ELRC416-22/23EC

IN THE EDUCATION LABOUR RELATIONS COUNCIL

Case number: ELRC416-22/23EC

In the matter between

NAPTOSA obo Gege, Busisiwe Applicant

And

Education Department of Eastern Cape Respondent

Appearances: For the applicant: Mr. Arron Mhlontlo (NAPTOSA)
For the respondent: Mr. Tsiu Liphaphang
Arbitrator: Thobela Ncetezo
Heard: 29 November 2022; 08 -09 February; 08-09 March 2023
Delivered: 01 April 2023
SUMMARY: Labour Relations Act 66 of 1995 – Unfair Labour Practice in terms of section 186(2)(b) - unfair conduct relating to unfair suspension or disciplinary action,

ARBITRATION AWARD

Details of hearing and representation
1. The dispute was set down for an arbitration at OR Tambo Coastal (Libode), District Office KD Matanzima Building in Mthatha. Mr. Aroon Mhlontlo who is an official of NAPTOSA represented the applicant, Miss. Busisiwe Gege. Mr. Tsiu Liphaphang who is employed as Assistant Director: Labour Relations represented the respondent, Education Department of Eastern Cape.

2. Both parties submitted bundles of documents that have been labeled Applicant’s Bundle and Respondent’s Bundle and each party introduced six witnesses who all testified under oath.

3. The proceedings which were digitally recorded were conducted in English and interpreted into Xhosa by the ELRC Interpreter, Mr. Mbulelo Ndabambi,

4. The parties requested to submit closing arguments in writing for consideration, which were received on 17 March 2023.

Issue to be decided

5. I am required to decide whether the disciplinary action taken by the respondent against the applicant amounted to an unfair labour practice in terms of Sections 186(2)(b) of the Labour Relations Act 66 of 1995, as amended (LRA).

Background to the dispute

6. The applicant is employed by the respondent as Post Level I Educator at Mangala Senior Secondary School (Mangala SSS) from 10 October 2008 to date.

7. She was suspended without pay for one month after being found guilty of convening a School Governing Body (SGB) meeting, inciting learners to strike and to assault other fellow learners, failing to teach learners. The outcome of the disciplinary enquiry was three months suspension without pay. The applicant appealed and the sanction was reduced to suspension for one month without pay, which took effect in September 2022, and she reported for work in October 2022. Her monthly salary at the time was R29 674.07.

8. The respondent submitted that the applicant had no authority to convene a meeting with the SGB, that it was wrong of her to refuse an instruction of teaching the learners, incite learners to strike and assault other learners.
Survey of evidence and arguments
Applicant’s case

9. The applicant, Busisiwe Gege, testified she is an English teacher and in 2018 she taught to the Grades 10 & 11 learners. She denied that she refused to teach Grade 11B, but that there was a conspiracy against her after she had refused to sign a blank cheque at the time that she was a teacher component in the SGB. She further testified that to prove that she had taught her Grade 11B class, their marks even went for moderation. She did not teach Grade 12 in 2018 or the previous years. All she heard was that there were learners who were assaulted but does not know who did. She is also aware that the learners were taken to a disciplinary hearing for the said assault.

10. About eight learners told her that a meeting about the strike was held where they were told to write letters that the Applicant was the one who incited them to strike, or they would not be allowed to write examinations. The applicant denied that she incited learners. On the day that the learners were on strike she was not at work and is not aware of any school property that was damaged.

11. She also denied that she was called by the SGB or school principal about the said allegations but by the District Office to collect a notice to attend a disciplinary hearing.

12. With regards to the letters that the applicant and other teachers wrote to management requesting a meeting with SGB meeting (Pages 60-61) the applicant testified that it did not take place and only herself, Messrs Sogoni and Khonkwane received notices to attend a disciplinary hearing. There was no action taken against other employees.

13. On the charged of refusing to teach she testified that they requested to be moved to another class because the class they were using at the time had noise, which was from the lower grades. She denied that she refused to teach learners even at the time that her money was stolen but taught her classes till the end. If she had refused to teach there would not have been CASS marks for the subject that she taught.

