ELRC69-19/20FS
Text
Award Date:
26 July 2021
Text
THE MATTER BETWEEN
WILLE, PETER APPLICANT
VS
FREE STATE DEPARTMENT OF EDUCATION RESPONDENT
Case No: ELRC69-19/20FS
Dates: 26 July 2021
Venue: Provincial Office of Education, Bloemfontein
AWARD
DETAILS OF HEARING AND REPRESENTATION
1. This is the award in the arbitration matter between Mr Peter Wille (the applicant) versus the Free State Department of Education as the respondent. The arbitration hearing took place on 14 June 2021 at the respondent’s office in Bloemfontein, after several postponements. The applicant was represented by Mr Bruce Blair, an Attorney from Blair Attorneys. The respondent was represented by Mr Thulo Tsunke, its Assistant Director Labour Relations.
2. The arbitration was held under the auspices of the Education Labour Relations Council (the Council) in terms of section 186(2)(a) of the Labour Relations Act (the Act) and the award is issued in terms of section 138(7) of the Act.
3. The proceedings were digitally recorded. The parties requested to submit heads of arguments on 17, 22 and 24 June 2021 where after the award shall then follow.
ISSUE TO BE DECIDED
4. I am called upon to decide whether the respondent committed an act of unfair labour practice: disciplinary action short of dismissal when it decided to suspend the applicant.
BACKGROUND TO THE DISPUTE
5. It is common cause that the applicant is employed by the respondent as a Level 1 Teacher since 01 January 2008. He is currently based at the respondent’s Böhmer High School in Bloemfontein in the Free State Province and earns R29 816.15 per month. The dispute follows the respondent’s decision on 14 September 2018 to suspend the applicant with salary for allegations of sexual misconduct of a learner.
6. The applicant lodged an unfair labour practice dispute with the Council on 23 April 2019. After the granting of condonation for the late referral, a certificate of non-resolution of the dispute was issued on 20 June 2019 by the Council following a failed conciliation. The applicant applied for arbitration on 23 July 2019.
7. The applicant believes that his suspension was unfair and wishes that it be declared unfair and that his supervisor allowance of 30 x R3 164.43 be paid to him. It is common cause that the suspension was in the meantime uplifted.
SURVEY OF EVIDENCE AND ARGUMENT
8. This section constitutes a brief summary of the evidence and arguments put forward by the parties. It is not intended to be exhaustive, but I have taken all the submissions into consideration in arriving at my conclusions.
Documentary Evidence
9. The parties agreed to use the applicant’s bundle of evidence as documentary evidence for purposes of this arbitration.
Applicant’s Case
10. Mr Peter Wille, the applicant, was sworn in and he testified as the only witness in his case. He gave a background of his employment at the school and stated that his problems with the school management started when he became a member of the School Governing Body (SGB).
11. The applicant stated with reference to his evidence bundle that the SGB served him with a letter dated 22 August 2018 in which they alleged that he (the applicant) discussed confidential information of the SGB with his colleagues and that he would be investigated. He stated that he was told in the same letter that he is given seven days to make a representation to them.
12. The applicant testified that on 23 August 2018, he received a letter from the SGB that he has been suspended. He referred to correspondences between his attorneys and the SGB pertaining to his suspension from the SGB and how he refused to vacate his SGB position.
13. The applicant stated that suddenly on 14 September 2018, the respondent served him with a suspension letter which deals with the current sexual misconduct disciplinary action against him. He testified that his attorneys corresponded with both the respondent and the SGB pertaining to his suspensions.
14. The applicant testified that he refused to honour an invitation from the SGB to attend one of its meetings because the respondent has suspended him. He stated that he also received a letter from the SGB in which the SGB distanced itself from the suspension which the respondent has decided to impose on him.
