ELRC455-21/22LP

IN THE ELRC ARBITRATION
BETWEEN:

PEU obo Lekalakala, Desmond Applicant
and
The Department of Education: Limpopo Province Respondent

ARBITRATION AWARD

Case Number: ELRC455-21/22LP

Arbitration date: 22 September 2022

Date of Award: 03 November 2022

Pitsi Maitsha
ELRC Arbitrator

Education Labour Relations Council
ELRC Building
261 West Avenue
Centurion
Tel: 012 663 0452
Fax: 012 643 1601
E-mail: gen.sec@elrc.co.za
Website: www.elrc.org.za
September DETAILS OF HEARING AND REPRESENTATION
1. On 15 December 2021 an arbitration hearing was held on Zoom. The matter was partly heard and concluded on 22 September 2022 at Mokopane District Office in Limpopo. This arbitration was held under the auspices of the ELRC in terms of section 191(5)(a)(iv) of the Labour Relations Act, 66 of 1995 as Amended “The Act”. The award is issued in terms of section 138(7) of “The LRA”.

2. The applicant is Desmond Lekalakala, he was in attendance, and he was represented by Martin Tabane, the union official from PEU. The respondent is The Department of Education: Limpopo Province and was represented by Mr. Nyathela, Labour Relations Officer.

3. The parties gave the evidence under oath. The proceedings were held both on Zoom and in person on the abovementioned dates. The proceedings were digitally recorded using the recording facility available on Zoom and a recorder.

ISSUE TO BE DECIDED
4. I am required to determine whether the conduct of the respondent to suspend the applicant without pay constituted unfair labour practice. If so, make an appropriate award.

BACKGROUND DETAILS
5. The parties held a pre-arbitration meeting on 15 December 2021 and agreed on the following in terms of the Pre-Arbitration Minutes:
6. In terms of common cause facts:
I. The respondent has employed the applicant in the capacity of Post Level 1 Educator, and he was appointed at Nkakabidi Secondary School.
II. The applicant was charged in terms of section 18 (1) (I) and (g). He was subjected to internal disciplinary enquiry where he was found guilty and a sanction of three months suspension was issued, as well as a final written warning. He was handed notice of a disciplinary enquiry with the following charges: “1. You contravened the provisions of section 18(1) (I) of the Act in that during or around March 2020 or at any period incidental thereto, at or near Nkakabidi Secondary School you failed to take a lawful order or routine instruction without just or reasonable cause 1. You failed to give the HOD Mrs. Kgodu M. R. Grade 10 Mathematics Literacy books for monitoring purposes. 2 You refused to give the Circuit Manager Mr. Mufumadi M.D. Grade 10 Mathematics Literacy classwork books for monitoring purpose. 4. You refused to give Mufumadi M.D Grade 11 Mathematics Literacy books for monitoring purpose. 2. You contravened the provision of section 18 (1) (q) of the Act in that during or around March 2020 or at any other period thereto, at or near Nkakabidi Secondary School, you refused to see the Circuit Manager, Mr. Mufumadi M.D when he visited your school for monitoring purpose and therefore, you conducted yourself in an improper, disgraceful, and unacceptable manner while on duty.”
III. As a result of the guilty finding at a disciplinary enquiry, the applicant lodged an appeal internally and the appeal was dismissed.


7. Aggrieved by the decision to suspend him without pay for a period of three months and a final written warning, the union, PEU, on behalf of the applicant, referred the dispute of unfair labour practice to the ELRC.

THE EVIDENCE OF THE APPLICANT
8. He testified that he was charged for not submitting the books for informal assessment, yet those books have been submitted and they do have the signatures of the people alleging that he did not submit them. At the disciplinary hearing, the respondent said no documents were needed.

9. He testified that his Departmental Head came to him and said she wanted books. In response, he said that as he was working on informal assessments, she may go to take the books and give them to the Circuit Manager as she was saying. She usually goes to the classrooms to take the books, like when he is absent, she goes there to take the books and give them to the Circuit Manager. Hence, he is saying he was unfairly treated in this regard.

10. He testified that the principal was not involved in this matter. He testified that he was not called and warned about what happened. The Circuit Manager has something against him; hence he did not involve the principal and without anything else already there was a charge. The Circuit Manager came to the school one day after they worked on holidays who said all teachers must be reimbursed, except him.

