ELRC 302 -20 /21 NW
Text
Award Date:
08 June 2021
CASE NO.: ELRC 302 -20 /21 NW
In the matter between:-
THOBEJANE WALTER MAATOLONG APPLICANT
and
DEPARTMENT OF EDUCATION- NORTH WEST RESPONDENT
ARBITRATOR: Ramatobane Maodi
HEARD: 15 April 2021 and 20 May 2021
CLOSING ARGUMENTS: 27 May 2021
DATE OF AWARD: 08 June 2021
SUMMARY: Labour Relations Act 66 of 1995 –Section 186(2)(b) – Unfair Labour
Practice by employer relating to unfair suspension.
ARBITRATION AWARD
DETAILS OF HEARING AND REPRESENTATION
1. The arbitration was held on 15 April and 20 May 2021 and the process was conducted virtually.
2. The applicant, Thobejane Walter Maatolong was present and was represented by Tsholofelo Monkwe, an official from SADTU. The respondent, Department of Education – North West was represented by Martin Keetile, its Labour Relation Practitioner. The proceedings were recorded digitally. The parties were given opportunity to submit their closing arguments on or before 27 May 2021. The arguments were duly submitted on 27 May 2021.
BACKGROUND TO THE ISSUE
3. The Applicant had referred the dispute of unfair labour practice to the Council for Conciliation. The dispute could not be resolved and a certificate of outcome of conciliation to that effect was issued. The applicant then requested that the dispute be arbitrated.
ISSUE TO BE DECIDED
4. I am required to decide whether or not the respondent acted fairly by placing the applicant on precautionary suspension for a period exceeding 90 days, the administrator had the authority to extend the suspension and that the reason for the extension was valid. If I found in favour of the applicant, I must also determine the appropriate relief.
5. One set of document was entered into the arbitration process and I marked it as follows;
Bundle A – a joint bundle of documents from page 1 – 13.
6. This is an arbitration award with brief reasons as contemplated in section 138(7)(a) of the Labour Relations Act, 1995.A summary of relevant evidence is provided under “Survey of Evidence” and “Analysis of Evidence and Argument” infra.
7. The Applicant earns a monthly salary of R30 515.91 (Thirty Thousand Five Hundred and Fifteen Rand and Ninety One Cents Only. He seeks compensation as a relief for what he considered to be his unfair suspension.
AGREED FACTORS
8. The parties concluded pre arbitration minutes dated 30 March 2021 and agreed to the following factors as being common course:-
8.1 The applicant is an employee of the respondent. He is a Departmental Head attached to Geelhout Park Secondary School in Bojanala District.
8.2 On 14 February 2020 he was placed on a special leave following an incident of a learner’s assault at school.
8.3 On 14 February 2020 he received a letter of intention to suspend him.
8.4 On 20 February 2020 he was placed on precautionary suspension.
8.5 On 18 March 2020 he was formally charged and the case was scheduled for 26 March 2020.
8.6 On 05 May 2020 the Administrator extended his precautionary suspension till further notice because the case was still being investigated.
8.7 On 09 July 2020 he received a notice to appear before a disciplinary hearing and the case was scheduled for 20 July 2020.
8.8 The charge of section 18 (1) (r) was preferred and he pleaded guilty. A sanction of a fine of 1 month was imposed.
SURVEY OF ARGUMENTS AND EVIDENCE
APPLICANT’S EVIDENCE
The Evidence of Thobejane Walter Maatolong;
9. He testified that he referred the dispute for three reasons. Firstly, the precautionary suspension was longer than the period prescribed by the code, secondly the administrator did not have the authority to extend his precautionary suspension beyond the 90 days period, and thirdly the reason advanced by the administrator for extension of his suspension was invalid.
10. He was placed on suspension from 20 February 2020 to 06 August 2020. The period of suspension is about 5 months and 16 days. He referred to page 13 of bundle A, clause 6 (1) and (2) and stated that a maximum period of suspension is 3 months. He was suspended on 20 February 2020 and it was supposed to be lifted on 20 May 2020.
