PSES 303-18/19
PSES 303-18/19
Award Date:
13 September 2019
Case Number: PSES 303-18/19
Province: KwaZulu-Natal
Applicant: NATU OBO B A MNGUNI
Respondent: Department of Education KwaZulu-Natal
Issue: Unfair Labour Practice - Suspension
Venue: Kwa Zulu Natal, Department of Education, Port Shepstone.
Award Date: 13 September 2019
Arbitrator: VEESLA SONI
Commissioner: VEESLA SONI
Case No.: PSES 303-18/19
Date of Award: 13 September 2019
In the ARBITRATION between:
NATU OBO B A MNGUNI APPLICANT
and
DEPARTMENT OF EDUCATION – KWAZULU NATAL RESPONDENT
Union/Applicant’s representative: Ms Zibani NATU
Pietermaritzburg
Telephone: 060 39 36 259
Respondent’s representative: Mr Mabaso
228 Pietermaritzburg Street
Pietermaritzburg
Telephone: 083 775 2384
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 Act”). The matter was scheduled for arbitration on 21 September 2018 and was finalized on 11 September 2019, as this matter was adjourned on several instances at the peril of the parties. The matter was heard at the Kwa Zulu Natal, Department of Education, Port Shepstone.
[2] The Applicant, Mr Mnguni was present and was represented Ms Zibani from NATU, and the Respondent was represented by Mr Mabaso, the Department of Education in Kwa Zulu Natal.
ISSUE TO BE DECIDED
[3] 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
[4] The Applicant commenced employment in May 2002, as an educator. At the time of the dispute he was a principal and earned approximately R 43 000 -00 (gross) per month. The Applicant was suspended on 28 February 2018 and there was no suspension hearing.
[5] The Applicant was presented with charges relating to misconduct on 6 September 2018. The disciplinary hearing was scheduled for 13 September 2018 and was adjourned for 18 October 2018. To date the disciplinary hearing has not been finalized.
[6] The Applicant challenged the procedure for his suspension in that he was deprived of an opportunity to state why he was not suspended. In terms of substance he believed that he would not have hampered the investigation.
[7] The Respondent submitted that the Applicant was made aware that there was an intention to suspend. In terms of the substance there were reasons for him to be removed from the workstation. He interrupted the investigation which resulted in the delay of the matter. It was further submitted that the Applicant was suspected of stealing invoices and logbooks from the school which caused a further delay in finalizing the investigation.
[8] The Applicant faced four charges. Charge 1 and charge 2: related to the mismanagement of funds for Gugulesizwe High School. Charge 3 related to failure to produce an approved budget.
APPLICANT’S CASE
[8] Applicant testified that he was suspended for one year and seven months as from 28 February 2018. He was furnished a precautionary suspension letter on 28 February 2018 which did not indicate the length of his suspension. He stated that the suspension affected him emotionally, mentally and ruined his reputation. It had a negative impact due to the length of the suspension and it would render it difficult for him to apply for other jobs or promotion.
[9] He stated that he did not interfere with the investigation. He was not notified of the date of the disciplinary hearing which has not been finalized. The last communication he received in terms of the disciplinary hearing was on 15 May 2019, whereby the departmental representative applied for an adjournment of the sitting. It was mentioned that the investigation was still pending hence the need to adjourn the disciplinary hearing.
[10] The Applicant stated that he discovered that the independent investigators were informed to cease the investigation and return the financial records to the school. The audit report for 2017 declared that all finances for the school were in order. This alleviated the concerns in charge 1 and 2. In respect of charge 3, this issue was laid to rest in the said financial report.
[11] The dispute was lodged on 19 July 2018 and the Applicant stated under cross examination that he did not return to school, after the expiration of the time period in the letter, as his suspension was not uplifted. He communicated in writing to the Head of Department regarding the lapse of the time period, to which he received no response. He also sent an email to the MEC, and again he received no reply. The Applicant stated that he was criminally charged for the missing financial records from the school and the investigation was pending. He conceded that he was suspected to have removed the financial records from the school. The Applicant admitted that one of the criminal charges related to trespassing at school.
