ELRC464-20/21 FS
Award  Date:
  11 August 2022



Case Number: ELRC464-20/21 FS

Dates of arbitration: 7 June 2022 & 27 July 2022

Date of submission of written closing statement: 3 August 2022

Date of award: 11 August 2022

ELRC Arbitrator


1. The arbitration was held remotely. It commenced on 7 June 2022 and the hearing of evidence was finalized on 27 July 2022. Written closing arguments were then submitted by both parties.
2. The Applicant was represented by Mr Lechwano, instructed by Mr Van Rensburg of the firm of attorneys, Horn & Van Rensburg.
3. The Respondent was represented by its employee, Mr Tsunke.
4. The proceedings were digitally recorded.


5. I am required to determine whether the Respondent committed an unfair labour practice as provided for in section 186(2)(b) of the Labour Relations Act 66 of 1995 (LRA) involving the unfair suspension or any other disciplinary action short of the dismissal of the Applicant.

6. The parties held a pre-arbitration meeting, which gave rise to comprehensive, signed minutes that record that it is common cause that:
6.1. The Applicant has been employed by the Respondent since 1 January 1986 and that she is currently so employed as an educator at Roseview Primary School (the school) in Bloemfontein;
6.2. The Applicant was suspended by way of a letter dated 13 September 2016 in terms of which she was advised that she was suspended with immediate effect pending an investigation into the following four alleged acts of misconduct:
6.2.1. Calling a learner a kaffir;
6.2.2. Refusing to take instructions;
6.2.3. Threatening the principal; and
6.2.4. Disrespecting authority;
6.3. The letter of suspension further invited the Applicant to provide the Respondent within five working days with any facts that would influence the Respondent to decide to lift her suspension. The Applicant replied to the said letter by way of a letter dated 20 September 2016. She denied all the allegations against her and set out her version and sequence of events. Her suspension was, however, not lifted;
6.4. The Applicant’s disciplinary hearing was initially set down to be heard on 31 October 2016. The notice of set down informed the Applicant that she was charged with six counts of alleged misconduct;
6.5. The hearing did not proceed on 31 October 2016 as it was postponed by agreement between Mr Van Rensburg, the Applicant’s representative, and Mr Mokoena, an employee of the Respondent who had been appointed as the initiator of the disciplinary hearing. The reason for the postponement was that Mokoena felt that he was conflicted in respect of the matter;
6.6. The hearing was subsequently set down to proceed in June 2017 but once again did not proceed;
6.7. The suspension of the Applicant was lifted by way of a letter dated 20 September 2018 that was sent to Mr Van Rensburg by an email on 9 October 2018. The letter informed the Applicant that her disciplinary hearing would still proceed;
6.8. The disciplinary hearing has not been set down or proceeded with and on 14 March 2022 the Respondent’s representative undertook to provide the Applicant with written confirmation by 22 March 2022 to unconditionally withdraw the allegations of misconduct and thus to bring an end to the disciplinary proceedings. The said letter had not yet been provided when the arbitration commenced on 7 June 2022. At the commencement of the arbitration, however, Mr Tsunke confirmed that the Respondent did indeed withdraw the allegations of misconduct unconditionally.
7. It was agreed during the arbitration that the salary advice (exhibit B) correctly reflects the monthly remuneration of the Applicant as being R41 180.32.
8. The Applicant contends that the decision to suspend her and the decision to initiate initiate disciplinary proceedings thereafter amount to unfair labour practices by the Respondent as contemplated in section 186(2)(b) of the Labour Relations Act 66 of 1995, as amended (LRA.) The Respondent disputes this.

