ELRC987-22/23KZN

Commissioner: VEESLA SONI
Case No.: ELRC 987-22/23 KZN
Date of Award: 6 MARCH 2024


In the ARBITRATION between:


PSA OBO RAMACHANDRA RAMDEWO APPLICANT

and


DEPARTMENT OF EDUCATION – KWAZULU NATAL RESPONDENT


Union/Applicant’s representative: Mr Sibusiso Madondo
PSA

Telephone: 072 700 8134



Respondent’s representative: Mr Yunus Ramcharan
228 Pietermaritzburg Street
Pietermaritzburg
Telephone: 082 629 8545



DETAILS OF HEARING AND REPRESENTATION

1. The dispute was referred to the Education Labour Relations Council (hereinafter referred to as the
“ELRC”) in terms of Section 186(2)(b) of the Labour Relations Act, No. 66 of 1995 (hereinafter referred to as the LRA). The matter was scheduled for arbitration on 4 July 2023 and was part heard. It was adjourned on a few occasions as the Applicant was ill. The matter was then scheduled for 31 January 2024. on a virtual platform.

2. The Applicant, Mr Ramachandra Ramdewo was present and was represented Mr Sibusiso Madondo from the PSA, and the Respondent was represented by Mr Yunus Ramcharan.

3. On 31 January 2024 the matter stood down till 10 am and Mr Yunus Ramcharan attended the hearing late. The matter proceeded was part heard and adjourned to 27 and 28 February 2024, wherein it was finalized. Both parties delivered copious closing arguments on 4 March 2024.

ISSUE TO BE DECIDED
4. The issue in dispute was referred under the ambit of an unfair labour practice. The Applicant contends that the Respondent/employer committed an unfair labour practice in that his suspension was procedurally and substantively unfair.

BACKGROUND AND SURVEY OF EVIDENCE
5. The Applicant commenced employment in June 2003, as an educator. In 2019 he was promoted to the position of a principal at Ladysmith Secondary School. At the time of the dispute, he was in the same position and his salary was R 56 318-38. The Applicant was suspended on 25 November 2022 and there was no suspension hearing. The charges related to financial misconduct. The second suspension was on the 13 June 2023, for charges relating to irregular alienation of school assets.

6. The Applicant was presented with charges relating to financial misconduct on 28 February 2023. The disciplinary hearing was scheduled for 6 March 2023 and has not been finalized. He was later presented with further charges. This was handed to him on 14 June 2023.

7. The Applicant challenged the procedure for his suspension in that he was not given a notice as to why he should not be suspended. In terms of substance, he submitted that the allegation related to mismanagement of funds, and he was not presented with the charges within the prescribed time. He was suspended beyond 90 days.

8. The Respondent submitted that the suspension was procedurally and substantively fair. It was submitted that the Applicant was suspended for serious misconduct relating to financial mismanagement.

9. It was common cause that upon the expiry of three months the Applicant presented himself for duty but was not given the responsibilities associated with his position as a principal.

APPLICANT’S CASE

10. Applicant testified that to date he was still on suspension. He was furnished with charges on 28 February 2023 and submitted that the disciplinary hearing was scheduled for June 2023. The hearing did not proceed due to his ill health. He suffered both medical and psychological illness and supplied medical notes.

11. The Applicant submitted that the 90-day period for his suspension in terms of the Employment of Educators Act, section 6, subsection 1 and 2, was violated. In this regard any suspension for serious misconduct, the suspension can be for no longer than a period of 3 months.

12. It was argued that 90 days, lapsed on 22 February 2023. The Applicant returned to work on 25 February 2023. Upon his return to work he was suspended for the second time. This was authorized by the circuit manager and this, he believed, was a violation of the Act

13. The Applicant stated that his suspension was substantively unfair as it extended beyond the 90-day period. This was a gross abuse of power. He further stated that on 30 June 2021 all documents were removed as part of the investigation. He remained at school from June 2021 till 24 November 2022. He emphasized that his return to school would not jeopardize the investigation as he was present at work for 17 months after the investigation. He did not present any danger to any person, nor did he tamper or interfere with the investigation.

