PSES622-15/16NC
PSES622-15/16NC
Award Date:
12 November 2016
Case Number: PSES622-15/16NC
Province: Northern Cape
Applicant: GJ Buys
Respondent: Department of Education Northern Cape
Issue: Unfair Labour Practice - Suspension
Venue: the John Taolo Gaetsewe District Office, in Kuruman
Award Date: 12 November 2016
Arbitrator: Peter T Masihleho
Case Number: PSES622-15/16NC
Commissioner: Peter T Masihleho
Date of Award: 12 November 2016
In the ARBITRATION between
GJ Buys Applicant
And
Department of Education Northern Cape, Respondent
DETAILS OF HEARING AND REPRESENTATION
[1] The arbitration proceedings in the above matter were scheduled to be heard on 29 July 2016 and postponed due to the illness of the respondent’s representative. The matter was set down again and heard on 27 October 2016 at the John Taolo Gaetsewe District Office, in Kuruman.
[2] The applicant, Mr. JG Buys, was represented by Mr. RP Bindeman, an official from the Public Servants Association (PSA), while the respondent (DOE,NC) was represented by Mr. G.T George.
[3] The arbitration proceedings were digitally recorded. The parties had agreed to file written heads of argument and submit to Council by no later than 1 November 2016. The last set of heads of argument was received by the Council on 1 November 2016 and I received copies on 2 November 2016.
SSUE TO BE DECIDED
[4] I am required to determine whether the first respondent had committed an unfair labour practice against the applicant, when the applicant was put on precautionary suspension for a prolonged period of time. Should I find in the affirmative, I am required to determine the appropriate relief.
BACKGROUND TO THE ISSUE
[5] The applicant was employed by the respondent, in the position of Circuit Manager. He was on a structured annual income of R828 369-00.
[6] The respondent had put the applicant on suspension pending finalization of the disciplinary hearing which suspension was on 14 April 2015.
[7] The applicant sought the lifting of suspension and 12 months compensation.
PRELIMINARY POINT
[8] At the commencement of the arbitration proceedings, the respondent made an application to join in the Chairperson of the disciplinary hearing to the proceedings arguing that he had made the decision to continue the suspension of the applicant.
[9] The application was opposed by the applicant arguing that the joining of the disciplinary hearing chairperson was not essential as he was not empowered to pronounce on the suspension of the applicant.
[10] The chairperson does not have a direct and substantial interest in these proceedings.
[11] I dismissed this point on the basis that the disciplinary hearing chairperson had no direct and substantial interest in the outcome of these proceedings, at least to the extent these proceedings were about the applicant’s unfair suspension by the respondent.
SURVEY OF EVIDENCE AND ARGUMENT
SUBMISSIONS ON BEHALF OF THE APPLICANT
[12] I wish to state from the outset, that not all evidence presented will be set out hereunder. Only a summary of the evidence is contained herein.
[13] The following witnesses were called to testify on behalf of the applicant:
o GJ Buys
o RI Buys
[14] Mr. GJ Buys testified as follows:
[15] He was the Circuit Manager for 18 years. His main responsibilities included amongst others, to promote effective teaching and learning, monitoring of systems in schools and monitor implementation of policies.
[16] In the execution of his duties, 23 schools resorted under his supervision and travelled approximately 3000 kilometers per month servicing these schools.
[17] On 14 April 2015, a day after the schools reopened, he was sent to Kathu by the District Director to monitor schools.
[18] Upon his return he had reported to the District Director about his visit to Kathu schools and no one had told him he was put on suspension, until Mr. Zamani handed a suspension letter to him.
[19] Upon receiving the suspension letter, he approached the District Director to enquire about the suspension but the District Director did not know about his suspension.
[20] This suspension was never preceded by a hearing nor reasons sought from him why he could not be suspended. He was never informed of the reasons for his suspension.
[21] The disciplinary hearing was still pending and for a period of eighteen months he has been on suspension.
[22] This suspension has had adverse impact on him, his family and altered negatively how the community viewed him.
[23] He was suspended for no reason; an action which affected his status and his community has isolated him suspecting him of serious wrongdoing.
[24] Prior his suspension, he was a healthy person. This has since changed and he was now on chronic medication and the medical aid funds does not last him and has to pay in cash for medical help.
[25] He has missed on professional development and incurred a financial loss of approximately R15 000-00 in travel income.
[26] In cross examination, he testified that he was on MMS salary package 70/30% structure.
