PSES 575-15/16LP
PSES 575-15/16LP
Award Date:
1 February 2016
Case Number: PSES 575-15/16LP
Province: Limpopo
Applicant: JOSEPH MALINDELA SIGUDU
Respondent: Department of Education Limpopo
Issue: Unfair Dismissal - Misconduct
Venue: Circuit Offices, Bochum West, next to Blouberg Municipality, Bochum
Award Date: 1 February 2016
Arbitrator: ELIAS KHUTSO MPAI
Panellist/s: ELIAS KHUTSO MPAI
Case No.: PSES 575-15/16LP
Date of Award: 01st February 2016
In the ARBITRATION between:
JOSEPH MALINDELA SIGUDU
(Union / Applicant)
and
DEPARTMENT OF EDUCATION - LIMPOPO
(Respondent)
Union/Applicant’s representative: PEU (MR M.K. Mohlatlole)
Telephone: 015-291 3407
Telefax: 015-295 4499
Cell No. 082-957 8484
Email: klaasmohlatlole@yahoo.com
sigudumali@gmail.com
Respondent’s representative: MR R. MAKHEMA
Telephone: 015-290 9406
Telefax: 015-297 6920/4320/4494/0507/086-611 8194
Email: MakhemaR@edu.limpopo.gov.za
AWARD
DETAILS OF THE HEARING AND REPRESENTATIONS.
[01] The Arbitration hearing was held on the 19th January 2016 at 10h00 at the Department of Education-Limpopo, Circuit Offices, Bochum West, next to Blouberg Municipality, Bochum.
[02] The Applicant, Mr J.M. Sigudu appeared in person assisted by Mr M.K. Mohlatlole, a union official from PEU, a registered trade union while the Respondent was represented by Mrs R. Makhema, the labour relations officer who was in default and made oral submissions on the phone..
[03] Mr V. Mulima was scheduled as the interpreter and the proceedings were digitally recorded.
BACKGROUND TO THE ISSUE.
[04] The Applicant is employed by the Respondent as a Principal at Schoongezight Secondary School in the Capricorn District, Limpopo Province.
[05] He attended a disciplinary hearing on the 16th April 2015, 22nd April 2015 and the 16th May 2015. He faced several charges related to misconduct in terms of section 18 of the Employment of Educators Act, 1998 as amended.
[06] He was found guilty and given a sanction of demotion from the postion of a Principal to a Deputy Principal.
[07] He lodged an appeal against the findings and sanction by the disciplinary hearing chairman and the outcome thereof were that the findings and sanction imposed by the disciplinary hearing chairman were confirmed.
[08] He then referred an unfair labour practice (ULP) dispute to the ELRC (Council) challenging the findings and sanction imposed.
[09] The parties agreed not to lead evidence instead. Instead they will submit written closing arguments by the 25th January 2016 at 16h00.
[10] The parties’ representatives submitted written closing arguments without any bundles of documents.
ISSUE TO BE DECIDED.
[11] I have to decide whether the Respondent committed an unfair labour practice by demoting the Applicant. If I find that the Respondent committed an unfair labour practice, I will then have to determine the appropriate relief in line with the Applicant’s prayer for his reinstatement to the Principalship position.
SURVEY OF EVIDENCE AND SUBMISSIONS.
The parties’ arguments are briefly as follows:-
Submissions for the Applicant.
Mr Mohlatlo
[12] He submitted that as per the pre-arb minutes, the Respondent abandoned the charge relating to taking children on a trip without approval of the Circuit Manager and remained with the charge related to making the learners write examinations at 06h30 instead of 08h30 without authorization.
[13] The Respondent had to prove that the examination started at 06h30 while the Applicant’s case was that the examination started at 08h30.
[14] The Respondent did not lead evidence to prove the allegations that the examination started at 06h30.
[15] The Applicant was unfairly demoted in terms of schedule 2 of the Employment of Educators Act, as amended. In terms of Item 8(2) thereof, demotion could be imposed with the agreement of the Applicant. The Applicant was not asked for his consent. Instead the Respondent unilaterally imposed the sanction of demotion.
[16] Demotion should be imposed as an alternative to dismissal however the Applicant was not charged in terms of section 17 hence demotion was not suitable and same was unlawfully imposed.
[17] There was no evidence that was submitted to justify the Respondent’s findings of guilty hence the Applicant should be found not guilty and the sanction of demotion be set aside and the Applicant be reinstated to his previous position.
Submissions for the Respondent.
Mrs Makhema.
