PSES 600-18/19 KZN
Text
Award  Date:
30 April 2021
Arbitrator: J.D. Vedan
Case Reference No.: PSES 600-18/19 KZN
Date of hearing: 30 April 2021


In the arbitration between:

Rayseelan Naidoo Applicant/Employee party

and


Department of Education– KwaZulu-Natal Respondent/Employer party


Applicant’s representative: Ms Pungi Pillay
Tel: 031-301 9441
E-mail: pungipassoc@telkomsa.net


Respondent’s representative: Mr A. Preethpaul
Cell: 083 446 2229
E-mail: Amy.Preethpaul@kzndoe.gov.za



DETAILS OF HEARING AND REPRESENTATION:



1. This arbitration was held at Durban Teachers Centre, College Road, Durban on 6 June 2019 and 15 October 2020. This arbitration was thereafter held via Zoom on 25 March 2021, 8 April 2021 and concluded on 9 April 2021.


2. The Applicant, Rayseelan Naidoo, was represented by Ms Pungi Pillay, an Attorney.


3. The Respondent, Department of Education–KwaZulu-Natal, was represented by Mr A. Preethpaul, its representative.


4. The parties were to submit written closing arguments by 16 April 2021, with the arbitration award being due on 26 April 2021.



BACKGROUND TO THE DISPUTE:



5. The Applicant began working for the Respondent in January 1982, as a Level 1 Educator. In February 2011, he was appointed as Principal of Pinetown Boys High School.


6. On 30 July 2018, the Applicant was placed on precautionary suspension by way of a letter of suspension, dated 16 July 2018, which stated that the duration of the suspension would take effect upon receipt of the letter, and would be for three calendar months or until the conclusion of his disciplinary hearing, whichever came first. However the suspension was never uplifted.


7. The letter was delivered by the then Acting Circuit Manager, Mr Sikhosana. Mr Sikhosana also informed the Applicant’s management staff that the Applicant had been suspended for financial mismanagement.
8. The school in question has in place a School Governing Body, a Finance Sub-Committee and a Treasurer.


9. The Applicant made various attempts to gather further details for the reasons for his suspension from the Respondent, but to no avail.


10. The Applicant then reported for duty on 26 October 2018, believing his suspension of three months had elapsed, and no disciplinary hearing was conducted. However while at the school, he received a telephone call from Dr E.V. Nzama, the Head of Department for the Province of KwaZulu-Natal, instructing him to leave the school premises within ten minutes, as the suspension had not been uplifted.


11. A disciplinary hearing was instituted, and adjourned on various occasions, however the Applicant retired before the matter culminated.


12. The Applicant then resigned from his position as Principal on 31 December 2019. Upon retirement, he was presented with a document from the Respondent, which stated that there were no pending charges against him. The document was a clearance certificate in respect of termination of service signed on behalf of the Head of Department on 4 December 2019, and also signed by the Applicant on the same date.


13. The Applicant alleged that the suspension was unfair, and led him to retire five years earlier than he would have retired had he not been suspended. He further stated that the allegations against him were made due to an unrelated issue he had with the Chairperson of the School Governing Body.


14. The Applicant alleged that the Respondent failed to comply with Schedule 2 of the Employment of Educators Act No. 76 of 1998, and failed to charge the Applicant timeously. In fact the Applicant alleged that the charge sheet was only given to the Applicant after the outcome certificate was issued, and no investigation report was made available to the Applicant.


15. The Respondent contended that there were justifiable reasons for the Applicant’s precautionary suspension due to the allegations made against the Applicant, and due to the fact that he would have access to the witnesses at the school, and also to documents to be used in the charges.


16. Moreover the Respondent was entitled to place the Applicant under precautionary suspension, and the Applicant did not suffer any prejudice, as he was paid fully during suspension.



ISSUE TO BE DECIDED:



17.1. Whether the precautionary suspension of the Applicant was fair?


17.2. Whether the Respondent complied with its policies and procedures in the continuation of the precautionary suspension?



APPLICANT’S EVIDENCE:



18. The Applicant stated that as Principal, he was in charge of the overall running of the school. He got along well with the staff and the members of the School Governing Body until 2018, when a problem arose with the Chairperson. However he always maintained a cordial relationship with the School Governing Body, and worked with them in the best interests of the school, community and leaners.
19. Prior to 2018, there had been no complaints raised against the Applicant.