[27] The second witness Ms. R.I. Buys testified that she was the applicant’s wife for thirty five years.
[28] The applicant’s suspension has affected his health to an extent that he runs out of medical funds before June and must pay cash for medical services.
[29] The suspension ruined the applicant’s health, finances and relationship with children as they started believing the applicant must have done some wrongdoing to be suspended for eighteen months.
[30] Cross examination never produced anything as only one question was asked about the allowances the applicant had allegedly lost due to the suspension.
[31] In closing it was agued on behalf of the applicant that the disciplinary hearing must have been finalised within one month of his suspension as provided for in item 6 of schedule 2 of the EEA.
[32] It was argued that instead of putting the applicant on suspension, the respondent had failed to apply its mind to the fact that the applicant was suspended on what was alleged to have taken place in Kathu, rendering the applicant’s suspension immaterial in relation to the place of alleged misconduct.
SUBMISSIONS ON BEHALF OF THE RESPONDENT
[33] The respondent did not call any witnesses and had elected to present written arguments.
[34] It was submitted in argument on behalf of the respondent that the applicant’s suspension was longer than prescribed by schedule 2 to the Employment of Educators Act 76 of 1998.
[35] It was submitted that the applicant’s suspension be extended until finalization of the disciplinary hearing.
ANALYSIS OF EVIDENCE AND ARGUMENT
[36] The applicant’s precautionary suspension was not denied, explained or contested by evidence.
[37] The respondent sought to argue facts that were not placed before me and certainly not put as a version to the applicant.
[38] To the extent the respondent had made factual submissions in its closing argument, I decline to accept it as valid.
[39] To that end, I am left with the applicant’s version, which version I consider uncontested and not rebutted by the respondent.
[40] In terms of schedule 2 , in case of serious misconduct in terms of section 17, the employer may suspend the educator on full pay for a maximum period of three months.
[41] Item 3 of the same schedule prescribes that the suspension in case of section 18; the employer may transfer the educator to another post if the employer believes that the presence of the educator may jeopardize any investigation into the alleged misconduct, or endanger the well being or safety of any person at the workplace .
[42] If an educator is suspended or transferred, the employer must do everything possible to conclude a disciplinary hearing within one month of the suspension or transfer .
[43] The presiding officer may decide on any further postponements. Such a postponement may not exceed 90 days from the date of suspension . If the proceedings are not concluded within 90 days, the employer must enquire from the presiding officer what the reasons for the delay are and give directions for the speedy conclusion of the proceedings .
[44] At the time of the enquiry contemplated in paragraph (c) the employer may, after giving the educator an opportunity to make representations, direct that the further suspension will be without pay .
[45] The applicant’s uncontested version was that he was suspended without the disclosure of a reason to suspend him. No hearing had preceded his suspension to record reasons why he should not be suspended.
[46] According to Item 6 (2) of the EEA, the employer may suspend the employee if the employer believes that the employee has either committed the offences proscribed in sections 17 or 18 of the EEA.
[47] This would in essence require the employer to determine if the conduct or alleged conduct of the employee falls within the ambit of section 17 or 18 respectively.
[48] The purpose for the above categorization seems from the wording of the section to distinguish what was serious or less serious misconduct and employ appropriate approach on what cause to take.
[49] If it reasonably appears to the employer that the misconduct was of a serious nature, in other words section 17 was applicable, the employer may suspend the employee for a maximum period of three months.
[50] If the misconduct was one contemplated as less serious under section 18, the employer may suspend or transfer the educator to another post if the circumstances described therein were present.
[51] The disciplinary hearing against the employee must be finalised within one month. If for some reason/s it could not be finalised within one month, the postponements must not exceed ninety days.
[52] The construct of item 6 (2) (b) is peremptory that the disciplinary hearing must be finalised within 90 days. That is not where it ends, the employer has a further obligation of enquiring from the presiding officer what the reasons for the delay was and give directions for the speedy conclusion of the proceedings. After the enquiry and giving the employee the opportunity to make representations, direct that the further suspension will be without pay.
[53] There was no evidence presented that the respondent had made means to either conclude the disciplinary hearing in one month; or ensured that the postponements did not exceed three months or gave directions that the suspension will be without pay or that the applicant was invited to make representations on the delay.
[54] In the absence of such crucial evidence, I find that the respondent acted arbitrarily when it kept the applicant on suspension for eighteen months without compliance with schedule 6.