11. He testified that according to him, the Circuit Manager went to the school on 4 March 2020, not on 6 March 2020 as stated in the journal book. The things mentioned in the journal happened on 4 March 2020. He further testified that on 9 March 2020 there was no meeting that took place.

12. He testified that the fact that the books should be ready by 4 March 2020 is not correct. Every time they write them circulars in the information book telling them when to submit books. In February 2020 they did not write to them such circular to inform them when to submit. He testified that earlier than 4 March 2020 he approached the Departmental Head, Mrs. Kgodu, asking her that he might be late with submission because he was then busy with formal assessment, to which she agreed. On 4 March 2020 Mrs. Kgodu came to him to say that the Circuit Manager was demanding the classwork books. In fear of the school not submitting the schedules, because he was very busy and behind, he asked Mrs. Kgodu to take the books and give them to the Circuit Manager. She then said the Circuit Manager wanted to see him. Thus, when he went to the Circuit Manager, and he went with the Circuit Manager to block where he pointed him the classes where he wanted to take those books himself because he does not trust their Departmental Head. He controlled them and signed them.

13. He testified that it is not correct that the report said, “he refused openly”. He did not refuse to give Mrs. Kgodu the books. She ended up having the books on 13 March 2020, even though the Circuit Manager signed them on 4 March 2020.

14. He testified that after he received notice with the charges, the principal called him and Mrs. Kgodu in the office asking them what was going on, in response Mrs. Kgodu said she was not aware that he was refusing to submit or refused to submit. The principal wrote a letter stating that he was not aware that he (the applicant) did not submit. He is usually one of the first to submit anything at the school. He shared the same embarrassment with the principal, who was supposed to have recommended his charge.

15. He testified that when the Circuit Manager visits the schools, the procedure is that the Circuit Manager will speak to the principal, who will disseminate the information to the Departmental Heads, in case the Circuit Manager wishes to have a meeting with anyone, he or she must indicate to them on time that he or she will be coming to have a meeting with them on certain matters so that the teachers can prepare themselves. The communication must go through the principal, who will tell the teachers of the date on which the Circuit Manager will talk to them.

16. He testified under cross examination that the relationship between himself and the principal, Mr. Lefa Kgomo, is professional and that he is his principal. He testified that he did not assist the principal during disciplinary hearing, but he was assisting a disciplinary hearing. He was a member of the SGB. He confirmed that he was a witness to the principal. He testified that he knew that the principal was not involved in this matter because he did not call him to indicate that he was going to charge him. He did not find a letter from the principal stating that he was going to charge him. He further testified that he had a meeting with the Departmental Head and the principal about the matter, wherein he was given the impression that they did not see any wrongdoing on his side. He testified that the principal told him that he was not aware of the charges. He testified that the Circuit Manager testified during a disciplinary enquiry that he sent an SMS to the Principal, not the Deputy-Principal, Mr. Ledwaba. He testified that the testimony that Mr. Ledwaba informed the staff of visit by the Circuit Manager which will be on Monday is not true. He further testified that he did not know the testimony by the HOD, Mrs. Kgodu, that the Circuit Manager was at the school on Monday, 2 March 2020 to address the SMT about the visit which was to start on Tuesday 3 March 2020. He also testified that on Monday 2 March 2020 there was no such briefing that the Circuit Manager was coming on Tuesday 3 March 2020 and the reason for the visit was to monitor a written work starting from Grade 8 to Grade 12 and that three books would be required per Grade, per subject. He testified that the relevant person is Mrs. Kgodu, or the Principal or Deputy Principal. Mrs. Kgodu signed the books on 13 March 2020 as per their agreement. They were not signed by the principal as they were already signed by the Circuit Manager on 4 March 2020. He testified that he showed the Circuit Manager the class to collect the books for Grade 10 on 4 March 2021. The Circuit Manager never sked him about Grade 11 books. He testified that Mrs. Kgodu came to him informing him that the Circuit Manager was awaiting Grade 10 learner’s books for monitoring, and he told her that he was still busy marking the assignment. He further testified that there is no such a thing that he told the Circuit Manager that he was not going to give the Circuit Manager the books to see them, but they can only be seen by the HOD and the principal. The Circuit Manger did not request him to see the books in the presence of the HOD, instead he requested him to accompany him to Grade 10 classes. Mrs. Kgodu was not with them when him and the Circuit Manager went to block D classes, and the Circuit Manager personally collected the books. He testified that it was the first time in his teaching experience that the Circuit Manager comes to see the books of a teacher with a recommendation of a charge being written already. He testified that the Grade 11 books were supposed to be checked on 5 March 2020, but the Circuit Manager did not come. On 5 March 2020 he was not asked to submit the books.

