ELRC 157-20/21KZN
ELRC 157-20/21KZN
Award Date:
23 November 2020
Case Number: ELRC 157-20/21KZN
Province: KwaZulu-Natal
Applicant: BHENGU S
Respondent: Department of Education KwaZulu-Natal
Issue: Unfair Labour Practice - Suspension
Venue: Virtually
Award Date: 23 November 2020
Arbitrator: P. JAIRAJH
CASE NO.: ELRC 157-20/21KZN
IN THE MATTER BETWEEN: -
BHENGU S APPLICANT
AND
DEPARTMENT OF EDUCATION - KZN RESPONDENT
___________________________________________________________________
ARBITRATOR : P. JAIRAJH
DATE OF AWARD : 23 November 2020
Applicant’s representative : MR S. BHENGU
Telephone :
Fax :
Email :
Respondent’s representative : MR I. MAKHDOE
Telephone :
Fax :
Email :
DETAILS OF HEARING AND REPRESENTATION
[1] This matter was scheduled for arbitration via virtual hearing on 15 October 2020. The applicant, Mr Bhengu represented himself and the respondent was represented by Mr I. Makhooe.
[2] The matter proceeded, and at the conclusion of proceedings, the parties elected to submit written closing arguments on or before the 23 October 2020.
[3] The proceedings were conducted in English and recorded electronically.
[4] I enquire as to the true dispute of the applicant and it was established that his real dispute relates to disciplinary action short of dismissal.
BACKGROUND TO THE DISPUTE
[5] The applicant is employed at Ziphembeleni High School as a Post Level 1 Educator. He was subjected to a disciplinary hearing in 2018 and the Presiding Officer found him guilty and sanctioned him to dismissal. He subsequently appealed the presiding officer’s decision and the MEC set aside the dismissal and imposed a sanction of 3 month’s suspension without pay. He received a letter of suspension on the 5th of August 2020 and the employer stopped his salary in September 2020.
[6] The applicant averred that the employer ignored crucial evidence and had it been considered, he would not have been found guilty.
[7] The applicant is the President of Educators Union of South Africa and the Union took the Minister of Education and all 9 MEC’s to the North Gauteng High Court for what he alleged was the immature, unfair and irrational reopening of the schools during the COVID-19. He believed that the MEC used his powers to punish him for statements that he made in the press.
ISSUE TO BE DECIDED
[8] I am required to determine whether the disciplinary action short of dismissal constituted an unfair labour practice and if so, I must decide upon the appropriate relief.
SUMMARY OF EVIDENCE AND ARGUMENTS
APPLICANT’S SUBMISSIONS
ISAAC CELOKUHLE BHENGU
The salient aspects of the applicant’s submissions are recorded below.
[9] In 2018 he was subjected to a disciplinary hearing for cases that were fabricated against him, emanating from the 4 days when he was not at school.
[10] In the first case, the employer said that he was absent from work for 4 consecutive days but during those days, he was called by the Circuit Manager. Had the Principal attempted to get the facts, he did not think there would have been a need for those cases to be referred to the Department.
[11] He referred to the Outcome of the Appeal, where the MEC stated, “In the circumstances the Presiding Officer was correct in arriving at a finding of guilt of the four charges. Improper and disgraceful conduct and the use of abusive language, especially towards female managers are serious offenses.” He averred that that is all that the MEC said. None of the employer’s witnesses testified that he called the educators and the female manager a dog, statue or rubbish, but the Presiding Office found him guilty.
[12] During the Appeal, Mrs D.N. Ngcobo who was one of the employer’s key witness’s during the disciplinary hearing, wrote an affidavit stating that all the charges that were levelled against him were fabricated and that he did not call anyone a dog, statue or rubbish, and instead, he was the victim of everything.
[13] On 2 July 2020, he emailed Mrs Ngcobo’s affidavit to Mr Weekend Ngubane before the MEC handed down his Outcome of the Appeal. He also emailed the affidavit to Mrs N. Magoso and the Presiding Officer of the disciplinary hearing, Mr M. Mabaso.