14. She further testified that before these allegations she had a clean disciplinary record and that during the process of the disciplinary hearing she was not allowed an opportunity to submit mitigating factors.

15. The first witness of the applicant, Mr. Khanyile Ntsikwe, testified that in 2019 he was a Grade 9 learner at Mangala SSS. Sometime in July 2019 the Deputy Principal, Mrs. Moshoeshoe, asked if he was on strike and told him to leave the school premisses because he was not wearing a school jersey. The jersey that he had ordered had not yet arrived and it was cold on the said day.

16. The next day the witness and four other learners were late for school. The Deputy Principal instructed the security guard not to open the gate for them. They went home because they were chased out of the school by the teachers. Later, Mrs. Moshoeshoe arrived at his home with other educators. She told his grandmother that he was naughty at school. They took him and another learner to the police station where they reported that the applicant influenced learners to strike. She asked how much the applicant was paying them and offered to pay them more. The witness further testified that he told Mrs. Moshoeshoe that she should not involve learners in her squabbles.

17. On 30 July 2019, the witness and other learners were again refused entry to the school, so they jumped over the fence and chased other learners out of class. They were singing that Mrs. Moshoeshoe should leave the school. When the police came to the school on that day, they told them that they wanted Mrs. Moshoeshoe out of their school and handed over to them their grievances. They damaged a tuckshop and pelted with stones a vehicle (Avanza) because they wanted Mrs. Moshoeshoe who was in it.

18. He denied that the applicant influenced them but testified that it was Mrs. Moshoeshoe who accused the applicant of inciting them and none of the students in the forefront of the student strike were related to the applicant.

19. The second witness, Mr. Sazi Sogoni, testified that he is currently employed as HoD at Mangala SSS. On 29 July 2019 he was in his office when a teacher informed him that learners were chasing out teachers from the classrooms. He wanted to enquire from the Deputy Principal but it was already too late as the learners were throwing stones at the vehicle she was in and it drove off but there was no damage to the property or that the school had to pay R13 000.00 for damages on Mrs. Moshoeshoe;s vehicle. The applicant was not at school on the day of the strike.

20. On 30 July 2019 the security guard told him that learners had locked the school gate and took the key. The learners came looking for the Deputy Principal, but they told them that they did not know about her whereabouts. Police, the EDO and SGB were also at the school on this day to address the staff and learners. The Applicant informed him that the first witness said that he was told to say that she had incited Grade 12B learners.

21. They wrote a letter (Page 60 of Applicant’s Bundle A) because the classroom that they were using to teach Grade 12A was not conducive tor teaching as it was a temporary structure. He is the one who wrote the letter as he was a subject teacher in that class and at the time that they wrote the letter they were still going to class. However, he could not remember whether the meeting that they convened was held. They wanted the learners to be removed from the temporary structure to another structure. He further testified that he was called into any meeting that addressed them convening an SGB meeting.

22. He admitted that he was also charged for not going to class for nine days and was found guilty of the offence. The letter that they wrote to the SGB was delivered by the teacher component to the SGB and that in terms of the South African Schools Act, anyone can call the SGB to a meeting. He was not aware whether the applicant attended to her classes or removed learners from class.

23. The fourth witness, Mrs. Nobambo Patricia Mnyaka, testified that she is employed by the respondent as an Administrative Clerk. Her testimony was that on a particular Wednesday, which was a holiday (she could not remember the date), she went to the school to perform some of her administrative duties and saw parents entering the school.

24. Later she heard people screaming and heading towards the administration block. She got out of her office and saw a learner crying. Behind this learner was the SRC President. The latter told her that they were being instructed by the SGB and the Deputy Principal to write a letter which would say that they were incited by the applicant to strike; and she was not going to be able to write another letter. She said the first letter that she wrote was from the Deputy Principal. The learner was then taken to another office by a cleaner and therefore the witness does not know what happened thereafter.

25. She confirmed that an amount of R9000.00 was paid to the Deputy Principal to pay for damages after her car was pelted with stones by learners. She also testified that the school windows were also damaged during the time that the learners were on strike.