[55] The Labour Court had occasion of warning against using precautionary suspensions arbitrarily and stated that suspension was a measure that had serious consequences for an employee, and is not a measure that should not be resorted to lightly. There appears to be a tendency, especially in the public sector, where suspension was applied as a measure of first resort and almost automatically imposed where any form of misconduct was alleged .
[56] Evidence presented by the applicant supports the conclusion that the respondent have resorted to suspension of the applicant without giving reasons for the suspension and resorting to suspension as at first without exploring the alternatives provided for in Item (6)(2).
[57] There was further no reason given on whether the respondent had a justifiable reason to suspend the applicant; any justifiable reason to deny the applicant access to the workplace. The applicant’s evidence proves that his suspension was never preceded by any opportunity to make representations about his suspension.
[58] No reasons were provided why the applicant was still on suspension eighteen months after his suspension, contrary to Item 6(2)(b) and (c).
[59] The Labour Court noted that the suspension of an employee pending an enquiry into alleged misconduct was equivalent to an arrest, and should therefore be used only when there was a reasonable apprehension that the employee will interfere with investigations or pose some other threat .
[60] In the premises, the applicant’s suspension was unfair and contrary to the Act and must be uplifted and a reasonable compensation be paid to him by the respondent.
[61] The applicant had testified at length about the impact of the suspension on him, which was corroborated by Ms. Buys. The applicant went further to point out the financial loss he suffered as a result of the suspension; how he had been affected professionally and health wise. The respondent’s failure to put relevant facts before me why the suspension was long. The need to deter the respondent from acting contrary to the provisions of the Act. I take note of the applicant’s seniority and the nature of the respondent’s business of public education. I consider it reasonable to make an award of six months compensation to the applicant.
[62] The six months compensation is calculated as follows:
R828 369-00 x 70% = R579 858-30/12 = R48 321-52 per month
R48 321-52 x 6 months = R289 929-12
AWARD:
[63] The respondent, Department of Education, NC is ordered to lift the suspension of the applicant, Mr. GJ Buys and restore the status quo ante by no later than 30 November 2016.
[64] I order the respondent, Department of Education, NC to pay to the applicant, Mr. GJ Buys six months compensation in the amount of R289 929-12 by no later than 30 November 2016.
[65] The respondent, Department of Education, NC must finalise the pending disciplinary hearing of the applicant by 30 November 2016.
Signature:
Panelist : Peter T Masihleho
Sector: Public Education
Province: Northern Cape
Applicant: GJ Buys
Respondent: Department of Education Northern Cape
Issue: Unfair Labour Practice - Suspension
Venue: the John Taolo Gaetsewe District Office, in Kuruman
Award Date: 12 November 2016
Arbitrator: Peter T Masihleho
Case Number: PSES622-15/16NC
Commissioner: Peter T Masihleho
Date of Award: 12 November 2016
In the ARBITRATION between
GJ Buys Applicant
And
Department of Education Northern Cape, Respondent
DETAILS OF HEARING AND REPRESENTATION
[1] The arbitration proceedings in the above matter were scheduled to be heard on 29 July 2016 and postponed due to the illness of the respondent’s representative. The matter was set down again and heard on 27 October 2016 at the John Taolo Gaetsewe District Office, in Kuruman.
[2] The applicant, Mr. JG Buys, was represented by Mr. RP Bindeman, an official from the Public Servants Association (PSA), while the respondent (DOE,NC) was represented by Mr. G.T George.
[3] The arbitration proceedings were digitally recorded. The parties had agreed to file written heads of argument and submit to Council by no later than 1 November 2016. The last set of heads of argument was received by the Council on 1 November 2016 and I received copies on 2 November 2016.
SSUE TO BE DECIDED
[4] I am required to determine whether the first respondent had committed an unfair labour practice against the applicant, when the applicant was put on precautionary suspension for a prolonged period of time. Should I find in the affirmative, I am required to determine the appropriate relief.
BACKGROUND TO THE ISSUE
[5] The applicant was employed by the respondent, in the position of Circuit Manager. He was on a structured annual income of R828 369-00.
[6] The respondent had put the applicant on suspension pending finalization of the disciplinary hearing which suspension was on 14 April 2015.
[7] The applicant sought the lifting of suspension and 12 months compensation.
PRELIMINARY POINT
[8] At the commencement of the arbitration proceedings, the respondent made an application to join in the Chairperson of the disciplinary hearing to the proceedings arguing that he had made the decision to continue the suspension of the applicant.
[9] The application was opposed by the applicant arguing that the joining of the disciplinary hearing chairperson was not essential as he was not empowered to pronounce on the suspension of the applicant.