[14] Mrs Ngcobo had also told him that she had emailed her affidavit to Mrs Magoso. He then called Mrs Magoso and informed her that he had emailed an affidavit from her key witness and she advised him to forward it to the MEC’s office. He phoned Mr Msweli, who is sitting on the Appeals Committee and he acknowledged receipt.
[15] He asked Mr Msweli if they had considered the affidavit and was informed that the Appeals Committee did not consider it because they had already submitted their findings to the MEC. Mr Msweli told him that had they received it before submitting their findings, the sanction would have been different.
[16] The MEC signed the Outcome of Appeal on the 24th of July 2020 and handed down the sanction after he received the affidavit.
Under cross-examination he testified that:
[17] Since February 2010, he is the President of Educators Union of South Africa. He has represented educators (employees) in disciplinary enquiries before, but not before the ELRC.
[18] He represented himself in the disciplinary enquiry which was initiated by Mrs Magoso, as he thought that he was best placed to represent himself and saw no need in calling a lawyer or any other representative.
[19] The key witness, Mrs D.N. Ngcobo, is the HOD of Languages. The disciplinary inquiry started in 2018 and ended in 2019.
[20] When asked if because of her testimony he was found guilty and dismissed, he stated that was incorrect as Mrs Ngcobo was not a witness in the charge of absenteeism but in the other cases.
[21] He had furnished the Presiding Officer with a doctor's note stating where he was. He called Mr B.S.B. Sikhosana, the Circuit Manager, to testify at the disciplinary hearing, who stated that he had called the applicant to his office in respect of the days in question.
[22] He was not sure of the date of dismissal but thought it was somewhere between 25 to 30 of October 2019. He lodged his appeal on the 31st of October 2019 but filed this affidavit on the 2nd of July 2020.
[23] It was put to him that this affidavit was inadmissible on the basis of it being hearsay evidence. He stated that has no basis and the affidavit could not be rejected because it was the employer’s witness who wrote it. He stated that if the Appeals Committee or MEC had questions about it, the affidavit had the contact details of Mrs Ngcobo.
[24] When it was put to him that Mrs Ngcobo was going to be charged for making a false affidavit, he stated that he was very surprised that the employer was going to charge Mrs Ngcobo for the “false affidavit” because they do not regard this affidavit as an authentic document.
[25] When told that he was dismissed from service but the MEC varied the sanction and he was asked if he still believed that the MEC was victimizing him. He stated that he was not easily intimidated because it was not for the first time that the Department of Education tried to dismiss him. In 2016 they dismissed him but he came back stronger and more powerful. This was their second attempt and by the MEC changing the sanction, the MEC was not doing him any favour but in fact he saw errors in the Finding documents submitted by the Presiding Officer.
[26] Anyone can detect from the document that was submitted by the Presiding Officer that he was driven by anger and hatred because of the many errors. The Presiding Officer had stated that he was found guilty for being absent from work “with a valid reason”.
[27] He disputed that the MEC changed the sanction because he had his best interest at heart. He testified that he had lodged a complaint concerning the MEC with the Public Protector and further appeared on national TV and radio regarding the scandal of the MEC’s motor vehicle where he stated in the media that the MEC must be charged and suspended. He further stated that the MEC saw that he presented enough evidence during the disciplinary hearing therefore it was not fair for him to be dismissed, and the MEC was trying to clean up the mess.
[28] It was put to him that the affidavit he was relying on was going to assist him in this forum if the deponent was going to testify, because the evidence in the disciplinary inquiry could not assist him as that evidence was in conflict with Ngcobo’s affidavit and the Presiding Officer came to a conclusion based on her evidence at the disciplinary enquiry. He stated that the affidavit is still helping him now. The MEC decided to be selective, as Ngcobo in the disciplinary hearing testified against him and then she made another statement which is in his favour but the MEC abused his power by ignoring Ngcobo’s latest affidavit.
RESPONDENT’S SUBMISSIONS
The respondent did not present any witnesses and closed their case.
ANALYSIS OF EVIDENCE AND ARGUMENT
I have considered all the arguments of the parties as well as the documentary evidence submitted.