26. The fifth witness, Mrs. Sandiswa Tshatshelo, testified that the Applicant who is an English teacher is under her supervision. She further testified that she does not remember any of her teachers refusing to attend to their classes and convening SMT meeting in 2018. She made sure that teachers were in class and the tool which she uses to monitor them are attendance registers. She also works with class representatives who would call a teacher to attend to their classes.

27. She further testified that there was not even a single day that the applicant refused to attend to her classes. Even at the time that the Applicant’s money was stolen in class, she continued to teach that class The Applicant’s tasks and schedules for her classes were all filed and that there would not have been time when Grade 12 was not taught. These schedules and reports were issued to learners during the first, second, third terms and they received their results for 2017. If the applicant did not teach for fifty days, it also means that the EDO kept quiet while he was aware that the applicant did not submit her schedules.

28. She stated that at one time there was a classroom that was too small, but it was allocated to a larger class. The educators arranged for the larger class to occupy the larger classroom. She also testified that a teacher could move learners to another class if a class is not conducive. She conceded that the applicant did not ask for permission to move learners to another classroom but that when the applicant and other educators wrote letters to the SGB/Management. They were trying to follow proper channels. She conceded that SGB meeting is only called by the principal and no meeting was ever held between the teachers and the SGB.

29. The sixth witness, Mr. Bismack Ndude, testified that at the time of the allegations against the applicant he was a shopsteward and represented the applicant. Currently he is a Post Level 3 at Mkundlu Junior Secondary School at Ngqeleni.

30. He testified that the disciplinary process which was supposed to be finalised within three months was not followed. He was required to submit mitigating factors long after the hearing and after a sanction was issued. He also did not receive the findings but a sanction in 2022. He only submitted closing arguments after the findings.

Respondent’s case

31. The first witness, Mrs. Mammekeng Moshoeshe, testified that she was employed as a Deputy Principal at Mangala SSS during the incident in question. She left the school because there was too much instability, which was caused by her attempts to correct things that were not properly done. When the Principal of the school passed on, some educators at that school were opposed to her acting as the principal, which was in August, September, and October.

32. In 2017 the applicant was part of the educators who removed sixty-six Grade 10B learners from their class to a smaller class. Then they allocated Grade 12A learners who were less in number than the Grade 10B learners without the permission of the principal. The witness testified that the allocation of classes to learners was the responsibility of the principal and not the educators. These educators wrote a letter that they were not going to teach Grade 12A learners in a shack. This was when the school was still under construction. When their arrangement was not accepted, the educators stopped going to class. They called the EDO to intervene. The Applicant was not a dedicated teacher, and this was not the first time for her to refuse going to class.

33. In 2018 the Applicant’s handbag disappeared in class but was later returned and some money was stolen. Thereafter a parent visited the school crying and reported that the Applicant had threatened her child. The Applicant also threatened the principal when he refused to instruct the parent of a learner to refund her. The applicant refused to go to class for fifty days, from 14 February to 28 March 2018 for the first term and 10 April to 22 June 2018 for the second term. In May 2018 officials from the District Office arrived at the school and reprimanded the Applicant. While in 2017 she was absent from class for nine days, even after the witness tried to reason with her.

34. In May 2018 two learners approached the District Director with a complaint that they were made to pay R100.00 for electricity while they were at camp, which was in the school premises. This arrangement was approved by the SGB but Grade 12B did not like the arrangement. Other two learners from Grade 12A also approached the District Director to complain about educators. They alleged that the applicant advised other leaners to call these two learners to their class, turn the lights off and beat them up.

35. She listened to a voice note in which some learners were telling the Applicant that they were going to beat up the two learners, namely, Mahashe and Ndamase. These learners who were beaten up, were traumatised and had to be counselled, they left the school and returned to their homes.

36. In July 2019 the witness was called to intervene in an issue of a learner who was wearing a pink jersey during school hours. He told them that he was wearing that jersey while waiting for his school jersey ordered from the applicant who was selling these to the learners, even though the SGB had resolved that school uniform should not be sold by staff.

37. The next day this learner was seen at school carrying a placard written “Mosh must fall” (this was referring to the witness. These learners were chased away by two male teachers. They reported the incident to the local chief who advised them to go to the police station. The applicant then accused her of instigating the learners to write statements about her. She reported this to the school principal. The applicant entered the school principal’s office carrying hot water and threatened to pour it on her.

