Case Number: PSES186-19/20EC
Province: Eastern Cape
Applicant: NEHAWU obo Matshexana, Loyiso and 3 others
Respondent: Department of Higher Education & Training
Issue: Unfair Labour Practice - Suspension
Venue: East Cape Midlands College in Uitenhage
Award Date: 19 November 2019
Arbitrator: Pumeza Ndabambi
Case Number: PSES186-19/20EC
Commissioner: Pumeza Ndabambi
Date of Award: 19 November 2019
In the ARBITRATION between
NEHAWU obo Matshexana, Loyiso and 3 others
Department of Higher Education & Training
Mr Phumzile Matu – NEHAWU Official
Union/Applicant’s address: 2 Ring Road
Old ADT House
Employer’s representative: Mr L. Mpati – Assistant Director: Labour Relations
Respondent’s address: East Cape Midlands College
DETAILS OF HEARING AND REPRESENTATION
1. This matter was referred for arbitration to the Education Labour Relations Council (ELRC) in terms of section 186(2)(a) of the Labour Relations Act No. 66 of 1995, as amended (the LRA). The arbitration was heard at East Cape Midlands College in Uitenhage on 30 July 2019, 26 September 2019 and was finalized on 24 October 2019.
2. The Applicants, Loyiso Matshexana, Nandipha Dyakumeni, Abongile Sofute and Phindiwe Mthwalo, were represented by Mr Phumzile Matu, an official of NEHAWU. The Respondent, Department of Higher Education, was represented by Mr Lungisa Mpati, the Assistant Director: Labour Relations.
3. Both parties agreed to submit written closing arguments on 31 October 2019 and only the Applicant filed their closing arguments on 31 October 2019.
4. Ms Ayanda Matata provided interpretation services on 30 July 2019 and Mr Mbulelo Ndabambi interpreted on 26 September 2019 and 24 October 2019.
5. The proceedings were manually and electronically recorded.
ISSUE TO BE DECIDED
6. I am required to determine whether or not the Applicants’ suspension constitutes and unfair labour practice, and if so, determine the appropriate remedy.
BACKGROUND TO THE DISPUTE
7. The Applicants were suspended on 12 March 2019 with pay. The Applicants are challenging fairness of the suspension in that the Respondent failed to give intention to suspend, failed to lift the suspension when investigation was completed and did not comply with Resolution 1/2006. The Applicants pray for the suspension to be lifted.
SURVEY OF EVIDENCE AND ARGUMENT
8. The version of the Applicants was led through the evidence of two witnesses, Mr Loyiso Matshexana (Mr Matshexana) and Ms. Abongile Sofute (Ms. Sofute), who are both Lecturers at the Respondent’s Heath Park Campus and a bundle of documents.
9. Mr Matshexana testified that he is a Lecturer at Heath Park Campus as well as a shop steward and is also the Chairperson of NEHAWU in the institution.
10. They had a national strike as a union which was called off on 28 February 2019. They went back to work and they were locked out as NEHAWU members. There was a settlement agreement reached between the union and the Respondent. In the said settlement agreement clause (q) of the same agreement provided as follows: -
(q) Cessation of hostilities
1. The department commits that there will be no victimization or intimidation of members and
shop stewards after the strike.
2. The parties commit to do an assessment of the impact of the strike.
11. His understanding of that agreement is that the Respondent reviewed the agreement within twenty-four (24) hours. They were locked out because they wore NEHAWU t-shirts because other employees were given access to the campus except for NEHAWU members. He views that as harassment and intimidation of NEHAWU members.
12. They received letters on the day of the suspension and after that they contacted the regional office of the union to check if they received any communication of a suspension as he is a Regional Executive Committee member and the Regional Secretary received nothing to that effect. The office then called management on the issue as they had no idea of an intention to suspend shop stewards. They wrote to the Respondent stating that they are raising a serious concern in that the shop stewards were suspended without following Schedule 8 in terms of a consultation, but that the union was only informed.
13. As Educators they go on holiday but theirs is a working holiday. When they are behind schedule, once in a while they are asked to attend on request or by agreement. Marking is done over holidays. They are not paid on holidays they ensure that students are ready for exams. Mr Matshexana confirmed that their suspension was pending an investigation. They never received any report but heard from Mr Mpati that the investigation was completed. The report was signed on 15 April 2019. They did not get a response as to why they were still on suspension if the investigation was completed. His opinion is that the continued suspension is victimization of NEHAWU shop stewards as they led the national strike in pursuing members’ interests. The suspension is therefore unfair and unreasonable.