9. Tertia du Toit (the Applicant) has been employed at the school since 1998 as its Afrikaans educator.
10. During August 2016 the Applicant had raised concerns regarding financial management at the school and, in particular, the receipting and banking of cash received from parents. These concerns were directed primarily at the conduct of the school principal and the chairperson of the school governing body. She was aware that the chairperson had been associated with alleged financial misconduct at the school at which he had been principal prior to his sudden resignation.
11. On 13 September 2016 she was handed a letter (at page 11 of exhibit A) by the circuit manager in terms of which she was suspended with immediate effect. She was told to pack her belongings and to leave the school premises immediately.
12. The said letter of suspension recorded that she was being suspended pending the investigation of four alleged acts of misconduct detailed as follows:
12.1. Calling a learner Kaffir;
12.2. Refusing to take instructions;
12.3. Threatening the principal; and
12.4. Disrespecting authority.
13. The letter further stated that:
“You are afforded an opportunity to enable you to submit to the Department all the facts relevant to this issue and which may influence the Superintendent General: Education in his decision whether or not to lift the suspension within five working days.”
14. The Applicant accepted this invitation and submitted her motivation for the lifting of her suspension by way of a letter dated 20 September 2016 (at page 16 of exhibit A.) In her letter the Applicant denies all charges against her and she submits that after having a clear record for 30 years she was then faced with a personal vendetta against her orchestrated by the school principal and chairperson of the school governing body following her having raised concerns of possible financial mismanagement in writing with the school governing body. She volunteered to testify under oath in respect of the financial irregularities and pointed out that she had already co-operated with an investigation in respect of her alleged irregularities conducted by a certain Mr Mokoena on 2 September 2016. Her suspension was not uplifted.
15. Her suspension was accompanied by significant coverage by the media, including television, print and radio. In addition, she learnt that a complaint had been laid with the Human Rights Commission in respect of the racist slur allegedly used by her.
16. The Applicant’s disciplinary hearing was initially set down to be heard on 31 October 2016. The notice of set down (at page 19 of exhibit A) now indicated that the Applicant faced six counts of misconduct as opposed to the four set out in her letter of suspension. She denies guilt in respect of all six counts.
17. The hearing did not proceed on 31 October 2016 as the initiator for the Respondent withdrew as a result of a perceived conflict of interest as he was a client of the Applicant’s attorney.
18. The disciplinary hearing was then set down to proceed on 21 June 2017. On this occasion the Applicant submitted a letter written by a mother of a learner at the school and which had been given to her by a colleague. In the letter (at page 20.1 of exhibit A) the mother, inter alia, raises a number of complaints in respect of the school and its principal with regards to her child, a special needs learner, and in respect of the disciplinary hearing of the Applicant she states that:
“As a parent, I have come to realize that the school and the school principal are lately trying hard to destroy my child since last year by using my child in Mrs Du Toit’s case and causing the teacher to be suspended. I want my child’s name to be withdrawn immediately in that case and never be part or witness and shouldn’t be involved in Mrs Du Toit’s case.”
19. Once again the hearing did not proceed on 21 June 2017 as none of the Respondent’s witnesses were present and it has not since been reinstated.
20. A letter dated 20 September 2018 (at page 21 of exhibit A) was sent to the Applicant’s attorneys advising her that her suspension had been lifted and that she should return to the school with immediate effect. The letter further states that her disciplinary hearing would still proceed.
21. Ever since her suspension the Applicant’s health had suffered. She was treated by her general practitioner, a psychologist, a psychiatrist, an occupational therapist and a cardiologist for anxiety, depression and stress related ailments. She attributed all of this to the charges levelled against her. She continues to suffer from these ailments.
22. She did not return to work after her suspension had been lifted. The school principal and staff involved in victimizing her were still at the school and she continued to suffer from the said ailments. It was only during 2019, after she had been advised that all leave had been exhausted and she would not be paid her full salary that she returned to the school. By this stage, the school principal had also left the school.
23. The Applicant had, however, been prepared to return to work earlier provided that it was at another school. When the Respondent had failed to reschedule her disciplinary hearing, she in June 2019 had approached a director of the Respondent, Mr Moloi, for assistance in being placed at another school and for her disciplinary hearing to proceed and be finalized. At the meeting Mr Moloi had indicated that he could assist and the Applicant had left the meeting hopeful. When she did not hear back from him, she went to his office early in the morning of 28 October 2019. Despite her having been at the office since 7:30 am he had only seen her at 2 pm. At this meeting Mr Moloi had treated the Applicant so appallingly that she had had to be hospitalized. A formal grievance in this regard was laid by the Applicant on 31 October 2019, a copy of which is at page 28 of exhibit A.
24. The Applicant has been back teaching at the school for approximately two years. She is still affected by the charges that were laid against her in 2016 and still suffers from the associated ailments detailed above. The incident of being charged with the alleged false charge of saying a racist slur affects the way she approaches teaching and she feels that she will never again be the same educator as she was prior to her suspension.
