Case Number: ELRC 09-20/21 FS
Province: Free State
Applicant: Dr Kgano S.Sebeela
Respondent: Department of Education, Free State
Issue: Unfair Labour Practice - Suspension
Award Date: 10 October 2020
Arbitrator: Thabe Phalane
Panellist: Thabe Phalane
Case No.:ELRC 09-20/21 FS
Date of Award: 10 October 2020
In the ARBITRATION between:
Dr Kgano S.Sebeela
(Union / Applicant)
Department of Education, Free State
Union/Applicant’s representative: Mr Andile Doli- Attorney
Telephone: 018 462 2551
Telefax: 018 462 4743
Email: firstname.lastname@example.org/ email@example.com
Respondent’s representative: Mr Vuyisile Gubuza
Telephone: 057 391 7200
Telefax: 086 519 1619
DETAILS OF HEARING AND REPRESENTATION.
1. The arbitration proceedings took place on 25 September 2020 on the Zoom Virtual Platform. Both parties attended and the Applicant, Dr Kgoana Steve Sebeela was represented by Mr Andile Doli, an attorney from Waks Silent Incorporated, whilst the Respondent, Department of Educaton: Free State was represented by Mr. Vuyisile Gubuza, the Respondent’s Deputy Director, Dispute Management and Collective Bargaining.
2. The Respondent handed in a bundle of documents marked Bundle” R”, which is the letter uplifting the Applicants suspension. The parties submitted oral arguments before the end of proceedings and also agreed to submit written arguments on 30 September 2020, replies on or before 02 October 2020, and further replies, if any, on 05 October 2020. The Applicant submitted his written arguments on 30 September 2020 but the Respondent submitted on 08 October 2020, indicating that they did not receive the Applicants arguments on 30 September 2020. The Applicant further replied on 09 October 2020.
ISSUE TO BE DECIDED
3. I am required to determine whether the Respondent unfairly suspended the Applicant, and consequent thereon, to issue the appropriate relief.
4. There was no preliminary issued which were raised.
BACKGROUND TO THE ISSUE
5. The Applicant was employed as Principal at Repholositswe Secondary School. He was suspended on 24 February 2020 after allegations of misconduct against him were issued by the respondent.
6. The Applicant submitted that his suspension was unfair and he wanted compensation of 4 months.
7. The Respondent on the other hand submitted that the Applicants suspension was lifted on 15 September but the Applicant could not be reached at his address. A copy of the letter uplifting of the suspension was forwarded to his representative during the hearing and it therefore resulted in the remaining issue in dispute being whether the conduct of the Respondent was unfair and warranted an order of compensation or not.
SURVEY OF EVIDENCE AND ARGUMENT
APPLICANT’S EVIDENCE AND ARGUMENTS
8. I have summarized the Applicants’ submission and arguments in so far as it is relevant for the purposes of the award.
Dr Kgoana Steve Sebeela-Applicant
9. The Applicant was working as a Principal at Repholositwe Secondary School. He was issued with a letter of suspension in terms of section 6 (2) of the Employment of Educators Act 76 of 1998, on 24 February 2020. The suspension was made in order to provide the District with an opportunity to conclude a full investigation into the allegations against him.
10. The Applicant submitted that the Respondent committed an unfair labour practice against him in that there is no justifiable cause to believe prima facie that the Applicant committed an act of misconduct and that the continued presence of the Applicant would jeopardize any investigation or endanger the safety of any person.
11. The Respondent, having suspended the Applicant, failed to conclude the disciplinary hearing within 30 days from date of suspension. In addition, the District Director of Lejweleputswa District did not have the requisite capacity to suspend the Applicant, alternatively, she did not acquire the authority to suspend him.
12. The justifiable reason to suspend the employee must emanate from the allegations leveled against the employee and the gravity thereof. The Applicant argues that based on the allegations on the notice of suspension, the investigations could have been carried on successfully and he did not have to be suspended. The allegations are of a less serious to meet the standard of exceptional circumstances.
13. The disciplinary hearing should have been concluded before 25 March 2020, before the nation-wide lockdown was implemented, and any reference to the pandemic should not be entertained.
14. The district director is not the employer as defined in the Act. The Applicant therefore submits that his suspension was unfair because of the above reasons and in particular that the allegations against him were unfounded.
15. Compensation is not an award of damages but solatium for the infringement of his rights.
RESPONDENT’S EVIDENCE AND ARGUMENTS
16. I have again summarized the Respondent’s submission and arguments in so far as it is relevant for the purposes of the award
Mr Vuyisile Gubuza-Respondent’s representative
17. The Respondent can suspend the Applicant on full pay for a maximum period of three months. The suspension is in line with sub-item (6) (2) of Schedule 2 of the Employment of educators Act 76 of 1998. There was prima facie evidence that the Applicant engaged in misconduct and the nature of his misconduct warranted that he may be charged in terms of section 18 (2) of the Act.