[18] He submitted that the Applicant was charged with contravening parts of section 18(1) of the Employment of Educators Act, 1998 and he was found guilty of contravening section 18(1)(g), (ee) and (f) thereof while acquitted on the other charges. A sanction of demotion from Principal to Deputy-Principal was then imposed on him.
[19] The Applicant was placed in a position of trust where he must always conduct himself in line with the trust assigned to a Principal.
[20] The Applicant made Grade 12 learners to write the Maths Literacy examination at 06H30 instead of 08H30 contrary to the District’s mid-year examination timetable, thereby prejudicing the learners who stayed far away from the school.
[21] The Applicant claimed during the disciplinary hearing that he agreed with the then Circuit Manger to re-arrange the time table but did not produce the proof thereof.
[22] Demotion is provided for in section 18 (3)(g) of the Employment of Educators’ Act and it suits the offence. The Applicant was found guilty of charges related to administration of examinations and there could be no other appropriate sanction than the one imposed.
[23] Any reasonable presiding officer would have arrived at the same or similar finding and sanction given the circumstances.
ANALYSIS OF EVIDENCE AND FINDINGS.
[24] The Respondent’s representative, Mr Makhema did not present himself at the Bochum Circuit Offices for the arbitration process while the Applicant’s team was in attendance. It is however important to note that in these proceedings, the Applicant was represented by seasoned union official and while the Respondent was represented by a seasoned labour relations officer.
[25] Realizing that there was no representative for the Respondent, I took it upon myself to phone the Labour Relations office, Department of Education, Polokwane where I was advised that Mr Makhema was representing the Respondent in this matter.
[26] Mr Makhema indicated that he was not aware of the scheduled arbitration hearing, and I gave him a chance to talk to Mr Mohlatlole for the Applicant on the phone put on loud speaker.
[27] He then suggested that the parties submit written closing arguments without leading evidence and the parties ended up agreeing that they will submit written arguments without leading evidence.
Did the Respondent make an act or omission which constitutes an unfair labour practice?
[28] It is important to note that the Applicant’s case is based on the fact that he denied having committed the misconduct for which he was dismissed. This is backed up by the parties pre-arb minutes wherein they agreed that the Respondent will have to prove that the examinations were written at 06H30 instead of 08H30.
[29] There was nothing that was presented in the Respondent’s arguments to confirm that the examinations were written at 06H30 instead of 08H30, except for the Respondent’s statement in arguments.
[30] I would have expected of the Respondent to at least have submitted the minutes of the disciplinary hearing wherein the witnesses testified that the examination were written at 06H30 and not at 08H30 or affidavits by witnesses to that effect.
[31] The starting point should have been for the Respondent to establish that there was indeed a misconduct as above, that was committed which at the end justified the sanction of demotion.
[32] However the Applicant was demoted from the Principalship position to a Deputy-Principal position.
[33] The Respondent’s act of demoting the Applicant constitutes an unfair labour practice.
Was the act or omission justified?
[34] The Applicant was demoted based on the findings by the disciplinary hearing chairman that he changed the mid-year examination timetable from 08h30 to 06h30 thereby disadvantaging other learners who stayed far away from the school.
[35] It is important to note that an arbitration hearing is a hearing de novo whereby evidence is heard afresh with a view to determine whether the decision arrived at in imposing the sanction at hand was appropriate or not.
[36] In the present case, the Respondent did not present anything to show that the Applicant indeed committed the misconduct which justified the sanction imposed, i.e. demotion.
[37] Once the Applicant has established that the Respondent committed an act or omission which amounts to an unfair labour practice, then the Respondent must show justification thereof.
[38] The appropriateness of the sanction imposed cannot be determined in isolation from the facts of the case itself. Unfortunately the Respondent deal with the appropriateness of the sanction imposed without considering the facts of the case.
[39] Without evidence to prove the commission of the misconduct for which the sanction was imposed, then the sanction itself has no leg to stand on. In the present case, the Applicant was demoted without his consent having been given thereby rendering the demotion inappropriate as a sanction.
[40] Reference was made to section 18(3)(g) of the Employment of Educators’ Act, 1998 which provides for the imposition of a sanction of demotion. I had the opportunity to peruse the said section and same provides for demotion.
[41] However on the contrary, the Applicant made reference to Item 8(2) to Schedule 2 thereto which provides that “with the approval of the educator, the presiding officer may impose the sanction of suspension without pay or demotion as an altenative to dismissal.”
[42] Nothing was presented by the Respondent to show that the sanction of demotion as imposed by the Respondent was with the Applicant’s agreement as an alternative to dismissal.
