ELRC725-23/24LP

CASE REFERENCE: ELRC725-23/24LP

IN THE MATTER BETWEEN:
APPLICANT: Matthews Ngoako Rapaledi
And
RESPONDENT: DEPARTMENT OF EDUCATION-LIMPOPO

DETAILS OF THE HEARING AND REPRESENTATION
1. The arbitration hearing into an alleged Unfair Labour Practice, referred in terms of Section 186(2)(b) of the Labour Relations Act 66 of 1995, as amended was held and finalized at The Department of Education-Limpopo, Cnr Hospital and Hans Van Rensburg Street, Polokwane on 22 May 2024.

2. Both parties attended the proceedings. The applicant was represented by Sylvester Setati, PEU shop steward, while the respondent was represented by Portia Modipa, its assistant director.
3. The parties submitted signed Pre-Arbitration minutes. The hearing was held in English and was digitally recorded.


ISSUES TO BE DECIDED
4. Whether or not the decision of the respondent to suspend the applicant without pay was substantively fair. If not, I must determine appropriate relief in terms of section 193 of the Labour Relations Act 66 of 1995, as amended.

BACKGROUND TO THE ISSUES
5. The applicant is employed by the respondent as a school principal at Ntji Mothapo Primary School. The applicant viewed the sanction of suspension without pay for two months as substantively unfair and sought the sanction to be set aside.

6. The following issues are common cause to the parties:
6.1 That the applicant was charged with alleged failure to provide the respondent’s investigators with requested documents. The requested documents include approval for the purchase of the school bus, procurement documentation of various installations at the school and financial statements for the 2021/2023 financial year.
6.2 On 26 July 2023, the applicant received a notice to attend a disciplinary hearing. The outcome of the disciplinary hearing was issued on 24 October 2023. On 30 October 2023, the applicant lodged an appeal. The outcome of the appeal was issued during February 2024.
6.3. Prior to the commencement of the arbitration, the respondent submitted a bundle of documents marked “R1 and R2”, while the applicant submitted a bundle of documents marked “A”.
6.4. The applicant closed his case after leading his own evidence, while the respondent closed its case after leading the evidence of two witnesses.
6.5. Both parties submitted written closing arguments on an agreed date and were considered.

SUMMARY OF THE EVIDENCE AND ARGUMENTS
7. Following is a summary of only the relevant evidence submitted by the witness under oath and which was taken into account in order to arrive at a decision in the matter.

THE APPLICANT’S CASE
8. The employee, Matthews Ngoako Rapaledi, testified that during 2017, no investigators visited the schools. Only during 2015, did the Department officials visited the school and requested finance books. The finance books were given to the officials and were eventually kept at the circuit office for a period of two years. If indeed the investigators had visited the school from 2017 until 2022, it was supposed to have been recorded on the school journal that investigators had visited the school and requested documents.

9. Under cross-examination, Matthews Ngoako Rapaledi, testified that the charge sheet covers the period between 2017 and 2019. He never refused to hand over documents to the respondent’s investigators. When they purchased the school bus, the generator and appoint the service providers, they followed all the provincial prescript.

THE EMPLOYERS’ CASE
10. The respondent’s first witness was Malesela Gilbert Sepuru. He testified that he is employed by the respondent as a circuit manager of Kgakotlou, Ntji Mothapo Primary School is under his supervision. The applicant’s school was one of the six schools that was identified to submit financial records. He was not invited to be the witness during the applicant’s disciplinary hearing. He personally spoke to the applicant regarding the documents that were being requested by the Department. The applicant told him that the documents must be requested from the school SGB and not him. The school SGB even wrote a letter to the Department indicating that the documents must be requested from it and not the school principal. Mr Majapelo visited the applicant’s school on two occasions and requested the documents, but they were never given to him.

11. Under cross-examination, Malesela Gilbert Sepuru, testified that he was not part of the investigation team. The applicant told him that the requested documents were in the custody of the school SGB. If the letters were directed to the school SGB, probably the Department could have received the required documents. The applicant, as a school principal, is part of the school SGB.

12. The respondent’s second witness was Mojapelo John Tshoshi. He testified that he is employed by the respondent as an assistant director: employees’ relations. He was tasked to investigate the purchase of certain items at the applicant’s school. When he visited the school, the applicant told him that he had already given the documents to other Department’s official but failed to hand over the documents to him. He was part of the applicant’s disciplinary hearing. During the disciplinary hearing, the applicant’s submitted that the documents were given to other officials of the Department.

13. Under cross-examination, Mojapelo John Tshoshi, testified that he visited the school during 2022. The last letter requesting the documents from the applicant was sent and received by him on 11 May 2023 but, they never receive any response. The letter dated 11 May 2023, was sent to the applicant after he had visited the school more than once.

ANALYSIS OF EVIDENCE AND ARGUMENTS
14. In this matter, the onus was on the applicant to prove on balance of probabilities that the sanction of suspension without pay for two months was substantively unfair.

15. In NUM v Martin and East (Pty) Ltd (2013) 34 ILJ 978 (LC) the Court held that the suspension without pay as a form of disciplinary penalty may be considered as an alternative to dismissal if there is a valid reason for that penalty. Such suspension does not contravene the BCEA.

16. The applicant’s evidence consisted of not much but a few sentences denying the misconduct and not to implicate himself. He tried to defend his case on very shaky ground indeed. Much of the respondent witnesses’ evidence went unchallenged at all. It was never disputed by him that the respondent’s first witness personally spoke with him regarding the requested documents and that he had told him that the documents must be requested from the school SGB. As a member/part of the SGB, the applicant could have escalated the request to other members of the school SGB, if indeed the documents were not in his position or the SGB wanted the Department to officially request the documents from it. The evidence of the respondent’s second witness, the investigator, that he visited the school more than once to request the documents without success, was supported by the respondent’s first witness. It was never denied by the applicant that he had told the investigator that he had already submitted the requested documents to other Department’s officials. On 11 May 2023, the applicant received a letter requesting the said documents but never responded. Failure by the applicant to respond to the letter dated 11 May 2023, clearly show that he was not willing to hand over the documents or to assist the Department to get hold of the documents. If indeed the documents were never requested from him as per his version, surely the applicant could have done everything in his power to make sure that the documents are made available to the Department immediately after receiving the notice to attend the disciplinary hearing or during the disciplinary hearing. The applicant was given enough opportunity to hand over the required documents to the respondent. Finally, it was never submitted by him why anyone would have wanted to implicate him falsely.

17. Having analysed the evidence submitted, I have come to the conclusion that the applicant failed to prove on balance of probabilities that the sanction imposed was substantively unfair.
Award
18. The applicant’s application is hereby dismissed.

NICHOLUS MASINGITA SONO
COMMISSIONER
03 June 2024