25. Under cross-examination the Applicant was referred to medical certificates put up by her at pages 31-37 of exhibit B all of which pre-date her suspension but nevertheless indicate that even at that time she suffered from stress, anxiety and depression. The response of the Applicant was that these ailments had been brought on by her conflict with the principal arising from her having raised the issue of financial irregularities.
26. It was put to her that the Respondent would call a witness who will testify that the learners who would have been witnesses at the disciplinary hearing were reluctant to testify as they felt intimidated by her. The Applicant denied having been in contact with any potential witnesses. Under re-examination, the Applicant stated that the Respondent had never complained that she had been intimidating witnesses.
27. The Applicant denied having requested further postponements of her disciplinary hearing after 21 June 2017 due to her ill health. She would not have been in a position to return to the school if her suspension had been lifted after the postponement of her hearing on 31 October 2016 given her medical condition and the principal still being at the school. If the Respondent and the principal had acknowledged that she had been charged in error, this would have helped.
28. Once her suspension had been lifted she had not returned to work at the school on the advice of medical practitioners. It was for this reason that she had approached Mr Moloi for assistance in getting transferred to another school.
29. As far as she knew, the complaint with the Human Rights Commission had been lodged by a member of the school governing body.
30. John Makoko (Makoko) testified that he was appointed as the initiator after Mokoena had withdrawn.
31. At the hearing on 21 June 2017 the Applicant’s attorney, Mr Van Rensburg, had requested that the hearing be postponed as he was awaiting a response to a letter that he had written to the Respondent requesting it to withdraw the charges and consider transferring the Applicant to another school. It was also said that the Applicant was sick. Makoko had agreed to the postponement.
32. He had discussed the case with Mr Van Rensburg in person on two occasions when they had met at the venue for the disciplinary hearing. On both occasions the case had been postponed.
33. He had thereafter communicated with the attorney on a number of occasions and had met with him twice at his office discussing the case and possible dates for its hearing. Mr Van Rensburg had indicated that the Applicant was ill and not in a position to attend her hearing as she suffered from depression and stress.
34. The Respondent was prepared to withdraw those charges in respect of which children would be required to testify as the learners felt intimidated by the Applicant and a parent of one child had indicated that she feared that her child would be victimized. This would leave two charges to which Mr Van Rensburg indicated that the Applicant would be willing to plead guilty provided that she was transferred to another school. The transfer of the Applicant would have required the authorization of the District Director, Mr Moloi but he had been unable to meet with him.
35. The issue of the Applicant’s suspension had not been discussed with the Applicant’s attorney. In any event, he would not have recommended that her suspension be uplifted as learners had indicated that they felt intimidated by her.
36. Under cross-examination it was put to Makoko that the Respondent could not have been concerned about the intimidation of witnesses as it had uplifted the Applicant’s suspension in September 2018 without transferring her to a different school. Makoko’s response was that he could not comment as he had not been involved with that decision. He commented further that possibly that decision had been made as the charges involving learners had been withdrawn. He was unaware that none of the charges had in fact been withdrawn prior to the commencement of this arbitration hearing.
37. Makoko submitted that he and the Applicant’s attorney had agreed that the Applicant would plead guilty to the two counts not involving children. He had proposed to Mr Van Rensburg that he would withdraw those charges not involving children, which would leave two charges. Mr Van Rensburg had proposed that the Applicant would plead guilty to the two remaining charges on condition that the Applicant was transferred to another school. These discussions had taken place at a meeting held at Mr Van Rensburg’s office on 7 September 2018.
38. Makoko submitted that after the postponement of the disciplinary hearing for a second time, he and Mr Van Rensburg had communicated by way of sms with regards to the disciplinary hearing.
39. With regards to the series of sms messages between Makoko and Mr Van Rensburg, Makoko agreed that:
39.1. The first message was sent by him on 17 July 2018;
39.2. Nowhere does Mr Van Rensburg request a postponement of the disciplinary hearing due to the ill health of the Applicant;
39.3. A hearing date of 12 September 2018 had been set for the disciplinary hearing;
39.4. On 11 September 2018 he had received a message from Mr Van Rensburg in which he states that he assumes that the hearing would not proceed as “a way forward” for the Applicant had not yet been agreed to and to which he had replied that they should meet the following day but that he had only managed to meet Mr Moloi late on that day. The hearing had not proceeded on 12 September 2018;
39.5. The hearing had not proceeded on 12 September 2018 as no finalization had been reached with regards to the transfer of the Applicant. Makoko maintained that another reason for the hearing not proceeding was the ill health of the Applicant, which reason is not detailed in the sms messages but was discussed by him and Mr Van Rensburg. This was disputed on behalf of the Applicant;
39.6. On 19 September 2018 he had sent a message to Mr Van Rensburg informing him that the hearing would be held on 10 October 2018 and that he would in the meantime try and meet with Mr Moloi.
40. Despite the health of the Applicant having never been raised by Mr Van Rensburg in his sms messages as a reason for requiring a postponement, Makoko maintained that the hearing was not held due to the need to secure her transfer following a meeting with Mr Moloi (that did not take place) and the ill health of the Applicant.

