PSES 475-16/17 EC
PSES 475-16/17 EC
Award Date:
28 July 2017
Case Number: PSES 475-16/17 EC
Province: Eastern Cape
Applicant: DR VC KALIPA
Respondent: Department of Education – Eastern Cape
Issue: Unfair Labour Practice - Suspension
Award Date: 28 July 2017
Arbitrator: Department of Education Offices in King Williams Town.
Case Number: PSES 475-16/17 EC
Commissioner: Catherine Willows
Date of Award: 28 July 2017
In the matter between
DR VC KALIPA
(Applicant)
And
DEPARTMENT OF EDUCATION – EASTERN CAPE
(Respondent)
DETAILS OF HEARING AND REPRESENTATIONS
1. This arbitration was heard on the 14th of July 2017 at Department of Education Offices in King Williams Town. It came before the ELRC in terms of Section 186 (2) (b) (Unfair Suspension and / or disciplinary action) of the Labour Relations Act 66 of 1995 (the LRA).
2. Mr M S Lungu, a representative from SASAWU appeared for the applicant. Mr M Damane appeared on behalf of the Respondent.
3. The parties agreed that written submissions would be made in support of their respective versions. The Applicant was to file by 21 July 2017 with the Respondent by 26 July 2017. Such have been duly received and utilised in consideration of this Award.
4. I have considered all the evidence and argument, but because section 138 (7) of the Labour Relations Act, 66 of 1995, as amended requires brief reasons, I have only referred to the evidence and argument that I regard as necessary to substantiate my findings and determination of the dispute.
ISSUE TO BE DECIDED
5. The issue to be decided is whether the Applicant was subjected to an unfair labour practice as envisaged by Section 186 (2) (b) of the LRA, by the Respondent, and if so, appropriate relief.
BACKGROUND TO THE DISPUTE
6. The Applicant was employed as Principal at Bhisho Primary School and was notified in writing on 20 April 2016 that he was to be placed on “special leave” in terms of “paragraph 20 of Chapter J of the Personnel Administrative Measures (“PAM”). Such “special leave” was to run from date of notice, being 20 April 2016, until further notice.
7. The Applicant was then notified, again in writing (undated), that he was to return to his duties as from 9 January 2017. The Applicant subsequently referred a dispute to the ELRC through his union, SASAWU regarding an alleged unfair labour practice based on the respondent’s decision to place him on “suspension”, such suspension being procedurally and substantively unfair.
8. In terms of relief, the Applicant prays for compensation and a declaration of invalidity that any disciplinary proceedings contemplated by the Respondent.
SURVEY OF EVIDENCE AND ARGUMENT
Applicant’s case
9. The Applicant submitted that in his view the letter dated 20 April 2016 was placing him on suspension rather than that of “special leave”. Furthermore, the relevant section of paragraph 20 of Chapter J of PAM was misquoted as it did not have any relevance to the Applicant’s circumstances.
10. In addition, the Respondent did not comply with the peremptory requirements of section 20 of the Employment of Educators Act 76 of 1998, in that the Respondent acted outside as is provided in terms of the LRA and Collective Agreement concluded by the Council.
11. The letter of “special leave” had the disastrous effect of the unwarranted suspension of the Applicant. Furthermore, the Applicant alleged that there was no basis for his “special leave” as such amounted to a suspension without time frames and devoid of any reasoning. As such, the Respondent’s actions were arbitrary and / or capricious.
12. The Applicant prays for compensation of eight (8) months remuneration as well as a declaration of invalid, unfair, unlawful and unconstitutional of the intended process intended and initiated by the Respondent to charge the Applicant with misconduct.
Respondent’s case
13. The Respondent’s representative submitted that the Department does not have any case to respond to. The Applicant was never suspended but was placed on special leave.
