ELRC457-22/23EC

IN THE EDUCATION LABOUR RELATIONS COUNCIL

Case number: ELRC457-22/23EC

In the matter between

SADTU obo Sogoni, Sazi Applicant

And

Education Department of Eastern Cape Respondent

Appearances: For the applicant: Mr. Gashi (SADTU)
For the Respondent: Mr. T Liphaphang
Arbitrator: Thobela Ncetezo
Heard: 30 August & 12 October 2023
Delivered: 01 December 2023
SUMMARY: Labour Relations Act 66 of 1995 – Section 186(2)(b) – Unfair labour practice related to unfair suspension or disciplinary action.

ARBITRATION AWARD

Details of hearing and representation

1. The dispute was set down for arbitration on 30 August and 12 October 2023 at 09h00 at Trinset, Mthatha. Mr. Gashi, an official of SADTU, represented the applicant. Mr. Liphaphang who is employed as Assistant Director: Labour Relations, represented respondent, Education Department of Eastern Cape.

2. Both parties submitted bundles of documents. The proceedings which were digitally recorded were conducted in English. All witnesses testified under oath.

3. The parties requested to submit closing arguments in writing for consideration. The applicant submitted his on 18 October 2023. The respondent requested to submit closing arguments after the agreed because its representative was not well, and I received them on 23 November 2023.

Issue to be decided

4. I am required to decide whether the conduct of the respondent is an unfair labour practice as contemplated in terms of Section 186(2)(b) of the Labour Relations Act 66 of 1995, as amended (the Act).

Background to the dispute

5. The Applicant submitted that he is employed by the respondent as Post Level 2 Educator at Mangala Senior Secondary School. He has been HoD since 2009 and earns R416 000.00 per annum. He referred a dispute in term of Section 186(2)(b) of the Act as a result of suspension without pay for a month. This was after the applicant and other teachers complained about a classroom which they said was not conducive for Grade 12 learners in 2018. They wrote a letter that they have decided not to attend classes, which was a way of raising their frustration. After the disciplinary enquiry, the presiding officer recommended three months suspension without pay but on appeal this sanction was reduced to a month’s suspension without pay. He submitted that the presiding officer overlooked some evidence by the School Management Team (SMT) He further submitted that he was portrayed as a bad person by the community as they wrote letters and petitions to the Legislature and office of MEC. An amount of R34 000.00 was therefore deducted from his salary in October 2022.

6. The respondent disputed that there was evidence which was not taken into consideration and introduced a video to show that the applicant was at the front leading the learners to the principal’s car. It was further submitted that the applicant and other educators refused to teach Grade 12A learners. They wrote a letter to the respondent in which they stated that if these learners are not removed from a certain class, they will not teach them. It was further submitted that in October 2018 the applicant issued two conflicting timetables. The educators also invited the parent component of the School Governing Body (SGB) to a meeting, a function which fall under the authority of the school principal.

7. The Applicant introduced four witnesses and submitted a bundle of documents, which was accepted by the respondent.

8. A video footage was submitted and played during the proceedings. It showed learners singing inside the school premises with some educators standing on the veranda of the school building. The applicant is seen on the video footage crossing and running towards the gate. Thereafter a vehicle, Avanza, which was driven by the then deputy principal (Mrs. Moshoeshoe, the respondent’s fifth witness), as stated by the parties, is driven out of the premises and by that time the applicant was near the gate. Bullet shots could be heard as well and learners who were in the parking area where the Avanza was parked, dispersed. A gentleman who was identified by the parties as Mr. Mda, the third witness, is also seen in the video.

Survey of evidence and arguments
Applicant’s case

9. The Applicant testified that on 29 July 2019 he was in his office when he heard noise. He went outside and saw that there was chaos. Teachers who were already outside told him that they had been chased out of the classrooms by learners. Another HoD told him that the deputy principal was not at school and had apparently gone to the police station. When they tried to address the learners, they started chasing them and pelted their cars. He called the principal and informed him that learners were striking.

10. On 30 July they arrived at school early and found the gates locked. The security guards said that the learners had taken the keys. He called to inform the then principal of the school, Education Development Officers (ECD) Messrs. Mda and Msweli that learners were striking. The principal gave an instruction that the teachers must remain inside the school. They tried to calm down the learners who were singing and throwing stones from outside the school yard.