41. Written closing arguments were submitted on behalf of both the Applicant and the Respondent. I have considered these arguments together with the oral and documentary evidence. The arguments of the respective parties are summarized below.
The Applicant
42. It was submitted that:
• Prior to her suspension she had voiced her concern with the SGB regarding an amount of R7 600 that had been collected in fundraising but not banked.
• Following her voicing her concerns, she had been victimized by the principal of the School, Mr Cicilie, and the SGB chairperson, Mr Kagande;
• The Applicant had not returned to the School immediately after her suspension had been uplifted due to this victimization and the adverse effects it had had on her health. Instead, she had tried to have herself transferred to another school but she had received no assistance from the Respondent’s employee, Mr Moloi;
• The Respondent had failed to submit any evidence in support of its allegation that the Applicant had requested that her disciplinary hearing to be postponed due to her ill health. The real reason for the delays was that the Respondent was in discussions with the Applicant in respect of her transfer to another school and it had not finalized her charge sheet;
• The Applicant had not been provided with an opportunity to state her case prior to her suspension. This, on its own, was unfair;
• The letter of suspension did not provide a justifiable reason for the belief that she had engaged in serious misconduct nor do it provide an objectively justifiable reason to deny her access to her workplace;
• When she was notified that her suspension had been uplifted, the letter still stated that the Department would proceed with her disciplinary hearing;
• The Applicant had been suspended on 13 September 2016; her disciplinary hearing had initially been set down for 31 October 2016 and her suspension had been uplifted on 20 September 2018. Throughout this period and until 14 March 2022 she had not been informed that the Respondent did not intend to proceed with the disciplinary hearing or that any of the charges had been withdrawn;
• The Respondent had not complied with the provisions, in particular with item 6, of the Disciplinary Code and Procedures for Educators (Schedule 2 to the Employment of Educators Act 76 of 1998;)
• The conduct of the Respondent had been traumatic for the Applicant and had had serious health implications for her
• The payment of compensation equivalent to between seven and twelve months’ remuneration would be fair to the Applicant.
43. In support of the submissions made on behalf of the Applicant, reliance was placed upon the cases of:
• City of Tshwane Metropolitan Municipality v South African Local Government Bargaining Council & Others (JR795/18) [2021] ZALCJHB;
• Mogatlhe v Premier of North-West Province & Another (J2622/08) [2009] ZALC1; [2009] 4 BLLR 331 (LC); (2009) 30 ILJ 605; and
• Laubscher v General Public Service Bargaining Council (JR2236/17) [2020] ZALCJHB 103; [2020] 10 BLLR 1053 (LC) paragraphs 28-50.
The Respondent
44. It was submitted on behalf of the Respondent that:
• On 31 October 2016, both parties had agreed to the hearing being postponed due to the conflict of interest experienced by Mr Mokoena, who had been appointed as the initiator. Thereafter the hearing had been postponed on the requests of the Applicant due to her ill health or as her representative was unavailable;
• The evidence of Mr Makoko that postponements had been caused by the Applicant’s ill health had not been rebutted;
• The Applicant had suffered from depression, stress and the like prior to her suspension and she had been disingenuous to testify that these ailments had been brought about by her suspension and the subsequent conduct of the Respondent.