14. He was served with a notice to appear before a disciplinary enquiry dated 10 June 2019 and they indeed appeared before such a hearing. There was no extension of the suspension by the Respondent. He stated that it is incorrect and misleading to state that their suspension had nothing to do with the strike because on the first day after the strike there was a violation of the settlement agreement.
15. As an Educator he is an employee of the Respondent and passionate about his work. The allegations are misleading. They were asked by the students to intervene and lecturing continued after the strike. Because of their student/worker relationship, their intervention was sought by the students. The commissioner must lift the suspension and students are suffering and want them to return to work. There has not been evidence regarding breakdown of relationship with the employer.
16. Under cross-examination Mr Matshexana stated that he had five (5) years’ service with the Respondent and is familiar with PAM document.
17. The second witness, Ms Sofute testified that she is employed as a Lecturer by the Respondent since 2014 and is based at Heath Campus. She was suspended on 12 March 2019 and was made aware of such suspension the following day, 13 March 2019. She was never informed of the employer’s intention to suspend and she expected that since she is a shop steward and that such a provision is contained in Schedule 8: Item 2 of the LRA. They therefore did not follow the provisions of Schedule 8 in that it is the union that asked them why a Schedule 8 consultation was not initiated.
18. On 27 March 201 there was a meeting between the union and management, including the Principal, in which the union requested that the suspension be uplifted. The employer said they would like to meet and deliberate. There was agreement to meet on 5 April 2019 and before the date they received communication to the effect that the meeting is cancelled and would sit the following week early. After they heard nothing they spoke of a submission and the Applicants wanted to go back to work. He views this delay as reluctance by management to talk to the union due to tensions after the strike as they were locked out.
19. An agreement was reached that dealt with Cessation of Hostilities. The Respondent did not implement that agreement as they were still viewed as problematic. The Respondent does not want their union, they do not want their t-shirts and locked them out because they wore t-shirts. Ms Sofute disputes the allegations of instigation of students and disruption of learning leveled against them and states that the Respondent did everything to throw their weight and used the meeting they had with students.
20. There was a strike by students before the meeting, after which there was no strike. Students were in class after the strike. Students were unhappy about starting their assessments the following week. The Senior Lecturer called a meeting to sit and review the time table and were called to attend the meeting with students. She does not know any protocol for meetings.
21. As Lecturers they have a working holiday and she had 300 scripts to mark over the holiday and had to submit marks by the first day of school. They work from home and do not have to report at campus. There is no additional remuneration as they were told they are remunerated over the holidays.
22. She stated that she does not understand why they are investigated without their input. She is aware that the investigation was completed. They were charges against them. The suspension is not fair and they asked for the suspension to be lifted. There was no stage that the Respondent requested extension of the suspension.
23. Under cross-examination she stated that there is nothing that says it is possible to institute a disciplinary hearing without investigating. The purpose of a consultation is to ensure that employees are not victimized as employers tend to bash unions. It is a legal requirement to consult a union. Ms Sofute stated that she is not really familiar with PAM document but she understands the provisions on leave to be that if she is doing her marking she is not required to report at work. She states that she is not aware of any protocol when they want to hold a meeting.
24. Ms Sofute further admitted that there is nothing in the Schedule 8 document that says the employer must consult the union in respect of a suspension. She confirmed that during the investigation she was never interviewed.
25. It is the Applicant’s argument that the Respondent did not adhere to the provisions of Resolution 1 of 2003 in that the 60 days must be calculated using working days must be rejected. It is argued by the Applicant that there were no facts presented before the chairperson to postpone or extend teh 60 day period. That the provision implies that if 60 days expires without a hearing the suspension must be lifted except if the hearing was convened within 60 days and the chairperson granted an extension. The Applicant further argued in terms of Nyathi v Special Investigation Unit (2011) 32 ILJ 2991 (LC) that if the suspension expired after 90 days and that the extension thereafter is unlawful. The Respondent did not request extension at the disciplinary hearing. The Respondent was therefore obliged to request an extension for a certain period.
