ELRC755-21/22NW

IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD AT MAHIKENG NORTH WEST

Case No ELRC 755-21/22 NW

In the matter between

SADTU obo Thamsaqa Thobixhala Phango APPLICANT

and

DEPARTMENT OF EDUCATION: NORTH WEST RESPONDENT

Arbitration Award.

ARBITRATOR: KENNETH DLAMINI

HEARD: 28 August 2022

CLOSING ARGUMENTS: 05 September 2022

DATE OF AWARD: 03 October 2023


DETAILS OF HEARING AND REPRESENTATION

1. The arbitration hearing commenced on 27 January 2023 and it was part-heard at the Ngaka Modiri Molema District offices situated at Mafikeng. It was finalized on 28 August 2023.

2. The Applicant, Mr Thamsaqa Thobixhala Phango was present and represented by Mr Tsholofelo Monkwe, an official from the trade union SADTU. The Respondent, Provincial Department of Education, North West Province, was represented by Mr David Ntloane, a Deputy Director - Employment Relations.

3. The proceedings were manually and digitally recorded. All witnesses testified under oath.

ISSUES TO BE DECIDED

4. I am required to determine whether or not the Respondent committed an unfair labour practice as contemplated by Section 186 (2) (a) of the Labour Relations Act 66 of 1995 (the Act) as amended read in conjunction with Respondent’s Schedule 2 (6) of the Employment of Educators Act 76 of 1998, by putting the Applicant on a precautionary transfer or suspension.

5. The Applicant is seeking compensation as relief in terms of Section 193 of the Labour Relations Act 66 of 1995 (the Act) as amended. In turn, the Respondent wants the application of the Applicant to be dismissed.

BACKGROUND TO THE DISPUTE

6. The Applicant is still in the employ of the Respondent as a Chief Education Specialist (CES): Collective Bargaining, post level 6. The Applicant is based at the Respondent’s corporate centre at the old Mmabatho High School. The Applicant earns a basic monthly salary of R 66, 211. 00.

7. Aggrieved by the precautionary transfer of the Applicant, the trade union referred an unfair labour practice dispute to the council. After conciliation failed the matter was referred for arbitration on 15 February 2021.
SURVEY OF EVIDENCE AND ARGUMENTS
THE APPLICANT’S EVIDENCE

8. The Applicant testified himself. The Applicant did not call any witnesses. Bundle A, pages 1-59 was
submitted in support of the Applicant’s case. The Respondent led evidence of two witnesses and further submitted a bundle of paginated documents marked A1-2, B1-8, C1, D1-6, E1-10, F1-4, G1-5, H1-3, I1-3, J1-4 and K1-2 in support of its case.

9. In his evidence in chief, the Applicant, Mr Thamsaqa Thobixhala Phango testified that on 27 August 2021 he was served with a charge sheet and notice to attend a disciplinary enquiry on 08 September 2021. According to the charge sheet, he was charged with seven counts of misconduct allegations. The disciplinary enquiry was to be conducted virtually.

10. On 31 September 2021, he was placed on a precautionary transfer with effect from 01 September 2021. According to the precautionary transfer letter, bundle C1 he had to report at the Ngaka Modiri Molema district office. The letter which is the subject matter in this dispute was dated 31 August 2021 signed by the Respondent’s Administrator, Mr JNT Mohlala. The letter reads as follows;
Dear Mr Phango

Subject: Temporary transfer in line with 6 (2) schedule 2 of the Employment of Educators Act 76 of 1998, as amended.

10.1 The disciplinary notice and charge sheet served to you on 27 August 2021, hereby refers.

10.2 Kindly be informed that I have taken a decision to temporarily transfer you to Ngaka Modiri
Molema (NMM) district office in order to ensure that you do not jeopardise any further investigation and or intimidate witnesses who work with you in the same workstation.

10.3 Accordingly, you are herewith directed to handover your office keys to your supervisor, Mr
MV Seshibe, by close of business 31 August 2021. You may retain both the cell phone and the lap top.

10.4 You are further instructed to submit a handover report, highlighting urgent matters to be
attended to, to Mr Seshibe by close of business on 31 August 2021.

10.5 You are expected to report to the NMM district director, Mr Ntlhabathi, from 01 September
2021 until the finalization of your disciplinary inquiry.

