Case Number: ELRC749-19/20/KZN
Applicant: THANDI HELEN MABIKA
Respondent: Department of Education KwaZulu-Natal
Issue: Unfair Dismissal - Misconduct
Award Date: 30 November 2020
Arbitrator: Karen Charles
Commissioner: Karen Charles
Case No.: ELRC749-19/20/KZN
Date of Award: 30 November 2020
In the ARBITRATION between:
THANDI HELEN MABIKA Applicant
DEPARMENT OF BASIC EDUCATION (KWAZULU NATAL) Respondent
Union/Applicant’s representative: M MBAMBO
Respondent’s representative: N / A
DETAILS OF THE HEARING AND REPRESENTATION
1. This arbitration was heard on 27 November 2020 via the virtual platform, ZOOM. Mr Mbambo, a union official from SADTU, represented the applicant, Thandi Helen Mabika. There was no appearance from the Respondent, Department of Basic Education: Kwazulu Natal.
2. I indulged the respondent until 11h00 at which time, the case management officer from the ELRC, Sello Makinta, logged on to inform me that early that morning, a representative from the Respondent had requested the log in details yet again, and that they be sent to her personal email address. He had duly complied with the request. Later, she informed him that she had another arbitration in person before Commissioner Baker, but that she intended logging in order to deal with the matter before me.
3. Mr Mbambo submitted that the respondent had always been aware of the matter and that he would oppose any postponement of the arbitration. The applicant herself had been booked in, on even date, to seek medical treatment for the mental and physical strain that this suspension had caused her, but had elected to attend the proceedings, despite her condition.
4. Having regard to that fact that the respondent had been aware of the date of the hearing, had requested the log in details yet again and had made no attempt to log on in, some two hours later, is unacceptable.
5. If the applicant, herself visibly ill and anxious, could make herself available to attend, then the respondent could have ensured the presence of someone to, either attend the arbitration, or at least log on to make an application for postponement.
6. In terms of section 138(9) of the Labour Relations Act No 66 of 1995, as amended (LRA), in the interests of fairness and the expeditious dispute resolution, I exercised my discretion and proceeded with the matter in the absence of the Respondent.
ISSUE TO BE DECIDED
7. Whether the respondent had committed an unfair labour practice against the applicant in relation to a precautionary suspension.
BACKGROUND TO THE MATTER
8. The applicant had referred the matter to the ELRC for conciliation and which proceedings remained unresolved. The matter was then referred to arbitration and is now before me.
9. THANDI HELEN MABIKA testified that she is currently employed as a principal at a school within the Hlabisa district, namely the Ingaqa Primary School.
10. She has been employed with the department since 1993.
11. The applicant testified that she had been suspended from her employment on 8 November 2019, after an allegation of a mismanagement of school funds.
12. She was placed on paid suspension.
13. She believed that her suspension was unfair and too long and sought its upliftment.
14. She was suspended for more than 90 day without charges being preferred or even a hearing conducted. This is in breach of the policy on suspension.
ANALYSIS OF THE EVIDENCE
15. The applicant bears the onus of proving that the respondent’s conduct was unfair and had amounted to an unfair labour practice as defined in section 186(2) of the LRA.
16. The evidence that she adduced was plausible, credible and acceptable.
17. Her suspension for a whole year without disciplinary action is patently unfair, and it’s also a breach of its own policy regulating what it as an employer considered a fair period of suspension without discipline.
18. It has had ample time from November 2019 to date to investigate and lay charges against the applicant and it hasn’t done either of these two.
19. It is fair and equitable that the following award be made:
20. The respondent, the Department of Education: Kwazulu Natal committed an unfair labour practice relating to suspension by continuing suspending the applicant, Thandi Helen Mbika for a period of a year.
21. The respondent is therefore ordered to immediately uplift the suspension of the applicant and is further ordered to reinstate her to her position as principal, on the same terms and conditions that governed her employment prior to her suspension.