17. He testified that on 4 March 2020 he did not refuse to give the HOD, Mrs. Kgodu the Grade 10 Mathematics Literacy books, but they were requested by the Circuit Manager. He testified that the Circuit Manager came to the school on 4 March 2020 and 6 March 2020, not on 5 March 2020. He did not refuse to give Mrs. Kgodu books on 5 March 2020. He also testified that on 5 March 2020 the Circuit Manager did not demand Grade 11 books from him because he was never at the school.

THE APPLICANT’s CLOSING ARGUMENTS
18. Mr. Tabane argued that Mr. Ledwaba failed to prove there was telephonic, nor SMS from the Circuit Manager which was conveyed by the principal. He stated that Mr. Ledwaba did not act after he was informed that the books were not available as he was the Senior of that day. He indicated that the applicant stated that on 28 February 2020 there was no briefing in connection with the visit by the Circuit Manager from 2 March 2020 to 6 March 2020 by the Acting Deputy Principal, Mr. S.J.K. Ledwaba, whereby all the educators were called. He indicated that Mr. Mufumadi failed during cross examination to give a clear explanation on the question why he did not sign the journal daily, but only decided to sign it on 6 March 2020. He argued that a non-reliability of the respondent’s witnesses has misled the Head of Department to come up with the charges. He submitted that in terms of section 16A (1) (a) of SASA 84 of 1996 as amended, the principal in a public school represents Head of Department. He argued that the Circuit Manager was supposed to propose section 58B of SASA to Head of Department for intervention following his testimony that the school has been underperforming for almost six years. He further argued that the Circuit Manager was supposed to apply section 16 of “EEA” 76 of 1998 as amended and Schedule 1 for incapacity Code, as well as procedure for poor work performance. He made reference to the judgement of Prince v President of Law Society of the Cape of Good Hope and Others. He also argued that the decisions that were made by the respondent were shallow and narrow, rather than deep and wide (highly theorized). He prays that the Commissioner should withdraw the sanction which was applied to the applicant since the respondent failed to apply the correct procedures. He indicated that the Circuit Manager on behalf of the school has compromised the applicant due to the underperformance.

THE RESPONDENT’s EVIDENCE
THE EVIDENCE OF SEKINA KERESEMOSE LEDWABA: THE APPOINTED DEPUTY- PRINCIPAL
19. He testified that on 27 February 2020 Mr. Lefakgomo M J, called on his phone and instructed him to tell the staff that the Circuit Manager would be coming the following week to do monitory support. The Circuit Manager, among others, would request three books per subject starting from Grade 8 to Grade.

20. He testified that on Friday morning the principal called him again and told him that he would be late and reminded him that he must not forget to tell the staff the message he told him yesterday. On Friday 28 February 2020 after they morning assembly, he requested all members of the staff to assemble in the boardroom, he told them about the message from the Circuit Manager by the Principal. He informed them that the Circuit Manager would be at the school from Monday until Friday, he will need three subjects per teacher and to give him the support.

21. He testified that on Monday the Circuit Manager did come to the school and they packed all the books for him, they gave him Grade 8 book. On Friday they prepared the books so that when the Circuit Manager comes on Monday, he found them ready.

22. He testified that on 3 March 2020 the Circuit Manager checked the books and where he found less work, he called the teacher. They requested teachers to bring three books because they were three Departmental Heads. The books that were to be checked on 3 March 2020 were prepared on Monday 2 March 2020. On 3 March 2020 they did the same thing.

23. He further testified that on 4 March 2020 when they were checking books, books for Math Literacy were missing. Mrs. Kgodu, is the Head for Math Literacy, gave that report. The applicant teaches Math Literacy for Grade 10.

24. He also testified that on 5 March 2020 Mrs. Kgodu checked and the book for Math Literacy were not there. The applicant also teaches Math Literacy for Grade 11. He testified that the applicant’s testimony that the Circuit Manager did not visit the school on 2 March 2020, 4 March and 6 March 2020 is not true. Mrs. Kgodu indicated that she was going to remind the applicant that Math Literacy books for Grade 10 will also be needed. He could not remember the applicant’s response. He testified that the applicant did not submit the books on 3 March 2020.

