ELRC747-21/22EC

Case Number: ELRC747-21/22EC
Commissioner: MBULELO SAFA
Date of Award 29 August 2022

In the ARBITRATION between: -

NAPTOSA obo HLONGWANE B.J.
Applicant

And


DEPARTMENT OF EDUCATION – EASTERN CAPE
First Respondent

DETAILS OF THE HEARING AND REPRESENTATION

1. The matter was set down for arbitration on the 02 August 2022 at the offices of the Respondent in Mthatha.

2. The Applicant was represented by Mr Anton Adams from NAPTOSA and the Respondent was represented by Mr T.W. Liphaphang Labour Relations Officer.

3. The proceedings were recorded on the audio recorder and on Zoom.


ISSUES TO BE DECIDED


4. Whether or not the Respondent committed an unfair labour practice in terms of section 186(2) of the Labour Relations Act by issuing a sanction wherein the Applicant was given a demotion and ordered to pay R81 023.31.
5. If so, to make an appropriate award in terms of section 193(4) of the Labour Relations Act.

BACKGROUND TO THE ISSUES

6. The Applicant is an employee of the Respondent. He was initially employed as a Principal of Little Flower Senior Secondary School in the OR Tambo Inland District of the Respondent.

7. Sometime in 2020/2021 the Applicant was disciplined by the Respondent and found guilty of (1) contravention of section….(section not mentioned) of the Employment of Educators Act committing financial misconduct in that he spent an amount of R678 989 in 2016 without supporting documents and further spent R178 517 on unidentified goods and services, (2) contravention of section 18(1)(a) of the Employment of Educators Act in that during 2016 he charged learner fees at a ‘no fee’ school and collected up to R163 872-88 and (3) In terms of section 18(1)(f) of the Employment of Educators Act, he unjustifiably prejudiced the administration, discipline or efficiency of the Respondent in that he authorized a payment of R25 000 for a borehole without following standard procurement procedures for appointment of a service provider.

8. Subsequent to the disciplinary enquiry, Applicant was given a sanction of demotion to the position of Deputy Principal and was further ordered to pay back an amount of R81 023-31.

9. He has referred an unfair labour practice in terms of section 186(2) of the Labour Relations Act. He is challenging the fairness of the demotion and submitted that the sanction was not in line with clause 8(2) of schedule 2 of the Employment of Educators Act and that the deduction was not in terms of section 18(2) of the Act.

10. The dispute remained unresolved at conciliation and it was referred to arbitration.

11. The relief sought by the Applicant is to set aside the sanction.

12. The Respondent initially indicated that they were opposing the application but failed to file its heads of arguments.

SURVEY OF EVIDENCE AND ARGUMENT

13. On narrowing down the issues it transpired that the facts of the case were not in dispute as the Applicant was not challenging the disciplinary process and the findings of the disciplinary enquiry. He is also not disputing the value of the amount of R81 028.31.

14. Seeing that the facts of the case are not in dispute it was consented to and directed that the case be a stated case.

15. The parties agreed and were directed to submit their written heads of arguments according to a particular schedule. The Applicant was to file their his founding affidavit on or before the 10 August 2022, the Respondent to to respond by not later than 15 August 2022 and the Applicant to reply by 18 August 2022.

16. The Applicant filed heads of arguments by the 10 August 2022 but the Respondent failed to file its response by the agreed date. Even after a reminder was sent to by case management on the 24 August 2022, failed to file.
17. Thus the application is unopposed.

APPLICANT’S SUBMISSIONS

18. The Applicant submitted that the sanction of demotion and fine were procedurally unfair because the presiding officer at the disciplinary enquiry did not give the Applicant an opportunity to present his mitigating circumstances/arguments before a sanction was imposed.

19. The Applicant further submitted that the sanction imposed by the Respondent was not in line with clause 8(3) of Schedule 2 of the Employment of Educators Act in that the Applicant was not consulted and there was no agreement with him before the sanction of the fine and the demotion was imposed.

20. He further argued that in terms of the Employment of Educators Act, a presiding officer may only impose a sanction of demotion and suspension without pay as an alternative to dismissal and cannot be imposed without the agreement of the employee. The records of the disciplinary enquiry suggest that the presiding officer did not impose the demotion as an alternative to dismissal.