14. Bisho Primary School where the Applicant serves as Headmaster was besieged with instability that grounded school activities to a halt. No teaching and learning took place and consequently learners suffered. Among the challenges in the school was dysfunctionality of structures and systems caused by continuous fighting between the School Governing Body (SGB) and the Applicant and the accusations of financial mismanagement directed to the Applicant.
15. Therefore, to stabilize matters and to restore teaching and learning the Respondent resolved to investigate all the allegations against the Principal and the SGB. As a consequence of that resolution the SGB was disbanded and the Principal was put on special leave and an administrator was appointed to run the school.
16. According to PAM document chapter J paragraph 20, with the Heading “SPECIAL LEAVE IN EXTRA ORDINARY CIRCUMSTANCES” sub paragraph 20.2 states that “If in the opinion of the employer, circumstances justify it, it may grant or place an educator on special leave in extra-ordinary circumstances for any reasonable purpose and for any reasonable period, and such leave shall be without pay unless the employer determines otherwise”.
17. It was furthermore submitted that due to the investigation that took place at Bisho Primary School, the Applicant is currently facing charges of financial mismanagement.
18. Chapter J and paragraph 2.2 of the PAM document does not indicate a specific period on which special leave should start or end, it indicates a “reasonable period”. A reasonable period is any period to be decided by the Department depending on the extent and depth of the investigation.
19. Therefore it is unfair and incorrect for the Applicant’s representative to attempt to change the wording, meaning of the Respondent’s intention from “Special Leave” to “Suspension”.
ANALYSIS OF EVIDENCE AND ARGUMENTS
20. Section 186 (2) (b) of the Labour Relations Act 66 of 1995 (“the LRA”) defines unfair labour practice as:-
“any other unfair disciplinary action short of dismissal”
21. Precautionary suspension is an interim measure imposed by the employer, not as a disciplinary sanction, but for reasons of orderly administration. It is essentially a “holding measure” to conclude investigations against an employee without the risk of the employee interfering with the investigation.
22. The Applicant avers that his being placed on “special leave” as authorized by the PAM document, such equates to “unfair suspension”. In defence of such allegation, the Respondent submitted that the special circumstances existed at the School whereby the Applicant acts as Principal and as such, it necessitated him being placed on special leave.
23. However, the Respondent makes averments as to “accusations of financial mismanagement directed to the Applicant” and “It was furthermore submitted that due to the investigation that took place at Bisho Primary School, the Applicant is currently facing charges of financial mismanagement”.
24. This therefore makes reference to the fact that the Applicant was placed on “special leave” in order to fully ventilate accusations of financial mismanagement. This scenario would be comparable with a precautionary suspension.
25. Chapter J paragraph 20, with the Heading “SPECIAL LEAVE IN EXTRA ORDINARY CIRCUMSTANCES” sub paragraph 20.2 of PAM states that “If in the opinion of the employer, circumstances justify it, it may grant or place an educator on special leave in extra-ordinary circumstances for any reasonable purpose and for any reasonable period, and such leave shall be without pay unless the employer determines otherwise”.
26. In order to interpret what “exceptional circumstances” are in the context, “(E)xceptional circumstances” must therefore mean such extraordinary, unusual, special circumstances that necessitate an employee being put off work for their own good; and if a condition of such leave is that employees be paid, the circumstances have to be particularly exceptional”.
27. The circumstances of the Applicant’s “special leave” points to effectively a suspension in the hope of subverting the residual unfair labour practice provisions of the Labour Relations Act No. 66 of 1995 (LRA) and all the time and other constraints that accompany suspensions.
28. The PAM document does not permit the Respondent “carte blanche” in averring special circumstances exist in order to place employee on such for an indefinite period. Such would have severe consequences for any employee, despite being fully remunerated.
29. The Respondent is required to show that exceptional circumstances existed and that the special leave resolution was adopted in good faith, and that it was rational, reasonable, proportionate and in the public interest.