25. He testified under cross examination that it was not his duty, but Mrs. Kgodu’ s duty. He testified that the teachers should submit their books every month. He checked the books between month end and the third. He confirmed that on 3 March 2020 the Departmental Head, Mam Kgodu, said she will be reminding the applicant of the books.

THE EVIDENCE OF MRS KGODU MOTHEBUDI RACHEL: DEPARTMENTAL HEAD NKAKABIDI SECONDARY SCHOOL
26. She testified that on about 28 February 2020 the teachers at Nkakabidi received message from Mr. Ledwaba in the morning after assembly, stating that the principal called him telling him to inform the teachers that the Circuit Manager was having a programme of support that he was going to embark on from 2 March 2020 until 6 March 2020. The programme was that the Circuit Manager wanted to see classwork books for all subjects offered from Grade 8 to Grade 12. They must prepare three classwork books per subject. The first day was for Grade 8, second day for Grade 9, third day for Grade 10, fourth day for great 11 and the fifth day for Grade 12.

27. She testified that on 28 February 2020 the applicant was present at the assembly. On Friday teachers started collecting books from learners preparing for Monday and then on Monday books were ready for the Circuit Manager’s visit. The Circuit Manager visited the school, and he checked all the Grade 8 books and called Grade 8 teachers to give them support after checking the books. The books for Grade 9 were collected for the next visit.

28. On 3 March 2020 he checked the books for Grade 9. She testified that on 3 March 2020 they started preparing for Grade 10, that’s when she started speaking to her colleagues, including the applicant, saying the next programme is for Grade 10 they should start preparing the books. The applicant promised her that he would give her the classwork books in the morning. She further testified that on 4 March 2020 she went to remind him during the break, unfortunately he did not give her a positive response as promised the previous day. In response, he told her that he was busy marking the learner’s assignments. She did not succeed in getting the books before the Circuit Manager’s arrival. The Circuit Manager later came to the school and checked the six subjects prepared.
29. She testified that the Circuit Manager ordered Mr. Ledwaba to call the Departmental Head for Math Literacy to come and explain why he was not getting the Math Literacy books. She told him that she was going to get the books and she went straight to the class where the applicant was teaching. She asked for the books for the second time, the applicant told her that he was busy marking an assignment. She tried to tell him that the Circuit Manager has finished checking the books for other subjects, he wanted to check the final one which is Math.

30. She went back to the Circuit Manager to inform him that she did not succeed. The Circuit Manager told her that he wanted to see the books. She then went back to call the applicant to come and explain to the Circuit Manager what he told her. When she came back with the applicant, the Circuit Manager told him that he wanted to see the Math Literacy books for Grade 10. He explained to the Circuit Manager that he was not going to give him the classwork books because his books were going to be checked by the Departmental Head or Subject Advisor. The Circuit Manager insisted but did not succeed. The Circuit Manager asked her to show him Grade 10 classes so that he could collect Math books himself. She took the Circuit Manager out and showed him Grade 10 B and 10 C, he took three books from three learners. After collecting the books, he left the school.

31. She testified that the principal was not at the school at the time of incident. She did not do anything after he left until the principal came back to explain everything. The next day when the principal came, he told her that the Circuit Manager had already explained to him what happened. The principal told her that the Circuit Manager wanted her to write the report. She compiled the report and gave it to the principal on 6 March 2020. She did not know what happened to the report.

32. She testified that on 5 March 2020 the applicant said he was going to submit the books on Friday 6 March 2020. She testified that the applicant was present at the meeting with all other staff. She further testified that she saw the Circuit Manager on Monday.

33. She testified under cross examination that she did not remember making arrangements or that agreement with the applicant that he would submit the books on 6 March 2021. She signed the report on 6 March in the presence of the principal.

THE EVIDENCE OF MUFUMADI NDANDULENI DAVID: THE CIRCUIT MANAGER FOR POTGIETERSRUS CIRCUIT-MOGALAKWENA DISTRICT
34. He testified that his programme started on 27 February 2020 when he was telling the principal that next week he will be visiting the school, Nkakabidi Secondary School. Indeed, on 2 March 2021 he went to the school in the morning. The principal took him to the Deputy-Principal’s office, he then invited all the HODs to the office. On Monday he started with Grade 8 and indeed they gave him all the books, and everything went well. On Tuesday 3 March 2020 everything went well.

