ELRC249-23/24FS

IN THE ELRC ARBITRATION
BETWEEN:
SADTU obo SEROBE, DONALD THABO “the Applicant”
and
DEPARTMENT OF EDUCATION – FREE STATE “the Respondent”

DEFAULT AWARD

Case Number: ELRC249-23/24 FS
Date of the ruling: 23 February 2024
ELRC Arbitrator: Lindiwe Makhanya

Union/Applicant’s representative: Mr. M. Frans

Respondent’s representative: Non - appearance

DETAILS OF HEARING AND REPRESENTATION

1. The matter was set down as arbitration on 24 October 2023, 16, 17 January 2024 until it was finalised on 21 February 2024. The proceedings were conducted through a virtual platform.

2. The Applicant, Mr. Donald Thabo Serobe, was represented by Mr. M. Frans, Free State Provincial Secretary from SADTU. There was no appearance for the Respondent, notwithstanding that proper notification of the date, time, and venue of the proceedings was timeously sent to the Respondent. I proceeded with the arbitration in the absence of the Respondent.

ISSUES TO BE DECIDED

3. I need to decide whether the Applicant's dismissal was unfair and, if so, determine the relief he would be entitled to.

BACKGROUND TO THE DISPUTE

4. The proceedings resumed on 24 October 2023 with the presence of both parties. They focused on narrowing down the issues and delivering their opening statements. No evidence was presented on this day. The parties agreed to reconvene on 16 and 17 January 2024.

5. On 16 January 2024, the Council informed me that Mr. Tsunke, the Respondent’s representative, had been involved in a car accident and was receiving medical attention. Mr. Tsunke had assured them that he would participate via Zoom the next day. However, he did not attend the proceedings on the following day. As a result, I rescheduled the matter to 21 February 2024.

6. On 21 February 2024, the Applicant and his representative were present, while the Respondent was notably absent. Despite efforts to contact the Respondent's representative, no response was received. Consequently, I proceeded with the arbitration in the absence of the Respondent.

7. The Respondent employed the Applicant as an Educator in the Free State Province, with the Applicant's employment commencing on 03 August 2020. Subsequently, the Applicant was dismissed on 28 April 2023 following a disciplinary inquiry into misconduct allegations. At the time of dismissal, the Applicant was earning a monthly salary of R25,975.37

8. The Applicant referred an unfair dismissal dispute relating to misconduct to the Council. He sought retrospective reinstatement if the award is made in his favour.

SURVEY OF EVIDENCE AND ARGUMENT

THE APPLICANT’S CASE

9. The Applicant testified under oath that he had been suspended due to allegations of sexual misconduct. Upon his return to school, in October 2022, he was assigned as an invigilator for examinations, as the subject he taught, Mathematics Literacy, was being examined on that day.
10. On the same day, he visited all Grade 10 classes, where he taught Mathematical Literacy, and encountered two learners who expressed their desire to withdraw the sexual harassment case previously filed against him.
11. Approximately 30 minutes later, he met with the Deputy Principal, Koboue, who informed him that two learners had reported feeling intimidated by him. He refuted the claim, explaining that he had spoken to the two learners who had expressed their intention to withdraw the case.
12. The day after, the school's principal informed him that a case of intimidation was being opened against him. He maintained that the accusation of intimidation and victimization of the two learners was unfounded, as there were witnesses to his conversation with them. Additionally, he continued to teach the two learners, and they showed no signs of fear or discomfort in his presence.
13. On 23 February 2023, a disciplinary hearing was conducted by the Respondent, during which he was charged with threatening and intimidating the Respondent's witnesses.
14. The Applicant stated that his dismissal had been unfair because there was no wrongdoing on his part. He wished to be reinstated for unfair dismissal.

ANALYSIS OF EVIDENCE AND ARGUMENT

15. In default awards, decision-makers are bound by the testimony of only one party, and as such, particular care must be taken when considering, accepting, or rejecting the evidence. When I consider the Applicant's evidence in its totality, it is plausible, and I found the Applicant to be truthful, and no reason exists why I cannot accept his version of the events.

16. In coming to my decision, I have taken note of Section 188 of the Act, which states that a dismissal is unfair if the employer fails to prove that the reason for dismissal was related to the employee's conduct or capacity; or based on the employer's operational requirements and that the dismissal was effected in accordance with a fair procedure.

17. In his opening statement, the Applicant asserted that he was contesting both the procedural and substantive fairness of his dismissal; however, he did not lead any evidence pertaining to procedural fairness. The procedural fairness aspect was addressed by the Applicant's representative during the closing arguments. Without any evidence regarding procedural fairness, I am unable to render a determination on this matter.

18. It is evident from the Applicant's uncontested version that his dismissal had been substantively unfair as he claimed he did not commit any misconduct. The evidence given by the Applicant is not challenged. There are no contradictions or apparent improbabilities in his evidence. His overall version is probable and believable and is, therefore, accepted.

19. I find that the Applicant’s dismissal was substantively unfair but procedurally fair.

20. The Applicant sought retrospective reinstatement. I find no reason why such relief should not be granted, as section 193(4) of the Act permits the determination of the dispute on terms that the arbitrator deems reasonable. The Applicant was dismissed on 28 April 2023. The unpaid salary amount is calculated as follows: (R25,975.37 x 10 months = R259,753.70)

21. Accordingly, the Respondent is required to reinstate the Applicant from the date of dismissal.

AWARD
22. I make the following award;
22.1. The dismissal of the Applicant, Donald Thabo Serobe was substantively unfair but procedurally fair.
22.2. The employer, Department of Education Free State, is ordered to reinstate the employee, Mr. Donald Thabo Serobe, into its
employ on terms and conditions no less favourable to him than those that governed the employment relationship immediately
prior to his dismissal.
22.3. The reinstatement in the preceding paragraph is effective from 28 April 2023.
22.4. The employer is ordered to pay Donald Thabo Serobe as back pay, the amount of R259,753.70 minus such deductions as
the Respondent is in terms of the law entitled or obliged to make.
22.5. The employer is ordered to pay the amount referred to in paragraph 22.4 to Mr. Donald Thabo Serobe within fourteen days
of the employer being notified of this award.
22.6. Mr. Donald Thabo Serobe is to tender his services to the Respondent within 48 hours of becoming aware of the award.

LINDIWE MAKHANYA
PANELIST