18. The Respondent also took into consideration that the Applicant may jeopardize the investigations. His presence at the school may jeopardize the interests of the investigation or the interested parties. Given the nature of his work, he may have interfered with the documents that are going to be used as evidence, or even interfered with the witnesses who are his subordinates.
19. The school where the Applicant was a Principal received a consistent decline in grade 12 performance below the Provincial and District over a three-year period working from 20116.
20. The District introduced an intervention programme to boost performance of the learner attainment in general and grade 12 in particular. In 2019 the school still received a performance far below the Province and the District.
21. The Applicant was suspended on 24 February 2020. On 18 March the schools were closed due to the Covid-19 pandemic and were to reopen on 01 June 2020 for grade 07 and 12 but with strict regulations regarding social distancing and gatherings. The schools also closed from 27 July 2020 to 24 August 2020. There were no disciplinary hearings held by the Respondent, even the Council suspended all conciliations and arbitrations.
22. The transfer of the Applicant was in line with section 36 () of the Act, which provides for the delegation of certain powers by the HOD to the District Director. The HOD in the Free State has delegated some duties to the District Directors, amongst others the transfer of school based educators.
23. School based Educators refer to Educators based at a school starting from entry level 1 Educators, Head of departments at schools, Deputy Principal and Principal. The letter from SADTU is hearsay and was not discovered at the arbitration of this dispute. The suspension of the Applicant was fair, warranted and within the confines of the law.
24. For the better part of his suspension, the Applicant was, like any citizen not rendering an essential service, under lockdown and could not be at work. The Applicant was confined at home like his colleagues and any form of compensation is not warranted.
25. By lifting the suspension, the Respondent is not waiving any right to institute disciplinary action against the Applicant for the alleged misconduct.
ANALYSIS OF EVIDENCE AND SUBMISSIONS
26. The parties presented evidence as well as oral and written submissions which I have also considered when arriving at these findings. I have also referred to relevant case law which is applicable to this matter.
27. There are two types of suspension. The one is a suspension pending a disciplinary and the other is a suspension as a form of discipline. This matter relates to the forms, which is imposed for reasons of good administration.
28. In the case Sappi Forests (Pty) Ltd v CCMA and Others  3 BLLR 254 (LC) the Court held that it is normally unlawful and unfair to suspend an employee without pay pending a disciplinary enquiry, unless there is a collective agreement in place that authorize unpaid suspension or the employee agrees to a suspension without pay.
29. In the matter POPCRU obo Masemola and others v Minister of Correctional Services (2010) 31 ILJ 412 (LC) the Court, relying on Mogothle v Premier of the North West Province and Others (2009) ILJ 605 (LC), held that fairness before suspension required that the employer has a justifiable reason to believe, prima facie at least, that the employee has engaged in serious conduct, that there is an objectively justifiable reason to deny the employee access to the workplace based on the integrity of the pending investigation or some other relevant factor that would place the investigation or the interest of the affected parties in jeopardy .
30. The Courts however also held in SAPO v Jansen Van Vuuren NO and others (2008) 8 BLLR 749 (LC) that a suspension, even whilst the investigation are underway, amounts to an unfair labour practice if the period of suspension exceeds the period stipulated in a disciplinary code, collective agreement regulation or contract of employment.
31. The Labour Court also held in Dladla v Council of Mbombela Local Municipality and another (2) (008) 29 ILJ 1902 (LC) that damage to the employees’ image and reputation was not a ground for finding the suspension unlawful.
32. A Commissioner is obliged in terms of section 138(7) of the Labour Relations Act to provide brief reasons for any remedy awarded.
33. The test is not whether the Applicant has suffered patrimonial loss, but one of the factors to be considered. The other factors are how the employee was treated and the steps the employer had taken to ensure it complied with the Act.
34. In this matter there were a number of factors that affected the prosecution of the disciplinary hearing within the 30 day period from suspension. The Respondent throughout paid the Applicant his salary and it has also lifted the suspension, which is the real issue in dispute.
35. The Applicant has also been aware of the lockdown and closure of schools which occurred within the 30 day period of his suspension, and the Respondent cannot be faulted for not being operationally incapable of preparing for the disciplinary hearing within the required period.
36. It is therefore my finding that the Respondent has justifiable reasons for not being able to comply with the 30 day period of holding a disciplinary hearing against the suspended employee and cannot be held to have acted unfairly towards the Applicant. To award compensation in this instance will not be just and equitable in the circumstances.
37. In light of the above I deem the following award reasonable.
38. The Respondent, Department of Education: Free State has already uplifted the suspension of the Applicant and the Applicant is expected to be at work.
39. The Applicant, Dr Kgoana Steve Sebeela has failed to establish the existence of an unfair labour practice relating to suspension by the Respondent.