11. The Applicant went on to state that on 01 September 202, he did report at the Ngaka Modiri Molema district office, wherein he assumed the position of being a Human Resources Manager. He stated that he had to perform functions for which he was not trained for. From time to time he relied on asking his subordinates about certain things or tasks to be done as he had no clue or idea of was expected of him as a Human Resources Manager. For the duration of the precautionary transfer, the Applicant stated that he was subjected to reputational damage and he was seen as a delinquent employee. He was put under undue stress or pressure and that the conduct of the Respondent seriously prejudiced him in many respect.

12. He stated that the first disciplinary enquiry scheduled for 08 September 2021 did not materialize as the Respondent was not ready to continue with the disciplinary enquiry. The disciplinary enquiry was re-scheduled for 11-13 October 2021 and the disciplinary enquiry could not proceed because the Respondent’s representative and the Presiding Officer were not in attendance. Subsequently, he launched an application to have the precautionary transfer uplifted and the charges withdrawn. In response, the Respondent filed a written submission opposing the application. The Respondent’s submission was compiled and signed by Mr Seshibe, who is also a witness of the Respondent. This was followed by written ruling wherein the presiding officer dismissed his application.

13. Following the presiding officer’s ruling, the disciplinary enquiry was scheduled for a face to face for 29-30 November 2021 including 01 December 2021. The disciplinary enquiry had to be postponed. It was again scheduled for early January 2022. This disciplinary enquiry did not proceed as it was reported that the Respondent’s representative had attended the ruling party’s January 08th statement in Limpopo.

14. It was reported that Mr Sam Phaladi who initially represented the Respondent had been moved to the office of the Chief Justice. Mr Sam Phaladi was later replaced by Mr Mokweti. Mr JNT Mohlala (The former Administrator of the Respondent) was also replaced by Mr Mathews. The issue relating to the unlawfulness of the precautionary transfer was raised with Mr Mathews. Mr Mathews was not keen to re- look at the issue. Mr Mathews also failed to probe into the reasons for the delay of more than 90 days, despite having such powers to do so. After all efforts have failed, the Applicant stated that the matter was referred to council. The Applicant said had he not referred a dispute to the council, he would have been still on a precautionary transfer or suspension.


15. Turning to the temporary transfer or suspension,the Applicant argued that the wording of the temporary transfer letter as indicated above runs contrary to the wording of the Respondent’s disciplinary code and procedure. The letter created an impression that the charges were serious and there was a sense of urgency as he had to vacate his office on the same day and to also do a proper handover the same day. The Respondent has to date failed to demonstrate such sense of urgency and the seriousness of the charges. To date the disciplinary enquiry remains in abeyance. No investigation report had been handed in or submitted by the Respondent despite having been requested in writing.

16. The Applicant further argued that the Respondent had no prima facie grounds to place him on a precautionary transfer as seven charges had already been levelled against him suggesting or implying that an investigation had already been conducted. Above all the investigation had already concluded that there was no reason to believe that he was going to jeopardise, intimidate and or even endanger the well-being and safety of colleagues.

17. The precautionary transfer or suspension was therefore unlawful as it ran contrary to the Respondent’s schedule 2 Item 6 of Schedule 2 of the Employment of Educators Act 75 of 1998 which provides for the grounds and procedure for placing an educator in a precautionary suspension and transfer.

The Applicant’s closing argument

18. The Applicant argued that Section 23 (1) of the Constitution of the Republic of South Africa, 1996. Section 185(b) states that every employee has a right not to be subjected to unfair labour practice. Section 186(2) of the Labour Relations Act (1996) provides for a list of unfair labour practices. Section 186(2)(b) of the Labour Relations Act (1996) relates to unfair suspensions of an employee or any other unfair disciplinary action short of dismissal. The Applicant continued to state that it was grossly unlawful for the Respondent to just assume or believe that just because he is a senior employee in the directorate, he was therefore capable of intimidating witness for which were not known to him at the time. The Respondent’s disciplinary code and procedure is silent regarding intimidation. The Respondent failed to demonstrate any sense of urgency contrary to what had been indicated in the precautionary suspension or transfer letter. No investigation was conducted. The Respondent failed to comply with the requirements of its prescript which is not an excuse in this regard.

THE RESPONDENT’S EVEIDENCE

19. The first witness of the Respondent, Mr Maropene Seshibe, testified that at the time of the Applicant’s precautionary transfer or suspension he was the director in the Employment Relations directorate. He admitted that he was aware of the initial charges which had been levelled against the Applicant. The misconduct allegations emanated from section 18 and not 17 of the Employment of Educators Act 76 of 1998, hence they were serious in nature. He stated that the Respondent has a discretion to determine the serious of the charges including putting any employee on a precautionary transfer or suspension, as it was the case in this matter involving the Applicant.