35. On Wednesday all the Educators submitted the books for all the subjects, he then met the rock when he wanted to see the books for Math Literacy. He asked Mrs. Kgodu about the Math Literacy books, she said she agreed with Mrs. Kgodu to submit the Math Literacy on 3 March 2020. He then said to her go to call him and politely ask him to see the books. The applicant refused him to see the books saying that he can only give the books to the Departmental Head, he then went to the classes to collect the books. He did not see the books for grade 10 and Grade 11, but the applicant was only undermining him and the Departmental Head. The principal also submitted the books for Economics. He told the principal to submit the books. He testified that he also called an official from the applicant’s union wherein he spoke to Ms Kgosana, indicating that he has met the rock, the applicant, and she also persuaded him, but failed. He did not get cooperation, even after getting the union intervention.

36. He testified that he forgot the person who took him to the class because the incident happened in 2020. He further testified that the applicant’s testimony that he came to the school on 4 March and 6 March 2020 is not correct, he even signed the register on 6 March 2020, he started on Monday 2 March 2020 until 6 March 2020. He also testified that the applicant’s testimony that he has no authority to see his books is not correct, his part of responsibility includes curriculum, even Resolution 2 of 2020. He testified under cross examination that he failed to see books for Grade 10 on 4 March 2020.

THE RESPONDENT’s CLOSING ARGUMENTS
37. Mr. Eric Nyathela stated that it is not disputed that the applicant did not submit Grade 10 Mathematics Literacy books. He indicated that the respondent’s version that the Circuit Manager visited the school on 2 March, 3 March and 5 March 2020 corroborated each other and was not rebutted. He made reference to Moahloli v Eeste Rand (1998). He submitted that the applicant is not showing any remorse.

ANALYSIS
38. This matter concerns an alleged unfair labour practice in terms of section 186 (2) (b) of the “LRA”. Generally, it is tried law that in any dispute relating to an alleged unfair labour practice, the applicant bears the onus to establish or prove if the conduct of the employer constitutes unfair labour practice. Whilst the respondent bears the onus to prove that the conduct does not constitutes unfair labour practice. The applicant did not call any additional witnesses, whilst the respondent has called three witnesses to substantiate its case or disprove the applicant’s case. The applicant had submitted a bundle of documents hereinafter referred to as bundle A, whilst the respondent submitted bundle of documents hereinafter referred to as bundle R.

APPLICABLE LAW
39. First and foremost, section 186 (2) of the “LRA” is considered to be a “gate way” to all disputes relating to unfair labour practice. It provides an understanding of what exactly is the conduct of the employer constituting unfair labour practice. In this regard, paragraph (b) is relevant for a point of departure. Section 186 {MEANING OF DISMISSAL AND UNFAIR LABOUR PRACTICE} defines unfair labour practice as follows: (2) [Unfair labour practice] means any unfair act or omission that arises between an employer and an employee involving - (b) the unfair suspension of an employee or any other unfair disciplinary action short of dismissal in respect of an employee.

40. Firstly, it is common cause that the conduct of educators is governed by Employment of Educators Act, 76 of 1998. Section 18 reads as follows: “Misconduct refers to a breakdown in the employment relationship and an educator commits if he or she
(1) (I) provides: fails to carry out a lawful order or routine instruction without just or reasonable cause.
(q) He or she while on duty conducts himself or herself in an improper, disgraceful, or unacceptable manner.”

41. Having regard to the above, I am of the view that the first step of this enquiry is to determine unfair act or omission that arose between the respondent and the applicant.

15. Giving rise to this matter, it is the visit of the Circuit Manager, Mr. Mufumadi, to Nkakabidi Secondary School on 4 March 2020. The purpose of that visit was accordingly to monitor the learners’ books for all subjects. It was stated that Mr. Mufumadi requested three books per subject for all Grades. He accordingly arranged to commence with his work on 2 March 2020 starting with Grade 8 learners.

16. On 3 March 2020 he dealt with Grade 9 learners. I wish to record in this instance that the version of the respondent’s witnesses that Mr. Mufumadi visited the school on 2 March 2020 and 3 March 2020 was disputed by the applicant. Obviously, this has no bearing on the incident which took place on 4 and 5 March 2020, which are the subjects of this matter.

17. Nonetheless, it is common cause that Mr. Mufumadi monitored the books for Grade 10 learners on Wednesday 4 March 2020. It is common cause that the applicant teaches Mathematics Literacy subject at the school for both Grade 10 and Grade 11 learners. As Mr. Mufumadi’ s programme for Wednesday 4 March 2020 only concentrated on Grade 10 learners, the applicant was as a result required to submit Mathematics Literacy books on that day to Mr. Mufumadi for monitoring purposes.