38. Thereafter the learners embarked on a strike and about ten of them chased learners out of their classes. They pelted her as she was driving off and leaving the school premisses. Mr. Sogoni was aware of this. He even asked her to get out of the car and address the learners, but she refused. The school paid about R9000.00 to a panel beater for the damages in her car.

39. The applicant, Messrs. Sogoni and Khonkwana were also implicated in formal investigation which was conducted in 2018 report and an informal one in 2019 but not implicated in the placards or strike of 19 July 2019. The witness however stated that the applicant incited the learners to strike in that her conduct was of panic when she saw the witness and two educators coming back to school with the learners from the police station, she also threatened other teachers by saying that it is either her or them must die, the jug of hot water, which she said she was going to pour on her. The witness reported all this conduct to the EDO, Mr. Mda. She was interviewed by the Department and police. She did not return to the school after she was nearly killed by learners who pelted her car.

40. The second witness, Esethu Mahashe, testified that she was doing Grade 12 in 2018 at Mangala SSS. She further testified that when the District Director visited their school on 17 May 2018, she accompanied the RCL Deputy President, Zethu Ndamase, to explain about the R100 that learners who were on camp paid to the school for electricity. Three Grade 12B learners were already with the District Director to complain about the R100.00 for electricity. Later Grade12B learners called them into their class to explain about a message that she had received from the deputy principal that there was not going to be morning classes because there was no electricity. When they entered Grade 12B class, the learners were on their feet, the door was closed and surrounded them.

41. They forced them to sit down and asked why they were after Mr. Sogoni. Before they were assaulted the latter had told the class that the witness and Zethu Ndamase informed the Deputy Principal about everything that they discussed in class and told them to stop doing so. The witness reported this to the principal. The applicant had once told her the same even though she was not even her teacher. They also asked why they went to the District Director when he visited the school. Grade 12B learners switched off the lights and started to beat them up. They were rescued by a cleaner. Thereafter they went to the clinic and police station, but it was closed. Her left-hand fingers were swollen and Zethu Ndamase had a swollen arm.

42. The next day a hearing was held which was attended by the learners with their parents. A voice note of the applicant was played in that hearing in which the latter was asking another learner why they were not beating up the witness and Zethu Ndamase’s arm was swollen.

43. The third witness, Vumile Vayeke, testified that he is the chairman of the SGB and had been a member since 2018. The applicant was at the time a teacher component of the SGB. He further testified that he remembers that in May 2018 two learners were assaulted by others and that a hearing was held after that incident. In the hearing they listened to a voice note in which the applicant was asking a learner why they were not beating up learner, whose names were not disclosed in the voice note. He further testified that learners who camped at school were required to pay, and that decision was supported by the parents, but he was not aware of the R100.00 they paid for electricity. He confirmed that the learners who were assaulted were swollen with injuries. The implicated learners admitted that they committed the offence.

44. On a Friday in 2019 (he could not remember the exact date) the applicant who sounded upset called and told him that it looked like the “the Sotho girl is going to manage them”. When he arrived at school the following Monday there was a strike by students. Learners held placards, some of which were written “we don’t want this Sotho”.

45. On the day of the strike Mrs. Moshoeshoe’s vehicle was pelted by learners who also chased the car as she was driving off. The school had to pay about R9000.00 to a panel beater for repairing the damaged vehicle. The property of the school was also damaged. The police arrived and dispersed the learners. The grievance letter that the learners handed over to them did not mention the Applicant’s name regarding the incitement to strike.

46. The fourth witness, Mr. Masibulele Zwelomlungu, testified that he has been employed as an educator at Mangala SSS since January 2019. He is one of the teachers who, one Thursday morning, saw five learners who were standing outside the school premises, holding placards, and singing revolutionary songs. The placards were written “Moshoeshoe must go”. They chased after them and were able to get hold one boy whom they took to the ring leader’s home (Khanyile Ntsikwe) and thereafter took both learners to the local chief and to the police station as advised by the chief. The police warned these learners of the consequences of embarking on a strike and that they would be first suspects if anything happened to the school. They did not write any statement at the police station as they were not opening a case against them.