[10] The chairperson does not have a direct and substantial interest in these proceedings.
[11] I dismissed this point on the basis that the disciplinary hearing chairperson had no direct and substantial interest in the outcome of these proceedings, at least to the extent these proceedings were about the applicant’s unfair suspension by the respondent.
SURVEY OF EVIDENCE AND ARGUMENT
SUBMISSIONS ON BEHALF OF THE APPLICANT
[12] I wish to state from the outset, that not all evidence presented will be set out hereunder. Only a summary of the evidence is contained herein.
[13] The following witnesses were called to testify on behalf of the applicant:
o GJ Buys
o RI Buys
[14] Mr. GJ Buys testified as follows:
[15] He was the Circuit Manager for 18 years. His main responsibilities included amongst others, to promote effective teaching and learning, monitoring of systems in schools and monitor implementation of policies.
[16] In the execution of his duties, 23 schools resorted under his supervision and travelled approximately 3000 kilometers per month servicing these schools.
[17] On 14 April 2015, a day after the schools reopened, he was sent to Kathu by the District Director to monitor schools.
[18] Upon his return he had reported to the District Director about his visit to Kathu schools and no one had told him he was put on suspension, until Mr. Zamani handed a suspension letter to him.
[19] Upon receiving the suspension letter, he approached the District Director to enquire about the suspension but the District Director did not know about his suspension.
[20] This suspension was never preceded by a hearing nor reasons sought from him why he could not be suspended. He was never informed of the reasons for his suspension.
[21] The disciplinary hearing was still pending and for a period of eighteen months he has been on suspension.
[22] This suspension has had adverse impact on him, his family and altered negatively how the community viewed him.
[23] He was suspended for no reason; an action which affected his status and his community has isolated him suspecting him of serious wrongdoing.
[24] Prior his suspension, he was a healthy person. This has since changed and he was now on chronic medication and the medical aid funds does not last him and has to pay in cash for medical help.
[25] He has missed on professional development and incurred a financial loss of approximately R15 000-00 in travel income.
[26] In cross examination, he testified that he was on MMS salary package 70/30% structure.
[27] The second witness Ms. R.I. Buys testified that she was the applicant’s wife for thirty five years.
[28] The applicant’s suspension has affected his health to an extent that he runs out of medical funds before June and must pay cash for medical services.
[29] The suspension ruined the applicant’s health, finances and relationship with children as they started believing the applicant must have done some wrongdoing to be suspended for eighteen months.
[30] Cross examination never produced anything as only one question was asked about the allowances the applicant had allegedly lost due to the suspension.
[31] In closing it was agued on behalf of the applicant that the disciplinary hearing must have been finalised within one month of his suspension as provided for in item 6 of schedule 2 of the EEA.
[32] It was argued that instead of putting the applicant on suspension, the respondent had failed to apply its mind to the fact that the applicant was suspended on what was alleged to have taken place in Kathu, rendering the applicant’s suspension immaterial in relation to the place of alleged misconduct.
SUBMISSIONS ON BEHALF OF THE RESPONDENT
[33] The respondent did not call any witnesses and had elected to present written arguments.
[34] It was submitted in argument on behalf of the respondent that the applicant’s suspension was longer than prescribed by schedule 2 to the Employment of Educators Act 76 of 1998.
[35] It was submitted that the applicant’s suspension be extended until finalization of the disciplinary hearing.
ANALYSIS OF EVIDENCE AND ARGUMENT
[36] The applicant’s precautionary suspension was not denied, explained or contested by evidence.
[37] The respondent sought to argue facts that were not placed before me and certainly not put as a version to the applicant.
[38] To the extent the respondent had made factual submissions in its closing argument, I decline to accept it as valid.
[39] To that end, I am left with the applicant’s version, which version I consider uncontested and not rebutted by the respondent.
[40] In terms of schedule 2 , in case of serious misconduct in terms of section 17, the employer may suspend the educator on full pay for a maximum period of three months.
[41] Item 3 of the same schedule prescribes that the suspension in case of section 18; the employer may transfer the educator to another post if the employer believes that the presence of the educator may jeopardize any investigation into the alleged misconduct, or endanger the well being or safety of any person at the workplace .
[42] If an educator is suspended or transferred, the employer must do everything possible to conclude a disciplinary hearing within one month of the suspension or transfer .