18. The version of Mrs. Kgodu is that following announcement by the Deputy Principal, Mr. Ledwaba, on 28 February 2020 in the morning after assembly that the Circuit Manager would visit the school the following week. Accordingly, they prepared the books for Grade 8 on the same Friday for Monday 2 March 2020. On Monday 2 March 2020 they prepared the books for Grade 9 which were going to be monitored on Tuesday 3 March 2020. The same applied for Tuesday for Grade 10 which was done on Wednesday 4 March 2020. She testified that on Tuesday she discussed the Wednesday visit with her colleagues, including the applicant. Ensuing that discussion, the applicant made a promise to her that he would give her Mathematics Literacy books in the morning of 4 March 2020.

19. According to Mrs. Kgodu, on 4 March 2020 she did not get positive response when she reminded the applicant of the books during the break as per their arrangement the previous day. She did not specify what time the break was. It was at that time when the applicant told her that he was still busy marking the learner’s assignments.

20. It is worth stating that her attempt to get the books prior to the arrival of the Circuit Manager was unfortunately unsuccessful. When Mr. Mufumadi arrived later, they handed him six subjects which they already prepared. Having completed to check those subjects given to him, Mr. Mufumadi then realized that the books for Mathematics Literacy were not submitted, and he wanted to find out from the Departmental Head for Mathematics Literacy the reasons why they were not submitted. In response, she informed him that she was going to get them from the applicant. She immediately went to the class the applicant was teaching at that time to ask for the books the second time. In response, the applicant told him that he was busy marking an assignment. On return, she informed Mr. Mufumadi that she did not succeed. Apparently, the first charge emanates from the exchange between Mrs. Kgodu and the applicant.

21. Then Mr. Mufumadi requested her to call the applicant, which she did. On arrival, Mr. Mufumadi told the applicant that he wanted to see Mathematics Literacy Books for Grade 10. In response, the applicant said to Mr. Mufumadi that he was not going to give him the classwork books because his books were going to be checked by the Departmental Head or Subject advisor. Mr. Mufumadi accordingly insisted but did not succeed. Eventually, Mr. Mufumadi asked Mrs. Kgodu to show him Grade 10 classes so that he could collect Mathematics books himself. I pause here regarding the charge of refusing to give Mrs. Kgodu Mathematics Literacy books.

22. In my view, a relevant question at this stage is whether the conduct of the applicant did amount to refusal to give Mrs. Kgodu Mathematics books. I wish to record from the onset that I am of the view that the applicant’s conduct in this regard did not amount to refusal to give Mrs. Kgodu Mathematics Literacy books for Grade 10.

23. It is common cause that on 4 March 2020 Mrs. Kgodu went to the applicant to looking for Mathematics Literacy books. It is further common cause that the applicant informed her in response that he was busy marking assignment. What should be taken into account at this stage is the fact that Mrs. Kgodu did not find the applicant relaxing, not doing anything. Also, Mrs. Kgodu confirmed in her version that she went straight to the class the applicant was teaching on 4 March 2020 to remind him to submit the Mathematics Literacy books. I further wish to record that the respondent did not dispute the applicant’s version that he suggested to Mrs. Kgodu to take the books on his behalf to submit to the Circuit Manager. There was no explanation before me to suggest that Mrs. Kgodu had replied to the applicant’s request to take the books on his behalf for submission. In my view, such failure to dispute this crucial version brings me to the conclusion that the applicant’s version that he did not refuse to give Mrs. Kgodu Mathematics Literacy books on 4 March 2020 is more probable than the respondent’s version. The applicant’s request to Mrs. Kgodu was informed by the fact that Mrs. Kgodu sometimes used to take the books for monitoring especially in his absence. I find the request to Mrs. Kgodu by the applicant to be reasonable especially taking into account the fact that there was no requirement that each teacher ought to submit the books personally. Given the above, one can safely say I could hardly find a piece of discussion indicating the said “refusal” to give Mathematics Literacy books by the applicant.

24. It is common cause that the applicant was further found guilty on an allegation of refusing to give the Circuit Manager Mathematics Literacy books for Grade 10 learners on 4 March 2020. In my view, what apparently led to the conclusion that the applicant had refused to give the Circuit Manager Grade 10 Mathematics Literacy books was the response the applicant gave to Mr. Mufumadi which is not to give the classwork books to him, but to the Departmental Head or, Subject Advisor. This version was corroborated by Mrs. Kgodu.