45. The Applicant bears the onus of establishing that she was subjected to an unfair labour practice involving her unfair suspension and/or any other unfair disciplinary action short of her dismissal.
46. It is common cause that the Applicant was suspended on 13 September 2016; that her disciplinary hearing was initially set down for hearing on 31 October 2016 but did not proceed on that day or any day thereafter; that her suspension was lifted on 20 September 2018 but the charges remained in place and that she was notified orally at the commencement of these proceedings on 14 March 2022 that all charges had been withdrawn.
47. Schedule 2 of the Employment of Educators Ac 76 of 1998 is the Disciplinary Code and Procedures for Educators and item 6 regulates the suspension of educators pending a disciplinary hearing. The said item provides that:
47.1. In cases of serious misconduct in terms of section 17, the employer may suspend the employee on full pay for a maximum period of three months-item 6(1);
47.2. The presiding officer of a disciplinary hearing may decide on any further postponement that may not exceed 90 days from the date of suspension-item 6(3)(b); and
47.3. If the proceedings are not concluded within 90 days, the employer must enquire from the presiding officer what the reasons for the delay are and give directions for the speedy conclusion of the proceedings-item 6(3)(c.)
48. In the case of SAPO Ltd v Jansen Van Vuuren and others (2008) 8 BLLR 798 LC it was held that a suspension amounts to unfair labour practice if the period of suspension exceeds the period stipulated in a disciplinary code, collective agreement, regulations or contract of employment. It is common cause that the Applicant was suspended for approximately two years; far in excess of the period of three months stipulated in the Code. There is also no evidence that the Respondent enquired from the presiding officer as to the reasons for the delay and gave directions for the speedy conclusion of the proceedings.
49. It was held in Mogatlhe v Premier of North-West Province & Another (J2622/08) [2009] ZALC1; [2009] 4 BLLR 331 (LC); (2009) 30 ILJ 605 that with regards to the suspension of an employee pending a disciplinary hearing, fairness requires that an employer, prior to suspending the employee, has justifiable reason, prima facie at least, that the employee had engaged in serious misconduct and secondly that there is some objectifiable reason to deny the employee access to the workplace. No evidence was led by the Respondent in respect of the nature of the information upon which it based its decision to suspend the Applicant. It accordingly has not established that there were justifiable reasons for the Applicant’s suspension. Further in this regard, it would appear from the letter of the parent of the complainant in counts 5 and 6 of the charge sheet (at page 20 of exhibit A) that he had in fact not complained and that the parent’s complaint was that the School and principal had used her child in bringing charges against the Applicant.
50. It was held in Laubscher v General Public Service Bargaining Council (JR2236/17) [2020] ZALCJHB 103; [2020] 10 BLLR 103 (LC)that the institution of an inquiry by arbitrator fell within the meaning of “any other unfair disciplinary action short of dismissal” as used in section 186(2)(b) of the LRA. It is common cause that the Applicant was served with a notice to attend a disciplinary hearing on 31 October 2016. The institution of the disciplinary hearing is disciplinary action short of dismissal. As the disciplinary hearing did not proceed then or any other time, the Applicant never pleaded to the charges. The charges were only withdrawn orally at the pre-arbitration meeting on 14 March 2022. No evidence was led on behalf of the Respondent as to why and when it had decided not to proceed with any charges. Makoko indicated that as the learners had alleged that they felt intimidated it had been decided to withdraw those counts involving children. There are a number of difficulties with this evidence. Firstly, he was unaware that no charges had been withdrawn prior to 14 March 2022. Secondly, I find it hard to believe that the Respondent would simply withdraw charges against an alleged racist bully because the victims of such conduct felt intimidated by her. Surely if there was substance to the charges, the Respondent would have made appropriate arrangements for their evidence to be heard. Thirdly, the letter uplifting her suspension specifically stated that the disciplinary process would still proceed-(page 21 of exhibit A.) it made no mention of the withdrawal of any charges. As already indicated no evidence was led in respect of the complaints relied upon for the decisions taken by the Respondent to suspend and then charge the Applicant. In light hereof, I find that the institution of the disciplinary hearing and subsequent action of leaving the charges hanging over the head of the Applicant for a period in excess of five years is an unfair labour practice involving disciplinary action short of dismissal.
