IN THE ELRC ARBITRATION
MARIA MNISI Applicant
DEPARTMENT OF EDUCATION – LIMPOPO Respondent
Case Number: ELRC421-21/22LP
Last date of arbitration: 07 December 2021
Receipt of closing arguments: N/A
Date of award: 13 December 2021
ELRC Arbitrator MATHEWS RAMOTSHELA
Education Labour Relations Council
261 West Avenue
Tel: 012 663 0452
Fax: 012 643 1601
E-mail: firstname.lastname@example.org SelloM@elrc.org.za MatloseM@elrc.org.za
DETAILS OF HEARING AND REPRESENTATION
The arbitration hearing was held on 7 December 2021 by means of Zoom online application. L Burger, an attorney, represented the employee. Maria Mnisi. The employer, Department of Education: Limpopo were represented by Mokgoba Matlou, an official. The proceedings were digitally recorded.
 At the commencement of the hearing, the employer raised a jurisdictional point that the referral was premature on the basis that the employee did not refer her complaint for the internal appeal prior to escalating same to the Council.
 It is common cause that the employer has an appeal system. However, it turned out that the procedure of appeal is not compulsory, but an entitlement as the relevant wording of section 9(2) of Schedule 2 to the Employment of Educators Act 76 of 1998 clearly states.
 Accordingly, I ruled that the Council has the requisite jurisdiction to arbitrate despite the fact that the employee did not refer the dispute for appeal. She was entitled, but not compelled to do so.
ISSUE TO BE DECIDED
 I am enjoined to determine whether the employer committed an unfair labour practice relating to a sanction short of dismissal, to wit a final written warning.
BACKGROUND TO THE ISSUE
 The following facts are common cause:
(a) The employee is an educator;
(b) On 23 June 2021 the employer issued a final written warning against the employee for engaging in extraneous employment without obtaining the prior approval of the employer in the prescribed manner;
(c) The employee is a member/chorister and secretary of a church choir;
(d) The employer has a rule that regulates extraneous employment which requires that permission be granted to do so in the prescribed manner;
SURVEY OF EVIDENCE AND ARGUMENT
Maria Naniki Mnisi testified under oath as follows:
 She is a member of the Evangelical Presbyterian Church and is one of the choristers in the church’s choir. She has also been elected as the choir’s secretary. The choir does a lot of performances for the Department of Sports, Art and Agriculture (the department) and other entities. Mostly they sing over weekends. Sometimes the choir gets remunerated for performances. The money paid gets directly to the choir’s bank account. The choir has its own bank account. No part of any such monies ever gets paid to individual members as choristers do not get remunerated for performing in the choir.
 On 28 and 29 June the Department requested the choir to perform and to this end an amount of R 15 000.00 was paid into its bank account. No part of this money was ever paid to her.
Mbengeni Gravice Netshifhefhe testified under oath for the employer as follows:
 He is employed by the Department as a deputy director for conduct management. On page 10 of Bundle A is the final warning issued against the employee because the report of the Auditor General says that the employee engaged in remunerative work beyond her scope of employment. It was then that they wrote to the employee calling upon her to make representations on the allegations levelled against her. It was found that she did not apply for authorization to do extra work outside the scope of employment.
ANALYSIS OF EVIDENCE AND ARGUMENT
 As per general rules of evidence, she who alleges must prove. Accordingly, the onus rests upon the employee to establish a case of unfair labour practice. The employee’s case is premised on the final warning that was issued against her on the strength of her participation in the activities of a church choir of which she doubles as a secretary.
 From her own testimony, which was not challenged, the employee has never received any money from the choir. Based on the evidence from both sides, it can be gleaned that while it is true that the choir does from time to time gets paid some money seemingly arising from its performances for government departments such as the Department of Sports, Arts and Culture, the members of the choir, inclusive of the employee, do not personally and individually get a share of the money. No evidence has been led as to what eventually happens to all the monies that gets into the choir’s coffers and accordingly, I can only conjecture that the money gets used for the choir and/or the church’s activities.
 In particular, while it is not in dispute that the choir was paid an amount of R 15 000,00 related to a performance during October 2019 as highlighted above, there is paucity of evidence that the employee or any other chorister was paid any part of that money. This is proof sufficient to show that the employee did not earn any remuneration outside her employment with the Department, as alleged or at all.
 It is the employer’s case that the Auditor General’s report has flagged the employee’s involvement in the choir in the manner explained above as engagement in work beyond her employment with the Department. Do any such comments automatically translate the employee’s conduct into a transgression of the rule at work that prohibits the carrying out of remunerative work outside one’s employment? I do not agree. Apart from the fact that the employee does not receive any red cent based on her participation in the choir’s activities as both a member and secretary, one cannot, with conviction say that she is involved in extraneous work. In my considered view, she did not need any permission to participate in church and/or choir activities and one wonders how, given the paucity of any evidence that implies wrongdoing, the employer deemed it necessary to arraign the employee for this type of misconduct with a final warning as a penalty.
 It is thus my inevitable finding that the employer has dismally failed to present sufficient evidence to show that the employee committed any misconduct. I conclude that there existed no legal basis for issuing a final warning against her.
 By conclusion, I arrive at the ineluctable finding that the employee has succeeded to prove that the employer’s conduct of issuing a final written warning amounts an unfair labour practice relating to disciplinary action short of dismissal.
 The employer’s conduct of issuing a final written warning amounted to an unfair labour practice against the employee.
 The final written warning issued against the employee on 23 June 2021 is hereby declared null and void.
 The warning is forthwith expunged from the employee’s disciplinary record.
Council Panelist: MATHEWS M RAMOTSHELA