[43] It can therefore not be said that the imposition of a sanction of demotion was appropriate as it was not discussed with the Applicant as the affected Educator.
[44] Reference was again made by the Respondent to Glass v University of Zululand where Commissioner Rycroft held that “a demotion following a disciplinary inquiry is justified where the demotion is expressly provided for as a sanction in the employer’s disciplinary code.”
[45] It is indeed so that the Respondent’s disciplinary code made provision for a demotion as an alternative to dismissal, however, same is subject to the Educator concerned agreeing thereto.
[46] From the facts presented, there was no agreement that was sought and obtained from the Applcant related to his demotion.
[47] I find that the Respondent failed to prove the fairness or justification of the sanction imposed. The Respondent cannot have a disciplinary code and then goes on to violate its provisions while it wants to impose some of its provisions, otherwise it would be as good as not being there.
[48] I find that the Respondent failed to discharge the burden placed on it to prove the fairness or justification of the sanction imposed.
Ad relief sought.
[49] The Applicant made an application for his reinstatement to his previous position as a Princpal at Schoongezight Secondary School.
[[50] In terms of Section 193(1) of the LRA, the remedy that may be awarded for unfair dismissal or unfair labour practice is reinstatement unless the exceptions provided for in section 193(2) of the LRA applied.
[51] I was not addressed on the applicability thereof and I find that the said exceptions are not applicable to the Applicant’s case.
[52] In all the circumstances the Respondent will be ordered to reinstate the Applicant in his previous position and under the same terms and conditions as existing prior to his demotion.
AWARD.
[54] I find that the Respondent committed an act which constitutes an unfair labour practice by demoting the Applicant.
[55] There was no justification for the Respondent to demote the Applicant thereby and he committed an unfair labur practice.
[56] The Respondent, Department of Eduction - Limpopo is hereby ordered to reinstate the Applicant,Joseph Malindela Sigudu to the position he previously held with the Respondent, and under the same terms and conditions of employment as existing prior to his demotion, i.e Principal at Schoongezight Secondary School, Capricorn District.
[57] The said reinstatement is to operate retrospective from the date of the demotion, i.e 07th July 2015.
[58] The Applicant shall continue executing his duties as such henceforth while the Respondent continues paying him a Principal salary as before.
DATED AT MAKHADO ON THIS THE 01ST DAY OF JANUARY 2016.
KHUTSO MPAI:- COMMISSIONER
Province: Limpopo
Applicant: JOSEPH MALINDELA SIGUDU
Respondent: Department of Education Limpopo
Issue: Unfair Dismissal - Misconduct
Venue: Circuit Offices, Bochum West, next to Blouberg Municipality, Bochum
Award Date: 1 February 2016
Arbitrator: ELIAS KHUTSO MPAI
Panellist/s: ELIAS KHUTSO MPAI
Case No.: PSES 575-15/16LP
Date of Award: 01st February 2016
In the ARBITRATION between:
JOSEPH MALINDELA SIGUDU
(Union / Applicant)
and
DEPARTMENT OF EDUCATION - LIMPOPO
(Respondent)
Union/Applicant’s representative: PEU (MR M.K. Mohlatlole)
Telephone: 015-291 3407
Telefax: 015-295 4499
Cell No. 082-957 8484
Email: klaasmohlatlole@yahoo.com
sigudumali@gmail.com
Respondent’s representative: MR R. MAKHEMA
Telephone: 015-290 9406
Telefax: 015-297 6920/4320/4494/0507/086-611 8194
Email: MakhemaR@edu.limpopo.gov.za
AWARD
DETAILS OF THE HEARING AND REPRESENTATIONS.
[01] The Arbitration hearing was held on the 19th January 2016 at 10h00 at the Department of Education-Limpopo, Circuit Offices, Bochum West, next to Blouberg Municipality, Bochum.
[02] The Applicant, Mr J.M. Sigudu appeared in person assisted by Mr M.K. Mohlatlole, a union official from PEU, a registered trade union while the Respondent was represented by Mrs R. Makhema, the labour relations officer who was in default and made oral submissions on the phone..
[03] Mr V. Mulima was scheduled as the interpreter and the proceedings were digitally recorded.
BACKGROUND TO THE ISSUE.
[04] The Applicant is employed by the Respondent as a Principal at Schoongezight Secondary School in the Capricorn District, Limpopo Province.
[05] He attended a disciplinary hearing on the 16th April 2015, 22nd April 2015 and the 16th May 2015. He faced several charges related to misconduct in terms of section 18 of the Employment of Educators Act, 1998 as amended.