21. He further submitted that the fine of R81 028. 31 was not in line with section 18(3) of the Employment of Educators Act which provides that the fine should not exceed one-month salary of the educator. If the R81 000 is the deduction, he submitted that it was not done by following the provisions of section 34(1)(b) of the Basic Conditions of Employment Act.


ANALYSIS OF EVIDENCE AND ARGUMENT


22. This is an unfair labour practice dispute referred in terms of section 186(2) of the Labour Relations Act(LRA) and thus the Applicant bears the onus of proof.

23. The Applicant indicated during arbitration that the findings and outcomes of the disciplinary enquiry were not in dispute. What was in dispute was the process towards the issuing of the sanction. Submission of the Applicant with regards to mitigation arguments were done in ambush as the Applicant did not raise this as an issue during arbitration. This is a factual matter which needed that evidence orally and/or documentary be led. The Applicant failed to raise this issue during arbitration also means the Applicant failed to lead any evidence, thus failed to prove the allegation.

24. With regard to the challenge on the sanction of demotion the Applicant relied on section 18(3) of the Employment of Educators Act read together with clause 8(2) of Schedule 2 of the Employment of Educators Act.

25. Section 18(3) of the Employment of Educators states;
If, after having followed the procedures contemplated in subsection (2), a finding is made that the educator committed misconduct as contemplated in subsection (1), the employer may, in accordance with the disciplinary code and procedures contained in Schedule 2, impose a sanction of –
(a) counselling;
(b) a verbal warning;
(c) a written warning;
(d) a final written warning;
(e) a fine not exceeding one month’s salary;
(f) suspension without pay for a period not exceeding three months;
(g) demotion;
(h) a combination of the sanctions referred to in paragraphs (a) to (f); or
(i) dismissal, if the nature or extent of the misconduct warrants dismissal.
25. Clause 8(2) of Schedule 2 of the Employment of educators Act(Act) states;
With the agreement of the educator, the presiding officer may impose the sanction of suspension without pay or demotion as an alternative to dismissal.

26. Section 18(3) of the Act gives a list of possible sanctions that can be imposed after a disciplinary if the employee is found guilty. The sanctions can be imposed as stand-alone sanctions and some can be combined as per section 18(3)(h) of the Act. The sanctions that can stand alone and cannot be combined with other sanctions are demotion and dismissal.

27. My interpretation of clause 8(2) of Schedule 2 is that it is providing for a situation where the presiding officer is considering imposing a sanction of dismissal but after considering other factors he or she feels that the employee can be given a chance to rehabilitate. In such a situation the presiding officer would impose a sanction of either suspension without pay or demotion, as alternative to dismissal. The employee thus has to make an election whether or not he or she accepts the alternative, hence the agreement. If the employee accepts the alternative it becomes the sanction for the enquiry. If the employee does not accept the alternative it means the employee does not want the opportunity given to him to rehabilitate through progressive discipline and then dismissal becomes the operative sanction.

28. The sanctions of demotion and suspension without pay can be imposed as stand-alone sanctions or they can be imposed as alternatives to dismissal.

29. It goes without saying that the presiding officer would be explicit in his sanction if the sanction of either suspension without pay or demotion is an alternative to dismissal. If there is no such an indication, it means the presiding officer believes that the employee can be rehabilitated through the progressive discipline in the form of suspension without pay or demotion. In that instance the sanction imposed is either suspension without pay or demotion as stand-alone sanction In such a situation there is no agreement needed as there are no two possible sanctions.

30. The Labour Court in Chibi v MEC: COGTA(Mpumalanga Provincial Government) and another (J1764/11) ]2022] ZALJHB 89; (2021) 33 ILJ 855 (LC) faced the same situation where the employee was given a sanction of suspension without pay and demotion. In that dispute the Applicant did not challenge the fairness of the disciplinary process and findings of guilt.

31. The court noted that the chairperson of the enquiry did not conclude that dismissal could apply but was not appropriate. The court then concluded to say that the “chairperson did not conclude that the applicant ought to be dismissed but through the application of progressive discipline alternate sanctions should be applied. If this were the case, then the applicant’s consent ought to have been acquired beforehand. As this was not the case her consent was not necessary”.

