The system would paralyze if some authorities were not delegated to District Managers.
ANALYSIS OF EVIDENCE AND ARGUMENTS:
 Closing arguments on behalf of the Applicant was not filed.
 Closing argument on behalf of the Respondent stated, in short, that the Property Recourses Person (PRP) section was phased out, and the Applicant was informed of the reasons therefore. The Applicant was inconsistent in his testimony. The Respondent was very accommodating with the behaviour of the Applicant. The Applicant conceded that he suffered no prejudice as a result of the transfer. The Applicant was required to execute the instruction given to him, and if he was dissatisfied he should have lodged a grievance as per the procedure set out in Chapter H of the Employment of Educators Act. In terms of common law Employees are expected to show respect to their Employers. Rudeness, disrespect and undermining of the authority of the Employer are acts of misconduct and disciplinary action may be taken. The Applicant displayed verbal insubordination by calling the District Director a hypocrite, and was insolent in most of his communiqué to the Respondent on this matter at hand. The Respondent prayed for an award in its favour, upholding the sanction as issued.
 The Applicant was a highly inconsistent witness who contradicted himself on a number of material aspects, and avoided various questions during cross-examination. For example, he testified that he was never consulted, yet when referred to page 19 of “C” which alluded to consultations, he conceded to such consultations. He further denied receiving certain documents in evidence, yet he would respond to some of the letters from the Respondent. He denied ever having knowledge of the fact that the PRP division was phasing out and that he was transferred to SMGD, yet in various communiqué from himself he alluded to the fact, and he also admitted to having knowledge thereof during cross-examination, and added that he was aware of it but did not accept it.
 The Applicant’s second witness did not contribute to his case at all. The third witness of the Applicant also did not contribute to the case of the Applicant, and in fact supported the Respondent’s case that the Applicant was aware of the dissolving of the PRP division.
 The Respondent’s witness was concise, factual, reliable and consistent.
 It must be kept in mind that I am not required to pronounce on the ‘transfer’ as a result of the dissolving of the PRP division. I am required to make a determination on the sanction imposed as a result of a disciplinary hearing in which the Applicant was charged form misconduct. In determining the latter I have to consider some evidence in relation to the transfer, inasmuch as it is relevant to the suspension in question.
[37[ In a letter dated 27 September 2012 it was noted that “The last consultation was done on the 21st September 2012. During this consultation meeting once again the District Director informed you about available options and you once again indicated your displeasure about the structure of the Department which excluded PRP”. During cross-examination the Applicant conceded that those consultations alluded to, took place and that he was part of it. However, in re-examination he disputed that any consultations ever took place. I already addressed the Applicant’s inconsistency during his testimony. On the evidence before me, the Applicant knew that PRP was being phased out since September 2012. On 06 February 2013 the Applicant was issue with a letter informing him that “You are expected to meet with Mr SR Leepo, CES: Management and Governance by tomorrow, 07 February 2013, to receive allocation of schools as SMGD.” On 28 June 2013 the Applicant responded and stated that he was a DCES: PRP and not a DCES: SMGD. The evidence, supported by documents to the effect, was that SADTU was informed on 29 April 2013, by fax that discussions took place on the matter and the only vacancy for the Applicant was as a SMGD. It was common cause from the evidence led that the Applicant’s salary remained unchanged, that his level of seniority remained unchanged and that he enjoyed the same level of authority. On 17 May 2013 the Applicant was informed via a letter that “due to operational capacity and structural requirements of the Department of Education, the only placement available for you is a SMGD post”. The Respondent’s witness testified that he personally handed page 11 of “C”, dated 12 September 2013, to the Applicant. The Applicant could not argue that he was not aware of the changes in the Respondent’s structure, that PRP was phased out and that he was required to report under his new position, being DCES: SMGD from as early as February 2013.
 The Applicant, by his own admission, did not accept the transfer. If that was so, he should have challenged the transfer with the ELRC, and not wait to be charge for refusal to execute such duties. The Applicant was the author of his own misfortune by refusing to execute duties which were, lawfully, given to him. The authority of the District Director to transfer the Applicant was also a new issue that was raised. It was never raised by the Applicant in any communiqué to the Respondent. If that was the Applicants legit defence for refusing to heed to the Director’s instruction, he should have referred an appropriate dispute for clarification.
 The task of imposing sanctions vests in the Employer. It is a Commissioner’s function to assess whether that Employer has exercised its discretions fairly. In Sidumo and another v Rustenburg Platinum Mines Ltd & others (2007) 28 ILJ 2405 (CC);  12 BLLR 1097 (CC) it was found that in terms of the LRA, a Commissioner has to determine whether a sanction is fair or not. A Commissioner is not given the power to consider afresh what he or she would do, but simply to decide whether what the employer did was fair. In arriving at a decision a Commissioner is not required to defer to the decision of the employer. What is required is that he or she must consider all relevant circumstances.
 The sanction of three month suspension, in light of the fact that the Applicant’s refusal to execute duties as a SMGD since 2013 till date was fair and reasonable.
 The Respondent, Department of Education – Free State, exercised its discretion fairly in imposing a three month unpaid suspension towards the Applicant, Molehe Stephen Ntetshe, as a result of a finding of guilty for charges of misconduct against him.
 The claim for unfair labour practice in terms of section 186(2)(b) , is hereby dismissed.
 I hereby make a cost order against the Applicant for referring a frivolous and vexatious dispute against the Respondent. The Applicant is directed to pay the cost of the Respondent on 03 August 2015 and 10 September 2015 on the Magistrate’s Court scale, table A and on scale A. The Applicant is directed to pay all cost of the Respondent in respect of all disbursements, which in this instance include cost of copies of documents and travelling costs.
Minette van der Merwe