20. The witness admitted having drafted the Applicant’s precautionary transfer or suspension letter, bundle B, C1 which letter was later signed by the Respondent’s second witness, Mr JNT Mohlala, who was the Administrator at the time.

21. The witness stated that he was not certain as to whether the Respondent did enquire from the presiding officer as to what were the reasons for the delay of the disciplinary enquiry after the suspension was lifted, reason being that he was subsequently moved out of the directorate.

22. He stated that the word intimidation as contained in the precautionary transfer or suspension letter of the Applicant includes endangering the well-being or safety of any person at the workplace which in any event may manifests itself in different ways. He stated that the precautionary transfer or suspension of the Applicant was justifiable, in other words, there were valid grounds to place the Applicant on a precautionary transfer or suspension given that new charges had to be added to the initial charge sheet.

23. The precautionary transfer or suspension was not a punitive measure, it was only meant to protect the integrity of the investigative process and the on-going disciplinary enquiry. At no stage was the Applicant viewed as a delinquent employee. The Applicant continued to be paid his salary during the precautionary transfer or suspension and as such the Applicant did not suffer any financial losses.

24. He went on to state that he had no personal score to settle with the Applicant. He worked with the Applicant for more than ten years. He even recommended that the Applicant be appointed to the current position.


25. He stated that it was not a requirement for the Respondent to prove that the Applicant was going to intimidate his subordinates. He disputed that the Respondent abused its power by placing the Applicant in a precautionary transfer or suspension.

26. Regarding whether or not there was any investigation was conducted, the witness stated that an investigation was done. Schedule 8 (4) of the Labour Relations Act 66 of 1995 requires that an investigation does not have to be formal and as such the Respondent did comply with the requisite procedural requirements.

27. The witness continued to state that the precautionary transfer or suspension was with effect from 01 September 2021. The initial disciplinary enquiry was scheduled for 08 September 2021. Due to new allegations against the Applicant which had to investigated, the disciplinary enquiry was postponed by agreement. At the time the Respondent’s representative Mr Sam Phaladi had been moved to the office of the Chief Justice and he had to be replaced. The disciplinary enquiry was again scheduled for 11-13 October 2021 and it did not proceed as the Respondent’s and the chairperson were not available. The Applicant was advised through his trade union representative Mr Monkwe, bundle A, page E1 an e-mail sent by Mr Sam Phaladi the Respondent’s representative.

28. The Applicant then filed an application to have the charges withdrawn and that he be allowed to return to work. He subsequently drafted the Respondent’s reply affidavit and the presiding officer had to made a ruling, which he did on 11 November 2021. This in itself caused a delay.

29. In November 2021 the replacement of Mr Sam Phaladi was appointed. The disciplinary enquiry was scheduled for 29, 30 November and 01 December 2021 wherein all parties were represented. The disciplinary enquiry was postponed and rescheduled for 05 January 2022 for a face to face at the insistence of the Applicant party.

30. The precautionary transfer or suspension was subsequently uplifted on 23 May 2022. The disciplinary enquiry is still on-going, other words not yet finalized.

31. The witness admitted that the disciplinary enquiry was not finalized within one month as envisaged by schedule 2 item 6 (3) (a) of the Respondent’s disciplinary code and procedures. He however argued that the Respondent did everything possible to have the disciplinary enquiry expedited. He stated that the delay cannot be only attributed to the Respondent, the Applicant party also contributed as well.

32. He argued that the Applicant did not suffer any financial losses during the precautionary suspension as the Applicant received his salary and as such the Applicant is not entitled to any compensation.


33. In his evidence in chief, the Respondent’s second witness, Mr JNT Mohlala testified that he is the former Administrator or Accounting Officer of the Respondent. His last day at work was 14 November 2021. He went on to state that on 31 August 2021, he signed and approved the temporary transfer or suspension letter of the Applicant, wherein the Applicant had to vacate his office from the provincial offices and report to the Ngaka Modiri Molema, district offices with effect from 01 September 2021.