11. Mr. Mda who had parked his car inside the school premises, wanted to park his car outside. When the police opened the gate for him, learners got an opportunity to get inside the school yard. Police started shooting, then it became chaotic, and some teachers ran away.

12. On 9 September 2019 the applicant was suspended. He returned to work on 2 July 2020 but the letter which lifted his suspension was dated 16 March 2020. He denied that he refused to teach learners but admitted that he was part of the group that complained about a class, which was not conducive for learning.

13. He further testified that he was not surprised of being associated with the strike because he had information about the strike and at one time a letter of complaint about him was written to the legislature and respondent. The students had an issue about corporal punishment and how they were treated by the deputy principal, Mr. Moshoeshoe.

14. With regards to changing the timetable the applicant testified that the invigilation timetable is compiled by a timetable committee and approved by the principal who then stamps it. In this instance after the timetable was drafted, Mrs. Moshoeshoe drafted a different timetable with different times, and it did not have the principal’s stamp. For examinations they used the timetable which had the principal’s stamp and not the one which was drafted by Mrs. Moshoeshoe.

15. He further testified that teachers of Mangala convened a SGB parent component meeting through the teacher component by submitting a letter to its chairman. However, the meeting did not take place and does not know whether the principal was informed about the said meeting. The issue of Grade 12A class which they were complaining about was resolved within three days after the EDO, Mr. Mda had arrived, and learners were then moved to another class.

16. On the charge of being absent from school he submitted that he was not supposed to be at school at the time because he was bereaved. He was only at school for two hours to assist leaners who were about to write exams the next day.

17. Under cross-examination he stated that the community, SGB and deputy principal hated him. He admitted that during the incident of July 2019, he was already a manager and member of SMT. He stated that he signed the letter which was convening a meeting with the parent component of the SGB because he was a subject teacher. He further stated that the learners were not deprived of teaching because they were moved to another classroom. He conceded that he did not request permission to move learners to another classroom and said that it was not necessary to do so. He denied that he did not teach learners for nine days, received a letter dated 25 January 2017 (Page 6 of Respondent’s Bundle) or signed letters on pages 7 and 8 of the same bundle. He also denied that there was an investigation against him and a finding which implicated him on allegations of abandoning classes and inciting a strike by Grade 12 learners and teachers in 2018. He stated that he did not report for work because he was bereaved and had submitted a death certificate to the HR Department.

18. The first witness of the applicant, Mrs. Felicia Otiwaa Amankwah, testified that she is a Post Level 1 Educator at Mangala Senior Secondary School and is in the timetable committee. She further testified that the committee was waiting for the deputy principal but a day before examinations they still did not have the timetable. The principal then instructed them to draft a timetable, which he approved and stamped. The next day they found out that there was another timetable from the deputy principal. The school followed the timetable of the examinations committee.

19. Under cross-examination the witness testified that the timetable that was stamped by the school principal was drafted by the examinations committee and not by the applicant alone.

20. The second witness, Mr. Mathemba Mathola, testified that Mangala Senior Secondary is in his community, and it was founded by his late brother and Mangala school principal, Mr. Mangxa. He further testified that he is involved in assisting the school in its needs. He wrote the letter on pages 2-3 (Applicant’s Bundle B) including those on pages 9-15 of the same bundle because they were required to support the allegations that the applicant did not follow instructions from the school principal. Signatures of community members were also appended on these letters.

21. He further testified that a day before the strike by learners; the witness, the late school principal, and deputy principal called learners and told them to pretend to beat up Mrs. Moshoeshoe and then say the applicant incited them. They also told the learners to pretend that they did not want the applicant. He further testified that the learners were influenced by him and not the applicant.

22. Under cross-examination the witness testified that at one point the late Mr. Mangxa left the school under the care of the applicant because there was no one else to leave the school to. He stated that he does not know what the duties of the principal are and that the late school principal and applicant used to get along with each other until the arrival of Mrs. Moshoeshoe at Mangala.

23. He further testified that the late school principal and Mrs. Moshoeshoe brought him a letter to sign, which was complaining about the conduct of the applicant and thereafter it was sent to the legislature (Page 2 of Applicant’s Bundle). He stated that the letters were accusing the applicant of not teaching learners and that the community should act against him if the respondent failed to do so. At the time that he signed the letter he was aware that the allegations were false, but he signed to appease his brother, the school principal. The said letters contributed to the suspension of the applicant.