26. The Respondent led the version of two witnesses, Mr Vukile Hewana (Mr Hewana), Mr Charl van Heerden (Mr van Heerden) and a bundle of documents, the summary of which is outlined hereunder: -
27. Mr Hewana stated that he is the Deputy Principal: Corporate Services. He is familiar with the collective agreement, Resolution 1 of 2003 which is the disciplinary code and procedure. They received a report from the Campus Manager – Mr Kurt Dorfling in terms of what happened on 7 March 2019 and based on that report hey took a decision to suspend the employees.
28. According to the report on the 7th there was a meeting between the Lecturers and students and in terms of the report the meeting was convened by the Lecturers. The meeting was illegal in that the Lecturers had no permission to hold a meeting. The decision to suspend was based on the following:
i. They did not want them to interfere with the investigation;
ii. They did not want them to interfere with the evidence;
iii. They did not want them to intimidate witnesses
iv. Their responsibility is to ensure there is peace and stability.
29. The disciplinary code and procedure provides for suspension or transfer. They did not see it practical to transfer to other campuses because the Applicants are shop stewards and could influence processes and if they were inside they would have access to information like emails, etc.
30. According to Mr Hewana the Respondent is in possession of messages and voice notes from Amanda Mncono who was allegedly manhandled in the process. Resolution 1 of 2003 provides that if an employee is suspended or transferred as a precautionary measure, the employer must hold a disciplinary hearing within a month or 60 days, depending on the complexity of the matter and the length of the investigation. The chair of the hearing must then decide on any further postponement. The Respondent has complied with this requirement. Charges were sent to the employees on 12 June 2019 and the hearing was scheduled for 25 – 27 June 2019. The union asked for postponement and it was granted on 24 June 2019. The matter sat on 17 July 2019.
31. The investigation had the preliminary investigation stage and by 15 April 2019 the investigation process was not finalized. The investigating officer must compile a report and an investigation is ongoing until closed. The disciplinary code and procedure is silent and the employer is therefore not obliged to consult in terms of a precautionary suspension. On 11 March 2019 the Respondent wrote to the union indicating their intentions to suspend shopstewards, a copy of which is attached to the Respondent’s bundle. They are obliged to consult in terms of the charges as employer.
32. The purpose of the letter was for the parties to consult and find alternatives to resolve the matter. A letter dated 23 April 2019 was sent by the Respondent to the union in which they invited the union for a consultation meeting. As a college it is clear that the meeting is prescribed by the LRA and in that session they could have found each other.
33. They had a session on 27 March 2019 as a result of the union wanting to meet and proposals were tabled. On 5 April 2019 the Principal was not available. On 25 April 2019 the union sent a letter to the Respondent stating that the Respondent took too long to respond and that they are referring the matter to the GPSSBC. As far as the respondent is concerned, attempts to consult were made to the best of their ability and the union had no interest to consult.
34. Mr Hewana made reference to the settlement agreement reached between the union and the Department of Higher Education & Training particularly the clause on Cessation of Hostilities. He stated that the reasons for the suspension are not related to the strike and the Respondent complied with clause 9. The suspension is based on issues pertaining to the meeting of the 7th March 2019 and the report that was sent to him.
35. Under cross-examination he stated that he reiterated that they complied with Resolution 1/2003 because the charges were served on 17 June 2019 and the hearing set for 27 June 2019. The union applied for a postponement and the chairperson of the hearing decides on further postponements. Suspension is a prerequisite of the employer and the hearing was postponed. There was no extension of suspension. The Applicants were suspended on 12 March 2019 and up to the date of the arbitration and is a continuous process without any extension.
36. He stated that he was not part of the hearing and is not in a position to know what transpired therein. He confirmed that they received a report from Amanda Mncono with voice notes regarding intimidation and they had an obligation to protect students against intimidation as leaders. He further confirmed that attempts were made to consult the union so that issues can be resolved. They wrote to the union after 27 March 2019 and the union did not pitch. He disagreed that the suspensions are as a result of the NEHAWU strike as they received a report on 8 March 2019. He stated that in terms of the report received it is the Applicants that called the meeting.
37. Mr van Heerden testified that the Applicants were allegedly involved in some serious offence. Their presence would jeopardize the investigation and endanger the wellbeing of others. The meeting they held amounted to incitement, leading students to disagree with the school’s calendar. There were serious concerns of safety and stability.
