Case Number: PSES748-18/19FS
Province: Free State
Applicant: SIMANGA AARON NTLOLA
Respondent: Department of Education Free State
Issue: Unfair Labour Practice - Suspension
Award Date: 27 June 2019
Arbitrator: LEKUKA MORE
Case Number: PSES748-18/19FS
Panelist: LEKUKA MORE
Date of Ruling: 27 JUNE 2019
In the Arbitration between
SIMANGA AARON NTLOLA
DEPARTMENT OF BASIC EDUCATION, FREE STATE
DETAILS OF HEARING AND REPRESENTATION
1. This is the Award in the Arbitration between Simanga Aaron Ntlola (hereinafter referred to as the Applicant) and Department of Basic Education, Free State (hereinafter referred to as the Respondent).
2. The matter was scheduled for Arbitration on 12 June 2019. The Arbitration proceedings was held at the boardroom of the Respondent in Bloemfontein.
3. The proceedings were electronically recorded.
4. The Applicant was present and duly represented by Mr. A. Botha, whereas the Respondent was duly represented by Mr. T. Tsunke.
5. The dispute was referred to Education Labour Relations Council in terms of the provisions of Section 186(2) (b) of the Labour Relations Act in respect of suspension and precautionary transfer.
ISSUE TO BE DECIDED
6. I am required to determine whether the suspension and / or precautionary transfer was unfair or fair.
BACKGROUND TO THE DISPUTE
7. The Applicant was suspended on 02 November 2017. On 06 June 2018 the suspension was uplifted. On 07 June 2018 the Applicant was placed on precautionary transfer until to date. The Applicant sought upliftment of precautionary transfer and compensation equivalent to twelve (12) months’ salary.
8. I have considered all the evidence and arguments presented but because Section 138(7) of the Labour Relations Act requires brief reasons, I have only referred to the evidence and arguments that I regard as relevant and necessary to substantiate my findings and the determination of the dispute.
APPLICATION FOR POSTPONEMENT
9. Respondent’s representative requested a Postponement in order to sought mandate from the Accounting Officer to settle the dispute.
10. The application for Postponement was opposed. The Applicant stated that the dispute arose on 02 November 2017 and the matter was still pending. The Applicant’s representative also requested a Postponement but the Council declined the request. The Applicant will be prejudiced if the matter can be postponed.
11. The dispute was referred to the Council on 11 December 2018 and was Conciliated on 08 March 2019. Postponement application should be dealt in two (2) stages. First to determine was, if the party seeking postponement provided suitable reason for the application and thereafter the I had to consider and deal with the question of prejudice.
12. IN THE ONLY PROFESSIONAL MODERN AUTOBODY CC T/A MODERN COLLISION CENTRE V MISA OBO P.J. GOUWS AND 2 OTHERS [JR288/2010 AND J2215 110) (DELIVERED ON 14 JUNE 2012) the Court held that the Commissioner has a discretion to grant or refuse a postponement and that there was no right to a postponement.
13. In exercising my discretion whether to grant or refuse a postponement, I considered the following aspects; reasons submitted, whether the application was timeously made, whether it was opposed and lastly if any of the parties will be prejudiced.
14. The Respondent submitted that they sought a postponement to engage with the authorities to get a mandate to resolve the dispute. The matter was Conciliated on 18 March 2018 and the Council notified parties about the date of the Arbitration on 17 May 2019. Parties were aware of the hearing on 17 May 2019. If there were any other engagement to be done, it could have happened between 17 May 2019 and 11 June 2019.
15. The Applicant party stated that he will be prejudiced if the matter can be postponed because the matter was pending since 02 November 2017. The Labour Relations Act requires Labour disputes to be resolved expeditiously without unnecessary delays. I am persuaded that the Applicant will be prejudiced if this matter can be postponed because he has been out of his post since 03 November 2017.
(Confirmation of verbal Ruling rendered on 12 June 2019.)
16. Application for Postponement was declined.
SURVEY OF EVIDENCE AND ARGUMENTS
THE APPLICANT’S TESTIMONY AND VERSION WAS AS FOLLOWS
17. Mr. Simanga Aaron Ntlola testified that he was employed by the Respondent on 01 January 1978. He was appointed as a Principal on 01 January 1995. The Respondent transferred him to Tjhebelopele Primary School on 06 April 2013 as a Principal. He was not afforded a fair Labour Practice by his Employers in respect of suspension and precautionary transfer.
18. He was suspended on 02 November 2017. The suspension was uplifted on 06 June 2018. To his surprise he was placed on a precautionary transfer on 07 June 2018. He was suspended in terms of Item 6, Schedule 2 of Educators Act 76 of 1998.
