ELRC209-22/23EC

Case Number: ELRC209-22/23EC

In the matter between

NUPSAW obo Milfred Mlamli Mcetywa Applicant

and

Department of Higher Education and Training –
King Sabata Dalindyebo TVET College Respondent

Appearances: For the applicant: Mr Andile Falteni (NUPSAW official);
For the respondent: Mr Sandile Nkomozibonvu (labour relations officer)

Arbitrator: Mxolisi Alex Nozigqwaba
Heard: 02 December 2022 and 3 and 15 June 2023
Delivered: 06 July 2023
Summary: Labour Relations Act 66 of 1995, as amended, section 186(2)(b)-
Alleged unfair labour practice (disciplinary action short of dismissal)

DETAILS OF HEARING AND REPRESENTATION

1. This arbitration was held at King Sabata Dalindyebo TVET College offices in Mthatha, on 02 December 2022, and finalised on 15 June 2023. There had been several postponement in between these dates, and on 03 May 2023 I granted the last postponement and directed that parties should ensure their witnesses’ readiness on the next sitting which was agreed to be 15 June 2023. On that last day the respondent representative applied for postponement which I refused as there were no cogent reasons for it, and the reasons for turning the application will thoroughly narrated below.

2. Mr Milfred Mlamli Mcetywa (applicant) was in attendance in all sessions and was represented by Mr Andile Falteni (NUPSAW official), while King Sabata Dalindyebo TVET College (respondent) was represented by its labour relations officer, Mr Sandile Nkomozibomvu.

3. The dispute’s citation has always been SADTU obo MM Mcetywa v King Sabata Dalindyebo TVET College as it was initially referred while the applicant and his representative were still SADTU members. They left SADTU for NUPSAW before the commencement of arbitration hearing. They sought that citation to be changed and reflect their new union, and I ruled in favour of their application as they are both members of NUPSAW.

4. The dispute is an unfair labour practice relating to unfair disciplinary sanction short of dismissal in terms of section 186(2)(b) of the Labour Relations Act 66 of 1995, as amended (LRA), and was referred to the ELRC and dealt with in terms of sections 136(1)of the LRA).

5. The proceedings were digitally recorded.

6. At the completion of the proceedings parties elected to do their closing arguments in writing and undertook to submit by not later than 22 June 2023. Only the applicant party submitted in line with agreed timeframe. Extension was sought for the respondent party and I granted it up until 29 June 2023, and the respondent submitted within the granted extension timeframe. I have taken their arguments into consideration in penning this award.

ISSUE TO BE DECIDED

7. I have to determine whether unfair labour practice relating to disciplinary sanction short of dismissal, in terms of section 186(2)(b) of the LRA, was committed when the respondent issued the applicant with a sanction short of dismissal in a form of one month suspension without pay issued on 29 October 2021 (which got to be implemented on ).

8. Should I find that indeed an unfair labour practice was committed I will issue the appropriate relief.
BACKGROUND TO THE ISSUE

9. At the time of issuing of the one month suspension without pay the applicant was and is still the respondent’s Mngazi Campus manager. The salary which was not paid to the applicant when the sanction was implemented on was R46 425.82.

10. Subsequent to a formal disciplinary hearing the applicant was, on 02 March 2022, found guilty of:
‘Charge 1 Failure to comply with or contravention of clause 6.9 of KSD TVET College Fleet Management Policy. It is alleged that on or about 17 November 2020 you failed to comply with the provisions of 6.9 of the College Fleet Management Policy, which states that College pool vehicles are assigned to a campus or Head Office with no taking home privileges unless authorized by the Accounting Officer. You kept College vehicle with registration number DXX 101 EC in your home without permission and or authority to do so and subsequently the College vehicle got stolen in your custody (pages 1 to 2 of the applicant’s bundle A).’

