Case Number: PSES615-16/17MP
Applicant: GIFT MDLULI
Respondent: Department of Education Mpumalanga
Issue: Unfair Labour Practice - Provision of Benefits
Award Date: 20 April 2018
Arbitrator: MN Masetla
Commissioner: MN Masetla
Case number: PSES615-16/17MP
Date of the award: 20/04/18
In the ABITRATION between
GIFT MDLULI EMPLOYEE
DEPARTMENT OF EDUCATION - MPUMALANGA EMPOYER
THE DETAILS OF THE HEARING AND REPRESENTATION
1. This is the award in the arbitration between Gift Mdluli, the employee and Department of Education- Mumalanga, the employer.
2. The arbitration was held under the auspices of the Education Labour Relations Council in terms of section 191(5)(a) of the Labour Relations Act 66 of 1995 as amended (LRA) and the award is issued in terms of Section 138(7) of the LRA.
3. The arbitration commenced on 22 March 2018 and the process was concluded on the same day.
4. The employee was represented by Mr Ephraim Khambako, an attorney while the respondent was represented by Mr Frieda Rieger.
ISSUES TO BE DECIDED
5. I have to decide whether the employer committed an unfair labour practice, disciplinary action short of dismissal when it imposed a fine of R10, 000 instead of R6000.00.
BACKGROUND TO THE ISSUE IN DISPUTE
6. The employee referred an unfair labour practice dispute to the ELRC on 14 December 2016.
7. The dispute remained unresolved after conciliation and the employee requested that the dispute should be resolved through arbitration.
8. The arbitration proceeded on 22 March 2018 and was finalised.
SURVEY OF EVIDENCE AND ARGUMENTS
9. Ms Gift Mdluli testified under oath that she is employed by the employer and used to work at Emfuleni Primary School. She attended a disciplinary hearing instituted by the employer.The outcome of the disciplinary hearing were given to her on 06 March 2014.She was fined R 6,000.00 and a final written warning was issued to her.
10. The employer deducted an amount of R10, 000.00 which she did not agree to. She appealed to the Member of Executive Council of Mpumalanga. The MEC upheld the fact that an amount of R10, 000.00 will be deducted from her. She thus requested that the R10, 000.00 refunded to her.
11. The employer’s only witness, Mr Lisanang Petrus Mashego testified under oath that he was the chairperson of the disciplinary hearing At the end of the disciplinary process, he prepared his outcome report and sent it to Mr Mudau, the District Labour Relation Officer. He then received a telephone call from the Head of Labour Relations, Mr Makhubedu, who advised him that there is a discrepancy with regard to the amount as reflected in figures and words. In his recommendations, he had stated that the employee be fined R 6,000.00 but in words he stated an amount of R10, 000.00.He then corrected the disciplinary and stated that the correct amount is R 6,000.00.He then sent the corrected outcome report to the employer.
12. He stated that it was an administrative error.
ANALYSIS OF EVIDENCE AND ARGUMENTS
13. The employee’s version was that the employer, in contrast to the findings and sanction of the chairperson of disciplinary hearing, implemented a fine of R10, 000.00 while the chairperson had recommended R 6000.00.The outcome of the disciplinary hearing which were given to her stated that she should be fined R6, 000.00. In this regard, she referred to the chairperson’s outcome report which reflected an amount of R6, 000.00.The employer’s version to the employee’s version was simply that there was an administrative error in the implementation of the chairperson’s report. The chairperson of the disciplinary hearing Mr LP Mashigo, stated that he was advised of the discrepancy in terms the amount stated in words and figures. He corrected same and sent back to the District Head or Labour Relations, Mr Mokhubedu. It thus surprises me as to why could an administrative error take long to correct from December 2016.The employee appealed and the MEC upheld the amount of R10,000.00 even if the chairperson corrected the discrepancy.
14. In light of the evidence tendered, I accept that the employer committed on unfair labour practice when it implemented a fine of R10, 000.00 as opposed to R6000.00 by the chairperson of the disciplinary hearing. This version is in fact corroborated by the employer’s witness Mr LP Mashigo.
15. In relation to the appropriate relief, it is my view that the employer has been grossly careless in addressing this matter. The employer simply came to the arbitration process to concede that it was an administrative error. If it was indeed so, it was fairly expected that this matter should not have dragged for such a long period .While the employee is entitle to the R4,000.00 difference deducted by the employer, it is my view that the employee is entitled to two months compensation. The employee’s gross salary per month is R43 534.25 x 2 = R87, 068.50.This amount is in addition to the R 4,000.00 deducted from the employee.
16. The employer, Department of Education –Mpumalanga is hereby ordered to pay the employee compensation in the amount of R91, 068.50.
17. The amount referred to in paragraph 16 must be paid to the applicant by not later than 10 May 2018.
Panellist: MN Masetla