[29] In terms of the Labour Relations Act, General provisions for arbitration proceedings, section 138(1) reads as follows:
The commissioner may conduct the arbitration in a manner that the commissioner considers appropriate in order to determine the dispute fairly and quickly, but must deal with the substantial merits of the dispute with the minimum of legal formalities.
[30] I enquired into the matter to determine the true dispute of the applicant and it was established that the applicant’s real dispute was an allegation of unfair labour practice in relation to disciplinary action short of dismissal.
[31] In terms of section 186 (2) (b) of the Labour Relations Act 66 of 1995, 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.
[32] In Lindsay v Ithala Development Finance Corporation Ltd (2) (2002) 23 ILJ 418 (CCMA), the Commissioner considered that, "with regard to onus, the principles of our labour law is clear that the initial burden of proof is always on the employee to show that the employer did something, whether it be a dismissal, or a labour practice, and once the existence of that fact is established, the burden of proof moves to the employer to show that what it did was fair. The overall onus always rests on the employee to show the existence of an unfair labour practice.”
[33] The onus is on the applicant to prove on a balance of probabilities that the employer’s conduct was unfair as it relates to disciplinary action short of dismissal.
[34] It is common cause that at the conclusion of the disciplinary hearing the applicant was dismissed by the respondent, and on appeal the MEC varied the sanction from dismissal to that of 3 months’ suspension without pay.
[35] On numerous times during the arbitration hearing, I informed the applicant that he had the right to representation, to call witnesses and use documents that would assist his case, however he insisted that he was fit to represent himself.
[36] At the end of the applicant’s testimony I allowed the applicant to consider if he wanted to call any further witnesses to assist his case and I was prepared to adjourn the matter, however he opted not call any witnesses after consulting with his legal team and thereafter he closed his case.
[37] I also sought clarity from both parties as to whether Mrs Ngcobo testified in the disciplinary hearing. Both parties confirmed that Mrs Ngcobo testified in the disciplinary hearing on behalf of the respondent and based on her testimony, the applicant was found guilty and dismissed and her affidavit was in conflict with her oral evidence at the disciplinary hearing.
[38] In Sidumo & another v Rustenburg Platinum Mines Ltd & others (2007) 28 ILJ 2405 (CC) the court held at par [79] “A commissioner is not given the power to consider afresh what he or she would do, but simply to decide whether what the employer did was fair. In arriving at a decision a commissioner is not required to defer to the decision of the employer. What is required is that he or she must consider all relevant circumstances.”
[39] In Aries v CCMA & others (2006) 27 ILJ 2324 (LC) the Court held at [16] that “there are limited grounds on which an arbitrator, or a court, may interfere with a discretion which had been exercised by a party competent to exercise that discretion. The reason for this is clearly that the ambit of the decision-making powers inherent in the exercising of a discretion by a party, including the exercise of the discretion, or managerial prerogative, of an employer, ought not to be curtailed. It ought to be interfered with only to the extent that it can be demonstrated that the discretion was not properly exercised. The court held further that an employee can only succeed in having the exercise of a discretion of an employer interfered with if it is demonstrated that the discretion was exercised capriciously, or for insubstantial reasons, or based upon any wrong principle or in a biased manner”.
[40] The applicant contended that he submitted Mrs Ngcobo’s affidavit however the MEC did not consider it. He further averred that Mr Msweli informed him that had the affidavit been received before they submitted their findings to the MEC, the outcome would have been different. The respondent objected and contended that this was hearsay evidence.
[41] The applicant chose not to call any witnesses who could have assisted his case. His evidence concerning Mr Msweli and regarding Mrs Ngcobo’s affidavit was hearsay and unreliable.
[42] As a consequence of the above, it is therefore my finding that the applicant has failed to convince me that the respondent committed an unfair labour practice relating to disciplinary action short of dismissal. He has failed to prove and present compelling evidence that he is not guilty of the charges that resulted in the sanction of suspension without pay. I accordingly find no reason to interfere with the sanction imposed by the respondent.
AWARD
[43] The applicant’s dispute is dismissed.