20. He added that he did not have unilateral control over the School Governing Body, and stated that they took decisions together in meetings. School Governing Body meetings were held once a month, and the School Governing Body were fully constituted at all times.


21. The Applicant further stated that there was a Finance Sub-Committee in existence, and that the said Committee met on a monthly basis. Minutes of each meeting were captured, and there was transparency.


22. He stated that the Finance Sub-Committee would deal with all financial matters, and look at all payments made. Thereafter they present their report and recommendations to the School Governing Body, where a final decision is then taken.


23. The Applicant said that he cannot pay himself, as the system does not work like that. Section 38A of the South African Schools Act sets out the manner in which approval for such payments must be obtained. He added that all steps were followed by the Finance Committee. The School Governing Body, and the parents, approved the budget and all documents were signed before being submitted to the Department.


24. According to the Applicant, he was not the only one who had been paid in this manner. Many other teachers had also been paid. At one point, approximately twenty to twenty-five teachers were receiving these payments. None of these teachers had been charged, and no other school receiving such payments had such an issue.


24. According to the Applicant, he belongs to a coalition of Boys High School Principals throughout the country. The coalition has a yearly conference, and one of the points of discussion is the Section 38A payments. To his knowledge, no other Principal had been charged for this issue before. Further the Principals indicated that none of them received a reply from the department in terms of these applications. He added that he could not bring witnesses to testify to this effect as his hearing had been called off.


25. He added that a Principal’s salary is based on the number of staff at the school, so there is that additional amount paid. The Section 38A payment is an additional payment over and above the Principal’s salary, which is paid by the Department. This is for additional work done. These additional payments are also made to other Educators for extra work done outside their normal seven hours a day. This may pertain to extra-curricular activities, and in the case where Principals have to manage extra staff members employed by the School Governing Body. It appears this is the practice in the former Model C schools, who could afford to make such payments. It was also a mechanism to retain staff.


26. He stated that the Department raised no issues regarding these Section 38A payments since 2011. He did not introduce the system, as it was already carried out by the School Governing Body when he became Principal. The School Governing Body then continued with the policy that they implemented.


27. The Applicant stated that he received a call from the Acting Circuit Manager, Mr Sikhosana, on 27 July 2018. Mr Sikhosana telephoned the school, and asked for an Educator by the name of R. Naidoo. The Applicant advised that he was R. Naidoo, and Mr Sikhosana then told him that he would see him at the school on that Monday.


28. On 30 July 2018, Mr Sikhosana went to the school and presented a letter of suspension to the Applicant, stating that the Applicant had been suspended for financial mismanagement. Mr Sikhosana further informed the Applicant’s managerial staff about the suspension.


29. The Applicant noted that he had previously trained newly appointed Principals on financial management, as he had been an Accounting Educator.


30. The letter stated that the Applicant was placed under a precautionary suspension with immediate effect, and that the duration of the suspension would be for three calendar months, or until a disciplinary enquiry is concluded, whichever came first. The letter further stated that he should contact Mr Charles Ngcobo for enquiries.


31. The Applicant wrote to Mr Sikhosana and requested an explanation of the charges. Mr Sikhosana passed on the request to his senior, Mr Nkosi, the former Circuit Manager. Both advised the Applicant that they did not know the details of the situation.


32. The Applicant then wrote to Mr Ngcobo, who responded that he did not send the letter. He advised the Applicant that it had been generated by the Pinetown District, and he had been bypassed as the Head.


33. According to the Applicant, he had never mismanaged school funds. He further stated that he simply cannot mismanage funds, as he is not in charge of the school funds. The School Governing Body is in charge of the funds.


34. He stated that the school had been audited every three years, and there had always been a clean audit. He further added that since his suspension, the School Governing Body hired a forensic auditor to perform an audit at the school, but that the report had not been produced at the disciplinary hearing. He stated that had there been any irregularities, it would have been his responsibility.


35. The Applicant stated that he had not been provided with a report of the investigation.


36. He further stated that the letter of suspension was dated 16 July 2018, but had only been given to him on 30 July 2018. If the matter was serious, the Department would not have allowed him to be at school during that period.