34. The witness admitted that at the time of the precautionary transfer or suspension, the Applicant had already been issued with a charge sheet. The reason for putting the Applicant on the precautionary transfer or suspension was that the initial charge sheet had to be amended wherein three additional charges had to added and investigated thereafter. At the time the Respondent believed that it was necessary to have the Applicant moved to the district offices in order to ensure that the investigation process is not jeopardised by the presence of the Applicant and that witnesses who work with the Applicant are not intimidated during the on-going investigative process. The witness maintained that all this was in line with the Respondent’s disciplinary code and procedures Schedule 2 Item 6 (2).

35. Regarding the handing over of the office keys and that the Applicant had to vacate the office on the same day and to keep the cell phone and the laptop, the witness said this was part and parcel of the precautionary transfer or suspension. The Applicant was still in the employ of the Respondent and as such there was nothing sinister or untoward about that.

36. Responding to the question regarding the investigation report, the witness stated the investigation had to be extended following the additional charges, hence the Respondent did not see it fit to issue any investigation report relating to the first charges at that stage.

37. Coming to the delays of the disciplinary enquiry, the witness stated that the initial disciplinary enquiry which had been scheduled for 08 September 2021 had to be postponed because Mr Sam Phaladi who was representing the Respondent was moved to the office of the Chief Justice. The Respondent’s first witness, Mr Seshibe had tried without any success to have Mr Sam Phaladi released to come and continue with his role. The issue was later escalated to him. He started engaging with the Director-General in the office of the Chief Justice on 07 October 2021 without any success. Bundle B, pages E3-E10 and F1-F4 are e-mail communications exchanged between the Respondent and the office of the Chief Justice regarding the release of Mr Sam Phaladi.

38. The witness did not dispute the fact that the prescribed ninety days period lapsed without the disciplinary enquiry involving the Applicant being completed. He went on to state that while on the one hand the Respondent was engaging with the office of the Chief Justice for the release of Mr Sam Phaladi to come back and continue with the disciplinary enquiry, on the other hand, the Applicant launched an application to have the charges withdrawn against him and to return to work, bundle B, pages G2-G5. The Respondent filed a reply submission, bundle B, pages H1-H3 and have the presiding officer issuing a ruling. He said the Respondent filed its reply submission on 20 October 2021. The presiding officer issued the ruling on 11 November 2021, bundle B, pages I1-I3. He left the employ of the Respondent on 14 November 2021. He stated that as to what happened after he had left the employ of the Respondent will be hearsay evidence and as such he will not comment.


39. A version was put to the witness that on 08 September 2021, the disciplinary enquiry did not proceed. It was subsequently scheduled for 11-13 October 2021 and both the presiding office and the Respondent’s representative did not pitch up. In terms of Schedule 2 (6)(3)(b) it is only the presiding officer who is entitled to postpone a disciplinary enquiry. The witness was asked as to who postponed the disciplinary enquiry for 11-13 October 2021. The witness responded by saying that he had no idea as to who postponed the disciplinary enquiry.

40. When asked whether the Respondent did enquire from the presiding officer as to what were the reasons for the delay in order to give direction for the speedy conclusion of the proceedings the witness responded by saying he could not have enquired from the presiding officer about any delay as he had intervened in getting the prosecutor, Mr Sam Phaladi released as back as 07 October 2021. He said he left the employ of the Respondent on 14 November 2021 and a new acting Administrator was appointed and as such he cannot comment as it will constitute hearsay evidence.

41. He stated that all postponements were communicated to the Applicant party in particular the postponement of 11-13 October 2021 wherein Mr Sam Phaladi communicated with the Applicant’s representative Mr Monkwe in confidence regarding the challenges and possibility of having the matter postponed. He said it cannot correct that all the delays were caused or can be attributed to the Respondent. The Respondent did all that was possible to expedite the conclusion of the Applicant’s disciplinary enquiry according him.

The Respondent’s closing argument

42. The Applicant was placed on precautionary transfer from 1 September 2021 and same was lifted on 16 May 2022. The Applicant raised an unfair labour practice following the duration of the precautionary transfer.

43. It is the Respondent’s case all that postponements and adjournments were by mutual agreement except for the miscommunication of 11-13 October 2021. The Respondent’s witnesses testified how they made efforts to comply with the timeframes provided in the Act but due to other circumstances, compliance was impossible.

44. One of the reasons, which took more than 30 days to resolve, was an application submitted by the Applicant himself to get the charges dismissed and return to his workplace. Fair procedure was followed to deal with this application and a ruling issued to satisfy the completeness of this interlocutory application.