[44] There is no order as to costs.
ELRC Commissioner: P. Jairajh
Province: KwaZulu-Natal
Applicant: BHENGU S
Respondent: Department of Education KwaZulu-Natal
Issue: Unfair Labour Practice - Suspension
Venue: Virtually
Award Date: 23 November 2020
Arbitrator: P. JAIRAJH
CASE NO.: ELRC 157-20/21KZN
IN THE MATTER BETWEEN: -
BHENGU S APPLICANT
AND
DEPARTMENT OF EDUCATION - KZN RESPONDENT
___________________________________________________________________
ARBITRATOR : P. JAIRAJH
DATE OF AWARD : 23 November 2020
Applicant’s representative : MR S. BHENGU
Telephone :
Fax :
Email :
Respondent’s representative : MR I. MAKHDOE
Telephone :
Fax :
Email :
DETAILS OF HEARING AND REPRESENTATION
[1] This matter was scheduled for arbitration via virtual hearing on 15 October 2020. The applicant, Mr Bhengu represented himself and the respondent was represented by Mr I. Makhooe.
[2] The matter proceeded, and at the conclusion of proceedings, the parties elected to submit written closing arguments on or before the 23 October 2020.
[3] The proceedings were conducted in English and recorded electronically.
[4] I enquire as to the true dispute of the applicant and it was established that his real dispute relates to disciplinary action short of dismissal.
BACKGROUND TO THE DISPUTE
[5] The applicant is employed at Ziphembeleni High School as a Post Level 1 Educator. He was subjected to a disciplinary hearing in 2018 and the Presiding Officer found him guilty and sanctioned him to dismissal. He subsequently appealed the presiding officer’s decision and the MEC set aside the dismissal and imposed a sanction of 3 month’s suspension without pay. He received a letter of suspension on the 5th of August 2020 and the employer stopped his salary in September 2020.
[6] The applicant averred that the employer ignored crucial evidence and had it been considered, he would not have been found guilty.
[7] The applicant is the President of Educators Union of South Africa and the Union took the Minister of Education and all 9 MEC’s to the North Gauteng High Court for what he alleged was the immature, unfair and irrational reopening of the schools during the COVID-19. He believed that the MEC used his powers to punish him for statements that he made in the press.
ISSUE TO BE DECIDED
[8] I am required to determine whether the disciplinary action short of dismissal constituted an unfair labour practice and if so, I must decide upon the appropriate relief.
SUMMARY OF EVIDENCE AND ARGUMENTS
APPLICANT’S SUBMISSIONS
ISAAC CELOKUHLE BHENGU
The salient aspects of the applicant’s submissions are recorded below.
[9] In 2018 he was subjected to a disciplinary hearing for cases that were fabricated against him, emanating from the 4 days when he was not at school.
[10] In the first case, the employer said that he was absent from work for 4 consecutive days but during those days, he was called by the Circuit Manager. Had the Principal attempted to get the facts, he did not think there would have been a need for those cases to be referred to the Department.
[11] He referred to the Outcome of the Appeal, where the MEC stated, “In the circumstances the Presiding Officer was correct in arriving at a finding of guilt of the four charges. Improper and disgraceful conduct and the use of abusive language, especially towards female managers are serious offenses.” He averred that that is all that the MEC said. None of the employer’s witnesses testified that he called the educators and the female manager a dog, statue or rubbish, but the Presiding Office found him guilty.
[12] During the Appeal, Mrs D.N. Ngcobo who was one of the employer’s key witness’s during the disciplinary hearing, wrote an affidavit stating that all the charges that were levelled against him were fabricated and that he did not call anyone a dog, statue or rubbish, and instead, he was the victim of everything.
[13] On 2 July 2020, he emailed Mrs Ngcobo’s affidavit to Mr Weekend Ngubane before the MEC handed down his Outcome of the Appeal. He also emailed the affidavit to Mrs N. Magoso and the Presiding Officer of the disciplinary hearing, Mr M. Mabaso.