11. He referred to a letter written by the Administrator on page 9 of bundle A he received on 06 May 2020 extending his precautionary suspension on the ground that the investigating was still underway. Clause 6, under suspension, does not empower the Administrator to extend his suspension. In terms of clause 6, only the presiding officer had the authority to extend his suspension.
12. The Administrator‘s reason for extending his precautionary suspension that investigation was underway was untrue. He received a notice to attend a hearing already on 18 March 2020 and the hearing was scheduled on 26 March 2020. He was informed telephonically by the prosecutor, Adv. Stengana that the hearing is postponed until further notice. The fact that he was charged presupposes that the investigation had been completed.
13. The precautionary suspension beyond the prescribed period affected him negatively in that he was embarrassed, felt tainted, had a sense of hopelessness and uselessness and felt that the employer behaved in total and flagrant disregard of the law.
14. During cross examination he testified that the reason provided for postponing the hearing was covid related and the reason provided in a letter extending his precautionary suspension was to the effect that the investigation was still underway.
RESPONDENT’S EVIDENCE
15. The respondent‘s representative submitted that he was not calling any witness and he closed his case. He will only submit written closing arguments.
CLOSING ARGUMENTS
16. The parties duly submitted their closing arguments and had regard to their closing arguments. I will however, make reference thereto where I deem necessary.
ANALYSIS OF EVIDENCE AND ARGUMENT
17. Everyone has a right to fair labour practice. This principle is enshrined in Section 23 of the Constitution of the Republic of South Africa, 1996, and entrenched in the Act.
18. When an employee alleges that an unfair labour practice has been committed by an employer, the initial onus of proof is on the employee to show that the employer had committed an act of unfair labour practice.
19. The applicant contends that his precautionary suspension was unfair because his period of suspension was beyond the prescribed period of 3 months, effected by an Administrator who lacked the authority to do so and was extended for invalid reason.
20. Clause 6 (1) Schedule 2 , Disciplinary Code and Procedures for Educators, of Employment of Educators Act 76 of 1998 provides as follows under suspensions;
“(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
months.
(2)…
(3). (a)…
(b). The presiding officer may decide on any further
postponement. Such a postponement must not exceed 90 days
from the date of suspension”.
21. Clause 6 schedule 2 does not necessarily state explicitly that suspension should not be more be three months. What it does state is that the maximum period of suspension is three months and if not, to have the suspension extended by a presiding officer of a disciplinary hearing, presumably on good reason.
22. It was common cause that on 18 March 2020 the applicant was formally charged and the case was scheduled for 26 March 2020.According to the applicant he was telephonically called by the prosecutor, Adv. Stengana that the matter is postponed until further notice as a result of covid 19.
23. It appears from the evidence of the applicant that the hearing could have commenced on 26 March 2021 had it not been the national lockdown. The lockdown had two components, namely the restrictions of people‘s movement and the shuttering of operations of non-essential sectors such as the respondent.
24. The period of suspension of the applicant fell within the period of the lockdown. Therefore the extension of the applicant‘s precautionary suspension, when I take into account the interruptions of activities caused by the national lockdown, was fair and justifiable.
25. It is common cause that the hearing had not commence when the precautionary suspension was extended. The power to extend the suspension could have been exercised by the chairperson of the applicant‘s hearing if it had commenced. Schedule 2, clause 6 does not prescribe that the respondent is prohibited from extending the suspension in the event of the then unforeseen circumstances such as the national lockdown. I therefore find no reason to fault the administrator for having extended the suspension during the national lockdown.
26. The respondent cited in their letter extending the precautionary suspension that the investigation process was underway. According to the applicant when charges were preferred on him the implication is that the investigation is finalized. I disagree with this contention in that the respondent was within its rights to conduct any investigation it deems appropriate. The allegation against the applicant that he assaulted a leaner was serious. The mere charging of the applicant did not divest the respondent of the right to investigate.