19. On 08 November 2017, he served the Respondent with a motivation letter seeking upliftment of his suspension. The Respondent responded to his letter on 06 June 2018 but however the letter was dated 17 May 2018. He reported on duty on 07 June 2018, but was given a notice of precautionary transfer which was dated 31 May 2018. The notice of precautionary transfer indicated that it was in terms of Section 8(1) (c) of Employment Educators Act. In terms of the date of upliftment of suspension and date of precautionary transfer, it meant that the upliftment suspension notice was served on him whilst there was already a precautionary transfer.
20. His suspension and precautionary transfer was not in accordance with Section 6(1) and (2) of Schedule 2 of Disciplinary Code and Procedures for Educators. He was served with the charge sheet on 18 December 2018. He appeared at the Disciplinary hearing on 14 January 2019, but the hearing was re-scheduled without a future date because of non-availability of the Presiding Officer. He was charged with contravention of Section 8(1) (a) of the Employment Educators Act 76 of 1998.
21. He has been on suspension and precautionary suspension for approximately one (1) year and seven (7) months. He was not aware of the Disciplinary hearing which was scheduled on 23 April 2019. His Union didn’t inform him about that date. In terms of Section (3) (a) his Disciplinary hearing was supposed to have been concluded within one (1) month of the transfer or suspension. The Presiding Officer failed to commence the matter within ninety (90) days from the date of his suspension.
22. He was prejudiced by both suspension and precautionary transfer because he felt degraded, useless and was even diagnosed with depression. He was receiving medical treatment from a Psychologist and Psychiatric. The Community thought that he was a thief who stole School money. At the District Office, he worked like a Messenger or Cleaner. He sought reinstatement to his post. Applicant’s case was closed.
RESPONDENT’S TESTIMONY AND VERSION WAS AS FOLLOWS:
23. Mr. Teboho Mokoena testified under oath that he worked for the Respondent as Deputy Director: Conduct Management. He knew the Applicant because he was informed about his alleged misconduct. The Respondent uplifted the suspension of the Applicant after investigation report was submitted to Anti-Corruption Unit, but the Unit requested further investigations.
24. The Respondent felt that the presence of the Applicant at the School will be prejudicial. The Department placed the Applicant on a precautionary suspension whilst investigation was underway. The suspension of the Applicant was uplifted on 17 May 2018. The Respondent was unable to conduct the Disciplinary hearing before investigation was completed. He was not part of the investigating team but he was informed that some of the potential witnesses were involved with examinations, Schools were closed, other documents were outstanding and the matter was complex. The Investigators also informed him some members of the School Governing Body were not traceable at some point.
25. The Respondent constantly communicated with the Applicant’s Trade Union Naptosa between 07 June 2018 and 18 December 2018. They also informed the Union that the Applicant was not co-operating with the investigation team. The Applicant was served with a notice to appear at a Disciplinary hearing some time in December 2018 after completion of investigation.
26. On the day of the Disciplinary hearing parties agreed to a postponement because of non-availability of the Presiding Officer and also submission of other documents that might have assisted with a possible settlement or withdrawal of the charges. The hearing was set down on 23 April 2019, but the matter was postponed as per request of the Union.
27. They were unable to set a new date of the Disciplinary hearing because the Union of the Applicant informed them that the Applicant was allocated a new representative who was not ready to proceed with the hearing. The Applicant’s suspension was uplifted after seven (7) months. The Respondent completed an investigation six (6) months after the Applicant was transferred. The Respondent didn’t conduct a Disciplinary hearing within sixty (60) days of the Applicant’s suspension nor sixty (60) days within precautionary transfer.
28. Section 3 (a) of Disciplinary Code and Procedures for Educators stated that if an Educator was suspended or transferred, the Employer must do everything possible to conclude a Disciplinary hearing within one (1) months of the suspension or transfer. The matter was complex hence the prolonged investigations and were unable to commence and conclude the hearing within prescribed time periods. The Respondent’s case was closed.
ANALYSIS OF EVIDENCE AND ARGUMENTS
29. Both the Applicant and the Respondent led testimony of single witness. The Applicant argued that his suspension and precautionary transfer was unfair and amounted to Unfair Labour Practice. The Respondent argued that both the suspension and precautionary transfer were fair and didn’t amount to Unfair Labour Practice.
30. The Applicant only challenged the period of suspension which exceeded the period stipulated in a Disciplinary Code. The Applicant based his contention on Schedule 2, of Disciplinary Code and Procedures for Educators Act No. 1 of 2004 as amended.
31. Section 6 (1), (2), (3) (a), (b), (c) and (d) of the above-mentioned Act states that:
(1) 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 (3) months.
(2) In case of misconduct in terms of Section 18, the Employer may suspend an Educator in accordance with the procedure contemplated in sub item (1), or transfer the Educator to another post if the Employer believes that the presence of the Educator may jeopardise any investigation into the alleged misconduct, or endanger the well-being or safety of any person at the workplace.