37. According to the Applicant he was not given any notice prior to his suspension. He did not get a fourteen day period to oppose the suspension. He further added that his suspension letter was not in compliance with the Schools Act.


38. He left school the day he received the letter. Once his three month suspension was about to end, he sent the Department a courtesy letter advising them that his period of suspension was drawing to a close. He advised them that he would be reporting to the school. He then received a text message from Mr Nkosi advising him to address any queries to Mr Ngcobo, who knew nothing of the issue.


39. He further wrote letters to his Union Chairperson Mr Sosibo, and to Mr Sikhosana, but received no response.


40. The Applicant stated that he believes that the matter was mishandled by the Department. He was unable to get any information regarding the allegations against him, despite having submitted numerous requests.


41. He stated that he should not have been removed from the school as he would not have interfered with witnesses, and he was not a danger to anyone at the school.


42. The suspension and allegations against the Applicant also negatively affected his personal relationships and physical wellbeing.


43. On 26 October 2018, after the three month suspension had elapsed, the Applicant reported to school. Within forty-five minutes of being at the school, he received a stern telephone call from Dr E.V. Nzama, the Head of Department for the Province of KwaZulu-Natal, instructing him to leave the school in ten minutes. Dr Nzama told the Applicant that he had signed the suspension letter, and therefore he will be the one to give the Applicant a letter uplifting the suspension.


44. This had a negative effect on the Applicant’s mental state.


45. He added that the pass rate during his suspension had dropped from ninety to ninety-five percent to eighty-six percent.


46. The Applicant alleged that the entire issue arose from a problem he had with a parent at the school, who then became the Chairperson of the School Governing Body, Mrs Mkhwanazi.


47. According to the Applicant, Mrs Mkhwanazi’s son had been in a fight with another learner towards the end of 2017. The matter was dealt with by the teachers on duty, and the boys were made to shake hands. The Applicant was not involved, nor was he informed of the fight at that point. However on that afternoon, Mrs Mkhwanazi arrived at the school and demanded to see the Applicant. His secretary told Mrs Mkhwanazi that he was otherwise engaged, and referred her to the Deputy Principal, Mrs Chetty.


48. Mrs Mkhwanazi insisted on seeing the Applicant, and stated that he had no control in the school. She asked what he was doing about the bullies in the school, and demanded that he come and explain. She further demanded that the school pays the medical costs for her son.


49. The Applicant went to the Deputy Principal’s office to check on the issue, and was told about the demand. He saw no injuries on the child, and told her that the fight took place hours earlier. She stated that her son had serious injuries, and had to be taken the hospital due to an operation on his jaw.


50. The parent did not want to leave the school unless she obtained a letter stating that the school would pay the medical costs.

51. He added that Mrs Mkhwanazi works in the office of the Premier for the Province of KwaZulu-Natal.

52. The Applicant stated that he instructed his Deputy Principal to draft a letter stating that the school would assist in trying to get compensation from the parents of the other learner. He added that he could not commit the school to pay any funds, as he would need approval from the Finance Committee and the School Governing Body.


53. Mrs Mkhwanazi was upset, and swore while in the office. However the Deputy Principal managed to pacify her, and got her to leave the school.


54. A few days later, the same parent arrived at the school with Mr Nkosi and Mr Sikhosana. She had told them to investigate the matter. Further to that calls were made to the Pinetown District office stating that Pinetown Boys High had many issues of bullying that needed to be investigated. Another Official made an appointment on another date to investigate the same issue.


55. The Applicant alleged that the complaint had come from the Premier’s office and that Mrs Mkhwanazi used her position to influence the issue. According to the Applicant, she also stated that she would not pay school fees if the school did not compensate her.


56. The Applicant did not receive any correspondence from the Department with regards to this issue. He stated that the Department officials just pitched up at his school to conduct an investigation. The outcome of the investigation was not communicated to the Applicant. He was only instructed to submit a report on the events of the day in question.

57. Mrs Mkhwanazi then became the Chairperson of the School Governing Body. According to the Applicant, she did not approach the School Governing Body for the money.