24. He admitted that they incited learners to pelt Mrs. Moshoeshoe’s car with stones but is not aware that damages to the latter’s car were paid for by the SGB and he did not care about what they would do to pay for damages as he was not personally affected by the act. He only got involved because the act served the principal and Mrs. Moshoeshoe.

25. The third witness, Mr. Mvaba Gqibunyaka, testified that he was employed by the respondent in 2016 and joined Mangala in 2017 but left in 2021. On 29 July 2019 he was instructed by Mrs. Moshoeshoe to come out of the classroom because there were learners outside who were holding placards and looked like they were about to strike. The witness, Mrs. Moshoeshoe and another educator, Mr. Zwelomlungu, approached the learners but as they were getting nearer the learners dispersed. They chased after them but only got hold of one whom they took to the local chief to explain his conduct and inform them who else was involved in the strike. They managed to get names of three learners who were also involved. With permission from the parents of learners, they took them to the police station, but learners did not give police the names of persons who influenced them.

26. On their returned to the school another incident happened as learners gathered and started to throw stones at the school building. Teachers ran out of the school premises. Learners separated into two groups and continued to throw stones at teachers. They approached learners, including the applicant who asked them what their problem was. Mrs. Moshoeshoe said that if the applicant wants to talk to the learners, he must do so inside the school premises, if not, he would be doing that in his personal capacity.

27. On 30 July the witness and Mrs. Moshoeshoe were accompanied by the police to the school. On their arrival, learners who were outside the yard started to throw stones at their vehicle, which was driven by Mrs Moshoeshoe. The SGB members approached the learners and tried to calm them down but when they opened the gate, they went straight for Mrs. Moshoeshoe’s car and pelted it with stones. He stated that they all witnessed students pelting Mrs. Moshoeshoe’s car as it happened in their close proximity. Police fired two shorts and the learners dispersed. The deputy principal drove off. The witness further testified that he does not know who influenced learners and denied that the learners told the police that they were influenced by the applicant.

Respondent’s case

28. The first witness, Miss Esethu Mahashe, testified that she was a learner at Mangala from 2016-2018 and the applicant was her Agricultural Science teacher. She was close to the applicant until the beginning of 2018. In March/April 2018 the applicant arrived in their classroom and said that there was a snitch in that class who informed the principal and deputy principal about everything that they talked about. He accused her of being a snake and said that the witness no longer cared about other subjects but only listened to the mathematics teacher, Mrs. Moshoeshoe. He got angry with her and chased her out of the classroom. He even influenced other teachers against her. The witness reported the matter to the principal, the deputy principal and her mother.

29. The second witness, Mr. David Matinise Toni, testified that between 2017-2018 he was allocated a post of mentorship at Mangala. The applicant was the HoD, and another Post Level 1 teacher refused to attend to Grade 12. He observed that the applicant often did not show respect to the school management as he would refuse to attend classes and the principal would have to go after him to perform his duties. He further testified that the applicant also did not follow the rules prescribed by the principal.

30. He further testified that the school had a shack which was allocated to the applicant as a classroom. The applicant refused to go to that class, so during his period the learners were not taught. The witness would approach the school principal about the applicant’s conduct and a meeting would be held between the three of them but that did not bare any fruits. Sometimes the applicant would not even attend those meetings; he defied the principal’s authority. He further testified that the principal would have informed him if the applicant was on leave.

31. Under cross-examination the witness testified that the applicant was not the only teacher who refused to attend to Grade 12 learners. The other teacher who also refused to go to class eventually attended his classes when he was talked to. That issue was also reported to the circuit manager. The witness further testified that he does not remember that the applicant was bereaved around 4 June 2018 and knows that the principal would have allowed him to take leave if he had applied for it.

32. The third witness, Mr. Nceba Larry Mda, testified that worked for the respondent as a circuit manager from 2013-2020. The applicant at the time was second in command and worked very well with the principal who at times delegated some duties to him.

33. He testified that the problem started when there was a vacancy of a school deputy principal. At the time the school was underperforming in Mathematics and Science. These were not the applicant’s specialisation as his are Agriculture and Life Science. The applicant complained to his office about these requirements.