14. The Applicant claimed that his prolonged suspension was unfair and prejudicial to him. As a result of the Respondent’s conduct, the Applicant underwent emotional and physical ill-health. It was argued by Mr Madondo that the Applicant be compensated for the delay in the disciplinary process that resulted in his medical condition. He further requested for an order that the Applicant return to work.

RESPONDENT’S CASE

15. Andreas Shangase: was the deputy director: forensic investigation for the Department of Education under internal control and risk management directorate. He said that they were responsible for attending to internal and external complaints, via members of the public and employees. He was in the same position from 2009. He conducted investigations at the Ladysmith Secondary School in 2022, the principal being the Applicant. A complaint was raised by a member of the public to the MEC, wherein it was alleged that the School was demanding advance school fees for admission. The allegation was that monies were paid to the school or requested to be paid to the school, on the premise that it was an advance school fee. It was made to appear as a prerequisite for admission into the school. This was requested in the form of cash payments, from the school principal and SGB.

16. The request for the advance school fees was applicable in terms of the admission policies. This amount would be deducted from the annual fees for the year if it was part of their policy. The School did not incorporate this provision into their policy. Shangase confirmed that he prepared the investigation report which dealt with allegations of collusion between the Applicant and some of the members of the SGB, as well as misuse of funds.

17. Shangase detailed his challenges during the investigation, which emanated after 8 November 2022. At that time the Applicant was not suspended and there was no need for him to be on suspension. On 15 November 2022 the irregularities were identified and furnished to the Applicant, for comment and accountability. He established that the Applicant was tampering with evidence and interfering with the investigation, which initiated his recommendation that the Applicant be suspended. The Applicant rendered the SGB dysfunctional and suspended a learner. This amounted to interfering with witnesses. It was imperative for the Applicant to be on suspension and away from the school. The Applicant also failed to provide requested documents which prolonged the investigation.

18. Shangase said the Applicant’s action and lack of support demonstrated that he did not want to assist in the investigation and did not cooperate. The documents required were in his possession, but the Applicant failed to provide same. On 15 November 2022, the Applicant said that he did not want to participate in the investigation due to self-incrimination. It was stated that had the Applicant cooperated with the investigation, it would have been concluded, before 30 May 2023. If there was no interference from the Applicant, Shangase would have finalized his investigations within 90 days, from the date of suspension.

19. The School principal had the statutory obligation to guide and assist the SGB in all financial matters. This was his obligation and responsibility. The Applicant did not respond to the discrepancies, and he believed that the Applicant did not want to incriminate himself.

20. Shangase confirmed that the deputy principal Padayachee, was suspended and charged. Administrative action was taken against Mr Biyela, but he was unaware of the exact details. The former principal and clerk were investigated, and disciplinary action was recommended.

ANALYSIS OF EVIDENCE
21. The matter was referred as an unfair Labour Practice: In terms of section 186 (2) (b) of the LRA:
“unfair labour practice means any unfair act or omission that arises between an employer and an employee involving the unfair suspension of an employee or any other unfair disciplinary action short of dismissal”

22. The current matter related to preventative/precautionary suspension of the Applicant who claimed that he was treated unfairly in that he was suspended for a protracted period, far exceeding 90 days. He was suspended on 25 November 2022, and still remained on suspension. It was common cause that to date the disciplinary hearing has not been finalized. He also claimed that he should have been afforded a hearing prior to suspension, which did not take place, thus rendering his suspension, procedurally unfair.