15. The applicant testified that he challenged his suspension by the respondent in a letter from his attorneys dated 02 November 2018 in which he requested to be furnished with evidence of the allegations made against him. He stated that he was only served with a charge sheet on 19 April 2019 and that various correspondences between his union and the respondent also took place. The applicant submitted that the respondent has never provided him with any reasons, details and details of the child in the disciplinary case which is the basis for this suspension.
16. In cross-examination, the applicant stated that he and two other colleagues were victimised by the SGB and conceded that his single vote would not have changed the outcome of the new appointments at the school.
17. It is at this juncture where the parties have decided to lead further evidence through heads of arguments starting with the applicant by 17 June 2021, followed by the respondent on 22 June 2021 and there after the applicant by 24 June 2021.
Applicant’s Founding Affidavit
18. The applicant’s representative submitted that it is common cause that the alleged incident (sexual misconduct with a learner) for which the applicant was suspended for happened on 28 August 2018 and that it came to the knowledge of the respondent on 02 September 2018. He submitted that the investigation was completed around 19 April 2019, which is the date on which the applicant was served with a charge sheet.
19. The applicant submitted that the respondent only uplifted the suspension on 04 February 2021 by means of a letter dated 11 January 2021. His representative submitted that he (the applicant) has been on suspension for a period of 33 months and was not paid his hostel supervisor allowance for a period of 30 months in an amount of R94 932.90.
20. The applicant through his representative submitted that despite his request, the respondent has to date not provided him with reasons for his suspension. He stated that at the arbitration hearing, the respondent did not discredit or rebut the evidence provided by the applicant. The applicant submitted that his suspension was unreasonably long (seven months between suspension and charge sheet and another 25 months between the charge sheet and the upliftment of the suspension).
21. The applicant relied on section 35 of the Constitution of 1996 and Shabalala and 7 Others v The Attorney General: Transvaal and Another and argued that he had a right to be provided with the documents which he requested in order to allow him to make a representation. He stated that the respondent did not comply with the law and its own disciplinary code when it unilaterally decided to extend his suspension. The applicant prayed that I should grant the relieve which he is seeking.
Respondent’s Answering Affidavit
22. Despite having committed to provide this Council with it answering papers by 22 June 2021, the respondent has never provided us with the said document(s). As a result, I am only having the submissions of the applicant before me, and those submissions which the respondent’s representative made during the narrowing of issues and during the cross-examination of the applicant.
ANALYSIS OF EVIDENCE AND ARGUMENT
23. This is an unfair labour practice dispute, unfair suspension as provided for in section 186(2)(b) of the Act. It is common cause that the applicant was issued with a letter of suspension with full pay and benefits on 10 September 2018. The applicant was also afforded an opportunity to make a representation within five days. The parties have also agreed as common cause that the respondent served the applicant with a charge sheet on 15 April 2019. They have also agreed that the applicant was on suspension for 30 months which ended on 11 January 2021.
24. For purposes of this alleged unfair labour practice dispute between the applicant and the respondent, I shall not deal with the evidence pertaining to the suspension which the SGB has imposed on the applicant. The suspension by the SGB is for a different position other than the one occupied by the applicant at the respondent. That dispute was also resolved by the Free State Division of the High Court. I shall therefore only confine myself to the suspension by the respondent in relation to the alleged misconduct committed by the applicant on 28 August 2018.
25. Now instead of making and submitting a representation within five days as expected by the respondent in the suspension letter dated 10 September 2018, the applicant, through his attorney wrote a letter to the respondent in which he requested to be provided with details pertaining to the allegations against him. According to the applicant, the suspension letter is void of the details of the complainant (learner), the incident itself, any affidavits, etc.
26. The evidence before me shows that the respondent has never responded to the letter of the attorney dated 19 September 2018, despite having being the party requesting a representation. The respondent only came back to the applicant on 19 April 2019 with a charge sheet. I need to consider the law of precedent at this juncture in relation to the respondent’s failure to provide the information which the applicant requested in order for the applicant to make the representation which the respondent sought from him.