11. The applicant’s challenge is that he should not have been found guilty of the charge and ultimately issued with one month suspension without pay. The relief he is seeking is that the guilty finding against him be found to not have been warranted and the suspension without pay be reversed and his April 2022 salary be paid back to him. He is also seeking solatium as he says the respondent’s conduct towards him brought about psychological strain and suffering.

SURVEY OF THE EVIDENCE AND ARGUMENTS

Postponement application
12. There had been several postponements in 2022 at the instance of ether the applicant or respondent party. There was also a postponement which became necessary because of Public Service wage strike. On the set down date of 03 May 2023 the respondent party sought postponement on the basis that one of its witness was sick and the other (fleet manager) had a prior commitment. The applicant opposed the application on the basis that it had not been done in line with the rules and that the delay in finalizing the matter was prejudicing him. I ruled in favor of the application for the sake of allowing the respondent the opportunity to put its house in order and be able to present its side. 15 June 2023 was then agreed to be the next set down date, and I reiterated to parties that they should ensure the availability of their witnesses as further postponements would not be lightly entertained.

13. On 15 June 2023 Mr Nkomozibomvu applied for postponement on the basis that the witnesses they were to call were accompany a team of officials from its National Office to Mngazi campus following a brutal incident to one of the students. The applicant opposed the application on the basis that the said visit had not been properly coordinated as community leaders and relevant stake holders were not informed about it. The applicant, who is Mngazi campus manager was not even in attendance.

14. I turned down the application as I could not understand why the respondent had not allocated other officials besides the ones who were scheduled to testify on the day. Also, if it was important that the said officials accompany the National Office delegation the least they could have done was to talk to one another and the National Office delegation would have been made aware that there was already scheduled arbitration to be prioritised for that day. They would have arranged that the visit be done on any other day besides 15th June.

Merits (evidence and arguments)
15. The applicant testified that in November 2020 he was travelling in and out of Mngazi as it was examination time. On 17th November he had returned from work and parked the vehicle at his home in Zimbane Valley. He together with other campus managers would take vehicles on Monday and return them on Friday. They would keep them in their respective custody or campuses from Monday to Friday. This arrangement had been communicated by the then acting principal, Ms Chagi, in a management meeting held in March 2020.

16. Whilst the vehicle was parked at the applicant’s home on 17th November 2020 he got to discover the following morning, at about 02H00, that the vehicle was missing. He then reported the vehicle missing and a case was opened, and necessary procedures were engaged upon to lodge an insurance claim. According to the information at his disposal the insurance honoured the claim as the insurer was never told that the vehicle had been in his custody without permission.

17. On cross examination it was put to him that clause 6.9 of the Fleet Management Policy provided that pool vehicles were assigned to campuses with no take home policy, and that when he took the vehicle home he was in breach of that policy. His answer was that in the March 2020 management meeting the acting principal had given them (campus heads) a go ahead to take the pool vehicles on Mondays and return them on Fridays. It was also of necessity for him to have the vehicle on the day in question as he had knocked off late and was to leave by 06H00 for purposes of taking examination papers to his campus.

18. Mr Sixtus Siyabonga Mteshana (KSD TVET College- Engcobo Campus manager) testified that in March 2020 there was a management meeting wherein the then acting principal, Ms Chagi, had given authority to campus heads to take pool vehicles on Mondays and return them on Fridays.

19. Mr Zigqibo Kahla (KSD TVET College assistant director communications) corroborated the applicant’s and Mr Mteshana’s version with regards to the March 2020 meeting. He testified that in that meeting the then acting principal gave authority to campus heads to keep pool vehicles with them from Monday to Friday.