[06] He was found guilty and given a sanction of demotion from the postion of a Principal to a Deputy Principal.
[07] He lodged an appeal against the findings and sanction by the disciplinary hearing chairman and the outcome thereof were that the findings and sanction imposed by the disciplinary hearing chairman were confirmed.
[08] He then referred an unfair labour practice (ULP) dispute to the ELRC (Council) challenging the findings and sanction imposed.
[09] The parties agreed not to lead evidence instead. Instead they will submit written closing arguments by the 25th January 2016 at 16h00.
[10] The parties’ representatives submitted written closing arguments without any bundles of documents.
ISSUE TO BE DECIDED.
[11] I have to decide whether the Respondent committed an unfair labour practice by demoting the Applicant. If I find that the Respondent committed an unfair labour practice, I will then have to determine the appropriate relief in line with the Applicant’s prayer for his reinstatement to the Principalship position.
SURVEY OF EVIDENCE AND SUBMISSIONS.
The parties’ arguments are briefly as follows:-
Submissions for the Applicant.
Mr Mohlatlo
[12] He submitted that as per the pre-arb minutes, the Respondent abandoned the charge relating to taking children on a trip without approval of the Circuit Manager and remained with the charge related to making the learners write examinations at 06h30 instead of 08h30 without authorization.
[13] The Respondent had to prove that the examination started at 06h30 while the Applicant’s case was that the examination started at 08h30.
[14] The Respondent did not lead evidence to prove the allegations that the examination started at 06h30.
[15] The Applicant was unfairly demoted in terms of schedule 2 of the Employment of Educators Act, as amended. In terms of Item 8(2) thereof, demotion could be imposed with the agreement of the Applicant. The Applicant was not asked for his consent. Instead the Respondent unilaterally imposed the sanction of demotion.
[16] Demotion should be imposed as an alternative to dismissal however the Applicant was not charged in terms of section 17 hence demotion was not suitable and same was unlawfully imposed.
[17] There was no evidence that was submitted to justify the Respondent’s findings of guilty hence the Applicant should be found not guilty and the sanction of demotion be set aside and the Applicant be reinstated to his previous position.
Submissions for the Respondent.
Mrs Makhema.
[18] He submitted that the Applicant was charged with contravening parts of section 18(1) of the Employment of Educators Act, 1998 and he was found guilty of contravening section 18(1)(g), (ee) and (f) thereof while acquitted on the other charges. A sanction of demotion from Principal to Deputy-Principal was then imposed on him.
[19] The Applicant was placed in a position of trust where he must always conduct himself in line with the trust assigned to a Principal.
[20] The Applicant made Grade 12 learners to write the Maths Literacy examination at 06H30 instead of 08H30 contrary to the District’s mid-year examination timetable, thereby prejudicing the learners who stayed far away from the school.
[21] The Applicant claimed during the disciplinary hearing that he agreed with the then Circuit Manger to re-arrange the time table but did not produce the proof thereof.
[22] Demotion is provided for in section 18 (3)(g) of the Employment of Educators’ Act and it suits the offence. The Applicant was found guilty of charges related to administration of examinations and there could be no other appropriate sanction than the one imposed.
[23] Any reasonable presiding officer would have arrived at the same or similar finding and sanction given the circumstances.
ANALYSIS OF EVIDENCE AND FINDINGS.
[24] The Respondent’s representative, Mr Makhema did not present himself at the Bochum Circuit Offices for the arbitration process while the Applicant’s team was in attendance. It is however important to note that in these proceedings, the Applicant was represented by seasoned union official and while the Respondent was represented by a seasoned labour relations officer.
[25] Realizing that there was no representative for the Respondent, I took it upon myself to phone the Labour Relations office, Department of Education, Polokwane where I was advised that Mr Makhema was representing the Respondent in this matter.
[26] Mr Makhema indicated that he was not aware of the scheduled arbitration hearing, and I gave him a chance to talk to Mr Mohlatlole for the Applicant on the phone put on loud speaker.
[27] He then suggested that the parties submit written closing arguments without leading evidence and the parties ended up agreeing that they will submit written arguments without leading evidence.
Did the Respondent make an act or omission which constitutes an unfair labour practice?
[28] It is important to note that the Applicant’s case is based on the fact that he denied having committed the misconduct for which he was dismissed. This is backed up by the parties pre-arb minutes wherein they agreed that the Respondent will have to prove that the examinations were written at 06H30 instead of 08H30.
[29] There was nothing that was presented in the Respondent’s arguments to confirm that the examinations were written at 06H30 instead of 08H30, except for the Respondent’s statement in arguments.