58. The Applicant stated that when Mr Nkosi saw Mrs Mkhwanazi’s hostility towards the Applicant, he expressed his concern over how the school could run smoothly while there was a bad relationship between the Principal and School Governing Body Chairperson. The Applicant advised Mr Nkosi that he would sort out their problems. However the issues between them were never resolved.


59. He added that he did not contribute to the bad relationship. He just refused to do the wrong thing. He claimed that Mrs Mkhwanazi has been making things difficult for him ever since her appointment in an attempt to frustrate him.


60. According to the Applicant, the School Governing Body appointed a bursar at the school to handle finances. All records of payments are kept in a safe within the bursar’s office. He can request documents. However he stated that there was no way he could have taken the documents, as it is impossible for him to access the safe without the bursar’s knowledge. Further he has to sign for documents before taking them.


61. He stated that his suspension exceeded ninety days, and he did not receive a charge sheet. The only communication received regarding the extension of his suspension was from Dr Nzama, and this communication was not according to the rules. The Applicant stated that the Respondent did not comply with Schedule 2 of the Employment of Educators Act.


62. He added that it took approximately nine months to initiate his disciplinary enquiry. He was also not given an investigation report. Further he only received a charge sheet on 11 December 2018, when he met Mr Preethpaul at a Mall to collect same. This was against protocol in terms of the time frame, and the manner in which it was given to him.


63. He further added that he was not provided with all the documents he required for the charges.


64. The Applicant stated that he suffered tremendous damage to his reputation due to the suspension, and the way it was handled.


65. He further added that the scourge of this suspension, and resultant damage to his reputation, caused him to lose out on various community and career opportunities. He stated that if it had not been for the suspension, he would have worked until the age of sixty-five.


66. According to the Applicant, there were initially twenty-five charges against him. This number was then brought down to seven. The Department thereafter realised that none of the charges held any weight. There was no reason to suspend him.


67. The Applicant believes that his matter was withdrawn, as he states that those were the words used by Mr Mabaso at his hearing. Further according to his clearance certificate in respect of his retirement, he had no disciplinary matters pending against him.


68. For the above reasons, the Applicant is seeking twelve months of his salary as compensation. He earned R58 646-40 per month.


69. The Applicant stated that he did receive Section 38A payments from the School Governing Body, and that the payments were a matter between the School Governing Body and the Department of Education. The School Governing Body did not receive any authority from the Department, and went ahead and made these payments despite that. He stated that he did inform them of the approval issue, but they continued with the payments. He maintained that it was the School Governing Body’s responsibility.


70. With reference to his charge sheet, the Applicant stated that charge 1 had no relation to the matter. The charges were also withdrawn. He further added that none of the allegations had been proven.


71. The second witness for the Respondent, Dr Erna August De Lange, testified that she is the Provincial Government Officer for the Governing Body Foundation. She added that the Foundation had membership from some of the wealthiest schools.
72. She stated that she had not been to a disciplinary enquiry for the Applicant. She knows him as a Principal, and he attended the School Governing Body meetings.


73. She added that the Applicant was a very dedicated Principal, who was concerned about the children of the school. She stated that he was caring and precise about management, and did a good job.


74. Dr De Lange stated that according to the Act, the School Governing Body is responsible for financial management at a school. There has to be a Financial Committee appointed by the School Governing Body, and this committee then runs the finances of the school. However everything must be ratified by the School Governing Body.


75. She stated that a Principal is only responsible in so far as carrying out the mandates given in the budget. He cannot manage what is given in the budget. The budget is set by the School Governing Body and once ratified, the Principal takes over the budget. Further a bursar is appointed by the School Governing Body, and deals with the daily income and expenses.


76. According to Dr De Lange, there are confines within which each person operates. Should an unusual need arise, the bursar would need to inform the Principal, and thereafter take it to the School Governing Body. The Principal’s role is to implement the budget.


77. She stated that Section 38A payments are additional payments, and the School Governing Body makes these payments. The School Governing Body has to apply to the Department to pay Section 38A payments to deserving staff members. This must be done four months before the budget is presented for approval. The teacher must also apply to the Department for approval. Parents will then agree to the payment, and it will be ratified by the School Governing Body. It is thereafter sent out. A Principal cannot make payments to himself.