27. In Shabalala & 7 Others v The Attorney General, Transvaal & Another , the Constitutional Court held the following:
“that it was presumptuous of an employer to decide what documents the employee would need. The employer did not argue that the requested documents were irrelevant, confidential or unavailable.
28. The respondent’s failure to provide the applicant with the information requested, clearly placed the applicant in a position in which he did not know what to respond to. The respondent did not cooperate with the applicant in this regard and the respondent stands to be faulted on why the applicant could not submit a representation within the prescribed period as indicated in the suspension letter.
29. In moving on to the time it took for the respondent to serve the applicant with a charge sheet, I find the seven months’ period to be extreme and not prompt as required by the disciplinary code. Clause 6(2) of the respondent’s disciplinary code provides the following:
in the case of misconduct in terms of Section 18, the employer may suspend a educator in accordance with the procedure, contemplated in sub item 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 wellbeing or safety of any person at work, in terms of sub 3 if an educator is transferred or suspended, the employer must do anything possible to conclude the disciplinary hearing within 1 month of the suspension or transfer. In terms of sub 3(b), the presiding officer may decide on any further postponements. Such postponement must not exceed 90 days from the date of suspension.
30. The evidence before me is that the respondent has initiated the disciplinary proceedings through a charge sheet seven months after the suspension. The disciplinary hearing apparently commenced 25 months later. These delays are in contravention of the respondent’s own Disciplinary Code.
31. Section 6(3) of the Education Law Amendment Act (the ELAA) provides the following:
a) If an educator is suspended or transferred, the employer must do everything possible to conclude the disciplinary hearing within 1 month of the suspension or transfer;
b) The presiding officer may decide on a further postponement, such postponement may not exceed 90 days from the date of the postponement.
32. I have no evidence before me that the respondent has done everything possible to ensure that the disciplinary hearing was concluded within a month after the suspension. No evidence was also forthcoming from the respondent that its presiding officer of the disciplinary hearing has decided to postpone and conclude the matter within 90 days. The uncontested evidence before me is that the applicant has been on suspension for at least 30 months.
33. It was held in SAPO ltd v Jansen Van Vuuren NO and others that a suspension, even whilst investigations are underway, amounts to an unfair labour practice, if the period of suspension exceeds the period stipulated in a disciplinary code, collective agreement, regulations, or contract of employment.
34. With that having been said and done, it is my finding that the respondent acted outside the scope of its own disciplinary own and the ELAA by not having kept the length of the suspension within 30 days or through its presiding officer, within 90 days.
35. Section 186(2)(a) of the LRA stipulates the following:
186 Meaning of dismissal and unfair labour practice
(2) ‘Unfair labour practice’ means any unfair act or omission that arises between an employer and an employee involving-
(b) unfair suspension of an employee or any other unfair disciplinary action short of dismissal in respect of an employee.
36. The suspension of the applicant which has lasted for at least 30 months is unfair labour practice within the meaning of section 186(2)(b) of the Act.
RELIEF
37. The applicant requested the following as a form of relief:
37.1 that the suspension be declared an unfair labour practice
37.2 that he be paid his outstanding hostel fee allowance benefit of 30 x R3 164.43 = R94 932.90
37.3 that he be permitted to return to Dr Böhmer School on the same conditions with the same benefits prior to his suspension
37.4 that the respondent be ordered to pay him 12 months compensation for psychological, social and economic prejudices which he had to endure
37.5 that the respondent be ordered to pay his total legal costs in respect of this matter
37.6 damages in respect of promotional posts
38. I shall now deal with these requested remedies separately under different headings.
Declaring the suspension as unfair labour practice
39. I have already made such a declaration at paragraph 36 supra. This declaration shall form part of the orders of this award.