51. The next issue that I need to consider is that of the compensation payable to the Applicant. In terms of section 194(3) of the LRA the compensation awarded to the Applicant must be just and equitable in all the circumstances and may not be more than the equivalent of 12 months’ remuneration. The Applicant’s monthly remuneration is R41 180.32.
52. The compensation payable to the Applicant is in the form of a solatium payable as compensation for the humiliation suffered and impairment of her dignity.
53. It was held in the Labour Appeal Court case of Minister of Justice & Constitutional Development v Tshishonga (2009) 30 ILJ 1799 (LAC) that the factors to be considered in determining the amount of compensation include:
“… the nature and seriousness of the iniuria, the circumstances in which the infringement took place, the behaviour of the defendant (especially whether the motive was honourable or malicious,) the extent of the humiliation or distress, the abuse of the relationship between the parties and the attitude of the defendant after the iniuria had taken place.”
54. the Applicant was suspended for approximately two years without the disciplinary hearing commencing. This is an extensive period of suspension. It was submitted on behalf of the Respondent that it was the Applicant who was the cause of the disciplinary hearing having not been held as she had claimed that she was too ill for it to proceed. This was disputed on behalf of the Applicant and it was submitted that there is no record of the Applicant having requested a postponement due to her ill health. It is further not in dispute that the Respondent never called upon the chairperson to rule on the fitness of the Applicant to attend her disciplinary hearing. The Respondent was dominus litis and, in any event, was obliged, in terms of item 6(3)(c) of the Disciplinary Code, and once the disciplinary hearing had not been concluded within a period of 90 days, to enquire from the presiding officer what the reasons for the delay were and to give directions for its speedy resolution. This did not occur. It was not in dispute that the transfer of the Applicant to another school had been raised on behalf of the Applicant and considered by the initiator of the disciplinary hearing, Makoko, who testified that he had approached Mr Moloi, the employee of the Respondent who needed to make the decision. As testified by the Applicant she had also approached Mr Moloi in this regard to no effect. A more likely cause for delay is probably the indifference of Mr Moloi towards the Applicant’s request for a transfer and not that she had repeatedly requested postponements due to her ill health. In support of this is the fact that even after she had returned to work, the disciplinary hearing was not held. The charges were brought against the Applicant in 2016 and only withdrawn in 2022.
55. It was submitted on behalf of the Applicant and she had testified that her suspension and her being charged by the Respondent with misconduct, had had a debilitating effect on her health. In support hereof she had included a number of medical certificates in exhibit A indicating that she received medical treatment for stress, depression and related ailments. It was, however, correctly pointed out by the Respondent that certain of the medical certificates indicated that she had received medical treatment for these ailments prior to her suspension. I don’t believe, however, that it can be disputed that the prolonged suspension and having the charges hanging over her head for in excess of five years, would have had a detrimental effect on the health of someone already dealing with stress and depression.
56. The Applicant, who had been employed at the School, since 1998, had approached the Respondent’s employee, Mr Moloi, with a request for a transfer almost three years after the charges had been brought against her. At best, the treatment she received from him can be described as indifferent. It would seem as if the Respondent’s witness, Makoko faired no better when he had also approached Mr Moloi, who was the district director. There was certainly no attempt by him to lessen the iniuria suffered by the Applicant.
57. The funds from which the compensation will be paid are public funds intended for the education of learners. I need to be mindful of this when considering the quantum of compensation payable for unfair labour practices. Compensation is a solatium to compensate the Applicant for the distress suffered by her. It is not meant to compensate her for damages that may have been suffered by her and which may be claimed in the civil courts.
58. Having regard to all the facts of this case I am satisfied that it would be just and equitable to award the Applicant compensation equivalent to 7 months’ remuneration. The Applicant’s remuneration is R41 180.32. I accordingly intend to award her compensation of R288 262.24.

59. The Respondent committed unfair labour practices in terms of section 186(2)(c) of the Labour Relations Act 66 of 1995.
60. The Respondent is ordered to pay the Applicant compensation of R288 262.32 by no later than 14 days of the Council having issued this award.

J Kirby
Arbitrator 11 August 2022
ELRC464-20/21 Free State
261 West Avenue
8h00 to 16h30 - Monday to Friday
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