30. Under labour law, employment is a contract. Like all contracts it implies good faith. This common law position is fortified by the constitutional right of “everyone” to fair labour practices and equality. Consequently, the duty to exhibit good faith is mutual, weighing as much on employers as it does on employees.
31. The “special leave” has more than a hint of an ulterior motive. Manifestly, it is couched in the terminology of a precautionary suspension with full pay pending misconduct investigations.
32. This conclusion is drawn from the fact that the Respondent made several references to “investigations and accusations” pending against the Applicant and that at present, the Applicant faces disciplinary charges.
33. The Respondent must have anticipated charging the Applicant for misconduct when they put him on special leave. It is on the basis of such above that I am of the opinion that the Applicant has satisfactorily discharged the burden of proving that the Respondent committed an unfair labour practice relating to “any other unfair disciplinary action short of dismissal” and that the “special leave” provision was applied to the Applicant whereby it has all the hallmarks of a precautionary suspension.
34. The Applicant prayed for relief in two forms: The Applicant prays for compensation of eight (8) months remuneration as well as a declaration of invalid, unfair, unlawful and unconstitutional of the intended process intended and initiated by the Respondent to charge the Applicant with misconduct.
35. I do not have the power to issue any form of declarator as per the LRA. I am mindful that the Applicant has returned to work and that the period of suspension was on full pay. The issue of uplifting the suspension therefore becomes “moot”. It would furthermore be inappropriate and fiscally irresponsible to compensate the Applicant with a lengthy compensation Award.
36. However, I am also mindful of the damages to which the Applicant has suffered and find that compensation of one (1) month’s remuneration would be just and equitable in the circumstances.
AWARD
I therefore make the following award:
(a) The Respondent is directed to compensate the Applicant with one (1) month’s remuneration, in the amount of R50 176. 50 (fifty thousand one hundred and seventy-six rand and fifty cents) calculated on his gross salary, minus such deductions as the Respondent is in terms of the law entitled or obliged to make, payable to the Applicant by no later than 30 September 2017.
(b) I make no order as to costs.
Signature:
Catherine Willow
ELRC Panelist
Province: Eastern Cape
Applicant: DR VC KALIPA
Respondent: Department of Education – Eastern Cape
Issue: Unfair Labour Practice - Suspension
Award Date: 28 July 2017
Arbitrator: Department of Education Offices in King Williams Town.
Case Number: PSES 475-16/17 EC
Commissioner: Catherine Willows
Date of Award: 28 July 2017
In the matter between
DR VC KALIPA
(Applicant)
And
DEPARTMENT OF EDUCATION – EASTERN CAPE
(Respondent)
DETAILS OF HEARING AND REPRESENTATIONS
1. This arbitration was heard on the 14th of July 2017 at Department of Education Offices in King Williams Town. It came before the ELRC in terms of Section 186 (2) (b) (Unfair Suspension and / or disciplinary action) of the Labour Relations Act 66 of 1995 (the LRA).
2. Mr M S Lungu, a representative from SASAWU appeared for the applicant. Mr M Damane appeared on behalf of the Respondent.
3. The parties agreed that written submissions would be made in support of their respective versions. The Applicant was to file by 21 July 2017 with the Respondent by 26 July 2017. Such have been duly received and utilised in consideration of this Award.
4. I have considered all the evidence and argument, but because section 138 (7) of the Labour Relations Act, 66 of 1995, as amended requires brief reasons, I have only referred to the evidence and argument that I regard as necessary to substantiate my findings and determination of the dispute.
ISSUE TO BE DECIDED
5. The issue to be decided is whether the Applicant was subjected to an unfair labour practice as envisaged by Section 186 (2) (b) of the LRA, by the Respondent, and if so, appropriate relief.
BACKGROUND TO THE DISPUTE
6. The Applicant was employed as Principal at Bhisho Primary School and was notified in writing on 20 April 2016 that he was to be placed on “special leave” in terms of “paragraph 20 of Chapter J of the Personnel Administrative Measures (“PAM”). Such “special leave” was to run from date of notice, being 20 April 2016, until further notice.