Payment of Hostel Fee Allowance Benefit
40. It goes without saying that had the applicant not being suspended, or if his suspension was limited to 90 days as prescribed by the law, the applicant would not have lost an additional 27 months’ allowances (especially if he was not dismissed as is the case at the time of this arbitration). Because the applicant was suspended with salary, I shall order that the respondent must pay the outstanding allowances to the applicant in the amount of R94 932.90. This is also to ensure that this unfair labour practice dispute of the parties is finally resolved and brought to an end.
The return of the applicant to Dr Böhmer School
41. I shall order that the applicant be placed back at Dr Böhmer School on the same terms and conditions of employment, pending the finalisation of his disciplinary hearing.
The payment of 12 months’ compensation for psychological, social and economic prejudices which the applicant had to endure
42. I shall now turn to the law to check on the legitimacy of this claim. Section 193(4) of the Act provides the following:
193 Remedies for unfair dismissal and unfair labour practice
(4) An arbitrator appointed in terms of this Act may determine any unfair labour practice dispute referred to the arbitrator, on terms that the arbitrator deems reasonable., which may include ordering reinstatement, re-employment or compensation.
43. The relief sought by the applicant is legitimate within the meaning of section 193(4) of the Act. I have no evidence before me from the respondent’s side on why the relief sought by the applicant should not be awarded.
44. In IMATU obo Sankhanyane v Emfuleni Local Municipality the Court held that when the Arbitrator finds that a suspension of an Employee amounted to an unfair labour practice, it was irregular to simply order his return to work without considering whether, based on the facts of the case, to consider awarding compensation as a form of solatium.
45. The applicant did not provide sufficient evidence such as reports of his psychological or social status. It is common cause that he was suspended with salary. I shall, as a result, not accede to the applicant’s initial request for 12 months’ compensation, but I shall order that the applicant be paid One Thousand Rand for every month that he has been at home as compensation and as a form of solatium for the unfair suspension of 30 months which he had to endure.
46. This shall be R1 000.00 x 30 months = R30 000.00 for the non-patrimonial loss.
Legal Costs (Cost Order)
47. The applicant also requested that his legal fees be reimbursed to him by the respondent for the prolonged unfair suspension. The respondent has not objected to this request. Rule 54 of the Council’s Dispute Resolution Procedures (hereinafter the Rules) provides the following:
54 Costs
54.3 A commissioner may make an award of costs in respects of the legal fees of a party that is
represented in an arbitration by a legal practitioner, only if the other parties to the arbitration were represented by a legal practitioner. [my emphasis added]
48. Though the applicant may have good reasons for requesting a costs order against the respondent, Rule 54.3 is clear that such orders may only be made if and when both parties are legally represented. In this case, only the applicant was represented by a legal practitioner. I will be acting ultra vires if I grant such an order. As a result of the Rules, I shall not make a cost order against the respondent.
Damages in respect of promotional posts
49. The applicant requested to be paid damages in relation to promotional posts which he might have received had it not been for the suspension. Despite this relief not having been opposed, the applicant did not produce any evidence to show that he would have been promoted and in which post(s) had the suspension not taken place. In light of the fact that the applicant submitted that his relationship with the SGB went sour after he became a member of the SGB, I am not persuaded that the in such a sour relationship, the applicant might have stood a chance to be promoted. No damages shall be ordered in this respect.
50. In the premise, I make the following award:
AWARD
51. The suspension of the applicant, Mr Peter Wille, by the respondent, Free State Department of Education, between 14 September 2018 and 11 January 2021 was an unfair labour practice.
52. The respondent is ordered to pay to the applicant an amount of R94 932.90 for his outstanding hostel fee allowances.
53. The applicant is ordered to report for duty at Dr Böhmer School within 48 hours of receipt of this award or at the first working day during the lockdown period (whatever may come first) pending the finalisation of his disciplinary hearing.
54. The respondent is ordered to pay to the applicant an amount of R30 000.00 in compensation as solatium for the unfair labour practice which he had to endure.
55. No damages in relation to possible promotional posts are awarded against the respondent.
56. No order as to costs is made.
This is done and dated on 26 July 2021 at Kimberley.