34. One a particular day in 2019 (the witness did not remember the exact date) he received a call from the applicant that the learners were on strike, and he wanted to address them. The witness told the applicant to wait for him as he was on his way to the school but on his arrival the applicant was already addressing the learners, who then dispersed upon his arrival. They left their cars outside the school premises but later decided to park them inside the school yard. The learners came back with a placard which was written “Mosh must go”. At that time Mrs. Moshoeshoe was inside her vehicle. The witness further testified that when Mrs. Moshoeshoe arrived at Mangala, she was not accepted by the applicant. He also did not accept an HoD who was deployed to Mangala. The applicant was also charged of insubordination because parents arrived at the school and said that they called by the applicant to attend a meeting,

35. The witness further testified that the school principal used to report that the applicant did not report for duty on the first day of school, which often led to allocation of duties done in his absence. The applicant would then challenge the allocation and refuse to teach a particular class which was allocated to him. The applicant once had a quarrel with two boys in his class for throwing stones at him during the strike and he wanted them to be expelled. He made the school ungovernable.

36. He further testified that on the day that learners pelted Mrs. Moshoeshoe’s car, the applicant was standing in the veranda and could see what was happening. When another staff member complained, a policeman fired a shot and the learners dispersed. It was then discussed that the car should be repaired. In 2018 learners wrote Agriculture without being taught by the applicant.

37. Under cross-examination the witness testified that there were six teachers allocated to Grade 12A. They wanted Grade 12A, which had a small number of learners to be allocated to a bigger classroom and a class with bigger numbers to be allocated a small classroom. Out of the teachers who wrote the letter, Ms Gege, Mr. Konkwana and the applicant were disciplined. The applicant was the most senior and a member of the SMT, while others were Post Level 1 teachers.

38. He further testified that schools have structures in place to attend to school problems and therefore if teachers have a problem such should be brought to the attention of school management.

39. The fourth witness, Miss. Liziwe Sinxotho, testified that she was deployed from St Patricks to Mangala during the second term of 2018 and is currently employed as HoD for Mathematics and Science. She is also a member of the SMT. She further testified that two days after her arrival at Mangala there was a strike directed at her, that she should go back to where she came from as they had their own person. Five days thereafter, the applicant, Mr. Konkwana and Miss. Gege refused to go to Grade 10B class because of her arrival. They did not want her at the school. The witness replaced Mr. Konkwana in his subject, namely, Physical Science. The principal and all SMT members were called. The applicant said that the decision taken by the respondent to place her at that school was not what he wanted.

40. The witness further testified that she was present during the strike in July 2019. Learners were singing and chanting that they did not want “this Msotho”. They pelted at them and Mrs. Moshoeshoe’s car. Staff members ran out of the school premises. When learners were addressed by the applicant and another teacher Mr. Sokapasi, and they did not pelt at them. After addressing the learners, the two teachers approached Mrs. Moshoeshoe and told her to address the learners but she refused. The next day, learners pelted the latter’s car and when pressed a honk of her car, she was ignored by the applicant who just walked past it.

41. The fifth witness, Ms. Manneheng Moshoeshoe, testified that she was a deputy principal at Mangala from 2017 to 2020 and the applicant was a departmental head. She did not have a cordial relationship with him. The applicant would refuse to give any account in meetings that she used to call once a month as required as the departmental head accounts to the deputy principal. He drafted a timetable while the witness had already drafted one. He changed the timetable and issued it out and when asked for a reason why he did that, he could not provide any explanation except to say that the deputy principal should not be part of the timetable committee.

42. She further testified the chairman of the SGB once called the school to inform her and the school principal that he had been invited to a meeting by the teachers. The principal informed him that the meeting was not going to take place as he was not aware of that meeting and that it would not even have met the quorum if it was only the SGB chairman who was invited. The other teachers involved were Post Level 1. The teachers did not go to class for about nine days as stated in their letter to management (Page 5 of Respondent’s Bundle).

43. On the day of the strike, she was called by the applicant before she arrived at school and told her that she needed to address the learners. She further testified on that day the applicant was allegedly seen with learners. He was also very close to her car and could see when it was pelted by learners.

44. Under cross-examination the witness admitted that at one stage the applicant was bereaved but he still reported for work and that when he failed to account on 4 June, she waited for him to return to work so that she could reschedule for him to account. They later discussed their issues and thereafter they were fine. She further testified that the aim was never to dismiss the applicant but to hold him accountable. She further testified that it was her responsibility to draft a timetable as provided in the PAM document. The timetable which was drafted by the applicant was neither approved nor used.
45. She further testified that the school had a deputy principal post, which the applicant applied for, but the post did not favour him because he did not meet the requirements. She stated that she had no reason not to want the applicant at the school.