RESPONDENT’S CASE
[12] Mr K P Reddy testified that he was the circuit manager for Umdoni, Ugu district. He knew the Applicant as he was principal in one of the schools that he supervised. The Applicant was arrested as it was alleged that the financial documents were stolen from the school. The officials went to the school, shortly after the Applicant’s suspension, and the financial documents were not located at the place where they were usually stored. The investigating officer discovered the documents in the computer room a few days later. The sequence of events was that the officials went to the school and they could not locate the documents. A charge was laid for the theft of the record. Subsequently the books were located at another place, being the computer room. The documents were taken by the investigating officer. The documents were located in March 2018 by the police. The books were retained by the SAPS for about six months. After the release of the books the department handed same to the district office for further internal investigation.
[13] He said that as at July 2019 he was informed by the investigating officer that they were informed by the Applicant that the internal case was withdrawn. The matter was then referred to the district public prosecutor for a decision on whether to proceed and it was confirmed that the matter would proceed for theft and trespassing. The Applicant was afforded bail with the condition that he not enter the school. Based on the criminal case it was a condition of his bail that he not report to the school. If reinstated, then it would be a violation of his bail condition.
ANALYSIS OF EVIDENCE
[14] The matter was referred as an unfair Labour Practice: In terms of section 186 (2) (b) of the Labour Relations Act:
‘ 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”
[15] The current matter related to preventative/precautionary suspension The Applicant claimed that he was treated unfairly in that he was suspended for a period of nineteen months. This was a particularly excessive amount of time. It was also common cause that the disciplinary hearing was pending and there was no evidence that the investigation was undertaken or finalized. To date the disciplinary hearing remained incomplete.
[16] Suspension should not be implemented as a measure of first resort, as held 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 3 criteria. The first two relate to substantive fairness and the third relates to procedural fairness:
a. The employer must have a justifiable reason to believe, prima facie at least, that the employee has engaged in serious misconduct. In the current matter there was a series of charges levelled against the Applicant and many of them appeared to be serious. I have no doubt that the Respondent had a justifiable reason to believe that the Applicant engaged in serious misconduct, however there has been no action taken for nineteen months. There was no doubt that the charges were indeed serious which warranted suspension however the delay in finalization is concerning.
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. The Applicant was charge for the removal of the documents from the school and for trespassing. The criminal case was still under investigation. The Respondent believed that the Applicant removed documents and would tamper with evidence. The criminal case was not finalized and the matter was referred to the district public prosecutor for a decision and it was evident and undisputed that the criminal matter would proceed.
c. The employee is given the opportunity to state a case or to be heard before any final decision to suspend is made. It was common cause the Applicant was placed on precautionary suspension and the courts have no held that there was no need to a hearing prior to same. 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 Labour Relations Act, cannot find application to the circumstances.
[17] It is trite law that employers should refrain from hastily suspending employees when there is no valid reason to do so. 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 SA Post Office Ltd v Jansen van Vuuren NO & others (2008) 29 ILJ 2793 (LC) also reported at [2008] 8 BLLR 798 (LC), the commissioner, having reasoned that suspension prejudices an employee psychologically, socially and in terms of future job prospects, awarded him six months’ compensation.
[18] Law to Facts: Substantive Fairness: In this instance the Applicant was advised for the reason for suspension, which related to serious charges of mismanagement. The suspension was done with notification to the Applicant but to date the disciplinary hearing has not been scheduled or finalized. The duration of the suspension will be limited to the period stipulated in the disciplinary code, collective agreement, statutory regulations or contract of employment regulating the conditions of employment of the suspended employee. In this case there was no agreement that limited the suspension but the letter of suspension stated three months or upon finalization of the investigation, which ever occurred first. It was common cause that the Applicant was suspended for nineteen months, and the disciplinary hearing was still pending. This was an excessive time period for his suspension If the suspension persists after the prescribed period has been exhausted, the suspension can be deemed to be unfair, even if the investigation is still underway. To date the Applicant had not been presented with the investigation report. I cannot consider the period of suspension independent from the seriousness of the offence and the peculiar circumstances of this 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.