20. No oral evidence was tendered from the respondent’s side.

21. For the applicant it is argued that sufficient evidence was tendered to prove that indeed the acting principal had given permission for the pool vehicles to be taken by campus heads from Monday to Friday. The authority to take the vehicles from Mondays to Fridays was given by the then acting principal in line with what is provided for in clause 6.9, which is ‘unless authorised by the accounting officer.’ In the absence of contrary version from the respondent that of the applicant should be taken as fact. In this regard the applicant relies on the principle laid down in Ex parte Minister of Justice: In re R v Jacobson and Levy where the then called Appellate Division (now known as Supreme Court of Appeal) held:
‘Prima facie evidence in its usual sense is used to mean prima facie proof of an issue, the burden of proving which is upon the party giving evidence. In the absence of further evidence from the other side, the prima facie proof becomes conclusive proof and the party giving it discharges his onus.’
The applicant therefore says that his version that he had taken the vehicle home with the permission of the accounting officer should stand as unchallenged. The claim for the lost vehicle was honoured and in the claim documents there was never mention of the applicant having kept the vehicle at his home without the accounting officer’s permission.

22. It is argued further that the salary deducted from the applicant, amounting to R46 425.82 (as per his 15 August 2022 pay slip) be paid back to him with 10.5% interests in terms of section 1(2) of Prescribed Rate of Interest Act 55 of 1975, as amended as there was no legitimate basis of deducting his pay.

23. For the respondent it is argued that the applicant had no permission to take the pool vehicle home, and when he did so he breached the clause 6.9 of the Fleet Management Policy. In support of his assertion that there had been authority given for the pool vehicles to be taken home by campus managers, he could not produce any documentary proof in support thereof. It was further argued that the applicant had been warned on several occasions not to take the vehicle home. No evidence had been tendered in support of this argument though. The respondent also made further arguments on issues it has not presented evidence in support thereof. In conclusion it was prayed that the applicant’s guilt finding be upheld and the sanction implemented be left as it is.

ANALYSIS OF EVIDENCE AND ARGUMENTS

24. The applicant has testified that in the March 2020 meeting the then acting principal gave permission that campus heads take pool vehicles with them from Monday to Friday. This version was corroborated by two witnesses he called and these witnesses’ testimony was not subjected to any challenge by the respondent. Clause 6.9 provides that Pool vehicles are assigned to a campus or head office with no taking home privileges, unless authorized by the Accounting Officer (my emphasis). In terms of the applicant’s version the accounting officer (the then acting principal) did give authority in the March 2020 meeting.

25. The respondent’s opposing version came when cross examining the applicant and on arguments. No witness testimony was tendered to provide contrary version. The respondent authored its misfortune when it carelessly disregarded its responsibility of ensuring that relevant witnesses attended the 15 June 2023 arbitration session. Had it taken the proceedings seriously it would have ensured that its supposed witnesses did present its version. The principle as laid down in Ex parte Minister of Justice therefore applies as the applicant has established a prima facie case that he had been given permission to take the vehicle home. In the absence of contrary version the applicant’s version takes precedence. There was therefore no misconduct from the applicant warranting the sanction of suspension without pay.

26. In the circumstances I find that the sanction of suspension without pay implemented in July 2022 be reversed, expunged from the applicant’s personnel file, and the money deducted be paid back to him. I further find that 10.5% interests in terms of section 1(2) of Prescribed Rate of Interest Act be factored-in in the amount deducted as there was no legitimate basis for this sanction and the deduction of salary. The applicant was inconvenienced for no legitimate cause.

AWARD

27. I therefore make the following award:
27.1. The first respondent committed an unfair labour practice as provided in section 186(2)(b) of the LRA in that it unfairly found the applicant guilty of taking the vehicle without permission and when it imposed and implemented in July 2022 a sanction of unpaid suspension.

27.2. The respondent is therefore ordered to reverse the unpaid suspension sanction it implemented in July 2022 and pay the applicant R51 300.53 (R46 425.82 gross monthly salary deducted + R4 874.71 being 10.5 % interest in terms of Prescribed Rate of Interest Act) by not later than 15 August 2023.

27.3. It further ordered that the finding of guilty and the sanction of unpaid suspension be expunged from the applicant’s personnel file.

Signature:

Commissioner: Mxolisi Alex Nozigqwaba
Sector: ELRC