PSES559-13/14EC
PSES559-13/14EC
Award Date:
3 June 2014
Case Number: PSES559-13/14EC
Province: Eastern Cape
Applicant: SADTU obo Nyoka, N and 53 others
Respondent: Department of Education: Eastern Cape
Issue: Unfair Labour Practice - Provision of Benefits
Venue: Grahamstown
Award Date: 3 June 2014
Arbitrator: Michelle Huber
IN THE EDUCATION LABOUR RELATIONS COUNCIL ARBITRATION
HELD AT EAST LONDON
In the arbitration between
SADTU obo Nyoka, N and 53 others
APPLICANT
AND
The Department of Education – Eastern Cape
RESPONDENT
ARBITRATION AWARD
CASE NUMBER: PSES559-13/14EC
DATES OF HEARING: 31st March, 1st and 16th April 2014
DATES CLOSING ARGUMENTS RECEIVED: 24 and 29 April 2014
DATE ALL DOCUMENTS RECEIVED 29 April 2014
DATE OF SUBMISSION OF OUTCOME 17 May 2014
NAME OF PANELLIST: Michelle Huber
Details of hearing and representation
1. This matter was referred for arbitration to the Education Labour Relations Council in terms of section 186(2) of the Labour Relations Act 66 of 1995 (“the LRA”) and was heard at the offices of the Buffalo City FET College on Monday 31st March,
Tuesday 1st April and Wednesday 16th April 2014.
2. The applicants were represented by Mr Velelo Time from the South African Democratic Teachers’ Union (SADTU) and the Respondent was represented by Mr Welile Payi from the Eastern Cape Department of Education.
3. The closing arguments were required to be submitted via facsimile by or before close of business on the 25th April 2014. I received the Applicants’ closing arguments on the 24th April 2014 and, after being informed by the ELRC that the
Respondent had requested additional time to submit its closing arguments, I received the Respondent’s closing arguments on 29th April 2014.
Issues to be decided
4. The purpose of this arbitration is to determine two issues:
4.1 whether or not the suspensions of the applicants constitute an unfair labour practice in terms of section 186(2)(b) of the Labour Relations Act 66 of 1995; and
4.2 whether or not the circumstances in respect of the Applicants’ annual leave encashment, relating to annual leave accrued over the periods of their suspensions, constitute an unfair labour practice in terms of section 186(2)(a) of the Labour Relations
Act 66 of 1995.
Background
5. The Respondent is the Department of Education, based in the Eastern Cape.
6. The Applicants are office based employees who are, or were at the time of the alleged unfair labour practices, employed by the Respondent in the Eastern Cape.
7. The 54 applicants were placed on precautionary suspension for various periods between 2009 and 2012. The exact commencement and end dates of these suspensions are set out under the heading ‘matters that are common cause’.
8. The first dispute concerns the fairness or otherwise of these suspensions.
9. The second dispute concerns an agreement by the Head of Department in the Eastern Cape whereby the HOD acknowledged that the applicants, insofar as they are reflected in the list of names that formed part of the agreement on pages 37 and
38 of the Bundle, and attached as Addendum 2 to this Award, were suspended beyond the ‘legal permissible period’ in 2011/ 2012. The agreement made provision for the applicants to be paid out their accrued leave as an 80% encashment, with
the balance of the leave to be available for the applicants to use. This decision by the Head of Department was not supported by Treasury and as such it was not implemented. The second dispute concerns the fairness or otherwise of the
Respondent’s conduct in respect of the accrued annual leave and its encashment.
Survey of evidence
Matters that are common cause
10. It was agreed by the parties that pages 8 and 9 of the employee’s bundle of documents (“the Bundle”) correctly reflect the names of the applicants and the dates of their suspensions. It was agreed that all of their suspensions were lifted on 9
June 2012.
11. It was agreed that pages 37 and 38 in the bundle of documents is an audited list of the persons whom the HOD agreed were suspended in excess of the permissible periods and who would be entitled to an encashment of their annual leave that
had accrued and was not taken during the periods that they were suspended. As such, this document constitutes the detail of the annual leave accrued by each applicant and the Rand values of 80% of the leave that was not taken over the
suspension periods. It was agreed that this would, if necessary through the outcome from this arbitration hearing, be subjected to a verification exercise.
12. It is common cause that none of the applicants had taken annual leave over their suspension periods.
13. It is common cause that none of the applicants were issued with notices of intentions to suspend them, nor were they given an opportunity to make representations as to why they should not be suspended, prior to their suspensions taking effect.
14. It is common cause that no disciplinary proceedings were instituted in respect of any of the applicants after their suspensions were lifted.
15. It is common cause that an agreement was reached whereby the applicants, insofar as they are listed on pages 37 and 38 (addendum 2), were meant to be paid out 80% of the rand value (encashment) of their annual leave that was not taken over
their periods of suspension, with the detail of this agreement and the specific amounts due set out on pages 36, 37 and 38 in the Bundle of documents. These are attached as Addendum 2.