[14] Mrs Ngcobo had also told him that she had emailed her affidavit to Mrs Magoso. He then called Mrs Magoso and informed her that he had emailed an affidavit from her key witness and she advised him to forward it to the MEC’s office. He phoned Mr Msweli, who is sitting on the Appeals Committee and he acknowledged receipt.
[15] He asked Mr Msweli if they had considered the affidavit and was informed that the Appeals Committee did not consider it because they had already submitted their findings to the MEC. Mr Msweli told him that had they received it before submitting their findings, the sanction would have been different.
[16] The MEC signed the Outcome of Appeal on the 24th of July 2020 and handed down the sanction after he received the affidavit.
Under cross-examination he testified that:
[17] Since February 2010, he is the President of Educators Union of South Africa. He has represented educators (employees) in disciplinary enquiries before, but not before the ELRC.
[18] He represented himself in the disciplinary enquiry which was initiated by Mrs Magoso, as he thought that he was best placed to represent himself and saw no need in calling a lawyer or any other representative.
[19] The key witness, Mrs D.N. Ngcobo, is the HOD of Languages. The disciplinary inquiry started in 2018 and ended in 2019.
[20] When asked if because of her testimony he was found guilty and dismissed, he stated that was incorrect as Mrs Ngcobo was not a witness in the charge of absenteeism but in the other cases.
[21] He had furnished the Presiding Officer with a doctor's note stating where he was. He called Mr B.S.B. Sikhosana, the Circuit Manager, to testify at the disciplinary hearing, who stated that he had called the applicant to his office in respect of the days in question.
[22] He was not sure of the date of dismissal but thought it was somewhere between 25 to 30 of October 2019. He lodged his appeal on the 31st of October 2019 but filed this affidavit on the 2nd of July 2020.
[23] It was put to him that this affidavit was inadmissible on the basis of it being hearsay evidence. He stated that has no basis and the affidavit could not be rejected because it was the employer’s witness who wrote it. He stated that if the Appeals Committee or MEC had questions about it, the affidavit had the contact details of Mrs Ngcobo.
[24] When it was put to him that Mrs Ngcobo was going to be charged for making a false affidavit, he stated that he was very surprised that the employer was going to charge Mrs Ngcobo for the “false affidavit” because they do not regard this affidavit as an authentic document.
[25] When told that he was dismissed from service but the MEC varied the sanction and he was asked if he still believed that the MEC was victimizing him. He stated that he was not easily intimidated because it was not for the first time that the Department of Education tried to dismiss him. In 2016 they dismissed him but he came back stronger and more powerful. This was their second attempt and by the MEC changing the sanction, the MEC was not doing him any favour but in fact he saw errors in the Finding documents submitted by the Presiding Officer.
[26] Anyone can detect from the document that was submitted by the Presiding Officer that he was driven by anger and hatred because of the many errors. The Presiding Officer had stated that he was found guilty for being absent from work “with a valid reason”.
[27] He disputed that the MEC changed the sanction because he had his best interest at heart. He testified that he had lodged a complaint concerning the MEC with the Public Protector and further appeared on national TV and radio regarding the scandal of the MEC’s motor vehicle where he stated in the media that the MEC must be charged and suspended. He further stated that the MEC saw that he presented enough evidence during the disciplinary hearing therefore it was not fair for him to be dismissed, and the MEC was trying to clean up the mess.
[28] It was put to him that the affidavit he was relying on was going to assist him in this forum if the deponent was going to testify, because the evidence in the disciplinary inquiry could not assist him as that evidence was in conflict with Ngcobo’s affidavit and the Presiding Officer came to a conclusion based on her evidence at the disciplinary enquiry. He stated that the affidavit is still helping him now. The MEC decided to be selective, as Ngcobo in the disciplinary hearing testified against him and then she made another statement which is in his favour but the MEC abused his power by ignoring Ngcobo’s latest affidavit.
RESPONDENT’S SUBMISSIONS
The respondent did not present any witnesses and closed their case.
ANALYSIS OF EVIDENCE AND ARGUMENT
I have considered all the arguments of the parties as well as the documentary evidence submitted.