38. They decided against transfer as they would not transfer a problem. The Applicants carried a serious risk of continuing with the behavior. They had to weigh that with possible outcomes and the safety and security of everybody else. It was a risk that would destabilise the academic calendar. There was a series of voice notes circulated and there was one incident where a student was allegedly assaulted and that was serious.
39. A precautionary suspension was effected and a disciplinary hearing set down within 60 days. The risk still existed even if investigation was finalized and the unbecoming conduct continued on Facebook. The continuing disciplinary enquiry is a justification for the suspension. He stated that a disciplinary hearing is an investigation on its own.
40. He stated that there is no requirement of a consultation for suspension on Schedule 8 of the LRA. They wrote to the union on 11 March 2019 they never responded. Consultation is a requirement if you charge. They issued a notice to institute a disciplinary process against shopstewards. A consultation meeting was scheduled for 27 March 2019. Correspondence from the union on 25 April 2019 stated that they were referring the matter to the GPSSBC and that they would not attend the consultation meeting. There was therefore more than one (1) attempt to consult.
41. The strike ended on 27 February 2019 and the misconduct in question occurred on 7 March 2019, after the strike. There is no victimization due to the strike. The suspension will continue until the disciplinary hearing is finalized. There has been continuance in open forums of instability. It has been proven that since suspension the campus is quiet, teaching and learning is taking place and there is no instability.
ANALYSIS OF EVIDENCE AND ARGUMENT
42. Section 23 of the Constitution gives the right to fair labour practices, a value given effect to by section 185 of the LRA which states that every employee has a right not to be unfairly dismissed or subjected to unfair labour practices. In this matter the Applicants bear the onus to prove that the conduct complained of amounts to an unfair labour practice.
43. The Applicants were suspended pending an investigation into allegations of misconduct that occurred on 7 March 2019. The Applicants are employed as Lecturers by the Respondent. In this matter it is common cause that: -
a. There was a NEHAWU national strike that ended on 27 February 2019;
b. The Applicants were served with notices of suspension on 12 March 2019;
c. The Applicants were served with charge sheets on 12 June 2019;
d. The hearing was set down for 25 – 27 June 2019;
e. The hearing was postponed on 24 June 2019;
f. The hearing commenced on 17 July 2019.
g. The Applicants were still on suspension as of the date of the arbitration; and
h. The hearing was still continuing as of the date of the arbitration.
44. It has been the Applicants’ evidence that there was no consultation envisaged in Schedule 8 of the LRA by the Respondent, a fact placed in dispute by the Respondent by stating that there is no such an obligation in Schedule 8 of the LRA to consult in respect of a suspension. Schedule 8 according to the Respondent is silent in respect of suspensions. The Respondent further stated that their attempts to consult or engage the union to find alternatives to resolve the issue were frustrated by the union through a refusal to attend a meeting scheduled for 25 April 2019 where they were advised by the union that they would not be attending the meeting as they have referred the matter to the GPSSBC.
45. The Applicants were suspended on 12 March 2019 and the 60-day period provided for in Resolution 1 of 2003 (the Disciplinary Code) lapsed on 11 May 2019. The Disciplinary Code provides that the employer must hold a disciplinary hearing within a month or 60 days, depending on the complexity of the matter and the length of the investigation. The chairperson of the hearing must then decide on any further postponement.
46. The notice of a hearing was served on 12 June 2019, 32 days after the 60-day period. It is this period that the union views as being in breach of the Disciplinary Code. The Respondent’s evidence is that they took into account the school holidays in between and did not count the period. In the ELRC Constitution the calculation of time periods is to exclude the first day and include the last day. There is no provision of exclusion of school holidays. The Disciplinary Code also states that the employer must hold a disciplinary hearing within 60 days. I therefore find that the disciplinary hearing commenced outside the 60-day period.
47. The Respondent’s evidence is to the effect that there were allegations of intimidation of a student, Mncono, and therefore the risk to safety of students and everybody else existed, there was also a risk of interfering with the investigation and witnesses. This is the evidence used to justify the suspension.
48. After the hearing commenced, the decision of a further postponement of a hearing rests with the chairperson. Clause 7.2.b. of the Disciplinary Code states that a precautionary suspension is a precautionary measure that does not constitute a judgement and must be on full pay.