47. On their return to the school with these learners, he saw the applicant talking to the learners about the incident, instead of talking to them as her colleagues. Thereafter she went to the staff and told the teachers that Mrs. Moshoeshoe who at the time was Acting Principal, said that the learners must write in a statement that the applicant told them to strike. The learners denied this when they were called to the staffroom for explanation.

48. On Friday, things were normal but the following the Monday incident of students being taken to the police station, the learners embarked on a strike and other learners were forced out of classes. They called police, Department of Education officials and the learners brought a grievance letter with one of the teachers, Mr Sogoni. The learners forced their way in and pelted Mrs. Moshoeshoe’s car. The windscreen was broken, and its body was damaged. The windows of the school building were also broken and damaged. The school paid R9000.00 to a panel beater who repaired this car.

49. The fifth witness, Miss. Liziwe Sinxotho, testified that she is a Post Level 2 educator and Applicant’s Supervisor.

50. She further testified that when Mrs. Moshoeshoe, Messrs Zwelomlungu and Gqibunyaka returned to school from the police station with the learners, the Applicant went into the office and asked to speak to the principal who was not there at the time. She again came back with Messrs Zwelomlungu and Gqibunyaka and said between her and Mrs. Moshoeshoe someone must die. The Applicant was holding a kettle with hot water, which she covered with a blanket.

51. They went out as learners started throwing stones at them, but this was not done to Mr. Sogoni who went to talk to these learners. Mr. Sogoni asked Mrs. Moshoeshoe to speak to the learners but she was reluctant to do so. Mr. Sogoni locked the gate but another member of the SGB opened it so that the witness and other teachers can drive out of the premises. Mrs. Moshoeshoe’s car which was pelted was damaged and the school paid R9000.00 to a panel beater for repairing damages on the former’s car.

52. The sixth witness, Nceba Larry Mda, testified that he is employed by the respondent as Circuit Manager to which Mangala SSS fall under. In 2017 he was informed by the late school principal that teachers (including the applicant) were refusing to teach Grade 12A class at the time that the school was under construction, and small temporal structures were erected. These teachers said that a senior class should not use a smaller structure. He told them that it was the responsibility of a school principal to allocate classes and that by not going to class was tantamount to an unprotected strike and they could be charged for such. They argued that they were teaching other classes but not Grade 12A. This incident was investigated in 2018. The applicant was always implicated in strikes that took place at Mangala SSS.

53. By not teaching Grade 12A though they were allocated subjects to teach that grade was to refuse a lawful instruction. These teachers also did not want to accept a newly appointed deputy principal, Mrs. Moshoeshoe and they would be reluctant to take instructions from her. When he visited the school on 30 July 2019, he saw the applicant and Mr. Sogoni addressing learners outside the school premises. He stopped to join them, but the learners started to sing and moved away. A member of the SGB tried to address the learners but they threw stones at him, and he got injured. The witness could not then talk to the learners. He also witnessed Mrs. Moshoeshoe’s car being pelted by learners and the windows were smashed. Police fired warning shots and the learners dispersed.

54. He also received a report that the applicant refused to teach learners for 48-50 days and she also did the same when learners stole her money. The Applicant wanted to be allocated another class. All this time that she refused to teach, she received her full salary.

55. He also received a report from Mrs. Moshoeshoe that in 2019 the applicant convened an SGB meeting without the consent of the principal or knowledge. It was completely wrong to do so without the consent of the principal and SGB chairman even though she was a teacher component in the SGB. All the SGB members indicated that they were called into the meeting by the Applicant.

Closing arguments

56. It was argued that the person who instituted charges against the Applicant did not have authority to do so and denied all the charged against her, stating that the procedure was flawed and that the Respondent was inconsistent in the application of its rules.

Analysis of evidence and arguments

57. The dispute before me related to unfair labour practice in terms of Section 186(2)(b) of the LRA. In disputes of unfair labour practice, the principle of he who alleges, applies. The onus therefore rested with the applicant to prove that the conduct of the respondent amounted to an unfair labour practice in terms of the above Section.