27. It therefore stand to reason that the precautionary suspension of the applicant was interrupted by the national lockdown and does not amount to an act of unfair labour practice.
28. In long v SAB (Pty) Ltd and others (2019) 40 ILJ 965 (CC); 2019 (5) BCLR 609 (CC); [2019] 6 BLLR 515 (CC) the court held that “the suspension must be linked to a pending investigation and serve to protect the integrity of that ongoing process. There is an additional consideration of prejudice, though this can be ameliorated by a salary being paid during the period of suspension”.
29. The applicant contended that his suspension beyond the prescribed period affected him negatively in that he was embarrassed, felt tainted, had a sense of hopelessness and uselessness and felt that the employer behaved in total and flagrant disregard of the law. I disagree with the applicant that the extended suspension affected him negative for the reason that he pleaded guilty to the offence of assault. This offence is viewed in a serious light and the rights and interest of the assaulted leaner are paramount.
30. In determining whether the precautionary suspension was permissible, the court reasoned that the fairness of the suspension is determined by assessing first, whether there is a fair reason for the suspension and secondly, whether it prejudices the applicant.
31. In casu the extension of the suspension was for a fair reason, namely for an investigation to take place and the reason cannot be faulted. The courts have found that generally where the suspension is on full pay, cognizable prejudice will be ameliorated.
32. I therefore find that the suspension of the applicant was precautionary and did not materially prejudice the applicant, even if it was extended .To that end it is my considered view that the extended precautionary suspension of the applicant was fair.
AWARD
33. The respondent, Department of Education – North West had not committed an unfair labour practice by extending the precautionary suspension of the applicant, Thobejane Walter Maatolong.
34. The applicant‘s case is dismissed.
35. I make no order as to costs.
Signed and dated at Hartebeespoort on this 8th day of June 2021.
Ramatobane Maodi
ELRC Panellist
In the matter between:-
THOBEJANE WALTER MAATOLONG APPLICANT
and
DEPARTMENT OF EDUCATION- NORTH WEST RESPONDENT
ARBITRATOR: Ramatobane Maodi
HEARD: 15 April 2021 and 20 May 2021
CLOSING ARGUMENTS: 27 May 2021
DATE OF AWARD: 08 June 2021
SUMMARY: Labour Relations Act 66 of 1995 –Section 186(2)(b) – Unfair Labour
Practice by employer relating to unfair suspension.
ARBITRATION AWARD
DETAILS OF HEARING AND REPRESENTATION
1. The arbitration was held on 15 April and 20 May 2021 and the process was conducted virtually.
2. The applicant, Thobejane Walter Maatolong was present and was represented by Tsholofelo Monkwe, an official from SADTU. The respondent, Department of Education – North West was represented by Martin Keetile, its Labour Relation Practitioner. The proceedings were recorded digitally. The parties were given opportunity to submit their closing arguments on or before 27 May 2021. The arguments were duly submitted on 27 May 2021.
BACKGROUND TO THE ISSUE
3. The Applicant had referred the dispute of unfair labour practice to the Council for Conciliation. The dispute could not be resolved and a certificate of outcome of conciliation to that effect was issued. The applicant then requested that the dispute be arbitrated.
ISSUE TO BE DECIDED
4. I am required to decide whether or not the respondent acted fairly by placing the applicant on precautionary suspension for a period exceeding 90 days, the administrator had the authority to extend the suspension and that the reason for the extension was valid. If I found in favour of the applicant, I must also determine the appropriate relief.
5. One set of document was entered into the arbitration process and I marked it as follows;
Bundle A – a joint bundle of documents from page 1 – 13.
6. This is an arbitration award with brief reasons as contemplated in section 138(7)(a) of the Labour Relations Act, 1995.A summary of relevant evidence is provided under “Survey of Evidence” and “Analysis of Evidence and Argument” infra.
