ELRC369-22/23NW

Commissioner: D Smith
Case No.: ELRC369-22/23NW Date of Award: 27 November 2022

In the ARBITRATION between:

PONTSHO ELLEN PHUTEGO
(Union / Applicant)

and

DEPARTMENT OF EDUCATION NORTH WEST
(Respondent)

Union/Applicant’s representative: Mr. C Moolenbeek

Tel: 0712509239
Telefax:
Email:

Respondent’s representative: Not present

Tel:
Email:

DETAILS OF HEARING AND REPRESENTATION:

1. The dispute was referred to the Education Labour Relations Council (Council) in terms of Section 191(5)(a) of the Labour Relations Act, No. 66 of 1995, as amended (LRA). The matter was scheduled for Arbitration on 23 November 2022 at the Respondent’s Vryburg offices.

2. The Applicant, Ms Pontsho Ellen Phutego (Phutego), was represented by Mr. C Moolenbeek, an attorney of Du Plessis- Viviers. Despite being notified by email, MSeshibe@nwpg.gov.za; KobinaCann@nwpg.gov.za; EPhuswane@nwpg.gov.za; bnyokong@nwpg.gov.za; bnyokong@nwpg.gov.za; boity.phuswane@gmail.com; pthebyane@nwpg.gov.za; pureblekness@gmail.com; keetile44@gmail.com; MartinK@nwpg.gov.za;, the Respondent was not present.

3. The process was digitally recorded, and I took handwritten notes.

4. Phutego submitted a 36-page bundle of documents marked “A”.

ISSUE TO BE DECIDED:

5. Whether Phutego was unfairly dismissed or not, and if so, determine the appropriate remedy.

BACKGROUND:

6. Phutego was employed in April 2006. At the time of her dismissal for alleged misconduct on 20 July 2022 she earned R35000.00 per month.

REMEDY

7. Phutego sought retrospective reinstatement.

SURVEY OF EVIDENCE AND ARGUMENT:

8. For purposes of this award, I do not intend, to record verbatim evidence led, submissions made and or arguments raised on record. Only the prominent points raised by each party in their evidence that have a bearing on the issue in dispute and to be decided are recorded hereunder. I did, however, consider all the evidence that was presented in rendering this award.

APPLICANT’S VERSION:

9. Phutego testified that:

9.1. She had been charged with six acts of misconduct, A19 and 20.

9.2. She had requested training and assistance.

RESPONDENT’S VERSION:

10. Not present.

ANALYSIS OF EVIDENCE AND ARGUMENT:

11. Section 192(1) of the LRA provides that in any proceedings concerning any dismissal, the employee must establish the existence of the dismissal. Section 192(2) provides that if the existence of the dismissal is established, the employer must prove that the dismissal was fair.

12. Phutego testified that she had been dismissed. I have no reason not to accept this. It is therefore incumbent on the Respondent to prove that the dismissal was for a fair reason and in accordance with a fair procedure. The Respondent was not present to do so.

13. Consequently, I find the dismissal of Phutego to have been unfair.

FINDING

14. Phutego was unfairly dismissed.

REMEDY

15. Section 193 of the LRA requires that where an arbitrator finds that a dismissal is unfair, the arbitrator may

(a) Order the employer to reinstate the employee from any date not earlier than the date of the dismissal.

(b) Order the employer to re-employ the employee, either in the work which the employee was employed in before the dismissal or in other reasonably suitable work on any terms and from any date not earlier than the date of the dismissal; or

(c) Order the employer to pay compensation to the employee.

16. Reinstatement is the primary remedy envisaged by section 193 (2) of the LRA and an arbitrator must require the employer to reinstate or re-employ the employee, unless –

(a) The employee does not wish to be reinstated or re-employed.

(b) The circumstances surrounding the dismissal are such that a continued employment relationship would be intolerable.

(c) It is not reasonably practicable for the employer to reinstate or re-employ the employee; or

(d) The dismissal is only unfair because the employer did not follow a fair procedure

17. Phutego sought retrospective re-instatement. I can see no reason reinstatement should not be appropriate. She was dismissed on 20 July 2022. She is entitled to backpay for the period between her dismissal and reinstatement. This amounts to R175000.00 (R35000.00 x 5 months).

AWARD

18. The Applicant, Pontsho Ellen Phutego, was unfairly dismissed.

19. The Respondent, Education Department of North West, is ordered to reinstate the Applicant on the same terms and conditions that existed prior to the dismissal by no later than 20 December 2022.

20. The Respondent is further ordered to pay the Applicant backpay in the amount of R175000.00 (one hundred and seventy-five thousand Rand) by no later than 20 December 2022.

21. If not paid by 20 December 2022 interest will accrue at the prescribed rate.


D H Smith

ELRC PANELIST
27 November 2022