58. The parties submitted closing arguments in writing. It is a general rule that in their heads of arguments, the parties do not introduce new evidence, for the simple reason that the other party will not have an opportunity to test, the new version by leading evidence and/or cross-examination as at that stage the parties have closed their cases. In NUM and another v CCMA and others [2018] 3 BLLR 267 (LAC) the Court held that since key aspects of the employee’s case were not put to the employer’s witnesses in cross-examination and had not been canvassed in the evidence of those witnesses in chief, their version on such aspects was not placed before the Commissioner. The result was that the Commissioner was unable to determine the issue before him in the manner required.

59. The unfair labour practice that is challenged by the applicant is a disciplinary action taken by the respondent against her. She was suspended for a month suspension without pay in September 2022. This disciplinary action imposed upon the applicant after she was found guilty of inciting learners to strike, calling the SGB meeting (parent component) without the consent or permission of the principal and chairman of the SBG, refusing to teach learners and being absent from school for fifty days without authority.

60. In her testimony the applicant denied all the above allegations. She denied that she incited learners to strike, and this was supported by her witnesses, a former learner who was in the forefront of the strikes in question as well as her colleagues. The Respondent’s witnesses, including the chairman of the SGB and Circuit Manager, also supported this as they testified that the applicant was not implicated by learners in the incitement of strike and that her name was not mentioned in the grievance letter that the learners handed over to them. However, the Chairman of the SGB linked the placards held by learners and written “we don’t want this Sotho” to the Applicant’s utterance that “it looks like the Sotho girl going to manage us” when she called him the previous week. There was further testimony that the Applicant was seen speaking to the learners who were involved in leading the strike but that her name was not implicated in the strike. This testimony on its own is my view is not sufficient to conclude that the Applicant incited the learners to strike.

61. On allegation that she incited learners of Garde 12B to beat up two other learners from Grade 12A the respondent relied on the testimony of one of the learners who was assaulted but the voice notes that they referred to were not available. The evidence presented by the witnesses of both parties proved that the two learners were assaulted but what could not, in my view, be proved was the involvement of the applicant in the assault. I am of the view that it would be unreasonable to conclude that the applicant instigated the beating up of the two learners when there was no tangible evidence to support this allegation. The WhatsApp conversation that the Respondent submitted to prove that the Applicant incited the assault of the two learners (Page 19 of Respondent’s Bundle) is, in my view, not sufficient to implicate the Applicant in the assault.

62. Convening the SGB meeting. The testimony of the applicant that the meeting with the SGB (parent component) did not take place, is an admission that she was part of the staff members who called the SGB parent component to a meeting. Her other witness, Mr. Sogoni, testified that the letter which they wrote was delivered by the Applicant, whose name and signature also appears in them. He testified that everyone has a right to call the SGB to a meeting but here was no explanation of what informed the notion that anyone can convene the SGB meeting without the principal’s permission (Page 64 of Applicant’s Bundle AI). This witness also denied witnessing the pelting of a vehicle by learners despite the fact there a video which showed that he was present when the strike took place that was played during the arbitration proceedings. One of the Applicant’s witnesses, a former learner who led the strike at the time, Mr. Khanyile Ntsikwe, admitted that they pelted Mrs. Moshoeshoe’s vehicle and damaged the tuckshop.

63. I find it highly improbable that Mr. Sogoni who was at the school during the said strike and by his own testimony had asked Mrs. Moshoeshoe to talk to the students, did not witness the pelting of the latter’s vehicle, a fact which came from the testimony of not only the Respondent’s witnesses but that of the Applicant as well. He also testified that he was not aware that the Applicant did not attend to her classes. In my view, this implies that it is possible that the Applicant did not attend to her classes. Since they are in the same school and were amongst the teachers who informed management in writing of their decision not to go to class, he should be able to confirm whether their decision not to attend class was carried through or not.