45. It is therefore not true that the delay was solely because of the Respondent’s disregard of law and lack of interest in the welfare of the Applicant. This was evinced by the lifting of the precautionary transfer while the disciplinary process was still ongoing.

46. The Applicant submitted that he was prejudiced by the action of the employer when he was transferred to the District as he felt that he would be seen or regarded as delinquent and therefore has suffered emotional harm (stress, pressure) and reputational damage.

47. The evidence led in this regard does not indicate at what point the Applicant felt the prejudice and what type of prejudice was directed towards the Applicant and by whom.

48. The submission that the Applicant’s reputation was damaged, he was stressed and pressured because he was not doing the work that he was familiar with does not make a case for compensation, rather for damages.

ANALYSIS OF ARGUMENT AND EVIDENCE
Applicable law

49. In terms of Section 186(2) of the Labour Relations Act 66 of 1995 (the Act) which reads “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.

50. Schedule 2 (6) of the Respondent’s disciplinary code and procedures for educators which deals with
suspensions provide that;

(1) In the case of serious misconducted in terms of section 17, the employer may suspend the educator on full pay for a maximum of three months.

(2) In the case of misconduct in terms of section 18, the employer may suspend an educator in accordance with the procedure contemplated in section (1), or transfer the educator to another post if the employer believes that the presence of the educator may jeopardise any investigation into the alleged misconduct, or endanger the well-being or safety of any person at the workplace.

(3) (a) If an educator is suspended or transferred, the employer must do everything possible to
conclude a disciplinary hearing within one month of the suspension or transfer.

(b) The presiding officer may decide on any further postponement. Such a postponement
must not exceed 90 days from the date of suspension.

(c) If the proceedings are not concluded within 90 days, the employer must enquire from the
presiding officer what are the reasons for the delay are and give directions for the speedy conclusion of the proceedings.

(d) At the time of the enquiry contemplated in paragraph (a) the employer may, after giving the
educator an opportunity to make representations, direct that further suspension will be without pay.

51. My view is that the purpose of the above prescript is to ensure that suspended employees are not
placed in a precautionary suspension or transfer for a prolonged period of time unreasonably due to the employer’s inactivity. The Labour Relations Act 66 of 1995 (the Act) as amended envisages a cheap, accessible, quick and informal dispute resolution system. Over and above, an employee has a right to refer an unfair labour practice dispute relating to suspension in the event the employer does not uplift a suspension, which was the case in this matter. The Applicant’s suspension was only lifted by the Respondent in May 2022 which translates to almost nine months.

52. In a nutshell, the case of the Applicant is that the Respondent had no valid grounds to him on a
precautionary suspension or transfer. At the time of the precautionary suspension he (Applicant) had already been charged. The Respondent did not conduct any investigation which may have informed the decision to put him on a precautionary suspension or transfer, hence the precautionary suspension or transfer was unlawful.

53. In this matter the onus is on the Applicant to demonstrate that the Respondent committed an unfair
labour practice in relation to the precautionary transfer or suspension. The Respondent has to show or demonstrate that it acted fairly.

54. It is also common cause that on 31 August 2021 the Applicant was placed on precautionary transfer with effect from 01 September 2021 at the Ngaka Modiri Molema district office. It is further common cause that the first disciplinary enquiry was scheduled for 08 September 2021. The disciplinary enquiry scheduled for 08 September 2021 was postponed. The disciplinary enquiry was re-scheduled for 11-13 October 2021. The disciplinary enquiry scheduled for 11-13 October 2023 did not take place due to the non-attendance of the Respondent’s representative and the presiding officer. It is further common cause that the disciplinary enquiry scheduled for 11-13 October 2021 was not postponed by the presiding officer as required.

55. On 20 September 2021, the Applicant was issued with a revised or amended charge sheet wherein
three new additional charges had been added to the charge sheet issued to the Applicant on 27 August 2021, bringing the total number of charges to ten counts.

56. The Applicant submitted an application to have the charges withdrawn and that he (Applicant) returns
to his work station. On 20 October 2021 the Respondent’s first witness drafted and submitted a reply submission. On 11 November 2021, the presiding officer issued a ruling dismissing the Applicant’s application and ordered that the Respondent re-schedule the disciplinary enquiry as soon as possible.

57. The disciplinary enquiry was then re-scheduled for 29, 30 November and 01 December 2021. The
disciplinary enquiry did not proceed as scheduled, but it was postponed to 5-7 January 2022.
58. I now turn to the conduct of the Respondent as per the prescript of schedule 2 item 6.