23. The law is clear that suspensions should not be implemented as a measure of first resort. This was laid out in Lebu v Maquassi Hills Municipality (J 2035/11) [2011] ZALCJHB 170 (21 October 2011), “Suspension is a measure that has serious consequences for an employee and is not a measure that should be resorted to lightly.” Cases indicated that suspensions must, as a minimum requirement satisfy the following criteria:
(a) The employer must have a justifiable reason to believe, prima facie at least, that the employee has engaged in serious misconduct.
(b) There is some objectively justifiable reason to deny the employee access to the workplace based on the integrity of any pending investigation into the alleged misconduct, or some other relevant factor that would place the investigation or the interests of affected parties in jeopardy.
24. Suspensions have a detrimental impact on the affected employee and may prejudice his or her reputation, advancement, job security and fulfilment. Suspensions must therefore be based on substantive reasons and fair procedures must be followed before employees are suspended. In light of this I will deal with the issues before me, namely that the Applicant was not afforded a hearing prior to his suspension and his suspension was in conflict with the Employment of Educators Act no 76 of 1998 (as amended) (EEA), in that it extended beyond 90 days.

The first issue is whether the suspension of an employee can be done without a hearing

25. Any suspension cannot be considered independently from the seriousness of the offence and the peculiar circumstances of the matter. Each case must be decided on its own facts and while some suspensions are uplifted purely on the time delay, others must be deliberated with all the dynamics. It is clear that the employer should not suspend an employee without complying with the procedural and substantive requirements. When making a decision to suspend an employee, as a precautionary measure, the employer must ensure that the employee could possibly have committed serious misconduct (or that another justifiable reason exists). This alone is not a valid reason to suspend work and it must be coupled with the possibility that the employee might hamper the investigation. It was accepted that there was a pending criminal charge for tampering and removing evidence and for trespassing. The charges have not been proven and the criminal matter was referred to the district public prosecutor who rendered a decision to proceed with the matter. These are serious allegations and cannot be measured frivolously.

26. The Applicant was in the position of a principal at Ladysmith Secondary School from 2 September 2019 and prior to that he was a level 1 educator at M L Sultan Primary and Aloe Park Primary. He confirmed that while in the position of principal, he was suspended, on 25 November 2022, for serious misconduct in respect of mismanagement of funds. He was again suspended on 13 June 2023 for additional charges relating to misconduct. The charges related to the mismanagement of school funds, including using the said funds for his personal use. The investigation report revealed that payment vouchers, invoices and delivery notes were not filed. It also noted that there were no financial resolutions, and the school did not bank all funds collected. The findings were serious to warrant suspension and the decision to suspend was based on valid grounds.

27. It was common cause the Applicant was placed on precautionary suspension and the courts have now held that there is no requirement to convene a hearing prior to suspension. In Long v South African Breweries (Pty) Ltd and Others CCT61/18) [2019] ZACC 7, The Constitutional Court confirmed that an employer is not required to give an employee an opportunity to make representations prior to a precautionary suspension because the suspension imposed is “a precautionary measure, not a disciplinary one”. For this reason, the Constitutional Court confirmed that the requirements relating to fair disciplinary action as set out in the LRA, cannot find application to the circumstances.

28. The investigation officer prepared a report that stated the Applicant had committed irregular expenditure and unduly benefitted. The suspension was based on an investigation that was very serious and damning. Based on such findings, the Applicant was suspended, without a hearing. In terms of the Constitutional Court judgement, the conduct of the Respondent, in not having a hearing prior to suspension, was not unfair.

Delay in the hearing

29. In Schedule 2 section 6 of the EEA: Suspension — (1) In the case of serious misconduct in terms of section 17, the employer may suspend the educator on full pay for a maximum period of three months.

30. I accept, and it was common cause, that the disciplinary hearing did not commence within 90 days, from the date of suspension. The Applicant claimed that it was unfair as the conduct of the Respondent was in breach of the EEA. In this regard I refer to Stokwe v Member of the Executive Council: Department of Education, Eastern Cape, and Others (2019) (4) BCLR 506 (CC), wherein the Constitutional Court held that disciplinary action must be taken within a reasonable period of time. The Court further held that a dismissal should be procedurally, as well as substantively, fair. The LRA espouses speedy resolution of labour disputes and so does the EEA, which provides that the discipline should be prompt and fair, and that disciplinary proceedings “must be concluded in the shortest possible time frame”