7. The Applicant earns a monthly salary of R30 515.91 (Thirty Thousand Five Hundred and Fifteen Rand and Ninety One Cents Only. He seeks compensation as a relief for what he considered to be his unfair suspension.
AGREED FACTORS
8. The parties concluded pre arbitration minutes dated 30 March 2021 and agreed to the following factors as being common course:-
8.1 The applicant is an employee of the respondent. He is a Departmental Head attached to Geelhout Park Secondary School in Bojanala District.
8.2 On 14 February 2020 he was placed on a special leave following an incident of a learner’s assault at school.
8.3 On 14 February 2020 he received a letter of intention to suspend him.
8.4 On 20 February 2020 he was placed on precautionary suspension.
8.5 On 18 March 2020 he was formally charged and the case was scheduled for 26 March 2020.
8.6 On 05 May 2020 the Administrator extended his precautionary suspension till further notice because the case was still being investigated.
8.7 On 09 July 2020 he received a notice to appear before a disciplinary hearing and the case was scheduled for 20 July 2020.
8.8 The charge of section 18 (1) (r) was preferred and he pleaded guilty. A sanction of a fine of 1 month was imposed.
SURVEY OF ARGUMENTS AND EVIDENCE
APPLICANT’S EVIDENCE
The Evidence of Thobejane Walter Maatolong;
9. He testified that he referred the dispute for three reasons. Firstly, the precautionary suspension was longer than the period prescribed by the code, secondly the administrator did not have the authority to extend his precautionary suspension beyond the 90 days period, and thirdly the reason advanced by the administrator for extension of his suspension was invalid.
10. He was placed on suspension from 20 February 2020 to 06 August 2020. The period of suspension is about 5 months and 16 days. He referred to page 13 of bundle A, clause 6 (1) and (2) and stated that a maximum period of suspension is 3 months. He was suspended on 20 February 2020 and it was supposed to be lifted on 20 May 2020.
11. He referred to a letter written by the Administrator on page 9 of bundle A he received on 06 May 2020 extending his precautionary suspension on the ground that the investigating was still underway. Clause 6, under suspension, does not empower the Administrator to extend his suspension. In terms of clause 6, only the presiding officer had the authority to extend his suspension.
12. The Administrator‘s reason for extending his precautionary suspension that investigation was underway was untrue. He received a notice to attend a hearing already on 18 March 2020 and the hearing was scheduled on 26 March 2020. He was informed telephonically by the prosecutor, Adv. Stengana that the hearing is postponed until further notice. The fact that he was charged presupposes that the investigation had been completed.
13. The precautionary suspension beyond the prescribed period affected him negatively in that he was embarrassed, felt tainted, had a sense of hopelessness and uselessness and felt that the employer behaved in total and flagrant disregard of the law.
14. During cross examination he testified that the reason provided for postponing the hearing was covid related and the reason provided in a letter extending his precautionary suspension was to the effect that the investigation was still underway.
RESPONDENT’S EVIDENCE
15. The respondent‘s representative submitted that he was not calling any witness and he closed his case. He will only submit written closing arguments.
CLOSING ARGUMENTS
16. The parties duly submitted their closing arguments and had regard to their closing arguments. I will however, make reference thereto where I deem necessary.
ANALYSIS OF EVIDENCE AND ARGUMENT
17. Everyone has a right to fair labour practice. This principle is enshrined in Section 23 of the Constitution of the Republic of South Africa, 1996, and entrenched in the Act.
18. When an employee alleges that an unfair labour practice has been committed by an employer, the initial onus of proof is on the employee to show that the employer had committed an act of unfair labour practice.
19. The applicant contends that his precautionary suspension was unfair because his period of suspension was beyond the prescribed period of 3 months, effected by an Administrator who lacked the authority to do so and was extended for invalid reason.