Were there any reasonable or justifiable grounds on which the Respondent relied upon to put
the Applicant on a precautionary transfer or suspension?

59. It is trite that an employer has the prerogative to suspend or to put any employee on precautionary
suspension or transfer as it was the case with the Applicant with full pay. Each case should be treated on its own merits. Respondent at time formed a view that the presence of the Applicant in particular in the workplace may have jeopardised the investigative including the on-going disciplinary process. The Respondent cannot be faulted for having done so.

Did the Respondent do everything possible to conclude the disciplinary enquiry involving the
Applicant within one month?

60. It is not disputed that the disciplinary enquiry has not been concluded to date, which translates to a delay of more than twenty-four months compared to prescribed one-month time period. Despite the version of the Respondent’s witnesses that there were reasons which contributed to the delay in particular the transfer of the Respondent’s representative, Mr Sam Phaladi and that the Applicant launched an application to have the charges withdrawn and for which the Respondent had to respond to, which the respondent did and the presiding officer later issued a ruling,I am of the view that Respondent did not comply with this requirement at all.


Were there any further postponements which were done by the presiding officer as envisaged by Schedule 2 Item 6 (3)(b)?

61. Turning to this requirement, according to evidence presented before me, the presiding officer
only postponed the first disciplinary enquiry which was scheduled for 08 September 2021 to 11-13 October 2021. Both the presiding officer and the Respondent’s representative were not in attendance on 11-13 October 2021. Instead the Respondent’s representative Mr Sam Phaladi sent an e-mail communication on 08 October 2021 to the Applicant’s representative Mr Monkwe informing him of a possibility that the proceedings might not proceed as scheduled on 11-13 October 2021. Mr Sam Phaladi stated that he was informing Mr Monkwe in confidence as he had not received any permission at the time to do so. On 25 October 2021, the first witness of the Respondent instructed his subordinate one Mr Keetile to prepare a response for the Respondent to remedy the situation by issuing a notice for a virtual hearing in order to formalize the postponement which would have afforded the Respondent an opportunity to look for Mr Sam Phaladi’s replacement. This requirement in my view was not complied with by the Respondent. The requirement is that postponements must be done by the presiding officer and for which it was not the case in this instance.

Did the Respondent enquire from the presiding officer as to what were the reasons for the
delay in concluding the disciplinary enquiry and give direction for the speedy conclusion of the proceedings?

62. It was the testimony of the Respondent’s second witness that he did not enquire from the presiding
office regarding any delay in concluding the disciplinary enquiry given that the issue regarding the release of Mr Sam Phaladi had already been escalated to him, wherein he engaged the Director-General of the office of the Chief Justice as from 07 October 2021 without any success. The first witness for the Respondent stated the he was not certain as he was later moved out of the directorate. My considered view is that the prescript makes this requirement a must and not an option. The Respondent is further required to give further direction in order to expedite the disciplinary enquiry. I find that the Respondent did not comply with this requirement as well.

63. In the final analysis and for all the reasons provided by the Respondent. I find that the Applicant had
discharged the onus to prove that the Respondent committed an unfair labour practice in relation to the precautionary suspension or transfer of the Applicant. The Applicant stated that he is seeking compensation as relief. I am therefore guided by section 193 of the LRA which require compensation to be just and equitable in all circumstances. Section 194 of the LRA requires such compensation not to exceed 12 month’s remuneration.

64. In the circumstances I consider three months’ remuneration to be just and equitable compensation
calculated as shown hereunder.
R 66. 211. 00 per month x 3 months = R 198. 633. 00


AWARD

65. I make the following Award

66. The Applicant has demonstrated that the Respondent committed an unfair labour practice as
contemplated by Section 186 (2) (a) of the Labour Relations Act 66 of 1995 (the Act) as amended by putting him on an unlawful precautionary suspension or transfer without any valid grounds for a protracted period of time.

67. The Respondent is ordered to pay compensation to the Applicant to an amount of R 198, 633. 00 (One
Hundred and Ninety-Eight Thousand six Hundred and thirty Three Rand) as indicated above, that being compensation equivalent of three months’ remuneration subject to lawful deductions such as Income Tax etc. on or before 27 October 2023.

68. The Respondent must further note that the award can be enforced in terms of section 143 (1) of the
LRA and that interest will accrue on the amount of compensation after 27 October 2023 in accordance with the provisions of section 143(2) of the LRA.

Kenneth Dlamini
Panellist: ELRC