78. Dr De Lange added that the Department is supposed to give their approval within four months. She stated that she knows of very few schools who have actually received such approvals. There is an obligation to pay what is promised as the teachers are performing as promised. If the Department does not approve the payments, the school is in breach of the contract.


79. Dr De Lange stated that she saw no reason for the Applicant to be singled out and charged for this. If this is a concern, all Principals need to be examined, as Section 38A payments have been ongoing without approval from the Department.


80. Schools have asked School Governing Bodies to cover themselves by stating that if they do not receive a reply within a reasonable time, they will accept it as tacit agreement.



RESPONDENT’S EVIDENCE:



81. The first witness for the Respondent, Blessing Siboniso Bright Sikhosana, testified that he is the Circuit Manager employed for the Ntunzuma circuit. He was asked to take care of the Ntunzuma Circuit and the Westville Circuit. Pinetown Boys High fell within the Westville Circuit.


82. He stated that he came into contact with the Applicant in 2018 when he was requested to serve a letter of suspension. Based on the seriousness of the allegations, the Applicant had to be suspended. He added that they suspend Principals because they do not want to jeopardise any investigations.


83. According to Sikhosana, the Applicant’s suspension was a precautionary suspension with pay. He had nothing to do with the drawing up of the charges, and only delivered the letter.


84. He stated that he knows Dr De Lange as a person responsible for the School Governing Body Association.


85. One of the charges levelled against the Applicant was for Section 38A payments. He stated that the Principal was in the School Governing Body, on behalf of the Department, and is a resource person. The Principal must advise the School Governing Body. Had the Applicant advise the School Governing Body correctly, there would not have been any Section 38A payments. He stated that if no approval is received, the payments cannot be made.


86. Mr Sikhosana stated that the school draws up the budget a year before to be produced to the parents for adoption. The School Governing Body prepares the budget. Once accepted by the parents, it is then implemented the following year. He added that the Principal, as the accounting officer, effects payments.


87. He added that the Finance Committee’s responsibility is to ensure that funds are used according to the budget, and to check on all income and expenditure. The Chairperson of the committee has to report to the School Governing Body on all financial transactions.


88. He stated that the school had a bursar who fell under the Principal in terms of hierarchy. The Applicant could have therefore expunged information from the financial records, had he been allowed at the school during the investigation.


89. Mr Sikhosana stated that the Applicant was initially suspended for ninety days. After ninety days, he went to the school without a letter from the Head of Department. The Head of Department decided to extend the Applicant’s suspension, with the authority conferred unto him by the Act. The Head of Department initially suspended the Applicant.


90. The second witness for the Respondent, Musawenkosi Eric Mabaso, testified that he is the Deputy Director in the Employee Relations Directorate in Pietermaritzburg. He knows the Applicant, and was personally involved in a disciplinary hearing wherein the Applicant was charged with misconduct. Mr Mabaso was the Presiding Officer.


91. He stated that the Applicant’s disciplinary hearing started, but was stopped as the Applicant indicated that he wanted to retire. The first sitting was in January 2019, but did not proceed as Ms I. Dhanook was not available. It was then postponed to 8 February 2019.


92. The Applicant requested certain documents and emails from the school, and the matter was therefore adjourned.


93. On 15 March 2019, an application for adjournment was made as the employer’s witnesses were unavailable. The matter was then adjourned and started again on 9 April 2019.


94. He stated that it was not the Department’s fault that the matter did not proceed earlier.


95. When the Applicant indicated that he wanted to retire, Mr Mabaso stopped the hearing to allow for this. He stated that he believed that the Applicant’s retirement was voluntary.


96. He stated that nothing was put to him about the suspension.



ANALYSIS OF EVIDENCE AND ARGUMENTS:



97. The general rule is that he/she who alleges a fact must prove it on a balance of probabilities. In unfair labour disputes, such as the present case, the onus rests on the Applicant to prove the unfair practice. In Lindsay v Ithala Development Finance Corporation Ltd (2) (2002) 23 ILJ 418 (CCMA), the Commissioner considered that, "with regard to onus, the principles of our labour law is clear that the initial burden of proof is always on the employee to show that the employer did something, whether it be a dismissal, or a labour practice, and once the existence of that fact is established, the burden of proof moves to the employer to show that what it did was fair”. The overall onus always rests on the employee to show the existence of an unfair labour practice. The Applicant has to prove his case on a balance of probabilities.