32. In this dispute the chairperson of the enquiry concluded that the appropriate sanction was ‘demotion to a post of Deputy Principal…as contemplated in section 18(1)(g) of the Employment of Educators Act…” Although the reference to section 18(1)(g) may be in error but the actual sanction is clear.

33. If in the exercise of his or her discretion the chairperson of the enquiry he saw it fit, he or she would have indicated if the sanction of demotion was an alternative to dismissal. That there is no such an indication in the letter of sanction means the sanction of demotion was a stand-alone sanction and not an alternative to dismissal. Taking the authority of the Labour Court in casu there was no need for the agreement of the Applicant.

34. In his arguments the Applicant stated that demotion and the subsequent reduction in salary is tantamount to changes in the conditions of employment of the Applicant and it should not be imposed without the consent of the Applicant.

35. I respectfully do not agree with the Applicant. One of the guiding principles of disciplining educators as contained in clause 2 of schedule 2 of the Act is that discipline is the responsibility of the employer. The appropriate sanction is also at the discretion of the employer through the presiding officer who is appointed to chair the enquiry. What matters is whether or not the disciplinary enquiry of the employee is fair and conducted in terms of the code. In this dispute the discipline of the Applicant and the sanction imposed are in terms of the code. The demotion is the outcome of a disciplinary enquiry where the Applicant participated as allowed by the code. There is therefore nothing unilateral in the process.

36. As an arbitrator, I am enjoined to determine whether the Respondent acted fairly and in my view is it did.

37. The other argument raised by the Applicant is that the amount of R81 028.31 is a fine that is not compliant with the Act in that it is more than the monthly salary of the Applicant. He also argued that any deduction on the salary of the employee can only be done in terms of section 34(1)(b) of the Basic Conditions of Employment Act(BCEA). I suppose that the Applicant’s representative made an error in citing section 35(1)(b) of the BCEA.

38. At the bottom of the letter of the sanction there is PLEASE NOTE written where it is stated that the Applicant is liable to pay R81 028.31 as part of recovery.

39. Much as the issue of the R81 028.28 is in the same letter as the sanction but it is stated that the money is not part of the sanction but is a debt recovery. The assertion by the Applicant that the money is a fine is therefore not correct.

40. Section 34(1) of the BCEA provides that an employer cannot make deductions from an employee’s remuneration unless the employee agrees in writing to the deduction in respect of a debt specified in the agreement or if the deduction is required or permitted in terms of a law or collective agreement, court order or arbitration award.

41. Referring to section 34(1) of the BCEA the Constitutional Court in PSA obo Ubogu v Head, Department of Health: Gauteng and others 2018 (2) SA 365(CC) held that, “this section prohibits an employer from making deductions from an employee’s remuneration unless by agreement or unless the deduction is required or permitted in terms of a law or collective agreement or court order or arbitration award.”

42. Section 34(2)(a) – (d) of the BCEA prescribes that a deduction may be made to reimburse an employer for loss or damage only if the loos or damage was due to the fault of the employee, the employer has followed a fair procedure and has given the employee an opportunity to make representations, the total amount of the deduction does not exceed the actual amount of loss and that the total deductions do not exceed one quarter of employee’s remuneration.

43. In this dispute no mention is made of whether the process provided for in section 34 of the BCEA was followed. Without the version of the Respondent, I am left with no option but to go with the only version, that of the Applicant that the process was not followed.

44. That the purported deductions of R81 028.31 from the salary of the Applicant are not in terms of section 34 of the BCEA means that they are unlawful and unfair.
In the circumstances I make the following award;

AWARD
45. The sanction of demotion imposed by the Respondent on the Applicant subsequent to a disciplinary enquiry is procedurally and substantively fair.

46. The deductions from the salary of the Applicant to recover debt is declared unfair and unlawful and hereby set aside. If there has been any money deducted from the Applicant as part of the recovery, such money must be refunded to the Applicant within thirty days of receipt of this award.


Mbulelo Safa: ELRC Panelist