20. Clause 6 (1) Schedule 2 , Disciplinary Code and Procedures for Educators, of Employment of Educators Act 76 of 1998 provides as follows under suspensions;
“(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
months.
(2)…
(3). (a)…
(b). The presiding officer may decide on any further
postponement. Such a postponement must not exceed 90 days
from the date of suspension”.
21. Clause 6 schedule 2 does not necessarily state explicitly that suspension should not be more be three months. What it does state is that the maximum period of suspension is three months and if not, to have the suspension extended by a presiding officer of a disciplinary hearing, presumably on good reason.
22. It was common cause that on 18 March 2020 the applicant was formally charged and the case was scheduled for 26 March 2020.According to the applicant he was telephonically called by the prosecutor, Adv. Stengana that the matter is postponed until further notice as a result of covid 19.
23. It appears from the evidence of the applicant that the hearing could have commenced on 26 March 2021 had it not been the national lockdown. The lockdown had two components, namely the restrictions of people‘s movement and the shuttering of operations of non-essential sectors such as the respondent.
24. The period of suspension of the applicant fell within the period of the lockdown. Therefore the extension of the applicant‘s precautionary suspension, when I take into account the interruptions of activities caused by the national lockdown, was fair and justifiable.
25. It is common cause that the hearing had not commence when the precautionary suspension was extended. The power to extend the suspension could have been exercised by the chairperson of the applicant‘s hearing if it had commenced. Schedule 2, clause 6 does not prescribe that the respondent is prohibited from extending the suspension in the event of the then unforeseen circumstances such as the national lockdown. I therefore find no reason to fault the administrator for having extended the suspension during the national lockdown.
26. The respondent cited in their letter extending the precautionary suspension that the investigation process was underway. According to the applicant when charges were preferred on him the implication is that the investigation is finalized. I disagree with this contention in that the respondent was within its rights to conduct any investigation it deems appropriate. The allegation against the applicant that he assaulted a leaner was serious. The mere charging of the applicant did not divest the respondent of the right to investigate.
27. It therefore stand to reason that the precautionary suspension of the applicant was interrupted by the national lockdown and does not amount to an act of unfair labour practice.
28. In long v SAB (Pty) Ltd and others (2019) 40 ILJ 965 (CC); 2019 (5) BCLR 609 (CC); [2019] 6 BLLR 515 (CC) the court held that “the suspension must be linked to a pending investigation and serve to protect the integrity of that ongoing process. There is an additional consideration of prejudice, though this can be ameliorated by a salary being paid during the period of suspension”.
29. The applicant contended that his suspension beyond the prescribed period affected him negatively in that he was embarrassed, felt tainted, had a sense of hopelessness and uselessness and felt that the employer behaved in total and flagrant disregard of the law. I disagree with the applicant that the extended suspension affected him negative for the reason that he pleaded guilty to the offence of assault. This offence is viewed in a serious light and the rights and interest of the assaulted leaner are paramount.
30. In determining whether the precautionary suspension was permissible, the court reasoned that the fairness of the suspension is determined by assessing first, whether there is a fair reason for the suspension and secondly, whether it prejudices the applicant.
31. In casu the extension of the suspension was for a fair reason, namely for an investigation to take place and the reason cannot be faulted. The courts have found that generally where the suspension is on full pay, cognizable prejudice will be ameliorated.
32. I therefore find that the suspension of the applicant was precautionary and did not materially prejudice the applicant, even if it was extended .To that end it is my considered view that the extended precautionary suspension of the applicant was fair.
AWARD
33. The respondent, Department of Education – North West had not committed an unfair labour practice by extending the precautionary suspension of the applicant, Thobejane Walter Maatolong.
34. The applicant‘s case is dismissed.
35. I make no order as to costs.
Signed and dated at Hartebeespoort on this 8th day of June 2021.
Ramatobane Maodi
ELRC Panellist
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ELRC 302 -20 /21 NW
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