David Pietersen
ELRC Commissioner
WILLE, PETER APPLICANT
VS
FREE STATE DEPARTMENT OF EDUCATION RESPONDENT
Case No: ELRC69-19/20FS
Dates: 26 July 2021
Venue: Provincial Office of Education, Bloemfontein
AWARD
DETAILS OF HEARING AND REPRESENTATION
1. This is the award in the arbitration matter between Mr Peter Wille (the applicant) versus the Free State Department of Education as the respondent. The arbitration hearing took place on 14 June 2021 at the respondent’s office in Bloemfontein, after several postponements. The applicant was represented by Mr Bruce Blair, an Attorney from Blair Attorneys. The respondent was represented by Mr Thulo Tsunke, its Assistant Director Labour Relations.
2. The arbitration was held under the auspices of the Education Labour Relations Council (the Council) in terms of section 186(2)(a) of the Labour Relations Act (the Act) and the award is issued in terms of section 138(7) of the Act.
3. The proceedings were digitally recorded. The parties requested to submit heads of arguments on 17, 22 and 24 June 2021 where after the award shall then follow.
ISSUE TO BE DECIDED
4. I am called upon to decide whether the respondent committed an act of unfair labour practice: disciplinary action short of dismissal when it decided to suspend the applicant.
BACKGROUND TO THE DISPUTE
5. It is common cause that the applicant is employed by the respondent as a Level 1 Teacher since 01 January 2008. He is currently based at the respondent’s Böhmer High School in Bloemfontein in the Free State Province and earns R29 816.15 per month. The dispute follows the respondent’s decision on 14 September 2018 to suspend the applicant with salary for allegations of sexual misconduct of a learner.
6. The applicant lodged an unfair labour practice dispute with the Council on 23 April 2019. After the granting of condonation for the late referral, a certificate of non-resolution of the dispute was issued on 20 June 2019 by the Council following a failed conciliation. The applicant applied for arbitration on 23 July 2019.
7. The applicant believes that his suspension was unfair and wishes that it be declared unfair and that his supervisor allowance of 30 x R3 164.43 be paid to him. It is common cause that the suspension was in the meantime uplifted.
SURVEY OF EVIDENCE AND ARGUMENT
8. This section constitutes a brief summary of the evidence and arguments put forward by the parties. It is not intended to be exhaustive, but I have taken all the submissions into consideration in arriving at my conclusions.
Documentary Evidence
9. The parties agreed to use the applicant’s bundle of evidence as documentary evidence for purposes of this arbitration.
Applicant’s Case
10. Mr Peter Wille, the applicant, was sworn in and he testified as the only witness in his case. He gave a background of his employment at the school and stated that his problems with the school management started when he became a member of the School Governing Body (SGB).
11. The applicant stated with reference to his evidence bundle that the SGB served him with a letter dated 22 August 2018 in which they alleged that he (the applicant) discussed confidential information of the SGB with his colleagues and that he would be investigated. He stated that he was told in the same letter that he is given seven days to make a representation to them.
12. The applicant testified that on 23 August 2018, he received a letter from the SGB that he has been suspended. He referred to correspondences between his attorneys and the SGB pertaining to his suspension from the SGB and how he refused to vacate his SGB position.
13. The applicant stated that suddenly on 14 September 2018, the respondent served him with a suspension letter which deals with the current sexual misconduct disciplinary action against him. He testified that his attorneys corresponded with both the respondent and the SGB pertaining to his suspensions.
14. The applicant testified that he refused to honour an invitation from the SGB to attend one of its meetings because the respondent has suspended him. He stated that he also received a letter from the SGB in which the SGB distanced itself from the suspension which the respondent has decided to impose on him.
15. The applicant testified that he challenged his suspension by the respondent in a letter from his attorneys dated 02 November 2018 in which he requested to be furnished with evidence of the allegations made against him. He stated that he was only served with a charge sheet on 19 April 2019 and that various correspondences between his union and the respondent also took place. The applicant submitted that the respondent has never provided him with any reasons, details and details of the child in the disciplinary case which is the basis for this suspension.