31. The Applicant received the second set of charges on 28 February 2023 and another set on 23 June 2023. It related the same issues, being financial mismanagement. The hearing was scheduled for 6 March 2023 and was postponed by the Department. The Applicant claimed that his suspension should have expired on 25 February 2023, and as a result he reported to the school from 27 February 2023. The second disciplinary hearing was scheduled for 23 June 2023 but was postponed, as the Applicant was not in attendance, due to illness. A new date was arranged, and the hearing was postponed due to the unavailability of the Applicant’s representative.
32. The Applicant claimed that the suspension lapsed on 25 February 2023. The matter cannot be decided piecemeal. I accept that there was a delay in proceeding with disciplinary action, but a few instances were as a result of the Applicant’s illness or unavailability. I find it prudent to refer to another Constitutional Court judgement of Baltimore vs Else [2009] Z ACC 27; 2010 [2] or BCL R1 [CC] @para 35, wherein it was held that delay itself does not constitute unfairness, but the length of the delay must be considered in context. It referred to a judgment by Justice Sachs in which the Court said –

“The delay in the present matter must be evaluated not as the foundation of a right to be tried without unreasonable delay, but as an element in determining whether, in all the circumstances, the delay would inevitably and irredeemably taint the overall substantive fairness of the trial if it were to commence.”

33. The Constitutional Court outlined the factors in Sanderson v Attorney-General, Eastern Cape (CCT10/97) [1997] ZACC 18; 1997 (12) BCLR 1675; 1998 (2) SA 38 to determine what constituted an unreasonable and unfair delay in the context of disciplinary proceedings as follows –

“[a] The delay has to be unreasonable. In this context, firstly the length of the delay is important. The longer the delay, the more likely it is that it would be unreasonable.
[b] The explanation for the delay must be considered. In this respect the employer must provide an explanation that can reasonably serve to excuse the delay. A delay that is inexcusable would normally lead to a conclusion of unreasonableness.
[c] It must also be considered whether the employee has taken steps in the course of the process to assert his or her right to a speedy process. In other words, it would be a factor for consideration if the employee himself or herself stood by and did nothing.
[d] Did the delay cause material prejudice to the employee? Establishing the materiality of the prejudice includes an assessment as to what impact the delay has on the ability of the employee to conduct a proper case.
[e] The nature of the alleged fenced must be considered. The offense may be such that there is a particular imperative to have a decision on the merits. This requirement however does not mean that a very serious offense (such as a dishonesty) must be dealt with, no matter what, just because it is so serious.
[f] All the above considerations must be applied, not individually, but holistically.”

34. Employers should ensure that a disciplinary enquiry is conducted as speedily as possible to avoid accusations of prejudice by the employee. The delay in this matter resulted from an investigation of serious charges, as well as additional charges being levelled against the Applicant. Some investigations can take a long time where complex issues are involved, like in the present instance. In this regard the evidence of Shangase was significant. Shangase was a sound and honest witness. His evidence remained consistent under cross examination. He was the Deputy Director forensic investigation for the Department of Education. He was responsible for attending to internal and external complaints and has been doing so from 2009. He had extensive experience and there appeared to be no agenda against the Applicant. He simply presented his findings in an honest manner.

35. His investigations originated from an allegation that the Applicant and the School Governing Body (SGB) requested money be paid to the school, in the premise of advanced school fees, that being a prerequisite for admission into the school. Shangase confirmed and reiterated under cross examination that the request for the advanced school fees was applicable in terms of the admission policies. Ordinarily the amount would be deducted from the annual fees for the year but only if it was part of their policy. The school did not incorporate such a provision in their policy, hence there should never have been such a request. On the face of it, the complaint was serious and more so because it involved the members of the public. Shangase articulated that during investigations it seemed there was collusion between the Applicant and some of the members of the SGB as well as misuse of the funds.