[43] The presiding officer may decide on any further postponements. Such a postponement may not exceed 90 days from the date of suspension . If the proceedings are not concluded within 90 days, the employer must enquire from the presiding officer what the reasons for the delay are and give directions for the speedy conclusion of the proceedings .
[44] At the time of the enquiry contemplated in paragraph (c) the employer may, after giving the educator an opportunity to make representations, direct that the further suspension will be without pay .
[45] The applicant’s uncontested version was that he was suspended without the disclosure of a reason to suspend him. No hearing had preceded his suspension to record reasons why he should not be suspended.
[46] According to Item 6 (2) of the EEA, the employer may suspend the employee if the employer believes that the employee has either committed the offences proscribed in sections 17 or 18 of the EEA.
[47] This would in essence require the employer to determine if the conduct or alleged conduct of the employee falls within the ambit of section 17 or 18 respectively.
[48] The purpose for the above categorization seems from the wording of the section to distinguish what was serious or less serious misconduct and employ appropriate approach on what cause to take.
[49] If it reasonably appears to the employer that the misconduct was of a serious nature, in other words section 17 was applicable, the employer may suspend the employee for a maximum period of three months.
[50] If the misconduct was one contemplated as less serious under section 18, the employer may suspend or transfer the educator to another post if the circumstances described therein were present.
[51] The disciplinary hearing against the employee must be finalised within one month. If for some reason/s it could not be finalised within one month, the postponements must not exceed ninety days.
[52] The construct of item 6 (2) (b) is peremptory that the disciplinary hearing must be finalised within 90 days. That is not where it ends, the employer has a further obligation of enquiring from the presiding officer what the reasons for the delay was and give directions for the speedy conclusion of the proceedings. After the enquiry and giving the employee the opportunity to make representations, direct that the further suspension will be without pay.
[53] There was no evidence presented that the respondent had made means to either conclude the disciplinary hearing in one month; or ensured that the postponements did not exceed three months or gave directions that the suspension will be without pay or that the applicant was invited to make representations on the delay.
[54] In the absence of such crucial evidence, I find that the respondent acted arbitrarily when it kept the applicant on suspension for eighteen months without compliance with schedule 6.
[55] The Labour Court had occasion of warning against using precautionary suspensions arbitrarily and stated that suspension was a measure that had serious consequences for an employee, and is not a measure that should not be resorted to lightly. There appears to be a tendency, especially in the public sector, where suspension was applied as a measure of first resort and almost automatically imposed where any form of misconduct was alleged .
[56] Evidence presented by the applicant supports the conclusion that the respondent have resorted to suspension of the applicant without giving reasons for the suspension and resorting to suspension as at first without exploring the alternatives provided for in Item (6)(2).
[57] There was further no reason given on whether the respondent had a justifiable reason to suspend the applicant; any justifiable reason to deny the applicant access to the workplace. The applicant’s evidence proves that his suspension was never preceded by any opportunity to make representations about his suspension.
[58] No reasons were provided why the applicant was still on suspension eighteen months after his suspension, contrary to Item 6(2)(b) and (c).
[59] The Labour Court noted that the suspension of an employee pending an enquiry into alleged misconduct was equivalent to an arrest, and should therefore be used only when there was a reasonable apprehension that the employee will interfere with investigations or pose some other threat .
[60] In the premises, the applicant’s suspension was unfair and contrary to the Act and must be uplifted and a reasonable compensation be paid to him by the respondent.
[61] The applicant had testified at length about the impact of the suspension on him, which was corroborated by Ms. Buys. The applicant went further to point out the financial loss he suffered as a result of the suspension; how he had been affected professionally and health wise. The respondent’s failure to put relevant facts before me why the suspension was long. The need to deter the respondent from acting contrary to the provisions of the Act. I take note of the applicant’s seniority and the nature of the respondent’s business of public education. I consider it reasonable to make an award of six months compensation to the applicant.
[62] The six months compensation is calculated as follows:
R828 369-00 x 70% = R579 858-30/12 = R48 321-52 per month
R48 321-52 x 6 months = R289 929-12
AWARD:
[63] The respondent, Department of Education, NC is ordered to lift the suspension of the applicant, Mr. GJ Buys and restore the status quo ante by no later than 30 November 2016.
[64] I order the respondent, Department of Education, NC to pay to the applicant, Mr. GJ Buys six months compensation in the amount of R289 929-12 by no later than 30 November 2016.
[65] The respondent, Department of Education, NC must finalise the pending disciplinary hearing of the applicant by 30 November 2016.
Signature:
Panelist : Peter T Masihleho
Sector: Public Education