16. In cross-examination, the applicant stated that he and two other colleagues were victimised by the SGB and conceded that his single vote would not have changed the outcome of the new appointments at the school.
17. It is at this juncture where the parties have decided to lead further evidence through heads of arguments starting with the applicant by 17 June 2021, followed by the respondent on 22 June 2021 and there after the applicant by 24 June 2021.
Applicant’s Founding Affidavit
18. The applicant’s representative submitted that it is common cause that the alleged incident (sexual misconduct with a learner) for which the applicant was suspended for happened on 28 August 2018 and that it came to the knowledge of the respondent on 02 September 2018. He submitted that the investigation was completed around 19 April 2019, which is the date on which the applicant was served with a charge sheet.
19. The applicant submitted that the respondent only uplifted the suspension on 04 February 2021 by means of a letter dated 11 January 2021. His representative submitted that he (the applicant) has been on suspension for a period of 33 months and was not paid his hostel supervisor allowance for a period of 30 months in an amount of R94 932.90.
20. The applicant through his representative submitted that despite his request, the respondent has to date not provided him with reasons for his suspension. He stated that at the arbitration hearing, the respondent did not discredit or rebut the evidence provided by the applicant. The applicant submitted that his suspension was unreasonably long (seven months between suspension and charge sheet and another 25 months between the charge sheet and the upliftment of the suspension).
21. The applicant relied on section 35 of the Constitution of 1996 and Shabalala and 7 Others v The Attorney General: Transvaal and Another and argued that he had a right to be provided with the documents which he requested in order to allow him to make a representation. He stated that the respondent did not comply with the law and its own disciplinary code when it unilaterally decided to extend his suspension. The applicant prayed that I should grant the relieve which he is seeking.
Respondent’s Answering Affidavit
22. Despite having committed to provide this Council with it answering papers by 22 June 2021, the respondent has never provided us with the said document(s). As a result, I am only having the submissions of the applicant before me, and those submissions which the respondent’s representative made during the narrowing of issues and during the cross-examination of the applicant.
ANALYSIS OF EVIDENCE AND ARGUMENT
23. This is an unfair labour practice dispute, unfair suspension as provided for in section 186(2)(b) of the Act. It is common cause that the applicant was issued with a letter of suspension with full pay and benefits on 10 September 2018. The applicant was also afforded an opportunity to make a representation within five days. The parties have also agreed as common cause that the respondent served the applicant with a charge sheet on 15 April 2019. They have also agreed that the applicant was on suspension for 30 months which ended on 11 January 2021.
24. For purposes of this alleged unfair labour practice dispute between the applicant and the respondent, I shall not deal with the evidence pertaining to the suspension which the SGB has imposed on the applicant. The suspension by the SGB is for a different position other than the one occupied by the applicant at the respondent. That dispute was also resolved by the Free State Division of the High Court. I shall therefore only confine myself to the suspension by the respondent in relation to the alleged misconduct committed by the applicant on 28 August 2018.
25. Now instead of making and submitting a representation within five days as expected by the respondent in the suspension letter dated 10 September 2018, the applicant, through his attorney wrote a letter to the respondent in which he requested to be provided with details pertaining to the allegations against him. According to the applicant, the suspension letter is void of the details of the complainant (learner), the incident itself, any affidavits, etc.
26. The evidence before me shows that the respondent has never responded to the letter of the attorney dated 19 September 2018, despite having being the party requesting a representation. The respondent only came back to the applicant on 19 April 2019 with a charge sheet. I need to consider the law of precedent at this juncture in relation to the respondent’s failure to provide the information which the applicant requested in order for the applicant to make the representation which the respondent sought from him.