64. Furthermore, the applicant did not deny that they assumed the responsibility of allocating a classroom without the authority or permission of the principal. She did not deny the testimony that the Grade 10B learners that they moved to a smaller venue was bigger in numbers for the class to which they moved them. Even if the class was bigger, they needed the permission of the principal to do so, which they did not. Instead, they wrote letters to the SGB and management that they stopped going to class. The letter reads as follows “We as Grade 12A teachers have decided to stop going to the classroom…” and they stated that the environment was not conducive for teaching (Page 15 of the Respondent’s Bundle and 61-64 of the Applicant’s Bundle). Regardless of these letters the applicant denied that she did not report for school. Her other witness who testified that she is the Applicant’s Supervisor and that she monitors the attendance of her educators by using an attendance register, amongst the tools that she uses but there were no attendance registers to prove whether the applicant had reported for duty on the days in question. These are two conflicting versions by the parties and in such instances the party who bears the onus must prove that his or her version is the correct one. In Stellenbosch Farmers’ Winery Group Ltd and Another v Martell & Kie SA and Others 2003 (1) SA 11 (SCA) the Court held that where a Commissioner is faced with two conflicting versions before him the Commissioner must make a finding on the credibility of witnesses and on the probabilities of the two versions, to determine where the truth lies. The question that should be answered is whether the probabilities favour the party that bears the onus of proof. In this instance, it is my view that the probabilities do not favour the applicant to whom the onus rests. In De Beer v Trudon (Pty) Ltd (1994) 15 ILJ 1057 (LAC) the Court with approval referred to the matter of FAWU and others v Amalgamated Beverage Industries Ltd (1994) 15 ILJ 1057 (LAC) when it held that an evidential foundation had to be laid and that a party could not merely rely on arguments only, as arguments without any evidential basis would be no more than speculation.

65. The Applicant alleged that the respondent was inconsistent but did not advance evidence to prove that these employees also committed all the offences that she was suspended for but were not disciplined or did not receive the same disciplinary action. An employee who alleges that an employer was inconsistent has an onus to prove it. It is my considered view that the Applicant, as a teacher component of the SGB, is reasonably expected to have known that she could not without the consent and knowledge of the school principal call a SGB meeting as this fell outside her capacity.

66. The Applicant further challenged the disciplinary procedure and testified that the Respondent did not investigate the matter and she was not allowed an opportunity to submit mitigating factors. This was corroborated by a witness who testified that he represented the Applicant in the disciplinary hearing. However, the version of the respondent’s witness, Mrs. Moshoeshoe, that the respondent conducted a formal and informal investigation (Page 45 of the Respondent’s Bundle). The Applicant was, in my view, afforded an opportunity to be heard up to a stage where she appealed against the initial sanction which was three months without pay to a month without pay. Avril Elizabeth Home for the Mentally Handicapped v CCMA and others [2006] 9 BLLR 833 (LC) the court held that the Employer is merely required to conduct an investigation, give an Employee or his representative an opportunity to respond to allegations after a reasonable period and thereafter to take a decision and give the Employee notice thereof.

67. It is my considered view that suspension without pay would have constituted an unfair labour practice if the applicant was not guilty of any charges that were instituted against her. In Sidumo and another v Rustenburg Platinum Mines Ltd & others (2007) 28 ILJ 2405 (CC); [2007] BLLR 1097 (CC) it was held that in terms of the LRA…a commissioner not given the power to consider afresh what he or she would do, but simply to decide whether what the employer did was fair. In arriving at a decision, a commissioner is not required to deter to the decision of the employer. What is required is that he or she must consider all relevant factors and circumstances. I am therefore of the view that the applicant has failed to prove that her suspension without pay constitutes an unfair labour practice in terms of Section 186(2)(b). In NUM v Martin and East (Pty) Ltd (2013) 34 ILJ 978 (LC) the Court held that suspension without payas a form of disciplinary penalty maybe considered as an alternative to dismissal if there is a valid reason for that penalty.

68. Based on the above reasons, it is my considered view that the Applicant has failed to discharge her onus to prove on a balance of probabilities that the sanction imposed by the Respondent of suspending her without pay constitutes an unfair labour practice.

69. I accordingly make the following award;

Award

70. The conduct of the Respondent, Education Department of Eastern Cape, does not constitute unfair labour practice as contemplated in Section 186(2)(b) of the Labour Relations Act 66 of 1995, as amended.

71. There is no relief awarded to the Applicant, Busisiwe Gege.

Signature:

Commissioner: Thobela Ncetezo
Sector: Education