36. Shangase went on to say that he experienced challenges during the investigation which occurred after 8 November 2022. During this time the Applicant was not suspended. On 15 November 2022 the irregularities were identified and addressed with the Applicant. He made a recommendation that the Applicant be suspended as he was tampering with evidence and interfering with the investigation. He discovered that the Applicant rendered the SGB dysfunctional and suspended the learner. This amounted to an interference with the witnesses. He found that it was imperative for the Applicant to be on suspension. During this time, he requested for documents which the Applicant failed to provide, thus delaying the investigation. It was disputed that the Applicant concealed documentary evidence, but it was not contested that some of the documents were amiss. Realistically this would have caused a delay in the investigations, a delay that cannot be considered as intentional or unfair.

37. Shangase maintained and repeated under cross examination that the Applicant’s action and lack of support demonstrated that he did not want to assist in the investigation and did not cooperate. On 15 November 2022, the Applicant said that he did not want to participate in the investigation due to self-incrimination. If the Applicant had cooperated in the investigation, it would have been concluded, before 30 May 2023. Based on these factors Shangase was unable to finalize his investigations within 90 days, from the Applicant’s suspension.

38. Shangase had no reason to conspire against the Applicant. He presented his evidence as a summary of his investigations. He expressly stated that the Applicant caused interference and made his investigation difficult. I have also considered that the Applicant expelled a member of the SGB and also suspended a learner. Whether this was an interference or not had to be investigated. The Applicant’s version was that the learner was suspended due to assault, but that was not conveyed to Shangase at the time. Shangase’s key objective was to obtain documents, being the receipts, contracts, loans, and minutes of the SGB, but this was not furnished by the Applicant. The auditors raised issues regarding stolen funds and the inaction by the school. These were serious allegations. The documents, whether deliberate or not, were not furnished. These factors cannot be ignored, and I accept that it would certainly have caused a delay.

39. The Applicant has rights, but his rights have to be weighed against those of the parents and the learners. In addition, all rights have a limitation, and it had to be done in terms of the interest of justice. The South African Constitution has a general limitation clause (section 36) that says that rights may be limited by a law of general application that is 'reasonable and justifiable in an open and democratic society based on dignity, freedom, and equality'. Shangase said the investigation look longer which was a direct result of the Applicant’s very own conduct. I am satisfied that the Respondent was not tardy and slow in investigating the matter.

40. Fairness by its nature is flexible. Ultimately fairness depends on the circumstances of each case and the balancing of a range of factors including the nature of the decision, the rights, interests, and expectations affected by it. As such I find that the delay in proceeding with the disciplinary hearing was justified and based on valid reasons. There was no unfairness.

41. I want to touch on the issue of inconsistency as it was raised as an argument. The Applicant submitted that he was treated differently to other educators, who were also investigated. They returned to work while he remained on suspension. Shangase confirmed that Mr Padayachee was suspended and charged but had no knowledge as to when he returned to school. I find no grounds for inconsistency.

42. Finding: In assessing the matter wholly and completely I find that the time delay was excessive, but I cannot ignore the criminal aspect and the seriousness of the charges. It is necessary to finalize the disciplinary hearing which will determine the Applicant’s future, but this also required some cooperation from the Applicant, which was not forthcoming. The charges were far too serious to simply reinstate the Applicant to his position, without finalization of the hearing.

43. I find there was no procedural unfairness as there was no requirement to have a hearing for the suspension. Secondly the charges were serious, and the disciplinary hearing was scheduled on various dates, but it was the Applicant who requested some of the adjournments. The hearing is now underway, and it must be remembered that the Applicant was on full pay with benefits. I find the suspension to be fair and the Applicant has failed to discharge the onus in establishing there was an unfair labour practice. The Respondent is directed to finalize the disciplinary hearing within three months.



Award
I make the following award:

44. The suspension of the Applicant, Mr R Ramdewo, is declared to be fair.

45. The Respondent, Department of Education, is directed to finalise the disciplinary hearing within three months from the date hereof.



ELRC Commissioner: VEESLA SONI Date : 6 March 2024