27. In Shabalala & 7 Others v The Attorney General, Transvaal & Another , the Constitutional Court held the following:
“that it was presumptuous of an employer to decide what documents the employee would need. The employer did not argue that the requested documents were irrelevant, confidential or unavailable.
28. The respondent’s failure to provide the applicant with the information requested, clearly placed the applicant in a position in which he did not know what to respond to. The respondent did not cooperate with the applicant in this regard and the respondent stands to be faulted on why the applicant could not submit a representation within the prescribed period as indicated in the suspension letter.
29. In moving on to the time it took for the respondent to serve the applicant with a charge sheet, I find the seven months’ period to be extreme and not prompt as required by the disciplinary code. Clause 6(2) of the respondent’s disciplinary code provides the following:
in the case of misconduct in terms of Section 18, the employer may suspend a educator in accordance with the procedure, contemplated in sub item 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 wellbeing or safety of any person at work, in terms of sub 3 if an educator is transferred or suspended, the employer must do anything possible to conclude the disciplinary hearing within 1 month of the suspension or transfer. In terms of sub 3(b), the presiding officer may decide on any further postponements. Such postponement must not exceed 90 days from the date of suspension.
30. The evidence before me is that the respondent has initiated the disciplinary proceedings through a charge sheet seven months after the suspension. The disciplinary hearing apparently commenced 25 months later. These delays are in contravention of the respondent’s own Disciplinary Code.
31. Section 6(3) of the Education Law Amendment Act (the ELAA) provides the following:
a) If an educator is suspended or transferred, the employer must do everything possible to conclude the disciplinary hearing within 1 month of the suspension or transfer;
b) The presiding officer may decide on a further postponement, such postponement may not exceed 90 days from the date of the postponement.
32. I have no evidence before me that the respondent has done everything possible to ensure that the disciplinary hearing was concluded within a month after the suspension. No evidence was also forthcoming from the respondent that its presiding officer of the disciplinary hearing has decided to postpone and conclude the matter within 90 days. The uncontested evidence before me is that the applicant has been on suspension for at least 30 months.
33. It was held in SAPO ltd v Jansen Van Vuuren NO and others that a suspension, even whilst investigations are underway, amounts to an unfair labour practice, if the period of suspension exceeds the period stipulated in a disciplinary code, collective agreement, regulations, or contract of employment.
34. With that having been said and done, it is my finding that the respondent acted outside the scope of its own disciplinary own and the ELAA by not having kept the length of the suspension within 30 days or through its presiding officer, within 90 days.
35. Section 186(2)(a) of the LRA stipulates the following:
186 Meaning of dismissal and unfair labour practice
(2) ‘Unfair labour practice’ means any unfair act or omission that arises between an employer and an employee involving-
(b) unfair suspension of an employee or any other unfair disciplinary action short of dismissal in respect of an employee.
36. The suspension of the applicant which has lasted for at least 30 months is unfair labour practice within the meaning of section 186(2)(b) of the Act.
RELIEF
37. The applicant requested the following as a form of relief:
37.1 that the suspension be declared an unfair labour practice
37.2 that he be paid his outstanding hostel fee allowance benefit of 30 x R3 164.43 = R94 932.90
37.3 that he be permitted to return to Dr Böhmer School on the same conditions with the same benefits prior to his suspension
37.4 that the respondent be ordered to pay him 12 months compensation for psychological, social and economic prejudices which he had to endure
37.5 that the respondent be ordered to pay his total legal costs in respect of this matter
37.6 damages in respect of promotional posts
38. I shall now deal with these requested remedies separately under different headings.
Declaring the suspension as unfair labour practice
39. I have already made such a declaration at paragraph 36 supra. This declaration shall form part of the orders of this award.
Payment of Hostel Fee Allowance Benefit
40. It goes without saying that had the applicant not being suspended, or if his suspension was limited to 90 days as prescribed by the law, the applicant would not have lost an additional 27 months’ allowances (especially if he was not dismissed as is the case at the time of this arbitration). Because the applicant was suspended with salary, I shall order that the respondent must pay the outstanding allowances to the applicant in the amount of R94 932.90. This is also to ensure that this unfair labour practice dispute of the parties is finally resolved and brought to an end.