(3) (a) If an Educator is suspended or transferred, the Employer must do everything possible to conclude a Disciplinary hearing within one (1) month of the suspension or transfer;
(b) The Presiding Officer may decide on any further postponement. Such a postponement must not exceed ninety (90) days from the date of suspension.
(c) If the proceedings are not concluded within ninety (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.
(d) At the enquiry contemplated in paragraph (c), the Employer may after given the Educator an opportunity to make representations, direct that the further suspension will be without pay.
32. The Applicant testified that he was charged for contravening Section 18(1) (a) of the
Employment of Educators Act 76 of 1998. Section 6 (2) of Schedule 2, Disciplinary Code and Procedures for Educators is applicable. The Respondent was well within their rights to have suspended the Applicant after a fair procedure was followed. Section 3 (a) of the above Code (supra) states that: “The Employer must do everything possible to conclude a Disciplinary hearing within one (1) month of the suspension.”
33. The provisions of Section 3 (a) of Disciplinary Code and Procedures for Educators was not complied with because the Disciplinary hearing was not concluded within a month of the suspension. The Respondent contended that the misconduct was complex but no evidence whatsoever was tendered about the complexity of the misconduct. The only witness of the Respondent testified that he was not part of the investigation team but he heard that the investigations were hampered by the following: Applicant’s lack of co-operation, School exams, Closure of Schools, Non-availability of some members of S.G.B. etc.
34. The Applicant was suspended on 02 November 2017 and his suspension was uplifted on 06 June 2018. Prior to the upliftment of the Applicant’s suspension the Respondent failed to comply with Section 3 (a) (b) (c) and (d) of the Disciplinary Code (supra).
35. IT WAS HELD IN SAPO LTD V JANSEN VAN VUUREN (NO) & OTHERS  8 BLLR 798 (LC) THAT:-
“A suspension even whilst investigations are underway, amount to an Unfair Labour Practice, if the period of suspension exceed the period stipulated in a Disciplinary Code, Collective Agreement, Regulations or Contract of Employment. See also SOUTH AFRICAN BREWERIES LTD (BEER DIVISION) V WOOLFREY & OTHERS  5 BLLR 525 (LC).”
36. As illustrated in the above cases, when suspension exceeds period stipulated in a Disciplinary Code despite the fact that investigations is still on-going, that suspension amounts to Unfair Labour Practice. The Applicant’s suspension exceeded period stipulated in the Code, therefore his suspension amounted to an Unfair Labour Practice.
37. The Applicant also challenged his precautionary transfer. The Applicant based his argument also on Section 6 (3) (a), (b), (c) and (d) of Schedule 2 of Disciplinary Code and Procedures for Educators. Similar to the Applicant’s challenge on unfair suspension, he also challenged the period of precautionary transfer in terms of the above-mentioned Disciplinary Code. The Code states that if an Educator is transferred as a result of misconduct, the Employer must do everything possible to conclude a Disciplinary hearing within one (1) month of transfer.
38. The Applicant was placed on a precautionary transfer on 07 June 2018 until to date. The Respondent argued that investigations was finalized around December 2018. Based on the evidence before me it took the Respondent from November 2017 until December 2018 to finalize the investigations. Six (6) months after the investigations was completed the Disciplinary hearing has not yet commenced. I have taken note that in January 2019, there was no Presiding Officer, and the Applicant’s Union requested a postponement of the hearing in April 2019 but still there is no justifiable reason why the hearing has not yet commenced.
39. It is trite Law that Labour Relations Act requires Labour disputes to be resolved expeditiously. The Applicant have been out of his post since 02 November 2017 and this dispute is still pending, after nineteen (19) months. The delay in finalization of this dispute is prejudicial to the Applicant and unfair. It is also trite Law that Justice delayed is Justice denied. As already stated above in the case of SAPO LTD V JANSEN VAN VUUREN NO & OTHERS that any period of suspension if it exceed the period stipulated in a Disciplinary Code it amounts to an Unfair Labour Practice. The precautionary transfer of the Applicant exceeded the period stipulated in Schedule 2, Section 6 (3) (a) therefore the precautionary transfer of the Applicant is unfair and amounted to Unfair Labour Practice.
40. The Respondent, Department of Basic Education, Free State committed an Unfair Labour Practice with the suspension and precautionary transfer of the Applicant, Mr. Simanga Aaron Ntloba.
41. The Respondent is ordered to reinstate the Applicant, Mr. Simanga Aaron Ntloba to his post of Principal of Tjhebelopele Primary School with effect from 27 June 2019.
42. The Applicant is ordered to report for duty at Tjhebelopele Primary School on 09 July 2019 at 07:00.
Panelist: LEKUKA MORE