[30] I would have expected of the Respondent to at least have submitted the minutes of the disciplinary hearing wherein the witnesses testified that the examination were written at 06H30 and not at 08H30 or affidavits by witnesses to that effect.
[31] The starting point should have been for the Respondent to establish that there was indeed a misconduct as above, that was committed which at the end justified the sanction of demotion.
[32] However the Applicant was demoted from the Principalship position to a Deputy-Principal position.
[33] The Respondent’s act of demoting the Applicant constitutes an unfair labour practice.
Was the act or omission justified?
[34] The Applicant was demoted based on the findings by the disciplinary hearing chairman that he changed the mid-year examination timetable from 08h30 to 06h30 thereby disadvantaging other learners who stayed far away from the school.
[35] It is important to note that an arbitration hearing is a hearing de novo whereby evidence is heard afresh with a view to determine whether the decision arrived at in imposing the sanction at hand was appropriate or not.
[36] In the present case, the Respondent did not present anything to show that the Applicant indeed committed the misconduct which justified the sanction imposed, i.e. demotion.
[37] Once the Applicant has established that the Respondent committed an act or omission which amounts to an unfair labour practice, then the Respondent must show justification thereof.
[38] The appropriateness of the sanction imposed cannot be determined in isolation from the facts of the case itself. Unfortunately the Respondent deal with the appropriateness of the sanction imposed without considering the facts of the case.
[39] Without evidence to prove the commission of the misconduct for which the sanction was imposed, then the sanction itself has no leg to stand on. In the present case, the Applicant was demoted without his consent having been given thereby rendering the demotion inappropriate as a sanction.
[40] Reference was made to section 18(3)(g) of the Employment of Educators’ Act, 1998 which provides for the imposition of a sanction of demotion. I had the opportunity to peruse the said section and same provides for demotion.
[41] However on the contrary, the Applicant made reference to Item 8(2) to Schedule 2 thereto which provides that “with the approval of the educator, the presiding officer may impose the sanction of suspension without pay or demotion as an altenative to dismissal.”
[42] Nothing was presented by the Respondent to show that the sanction of demotion as imposed by the Respondent was with the Applicant’s agreement as an alternative to dismissal.
[43] It can therefore not be said that the imposition of a sanction of demotion was appropriate as it was not discussed with the Applicant as the affected Educator.
[44] Reference was again made by the Respondent to Glass v University of Zululand where Commissioner Rycroft held that “a demotion following a disciplinary inquiry is justified where the demotion is expressly provided for as a sanction in the employer’s disciplinary code.”
[45] It is indeed so that the Respondent’s disciplinary code made provision for a demotion as an alternative to dismissal, however, same is subject to the Educator concerned agreeing thereto.
[46] From the facts presented, there was no agreement that was sought and obtained from the Applcant related to his demotion.
[47] I find that the Respondent failed to prove the fairness or justification of the sanction imposed. The Respondent cannot have a disciplinary code and then goes on to violate its provisions while it wants to impose some of its provisions, otherwise it would be as good as not being there.
[48] I find that the Respondent failed to discharge the burden placed on it to prove the fairness or justification of the sanction imposed.
Ad relief sought.
[49] The Applicant made an application for his reinstatement to his previous position as a Princpal at Schoongezight Secondary School.
[[50] In terms of Section 193(1) of the LRA, the remedy that may be awarded for unfair dismissal or unfair labour practice is reinstatement unless the exceptions provided for in section 193(2) of the LRA applied.
[51] I was not addressed on the applicability thereof and I find that the said exceptions are not applicable to the Applicant’s case.
[52] In all the circumstances the Respondent will be ordered to reinstate the Applicant in his previous position and under the same terms and conditions as existing prior to his demotion.
AWARD.
[54] I find that the Respondent committed an act which constitutes an unfair labour practice by demoting the Applicant.
[55] There was no justification for the Respondent to demote the Applicant thereby and he committed an unfair labur practice.
[56] The Respondent, Department of Eduction - Limpopo is hereby ordered to reinstate the Applicant,Joseph Malindela Sigudu to the position he previously held with the Respondent, and under the same terms and conditions of employment as existing prior to his demotion, i.e Principal at Schoongezight Secondary School, Capricorn District.
[57] The said reinstatement is to operate retrospective from the date of the demotion, i.e 07th July 2015.
[58] The Applicant shall continue executing his duties as such henceforth while the Respondent continues paying him a Principal salary as before.
DATED AT MAKHADO ON THIS THE 01ST DAY OF JANUARY 2016.
KHUTSO MPAI:- COMMISSIONER