7. The Applicant was then notified, again in writing (undated), that he was to return to his duties as from 9 January 2017. The Applicant subsequently referred a dispute to the ELRC through his union, SASAWU regarding an alleged unfair labour practice based on the respondent’s decision to place him on “suspension”, such suspension being procedurally and substantively unfair.
8. In terms of relief, the Applicant prays for compensation and a declaration of invalidity that any disciplinary proceedings contemplated by the Respondent.
SURVEY OF EVIDENCE AND ARGUMENT
Applicant’s case
9. The Applicant submitted that in his view the letter dated 20 April 2016 was placing him on suspension rather than that of “special leave”. Furthermore, the relevant section of paragraph 20 of Chapter J of PAM was misquoted as it did not have any relevance to the Applicant’s circumstances.
10. In addition, the Respondent did not comply with the peremptory requirements of section 20 of the Employment of Educators Act 76 of 1998, in that the Respondent acted outside as is provided in terms of the LRA and Collective Agreement concluded by the Council.
11. The letter of “special leave” had the disastrous effect of the unwarranted suspension of the Applicant. Furthermore, the Applicant alleged that there was no basis for his “special leave” as such amounted to a suspension without time frames and devoid of any reasoning. As such, the Respondent’s actions were arbitrary and / or capricious.
12. The Applicant prays for compensation of eight (8) months remuneration as well as a declaration of invalid, unfair, unlawful and unconstitutional of the intended process intended and initiated by the Respondent to charge the Applicant with misconduct.
Respondent’s case
13. The Respondent’s representative submitted that the Department does not have any case to respond to. The Applicant was never suspended but was placed on special leave.
14. Bisho Primary School where the Applicant serves as Headmaster was besieged with instability that grounded school activities to a halt. No teaching and learning took place and consequently learners suffered. Among the challenges in the school was dysfunctionality of structures and systems caused by continuous fighting between the School Governing Body (SGB) and the Applicant and the accusations of financial mismanagement directed to the Applicant.
15. Therefore, to stabilize matters and to restore teaching and learning the Respondent resolved to investigate all the allegations against the Principal and the SGB. As a consequence of that resolution the SGB was disbanded and the Principal was put on special leave and an administrator was appointed to run the school.
16. According to PAM document chapter J paragraph 20, with the Heading “SPECIAL LEAVE IN EXTRA ORDINARY CIRCUMSTANCES” sub paragraph 20.2 states that “If in the opinion of the employer, circumstances justify it, it may grant or place an educator on special leave in extra-ordinary circumstances for any reasonable purpose and for any reasonable period, and such leave shall be without pay unless the employer determines otherwise”.
17. It was furthermore submitted that due to the investigation that took place at Bisho Primary School, the Applicant is currently facing charges of financial mismanagement.
18. Chapter J and paragraph 2.2 of the PAM document does not indicate a specific period on which special leave should start or end, it indicates a “reasonable period”. A reasonable period is any period to be decided by the Department depending on the extent and depth of the investigation.
19. Therefore it is unfair and incorrect for the Applicant’s representative to attempt to change the wording, meaning of the Respondent’s intention from “Special Leave” to “Suspension”.
ANALYSIS OF EVIDENCE AND ARGUMENTS
20. Section 186 (2) (b) of the Labour Relations Act 66 of 1995 (“the LRA”) defines unfair labour practice as:-
“any other unfair disciplinary action short of dismissal”
21. Precautionary suspension is an interim measure imposed by the employer, not as a disciplinary sanction, but for reasons of orderly administration. It is essentially a “holding measure” to conclude investigations against an employee without the risk of the employee interfering with the investigation.
22. The Applicant avers that his being placed on “special leave” as authorized by the PAM document, such equates to “unfair suspension”. In defence of such allegation, the Respondent submitted that the special circumstances existed at the School whereby the Applicant acts as Principal and as such, it necessitated him being placed on special leave.