46. She stated that in 2017 Mr. Mathola served the principal with a letter that they did not want Mr. Sogoni and alleged that he had not taught learners for six months. The witness denied that Mr. Mathola ever came to her house to write a letter which would tarnish the applicant’s name and stated that the letter was written in isiXhosa, and she is Sotho. She further stated that in 2019 she nearly died and that made her take a decision not to go back to Mangala. When schools re-opened the principal begged her to return and when he passed on, the teachers wrote a letter that they did not want her to be Mangala principal. Members of the community, including Mr. Mathola, came to the school and told her to leave.

Closing arguments by the Applicant

47. The applicant argued that the evidence of the first and fourth witnesses was irrelevant and should be rejected. It was further argued that the testimony of the second and third witnesses showed that the respondent was inconsistent with its rules in that even though the applicant was not the only teacher who refused to teach Grade 12A, but he was the only one who was charged with misconduct. It was further argued that the fifth witness of the respondent was at the centre of the incitement of the learners that led to a purported strike but blamed the applicant for that. This evidence it was argued was evidence was not disputed by the fifth witness.

Closing arguments by the Respondent

48. The respondent argued that the applicant failed to rebut the evidence by the respondent’s witnesses and the fact that one of the applicant’s witnesses, Ntsikiwe Khanyile was his witness is a clear indication or confirms that the applicant incited these learners to go on strike and pelt Moshoeshoe’s vehicle with stones. It was argued that though he denied that he was in the video footage, he could be seen walking to the gate to close. It was further argued that the reduction of the sanction from 3 months to one month clearly shows how lenient was the MEC for the serious charges levelled against applicant, which we proved and corroborated by witnesses and supported by documentary evidence.

Analysis of evidence and arguments

49. Section 138(1) of the Act provides that the commissioner may conduct the arbitration in a manner that the commissioner considers appropriate to determine the dispute fairly and quickly but must deal with the substantial merits of the dispute with the minimum of legal formalities. Section 138(7)(a) further provides that the commissioner must issue an arbitration award with brief reasons, signed by that commissioner.

50. The dispute before me was referred in terms of Section 186(2)(b) of the Act. In disputes of unfair labour practice, the principle of “he who alleges must prove” is applicable. The burden of proof is therefore on the applicant to prove that the conduct of the Respondent is an unfair labour practice in terms of the above section, which provides that:
“Unfair labour practice” means any unfair act or omission that arises between an employer and an employee involving…unfair suspension of an employee or any other unfair disciplinary action short of dismissal in respect of an employee.”

51. The applicant is challenging his suspension for a month without pay, after he was found guilty of contravening Section 18(1)(a), 18(1)(f) and 18(1)(k) of the Employment of Educators Act 76 of 1998 (page . The chairman of the disciplinary enquiry recommended a sanction of three months suspension without pay. He appealed that sanction, and it was reduced to one month suspension without pay. In his testimony the applicant denied that he committed the misconduct that he was accused and found guilty of. The relief sought by the applicant is for the respondent to refund him an amount of R34 000.00 which was deducted from his salary due to the sanction of a month’s suspension without pay.

52. Charge 1. The applicant was accused of inciting learners to strike and to assault or attempt to assault Mrs. Moshoeshoe. It was common cause that Mangala learners were on strike on 29-30 July 2019 and that applicant called the principal and EDO and informed them about the strike. The testimony of the respondent’s witnesses that the applicant was seen talking to learners while the EDO had told him not to address learners as he was on his way to the school, was not denied. The interaction of the applicant with learners gave an implication that he was inciting them to strike and assault Mrs. Moshoeshoe, which the applicant denied. That the applicant incited the learners is, in my view based on assumption. I hold this view because there was no witness who testified that he or she heard the applicant inciting the learners to strike. The testimony of the EDO that on his arrival at the school he found the applicant addressing the learners, is not sufficient to conclude that he was inciting them. Even the video footage which was submitted by the respondent is not sufficient. All that can be seen in the video footage is the applicant walking towards the gate as the vehicle that was pelted with stones by the learners, was driven out of the premises. Even though the applicant denied that it was him seen in the video footage, that aspect alone is not sufficient as there was no tangible evidence to support these allegations of incitement.