The return of the applicant to Dr Böhmer School
41. I shall order that the applicant be placed back at Dr Böhmer School on the same terms and conditions of employment, pending the finalisation of his disciplinary hearing.
The payment of 12 months’ compensation for psychological, social and economic prejudices which the applicant had to endure
42. I shall now turn to the law to check on the legitimacy of this claim. Section 193(4) of the Act provides the following:
193 Remedies for unfair dismissal and unfair labour practice
(4) An arbitrator appointed in terms of this Act may determine any unfair labour practice dispute referred to the arbitrator, on terms that the arbitrator deems reasonable., which may include ordering reinstatement, re-employment or compensation.
43. The relief sought by the applicant is legitimate within the meaning of section 193(4) of the Act. I have no evidence before me from the respondent’s side on why the relief sought by the applicant should not be awarded.
44. In IMATU obo Sankhanyane v Emfuleni Local Municipality the Court held that when the Arbitrator finds that a suspension of an Employee amounted to an unfair labour practice, it was irregular to simply order his return to work without considering whether, based on the facts of the case, to consider awarding compensation as a form of solatium.
45. The applicant did not provide sufficient evidence such as reports of his psychological or social status. It is common cause that he was suspended with salary. I shall, as a result, not accede to the applicant’s initial request for 12 months’ compensation, but I shall order that the applicant be paid One Thousand Rand for every month that he has been at home as compensation and as a form of solatium for the unfair suspension of 30 months which he had to endure.
46. This shall be R1 000.00 x 30 months = R30 000.00 for the non-patrimonial loss.
Legal Costs (Cost Order)
47. The applicant also requested that his legal fees be reimbursed to him by the respondent for the prolonged unfair suspension. The respondent has not objected to this request. Rule 54 of the Council’s Dispute Resolution Procedures (hereinafter the Rules) provides the following:
54 Costs
54.3 A commissioner may make an award of costs in respects of the legal fees of a party that is
represented in an arbitration by a legal practitioner, only if the other parties to the arbitration were represented by a legal practitioner. [my emphasis added]
48. Though the applicant may have good reasons for requesting a costs order against the respondent, Rule 54.3 is clear that such orders may only be made if and when both parties are legally represented. In this case, only the applicant was represented by a legal practitioner. I will be acting ultra vires if I grant such an order. As a result of the Rules, I shall not make a cost order against the respondent.
Damages in respect of promotional posts
49. The applicant requested to be paid damages in relation to promotional posts which he might have received had it not been for the suspension. Despite this relief not having been opposed, the applicant did not produce any evidence to show that he would have been promoted and in which post(s) had the suspension not taken place. In light of the fact that the applicant submitted that his relationship with the SGB went sour after he became a member of the SGB, I am not persuaded that the in such a sour relationship, the applicant might have stood a chance to be promoted. No damages shall be ordered in this respect.
50. In the premise, I make the following award:
AWARD
51. The suspension of the applicant, Mr Peter Wille, by the respondent, Free State Department of Education, between 14 September 2018 and 11 January 2021 was an unfair labour practice.
52. The respondent is ordered to pay to the applicant an amount of R94 932.90 for his outstanding hostel fee allowances.
53. The applicant is ordered to report for duty at Dr Böhmer School within 48 hours of receipt of this award or at the first working day during the lockdown period (whatever may come first) pending the finalisation of his disciplinary hearing.
54. The respondent is ordered to pay to the applicant an amount of R30 000.00 in compensation as solatium for the unfair labour practice which he had to endure.
55. No damages in relation to possible promotional posts are awarded against the respondent.
56. No order as to costs is made.
This is done and dated on 26 July 2021 at Kimberley.
David Pietersen
ELRC Commissioner
ELRC 302 -20 /21 NW
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