25. However, in contrast, the applicant denied having told Mr. Mufumadi that he was not going to give him the books and he would only give them to Departmental Head and Subject Advisor. I disagree with both versions of Mr. Mufumadi and Mrs. Kgodu. I am in fact of the view that at this point their version contradicted each other and as such they turned to be not credible witnesses and unreliable witnesses. I am of the view that if the applicant was not going to allow Mr. Mufumadi to check his books, the applicant would have refused to give the books to him even at the time when he went to the applicant’s classroom. Generally, it is the tried law that the version admissible is the one where is supported by more than one person. In the present matter, it became evident before me that Mr. Mufumadi and Mrs. Kgodu did not corroborate each other’s version when it comes to the question of the person who accompanied Mr. Mufumadi to the classroom to collect the books. Mrs. Kgodu’ s version is that she was the one who took Mr. Mufumadi to classes Grade 10B and Grade 10C to show him the books. On the other hand, the applicant said that he was the one who escorted Mr. Mufumadi to block D where Grade 10B and Grade 10C classes are situated to show him the books for Mathematics Literacy. Surprisingly, the person accompanied by either the applicant or Mrs. Kgodu, was not sure who took him to those classes. I can only draw inference that this is sufficient proof that the applicant did not refuse to give the books to Mr. Mufumadi.

26. Finally, it is not disputed that the Circuit Manager had signed Grade 10 Mathematics Literacy books on 4 March 2020. Argumentatively, if I accept that the respondent’s version that the applicant had refused to give Mr. Mufumadi Mathematics Literacy books on 4 March 2020, then clearly the deficiency was cured when the applicant went to see him when he was called and ultimately taking him to the classroom to show him the books.

27. In this instance I wish to point out that the applicant was charged in line with the provisions of section 18 (1) ( I) and (q)of the “EEA”. In terms of section 18(1) of the “EEA”, misconduct has been defined as the breakdown of employment relationship between the employer and the educator. The next step is to determine if the respondent had succeeded to demonstrate that the misconduct the applicant was charged for did take place. The “EEA” further provides that the educator is considered to have committed a misconduct if any of the following takes place: failure to carry out a lawful order or routine instruction without just or reasonable cause and conducts himself or herself in an improper, disgraceful and unacceptable manner.

28. Having regard to the above, I am of the view that the applicant clearly did not commit any of the misconduct. In terms of section 18 (1) (I) of the “EEA”, the applicant was allowed not to carry out a lawful order or routine instruction, unless there is just or reasonable cause. It is common cause that a lawful order or routine instruction to submit Grade 10 Mathematics Literacy books to the Departmental Head and the Circuit Manager was issued to the applicant on 4 March 2020. However, I am of the view that such lawful order or routine instruction was not carried out by the applicant on the basis that the applicant had just or reasonable cause not to do so. The fact that the applicant was engaged in a formal assessment of marking assignment and had requested Mrs. Kgodu to submit the books on his behalf to the Circuit Manager is sufficient to conclude that he had a reasonable cause not to carry out that routine instruction. Finally, there is no explanation before me that the act by the applicant of marking assignment is not considered to be a reasonable cause.

29. Turning to 5 March 2020, the applicant was further charged for failing to submit Grade 11 Mathematics Literacy books to the Departmental Head and the Circuit Manager. The applicant’s version was that apparently a week prior to 4 March 2020 he approached the Departmental Head, Mrs. Kgodu, explaining his challenges regarding the submission of work in the beginning of March 2020. This version was not disputed by the respondent. Furthermore, it is the applicant’s version that shortly after receiving notice with the allegations, the principal did call him together with Mrs. Kgodu to ask them if there was any problem with him, to which she confirmed she was not aware that he refused to submit the books. In other words, he had the impression that there was no wrongdoing on his part. Moreover, the applicant appears to believe the Circuit Manager did not come to the school on 5 March 2020 since no one asked him to submit the books for Grade 11. Notwithstanding, it is Mrs. Kgodu’ s version that the applicant had informed him that he would submit Grade 11 books for Mathematics Literacy on 6 March 2020.