53. It is therefore my considered view that the applicant proved on a balance of probabilities that he did not incite learners to strike, and the respondent was could not rebut the evidence of the applicant which relates to Section 18(1)(a) of the EEA. I therefore find him not guilty of Charge One.

54. Charge Two. The applicant testified that the invigilation timetable that they used was prepared by the timetable committee and approved by the principal. This testimony was supported by the applicant’s first witness who also testified that they were waiting for the committee was waiting for the deputy principal but a day before examinations they still did not have the timetable and they were then instructed by the principal to draft the timetable. I find this testimony contradicting. If it was their duty to draft the timetable, why would they wait for her and then draft it at the instruction of the school principal a day before the examinations. The absence or lack of any explanation on this aspect leaves the evidence of the one who bears onus hanging. The testimony of the respondent was that there was already a timetable which was prepared by the deputy principal. The parties did not submit any tangible evidence to support their respective versions. The versions before me were therefore conflicting. There was no evidence presented by the applicant, which proved that at the time that the deputy principal brought the invigilation timetable, the timetable committee had already prepared one which then was stamped and approved by the principal. 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.

55. The applicant challenged the consistency of the respondent with regards to the issue of convening the SGB meeting based on the fact that he was not the only teacher who signed the letters which were inviting the parent component of the SGB to the meeting. It was not denied that the applicant was the HoD and a member of the SMT. I am of the view that the applicant’s seniority, placed him on a different standard than that of his subordinates and cannot rely on just inconsistency to avoid facing the consequences of his action. In Absa Bank Ltd v Naidu and others (2015) 36 ILJ 602 (LAC) the court held that the parity principle should be applied with caution. Each case should be decided on its own facts and circumstances and the parity principle is not intended to profit Employees who commit serious acts of misconduct. It cautioned that although an element of consistency is an important factor to consider in the determination of fairness in dismissal, it is only one of the factors to be considered in the process and it is by no means decisive of the outcome. The parity principle was never intended to promote or encourage anarchy in the workplace.

56. It is more probable than not, that the applicant abandoned and refused to teach his classes in that the letter which they wrote to management (that he was and is part of) states “we grade 12 teachers have decided to stop going to class…” There was no proof that they did not follow through with their decision. I find the evidence of the respondent on this aspect through its witness more probable than not that the applicant refused to attend to his classes and is guilty of having contravened Section 18(1) as charged.

57. I find the evidence of applicant’s witness who testified that they (him, the late school principal and deputy principal) wrote letters to the legislature that they were required to support the allegations that the applicant did not follow instructions from the school principal, not credible. He testified, unprovoked, that he knowingly provided the legislature and the respondent with false information. It is also hard to believe his testimony that the deputy principal and the late school principal whom he said had a good relationship with the applicant, were the ones who influenced the community to write the said letters of complains. The testimony that the applicant had a good working relationship with the late school principal was consistent with respondent’s fifth witness. It is for these reasons that I find his evidence not credible, contradicting and not convincing.

58. Charge Three. The testimony of the respondent’s fifth witness was that when the applicant failed to account on behalf of his department on 4 June 2018, the former rescheduled but the applicant still failed to account. The applicant did not in his testimony present evidence to prove that he did not contravene Section 18(1)(k) of the EEA. He did not present any evidence that he did not have an obligation to account to the deputy principal and therefore should not be held responsible and liable.

59. The evidence before me showed that the applicant committed the offences that he was suspended. I therefore uphold the decision of the respondent to suspend the applicant without pay. The respondent was not harsh but lenient. On appeal the three months suspension was reduced to a month’s suspension without pay and I believe that the appeal outcome was fair and reasonable.

60. Based on the above reasons I am of the view that the applicant has failed to prove on a balance of probabilities that the conduct of the respondent amounts to an unfair labour practice in terms of Section 186(2)(b) of the Act. I am therefore of the view that the sanction imposed upon the applicant was an appropriate and therefore do not find any justification to interfere with the decision of the respondent to suspend the applicant without pay for one month. In NUM v Martin and East (Pty) Ltd (2013) 34 ILJ 978 (LC) the Court held that suspension without pay as a form of disciplinary penalty maybe considered as an alternative to dismissal if there is a valid reason for that penalty.

61. I accordingly make the following award;

Award

62. The application is hereby dismissed.


Signature:


Commissioner: Thobela Ncetezo
Sector: Education