49. There are no questions of complexity of the investigation, and in fact the investigation was finalised in April 2019 already. The issue is that the disciplinary hearing is still continuing. Coming to the contention by the Applicants of the failure of the Respondent to consult in terms of Schedule 8 regarding the suspension. I find that the Respondent made attempts to engage the union in respect of the matter and advised the union of their intention to suspend the Applicants.
50. The union did not attend the proposed meeting stating that the Respondent took too long they have approached the GPSSBC for conciliation and that any proposals can be made in that forum. Schedule 8 Item 4(2) states that discipline against a trade union representative or an employee who is an office bearer of or official of a trade union should not be instituted without first informing and consulting the trade union. At the stage of investigation there was no discipline instituted in terms of the provisions of Schedule 8. The Respondent informed the union of its intention to suspend the Applicants. There is no specific reference to suspension in Schedule 8. I therefore find that the Respondent informed the union and that there is no requirement of a consultation at the stage of suspension.
51. I have found that the notices were served 32 days after the 60-day period provided for in Resolution 1/2003 and there was no extension or communication to that effect that the suspension had been extended. Resolution 1/2003 is a collective agreement that has a binding effect on both parties as stipulated in section 23 of the LRA. In this regard I therefore find that the Respondent breached the provisions of Resolution 1/2003 and that such a breach prolonged the suspension beyond the agreed timelines. I therefore find that extending the suspension beyond the agreed timelines was unfair.
52. Having found that the Respondent is in breach of Resolution 1/2003, I must deal with the prejudice suffered by the Applicants as a result of this breach. Resolution 1/2003 provides that a precautionary suspension must be with full pay, and the respondent has complied with this in the case of the Applicants. Secondly the Respondent indicated that there was a risk of safety as a result of a report received that Mncono was intimidated or assaulted, and that they had a duty to ensure everyone’s safety. The suspension therefore was a response to risk management to avoid liability that may arise as a result of incidents of violence. In Koka v Director-General: Provincial Administration North West Government  7 BLLR 874 (LC) the Court distinguished between two kinds of suspension. The first being the holding operation where the purpose of the suspension is for reasons of good administration. The second being a form of a disciplinary penalty. In this case the holding operation is the basis for the suspension.
53. The fact remains that the suspension was with pay which mitigates the prejudice and this is confirmed in the case of Long v South African Breweries (Pty) Ltd and Others(2019) 40 ILJ 965 (CC) where the Constitutional Court held as follows: -
‘In determining whether the precautionary suspension was permissible, the Labour Court reasoned that the fairness of the suspension is determined by assessing first, whether there is a fair reason for suspension and secondly, whether it prejudices the employee.18 The finding that the suspension was for a fair reason, namely for an investigation to take place, cannot be faulted. Generally where the suspension is on full pay, cognisable prejudice will be ameliorated. The Labour Court’s finding that the suspension was precautionary and did not materially prejudice the applicant, even if there was no opportunity for pre-suspension representations, is sound’.
54. Having found that prolonging the suspension beyond the required 60 days is unfair, I must consider the remedy. The Applicant prayed for the suspension to be lifted with immediate effect throughout the arbitration. It appears in the applicant’s closing arguments that the Applicants now seek two (2) months’ compensation and that the suspension be declared unlawful.
55. I am therefore not empowered to pronounce on lawfulness. Having found that the suspension is unfair and that there is no prejudice to the Applicants, based on Long v South Africa Breweries above, I find that an order for upliftment of the suspension to be fair and just under the circumstances.
56. The suspension of the Applicants, Loyiso Matshexana, Nandipha Dyakumeni, Abongile Sofute and Phindiwe Mthwalo, by the Respondent, Department of Higher Education, constitutes an unfair labour practice.
57. The Respondent, Department of Higher Education, is ordered to uplift the suspension of the Applicants, Loyiso Matshexana, Nandipha Dyakumeni, Abongile Sofute and Phindiwe Mthwalo, with effect from 25 November 2019.
58. The Applicants, Loyiso Matshexana, Nandipha Dyakumeni, Abongile Sofute and Phindiwe Mthwalo, must report for duty on 25 November 2019.
Panellist: Pumeza Ndabambi