30. It is worth noting that Mrs. Kgodu confirmed that on 5 March 2020 the applicant said that he was going to submit on 6 March 2020. I wish to record that there is no evidence before me either by Mrs. Kgodu, or the Circuit Manager or Deputy Principal stating that any of them went to the applicant to collect the books, but refused to do so. Alternatively, if ever someone had approached the applicant on 5 March 2020 for the purpose of asking Grade 11 Mathematics Literacy books, what was his response? I find the version of Mrs. Kgodu to be not probable due to the contradiction in her testimony. While she was denying having made an agreement with the applicant to submit the books on Friday 6 March 2020, she gave the applicant to make the submission on 6 March 2020. Mrs. Kgodu had failed to take me into confidence to explain as to what her response was when the applicant informed her of his intention to submit the books on 6 March 2020.

31. Having regard to the aforegoing, it follows that I am in the circumstances not persuaded by the respondent’s version that the applicant had conducted himself in a disgraceful manner, or improper or in an unacceptable way. The respondent in fact failed to demonstrate the conduct which allegedly was construed as improper, unacceptable, and disgraceful.

WAS THE SANCTION OF SUSPENSION WITHOUT PAY FOR A PERIOD OF THREE MONTHS AND FINAL WRITTEN WARNING APPROPRIATE
32. Having the total evidence before me and all circumstances, I am of the view that it was not appropriate to issue the applicant with suspension without pay for a period of three months together with a final written warning. What triggers this view is the fact that Mrs. Kgodu did not take any step against the applicant after the Circuit Manager had left the school. The subsequent step was to talk to the principal the next day. But on arrival, the principal already had knowledge about the incident on 4 March 2020 and he informed her that the Circuit Manager wanted the report from her, which she did on 6 March 2020. What should be noted in the writing of the report is that Mrs. Kgodu took the whole day trying to figure out that report. It simply meant that Mrs. Kgodu did not know what to write in her report. She was not sure if the applicant’s conduct constituted misconduct as stipulated in terms of section 18 of the “EEA”.
33. In terms of section 18 (3) of the “EEA”, the respondent may in accordance with disciplinary code and procedures contained in subsection (2) impose one or combination of the following sanction if after having followed the procedures contemplated in subsection (2), a finding is made that the educator has committed misconduct as contemplated in subsection (1): (a) counselling, (b) a verbal warning, ( c ) a written warning, ( d ) a final written warning; ( e ) a fine not exceeding one month salary; ( f ) suspension without pay for a period not exceeding three months; ( g) demotion; and (h) a combination of the sanctions referred to paragraph (a) to (f); or (I) dismissal if the nature of misconduct warrant or extent of misconduct warrants dismissal.

34. In the present case, the applicant was found guilty on misconduct as a result a combination of suspension without pay for a period not exceeding three months and a final written warning was imposed on him. The above section places an obligation on the respondent to impose one or a combination of the sanctions on the condition that the educator has committed misconduct and the disciplinary procedures as laid down in terms of subsection 18 (2) has been followed. It is clear from the above that unfair suspension is allowed in instances where it is regulated by the disciplinary code, or there is an agreement with the employee.

35. Nonetheless, I have concluded in this matter that there was no commission of misconduct by the applicant or at least his conduct was in the circumstances justified or had a reasonable cause. As already stated, where there is no misconduct, a sanction laid down in terms of subsection 18 (3) is practically impossible to impose.

36. Having regard to the above, I am of the view that the sanction of suspension without pay for a period of three months and a final written warning constitutes unfair labour practice as defined in terms of section 186 (2) (b) of the “LRA”.

37. Turning to the appropriate remedy, the applicant has indicated that he is seeking a combination of the sanction of suspension without pay for three months and a final written warning imposed on him to be uplift and removed. I agree. Pursuant to my conclusion that no misconduct has been committed and the applicant has discharged the onus that the respondent has committed unfair labour practice, I am of the view that the salary of three months of R29 105.00 x 3 = R87 315.00 that was not paid and a removal of a final written warning ought to be given in the circumstance.

38. In the premises I make the following ruling.

AWARD
39. I find that the applicant, PEU obo Desmond Lekalakala, has succeeded to establish that the conduct of the respondent, Department of Education: Limpopo Province, constituted unfair labour practice in terms of section 186 (2) (b) of the “LRA”.

40. As a result of the above, the sanction of suspension without pay for a period not exceeding three months and a final written warning are hereby set aside. I therefore order the respondent, the Department of Education: Limpopo Province to pay the three months salaries of R87 315.00 (eighty seven thousand three hundred and fifteen rands) to the applicant by not later than 15 November 2022.


P. Maitsha
ELRC Panelist