98. Paragraphs 6. (2) and 6. (3) of Schedule 2 of the Employment of Educators Act No. 76 of 1998 reads as follows:

“6. (2) In the case of misconduct in terms of section 18, the employer may suspend an educator in accordance with the procedure contemplated in subitem (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 work-place.
(3)(a) If an educator is suspended or transferred, the employer must do everything possible to conclude a disciplinary hearing within one month of the suspension or transfer;
(b) The presiding officer may decide on any further postponement. Such a postponement must not exceed 90 days from the date of suspension.”


99. The suspension letter states that the Applicant was suspended from duties pending the outcome of the investigation and/or the disciplinary enquiry into the matter.


100. In the pre-arbitration minutes, which was signed by the Applicant’s Attorney on 27 March 2019, and by the Respondent’s representative on 27 March 2019, it was stated at paragraph 2.6 that it is common cause that “The Respondent failed to comply with Schedule 2 of the Employment of Educators Act No. 76 of 1998 as amended; and failed to charge the Applicant timeously. (Amended: s.15 of Act No. 53 of 2000 and amended by Act No. 57 of 2001 and amended by Act No. 50 of 2002); as annexed”.



101. It was also common cause that the charge sheet was only proffered on the Applicant after the outcome certificate was issued.


102. The Applicant was caught by surprise when the letter of suspension was served on him. The letter of suspension was also vague in that it only mentioned financial mismanagement with no particularity attached thereto.


103. The Applicant then waited for the three months to expire, as per the letter of suspension, and then duly reported to school. It then appeared that he was told to leave again via a telephone call from Dr Nzama, forty-five minutes after arriving at school, and was told to leave in ten minutes.


104. In terms of Schedule 2 of the Employment of Educators Act No. 76 of 1998 the employer may have transferred the Educator to another post, and this could have the effect of removing the Applicant from the school to another school, and further it would appear that there was dilatoriness on the part of the Respondent in pursuing charges, if any, against the Applicant. Instead the Applicant was just left in limbo regarding the charges against him.


105. The employer should have done everything possible to conclude the disciplinary hearing within one month of suspension or transfer. It would appear that the onus was on the Presiding Officer of any enquiry to continue with the suspension after allowing the Educator to make representations.


106. The Act appears to be ambiguous about the scope for further suspension by the employer. In any event the suspension over the telephone appears to be irregular, as the Applicant was not even given a chance to make any representations regarding the further suspension, and there was nothing in writing.


107. It would appear that the Respondent did not follow through on the matter, and was caught by surprise when the Applicant arrived at the school ready to commence his duties.


108. I do not wish to elaborate at great length about the charges, except to say that twenty-five charges appeared to have been whittled down to about seven charges. The main charge centered around the fact that approval had not been obtained from the Department for payment of the Principal of the extra amount from School Governing Body funds.


109. Evidence was led, and not contested, that other Educators at the school also received such funds, and it appeared that other Principals at other schools also received such funds. The Applicant did not dispute receiving such funds.


110. According to the witness Dr De Lange, she never heard of cases where the Department had actually signed the approval, which was submitted to them. She only heard of two cases that arose after a circular was sent from the Department regarding the practice. The circular was sent after the Applicant was charged, and was ascribed by the Applicant as a measure induced by his charge.


111. Dr De Lange, whose credibility in the field was vouchsafed by the Respondent’s representative, stated that with regards to these approvals for payments, the non-compliance by the Department was regarded by schools as a form of tacit or implied agreement. Should this practice have been prevalent in other schools, then the Department should embark on an exercise of charging all Principals for the principle of consistency, and not single out one Principal.


112. It would seem to me that, by their own admission, the Respondent did not follow procedure, but appeared to justify lapses by stating they have a very big work force, and that the Respondent is entitled to deviate from processes, provided that these said processes are substantially in accordance with procedure and policy.


113. In this case however I am of the view that the extension of the precautionary suspension of the Applicant was substantially not in accordance with the procedure and policy, and was unfair.