23. However, the Respondent makes averments as to “accusations of financial mismanagement directed to the Applicant” and “It was furthermore submitted that due to the investigation that took place at Bisho Primary School, the Applicant is currently facing charges of financial mismanagement”.
24. This therefore makes reference to the fact that the Applicant was placed on “special leave” in order to fully ventilate accusations of financial mismanagement. This scenario would be comparable with a precautionary suspension.
25. Chapter J paragraph 20, with the Heading “SPECIAL LEAVE IN EXTRA ORDINARY CIRCUMSTANCES” sub paragraph 20.2 of PAM states that “If in the opinion of the employer, circumstances justify it, it may grant or place an educator on special leave in extra-ordinary circumstances for any reasonable purpose and for any reasonable period, and such leave shall be without pay unless the employer determines otherwise”.
26. In order to interpret what “exceptional circumstances” are in the context, “(E)xceptional circumstances” must therefore mean such extraordinary, unusual, special circumstances that necessitate an employee being put off work for their own good; and if a condition of such leave is that employees be paid, the circumstances have to be particularly exceptional”.
27. The circumstances of the Applicant’s “special leave” points to effectively a suspension in the hope of subverting the residual unfair labour practice provisions of the Labour Relations Act No. 66 of 1995 (LRA) and all the time and other constraints that accompany suspensions.
28. The PAM document does not permit the Respondent “carte blanche” in averring special circumstances exist in order to place employee on such for an indefinite period. Such would have severe consequences for any employee, despite being fully remunerated.
29. The Respondent is required to show that exceptional circumstances existed and that the special leave resolution was adopted in good faith, and that it was rational, reasonable, proportionate and in the public interest.
30. Under labour law, employment is a contract. Like all contracts it implies good faith. This common law position is fortified by the constitutional right of “everyone” to fair labour practices and equality. Consequently, the duty to exhibit good faith is mutual, weighing as much on employers as it does on employees.
31. The “special leave” has more than a hint of an ulterior motive. Manifestly, it is couched in the terminology of a precautionary suspension with full pay pending misconduct investigations.
32. This conclusion is drawn from the fact that the Respondent made several references to “investigations and accusations” pending against the Applicant and that at present, the Applicant faces disciplinary charges.
33. The Respondent must have anticipated charging the Applicant for misconduct when they put him on special leave. It is on the basis of such above that I am of the opinion that the Applicant has satisfactorily discharged the burden of proving that the Respondent committed an unfair labour practice relating to “any other unfair disciplinary action short of dismissal” and that the “special leave” provision was applied to the Applicant whereby it has all the hallmarks of a precautionary suspension.
34. The Applicant prayed for relief in two forms: The Applicant prays for compensation of eight (8) months remuneration as well as a declaration of invalid, unfair, unlawful and unconstitutional of the intended process intended and initiated by the Respondent to charge the Applicant with misconduct.
35. I do not have the power to issue any form of declarator as per the LRA. I am mindful that the Applicant has returned to work and that the period of suspension was on full pay. The issue of uplifting the suspension therefore becomes “moot”. It would furthermore be inappropriate and fiscally irresponsible to compensate the Applicant with a lengthy compensation Award.
36. However, I am also mindful of the damages to which the Applicant has suffered and find that compensation of one (1) month’s remuneration would be just and equitable in the circumstances.
AWARD
I therefore make the following award:
(a) The Respondent is directed to compensate the Applicant with one (1) month’s remuneration, in the amount of R50 176. 50 (fifty thousand one hundred and seventy-six rand and fifty cents) calculated on his gross salary, minus such deductions as the Respondent is in terms of the law entitled or obliged to make, payable to the Applicant by no later than 30 September 2017.
(b) I make no order as to costs.
Signature:
Catherine Willow
ELRC Panelist