[29] In terms of the Labour Relations Act, General provisions for arbitration proceedings, section 138(1) reads as follows:
The commissioner may conduct the arbitration in a manner that the commissioner considers appropriate in order to determine the dispute fairly and quickly, but must deal with the substantial merits of the dispute with the minimum of legal formalities.
[30] I enquired into the matter to determine the true dispute of the applicant and it was established that the applicant’s real dispute was an allegation of unfair labour practice in relation to disciplinary action short of dismissal.
[31] In terms of section 186 (2) (b) of the Labour Relations Act 66 of 1995, 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.
[32] In Lindsay v Ithala Development Finance Corporation Ltd (2) (2002) 23 ILJ 418 (CCMA), the Commissioner considered that, "with regard to onus, the principles of our labour law is clear that the initial burden of proof is always on the employee to show that the employer did something, whether it be a dismissal, or a labour practice, and once the existence of that fact is established, the burden of proof moves to the employer to show that what it did was fair. The overall onus always rests on the employee to show the existence of an unfair labour practice.”
[33] The onus is on the applicant to prove on a balance of probabilities that the employer’s conduct was unfair as it relates to disciplinary action short of dismissal.
[34] It is common cause that at the conclusion of the disciplinary hearing the applicant was dismissed by the respondent, and on appeal the MEC varied the sanction from dismissal to that of 3 months’ suspension without pay.
[35] On numerous times during the arbitration hearing, I informed the applicant that he had the right to representation, to call witnesses and use documents that would assist his case, however he insisted that he was fit to represent himself.
[36] At the end of the applicant’s testimony I allowed the applicant to consider if he wanted to call any further witnesses to assist his case and I was prepared to adjourn the matter, however he opted not call any witnesses after consulting with his legal team and thereafter he closed his case.
[37] I also sought clarity from both parties as to whether Mrs Ngcobo testified in the disciplinary hearing. Both parties confirmed that Mrs Ngcobo testified in the disciplinary hearing on behalf of the respondent and based on her testimony, the applicant was found guilty and dismissed and her affidavit was in conflict with her oral evidence at the disciplinary hearing.
[38] In Sidumo & another v Rustenburg Platinum Mines Ltd & others (2007) 28 ILJ 2405 (CC) the court held at par [79] “A commissioner is not given the power to consider afresh what he or she would do, but simply to decide whether what the employer did was fair. In arriving at a decision a commissioner is not required to defer to the decision of the employer. What is required is that he or she must consider all relevant circumstances.”
[39] In Aries v CCMA & others (2006) 27 ILJ 2324 (LC) the Court held at [16] that “there are limited grounds on which an arbitrator, or a court, may interfere with a discretion which had been exercised by a party competent to exercise that discretion. The reason for this is clearly that the ambit of the decision-making powers inherent in the exercising of a discretion by a party, including the exercise of the discretion, or managerial prerogative, of an employer, ought not to be curtailed. It ought to be interfered with only to the extent that it can be demonstrated that the discretion was not properly exercised. The court held further that an employee can only succeed in having the exercise of a discretion of an employer interfered with if it is demonstrated that the discretion was exercised capriciously, or for insubstantial reasons, or based upon any wrong principle or in a biased manner”.
[40] The applicant contended that he submitted Mrs Ngcobo’s affidavit however the MEC did not consider it. He further averred that Mr Msweli informed him that had the affidavit been received before they submitted their findings to the MEC, the outcome would have been different. The respondent objected and contended that this was hearsay evidence.
[41] The applicant chose not to call any witnesses who could have assisted his case. His evidence concerning Mr Msweli and regarding Mrs Ngcobo’s affidavit was hearsay and unreliable.
[42] As a consequence of the above, it is therefore my finding that the applicant has failed to convince me that the respondent committed an unfair labour practice relating to disciplinary action short of dismissal. He has failed to prove and present compelling evidence that he is not guilty of the charges that resulted in the sanction of suspension without pay. I accordingly find no reason to interfere with the sanction imposed by the respondent.
AWARD
[43] The applicant’s dispute is dismissed.
[44] There is no order as to costs.
ELRC Commissioner: P. Jairajh