[19] 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 will still not be a valid reason to suspend, only if there is a possibility that the employee might hamper the investigation will the substantive requirements be met. It was submitted and conceded 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.
[20] Reddy testified the Applicant was arrested as it was alleged that the financial documents were stolen from the school. He explained that the officials went to the school and the financial documents were not located at the place where they were usually stored. The investigating officer discovered the documents in the computer room a few days later. The documents were taken by the investigating officer and retained by the SAPS for about six months. After the release of the books the department handed same to the district office for further internal investigation. Reddy stated the matter was then referred to the district public prosecutor for a decision on whether to proceed and it was confirmed that the matter would proceed for theft and trespassing. The Applicant was afforded bail with the condition that he would not enter the school. Based on the criminal case it was a condition of his bail that he not report to the school. If reinstated, then it would be a violation of his bail condition. In this regard I cannot ignore the current criminal matter with the bail condition. The internal disciplinary charges against the Applicant were serious and it was coupled with pending criminal charges. In this instance the Applicant cannot simply return to his place of employment when there was a pending bail condition, prohibiting same.
[21] 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 Applicants future, and may also impact on the criminal charge. The charges, both disciplinary and criminal are far too serious to simply reinstate the Applicant to his position, without finalization of the hearing. I find the suspension 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.
[22] Award
I make the following award:
[a] The suspension of the Applicant, Mr B Mnguni, is declared to be fair;
[b] The Respondent, Department of Education, is directed to finalise the disciplinary hearing within three months from date hereof.
ELRC Commissioner : VEESLA SONI
Date : 13 September 2019
Province: KwaZulu-Natal
Applicant: NATU OBO B A MNGUNI
Respondent: Department of Education KwaZulu-Natal
Issue: Unfair Labour Practice - Suspension
Venue: Kwa Zulu Natal, Department of Education, Port Shepstone.
Award Date: 13 September 2019
Arbitrator: VEESLA SONI
Commissioner: VEESLA SONI
Case No.: PSES 303-18/19
Date of Award: 13 September 2019
In the ARBITRATION between:
NATU OBO B A MNGUNI APPLICANT
and
DEPARTMENT OF EDUCATION – KWAZULU NATAL RESPONDENT
Union/Applicant’s representative: Ms Zibani NATU
Pietermaritzburg
Telephone: 060 39 36 259
Respondent’s representative: Mr Mabaso
228 Pietermaritzburg Street
Pietermaritzburg
Telephone: 083 775 2384
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 Act”). The matter was scheduled for arbitration on 21 September 2018 and was finalized on 11 September 2019, as this matter was adjourned on several instances at the peril of the parties. The matter was heard at the Kwa Zulu Natal, Department of Education, Port Shepstone.
[2] The Applicant, Mr Mnguni was present and was represented Ms Zibani from NATU, and the Respondent was represented by Mr Mabaso, the Department of Education in Kwa Zulu Natal.
ISSUE TO BE DECIDED
[3] 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
[4] The Applicant commenced employment in May 2002, as an educator. At the time of the dispute he was a principal and earned approximately R 43 000 -00 (gross) per month. The Applicant was suspended on 28 February 2018 and there was no suspension hearing.
[5] The Applicant was presented with charges relating to misconduct on 6 September 2018. The disciplinary hearing was scheduled for 13 September 2018 and was adjourned for 18 October 2018. To date the disciplinary hearing has not been finalized.