114. Having found that the extension of the precautionary suspension was unfair, I now have to delve into compensation for the Applicant, as his initial request for re-instatement falls away due to his retirement.


115. One must bear in mind that the Applicant, and this was not contested, had been serving the school with some distinction. The pass rate was very high, and there appeared to be harmony at the school. One must take into account that the Applicant was a respected member of the community, and was a Trustee of a Temple Society, and his unchallenged evidence was that he had applied for jobs since retiring, and because of the allegations leveled against him was unable to secure the jobs. There was also a cloud hanging over his head, and this may have contributed to his illness as well.

116. Given that the Applicant was suspended on the basis that he might interfere with witnesses, or might tamper with documents, the three months period in which he was suspended would have been adequate to secure documents and obtain witness statements. Further it must be noted that the bursar was in charge of the documentation, and had secured all documentation. Furthermore it was common cause that the approval from the Department had not been obtained.


117. With regard to compensation, Whitcher J in the case of Imatu o.b.o. Senkhane v EmFuleni Local Municipality (JR 1871/1/14) [2016] ZALC JHB 296 (29 July 2016) reasoned that Section 193 (4) of the LRA provides that an arbitrator may determine any unfair labour dispute referred to the arbitrator, on terms that the arbitrator deems reasonable, which may include re-instatement, re-employment or compensation, and stemming from that compensatory relief may be needed to relieve the injured feelings and humiliation of an employee’s dignity. Compensation is thus a solace, however it must be just and equitable, and not merely a “sop” nor a token. It must be rational and proportional to the loss suffered by the Applicant. In this matter, I have taken into account that the Applicant was on full pay during his suspension. He suffered indignity and humiliation, as far as his family and friends were concerned and personal pain.


118. With regards to compensation for non-patrimonial loss were no actual financial losses have been suffered, the Courts have always made clear that conservatism applies when compensating for non-patrimonial losses. In SAPO Ltd v Jansen Van Vuuren No & Others [2008] 8 BLLR 798 (LC) the Labour Court reduced the award of the Arbitrator of six months’ salary, which was equitable to more than R100 000-00, to one month’s salary of R21 137-88, because there was no actual patrimonial loss.


119. In SAA v V [2014] 8 BLLR 748 (LAC), the Labour Appeal Court drastically reduced the award that the Labour Court awarded to R50 000-00. The Labour Appeal Court said:

“The compensation awarded by the court a quo is in my view grossly excessive. It bears no reasonable relationship to the injury and humiliation that the first respondent testified he felt and the other factors the court a quo mentioned. It is also inconsistent and far in excess of the amounts awarded in (broadly) similar cases.”

“It is clearly preferable as well as fair and proper to make an award in an actual amount. Making an award in the form of payment of a certain number of month’s remuneration holds the danger that high earning individuals may (unwittingly) be awarded more as compensation than those that earn less, even though the injury suffered by the latter, as a result of unfair discrimination, was greater.”


120. In view of the above, I am of the view that the amount of R85 000-00 is to be awarded as compensation.


121. As to the Applicant’s further claim for loss of earnings because he retired early, he made an informed decision to retire, whereas he could have pursued his defence at the disciplinary enquiry. He is a highly educated person, and would have weighed up the facts relating to the retirement, hence in my view he is not entitled to any compensation for the fact that he retired at sixty and not sixty-five.



FINDINGS:



122. I find that the Applicant has proven on a balance of probabilities that the extension of the precautionary suspension of the Applicant was unfair, and that the Respondent failed to comply with its policies and procedures in the continuation of the precautionary suspension.

123. The Applicant is awarded compensation in the amount of R85 000-00.


AWARD:

124. The extension of the precautionary suspension of the Applicant, Rayseelan Naidoo, is declared to be unfair.


125. The Applicant is awarded compensation in the amount of R85 000-00 (eighty five thousand rand) subject to the necessary tax directive;

126. The Respondent, Department of Education – KwaZulu-Natal, is directed to pay the Applicant the sum of R85 000-00 (eighty five thousand rand) within twenty-one days of being notified of this award.

127. There is no order as to costs.



__________
J.D. VEDAN
ELRC Panellist

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