[6] The Applicant challenged the procedure for his suspension in that he was deprived of an opportunity to state why he was not suspended. In terms of substance he believed that he would not have hampered the investigation.
[7] The Respondent submitted that the Applicant was made aware that there was an intention to suspend. In terms of the substance there were reasons for him to be removed from the workstation. He interrupted the investigation which resulted in the delay of the matter. It was further submitted that the Applicant was suspected of stealing invoices and logbooks from the school which caused a further delay in finalizing the investigation.
[8] The Applicant faced four charges. Charge 1 and charge 2: related to the mismanagement of funds for Gugulesizwe High School. Charge 3 related to failure to produce an approved budget.
APPLICANT’S CASE
[8] Applicant testified that he was suspended for one year and seven months as from 28 February 2018. He was furnished a precautionary suspension letter on 28 February 2018 which did not indicate the length of his suspension. He stated that the suspension affected him emotionally, mentally and ruined his reputation. It had a negative impact due to the length of the suspension and it would render it difficult for him to apply for other jobs or promotion.
[9] He stated that he did not interfere with the investigation. He was not notified of the date of the disciplinary hearing which has not been finalized. The last communication he received in terms of the disciplinary hearing was on 15 May 2019, whereby the departmental representative applied for an adjournment of the sitting. It was mentioned that the investigation was still pending hence the need to adjourn the disciplinary hearing.
[10] The Applicant stated that he discovered that the independent investigators were informed to cease the investigation and return the financial records to the school. The audit report for 2017 declared that all finances for the school were in order. This alleviated the concerns in charge 1 and 2. In respect of charge 3, this issue was laid to rest in the said financial report.
[11] The dispute was lodged on 19 July 2018 and the Applicant stated under cross examination that he did not return to school, after the expiration of the time period in the letter, as his suspension was not uplifted. He communicated in writing to the Head of Department regarding the lapse of the time period, to which he received no response. He also sent an email to the MEC, and again he received no reply. The Applicant stated that he was criminally charged for the missing financial records from the school and the investigation was pending. He conceded that he was suspected to have removed the financial records from the school. The Applicant admitted that one of the criminal charges related to trespassing at school.
RESPONDENT’S CASE
[12] Mr K P Reddy testified that he was the circuit manager for Umdoni, Ugu district. He knew the Applicant as he was principal in one of the schools that he supervised. The Applicant was arrested as it was alleged that the financial documents were stolen from the school. The officials went to the school, shortly after the Applicant’s suspension, and the financial documents were not located at the place where they were usually stored. The investigating officer discovered the documents in the computer room a few days later. The sequence of events was that the officials went to the school and they could not locate the documents. A charge was laid for the theft of the record. Subsequently the books were located at another place, being the computer room. The documents were taken by the investigating officer. The documents were located in March 2018 by the police. The books were retained by the SAPS for about six months. After the release of the books the department handed same to the district office for further internal investigation.
[13] He said that as at July 2019 he was informed by the investigating officer that they were informed by the Applicant that the internal case was withdrawn. The matter was then referred to the district public prosecutor for a decision on whether to proceed and it was confirmed that the matter would proceed for theft and trespassing. The Applicant was afforded bail with the condition that he not enter the school. Based on the criminal case it was a condition of his bail that he not report to the school. If reinstated, then it would be a violation of his bail condition.
ANALYSIS OF EVIDENCE
[14] The matter was referred as an unfair Labour Practice: In terms of section 186 (2) (b) of the Labour Relations Act:
‘ 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”
[15] The current matter related to preventative/precautionary suspension The Applicant claimed that he was treated unfairly in that he was suspended for a period of nineteen months. This was a particularly excessive amount of time. It was also common cause that the disciplinary hearing was pending and there was no evidence that the investigation was undertaken or finalized. To date the disciplinary hearing remained incomplete.
[16] Suspension should not be implemented as a measure of first resort, as held 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 3 criteria. The first two relate to substantive fairness and the third relates to procedural fairness:
a. The employer must have a justifiable reason to believe, prima facie at least, that the employee has engaged in serious misconduct. In the current matter there was a series of charges levelled against the Applicant and many of them appeared to be serious. I have no doubt that the Respondent had a justifiable reason to believe that the Applicant engaged in serious misconduct, however there has been no action taken for nineteen months. There was no doubt that the charges were indeed serious which warranted suspension however the delay in finalization is concerning.
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. The Applicant was charge for the removal of the documents from the school and for trespassing. The criminal case was still under investigation. The Respondent believed that the Applicant removed documents and would tamper with evidence. The criminal case was not finalized and the matter was referred to the district public prosecutor for a decision and it was evident and undisputed that the criminal matter would proceed.
c. The employee is given the opportunity to state a case or to be heard before any final decision to suspend is made. It was common cause the Applicant was placed on precautionary suspension and the courts have no held that there was no need to a hearing prior to same. 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 Labour Relations Act, cannot find application to the circumstances.
[17] It is trite law that employers should refrain from hastily suspending employees when there is no valid reason to do so. 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 SA Post Office Ltd v Jansen van Vuuren NO & others (2008) 29 ILJ 2793 (LC) also reported at [2008] 8 BLLR 798 (LC), the commissioner, having reasoned that suspension prejudices an employee psychologically, socially and in terms of future job prospects, awarded him six months’ compensation.
[18] Law to Facts: Substantive Fairness: In this instance the Applicant was advised for the reason for suspension, which related to serious charges of mismanagement. The suspension was done with notification to the Applicant but to date the disciplinary hearing has not been scheduled or finalized. The duration of the suspension will be limited to the period stipulated in the disciplinary code, collective agreement, statutory regulations or contract of employment regulating the conditions of employment of the suspended employee. In this case there was no agreement that limited the suspension but the letter of suspension stated three months or upon finalization of the investigation, which ever occurred first. It was common cause that the Applicant was suspended for nineteen months, and the disciplinary hearing was still pending. This was an excessive time period for his suspension If the suspension persists after the prescribed period has been exhausted, the suspension can be deemed to be unfair, even if the investigation is still underway. To date the Applicant had not been presented with the investigation report. I cannot consider the period of suspension independent from the seriousness of the offence and the peculiar circumstances of this 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.
[19] 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 will still not be a valid reason to suspend, only if there is a possibility that the employee might hamper the investigation will the substantive requirements be met. It was submitted and conceded 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.
[20] Reddy testified the Applicant was arrested as it was alleged that the financial documents were stolen from the school. He explained that the officials went to the school and the financial documents were not located at the place where they were usually stored. The investigating officer discovered the documents in the computer room a few days later. The documents were taken by the investigating officer and retained by the SAPS for about six months. After the release of the books the department handed same to the district office for further internal investigation. Reddy stated the matter was then referred to the district public prosecutor for a decision on whether to proceed and it was confirmed that the matter would proceed for theft and trespassing. The Applicant was afforded bail with the condition that he would not enter the school. Based on the criminal case it was a condition of his bail that he not report to the school. If reinstated, then it would be a violation of his bail condition. In this regard I cannot ignore the current criminal matter with the bail condition. The internal disciplinary charges against the Applicant were serious and it was coupled with pending criminal charges. In this instance the Applicant cannot simply return to his place of employment when there was a pending bail condition, prohibiting same.
[21] 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 Applicants future, and may also impact on the criminal charge. The charges, both disciplinary and criminal are far too serious to simply reinstate the Applicant to his position, without finalization of the hearing. I find the suspension 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.
[22] Award
I make the following award:
[a] The suspension of the Applicant, Mr B Mnguni, is declared to be fair;
[b] The Respondent, Department of Education, is directed to finalise the disciplinary hearing within three months from date hereof.
ELRC Commissioner : VEESLA SONI
Date : 13 September 2019