16. During the course of the arbitration proceedings I requested that the parties meet outside of the arbitration hearing to establish what matters were common cause, relating to the suspensions of the 54 applicants, given that there are different dates
and possibly different facts applicable to the suspensions. The applicant’s representative and the respondent’s representative informed me that they had agreed, in respect of the suspensions and the evidence relating to the suspensions, that
there are three groups of suspended applicants. The first group received suspension letters dated 17 May 2011, however the dates of their suspensions were either the 20th or 25th May 2011. It was agreed that the letters all of the applicants who
received suspension letters with this date received the same letters as those of Mr Xoxo and Mr Tshali, at pages 14 to 16 and 17 to 19 of the Bundle of documents. The second group of applicants received letters dated 15 or 18 July 2011 (however
the dates of their suspensions were between 15 and 20 July 2011), and it was agreed that they all received letters that were the same as that in the bundle on pages 20 to 21, being the suspension letter for Mr Magadu. The third group of applicants
were those that received suspension letters dated 21 July 2011, and it was agreed that they all received letters that were the same as that for Mr Mtirara, included in the Bundle at pages 22 and 23.
It is important to record that the suspension letters for the four applicants in the bundle are exactly the same, with slight differences to the second paragraph only. However, the content of each letter is exactly the same, and clearly comes from a standard document used by the Respondent for precautionary suspensions.
In this award, I have combined groups 2 and 3 into one group who were suspended in July, because their suspension letters may have been issued on the same dates, but the dates of their actual suspensions varied to slightly different dates in July, between the 15th and the 21st.
It was further agreed between the parties that it is common cause that for these three categories of applicants, set out above, the evidence that is led by the applicant’s two witnesses is applicable to all three categories. What was specifically agreed as being common cause is that there was no process followed in respect of a pre-suspension hearing, the lengths of the suspensions were agreed as being those reflected on pages 8 and 9 (reflected in Addendum 1), disciplinary hearings were not held after the suspensions were lifted, and no presiding officers had convened hearings in respect of any of the applicants and agreed to postponed and increase the lengths of the suspensions.
17. It is common cause that Treasury did not approve the payments.
18. It is common cause that all of the applicants’ suspensions had been lifted on 9 June 2012.
19. During the course of the arbitration, after the applicant had closed its case, the respondent agreed that the applicant’s representative could introduce documentary evidence detailing other employees from the Department who had been placed on
suspension and who had been paid out their annual leave. The Respondent accepted that these facts were correct and this evidence is thus common cause, specifically that certain employees had been suspended previously, and were unable to
take their annual leave. They were thus permitted to encash their annual leave.
Applicants’ case
20. Mr Nceba Magadu, the applicant’s first witness is employed as a Deputy Chief Education Specialist in the Directorate: Institutional Development, Support and Governance at the Department of Education in the Eastern Cape. On the 18th to the 20th
July 2011 he had been on authorised sick leave. He had read in the Daily Dispatch on the 20th July 2011 that he had been suspended.
21. A copy of the article from the Daily Dispatch was submitted which stated that he and four other ‘workers’ had been suspended for “contravening a court order and harassing other workers to join protests”. He had not received a notice of
suspension, and wrote to his Director, Ntsikelelo Vazi (Director: Institutional Development Support & Governance), to request an explanation for the article in the Daily Dispatch. This letter was submitted as evidence, along with Mr Vazi’s response
indicating that he (Mr Vazi) had not been aware of the suspension. Mr Magadu collected this letter of response from Mr Vazi on the 21st July 2011.
22. My Magadu referred to a letter in the bundle of documents submitted as evidence, and accepted by the Respondent, with the subject “Precautionary suspension: yourself”. The letter was from Advocate M Mannya, the Head of Education, and
signed and dated by Advocate Mannya on 15th July 2011. It was addressed to Mr Magadu.
23. Mr Magadu had not been served with a letter of suspension on 15 July 2011, and the letter that purported to suspend him on the 15th July 2011 was only received by Mr Magadu’s Director, Mr Vazi, on the 20th July 2011. This was confirmed
through a letter to Mr Magadu from his Director, dated 21 July 2011. Correspondence from Mr Vazi to the Superintendent-General (Advocate Mannya) indicated that Mr Vazi intended to give Mr Magadu’s suspension letter to him when he ‘returned to
work’ on the 21st July 2011.
24. Mr Magadu did not receive a notice of intention to suspend and was therefore not given an opportunity to make representations in respect of the suspension. The suspension letter in the bundle of documents was not signed by him.
25. Mr Magadu is one of the 54 applicants in this matter, and his name is reflected on the list of persons with whom the HOD had agreed should be paid out 80% of their leave, as reflected on pages 37 and 38 of the Bundle of documents.
26. The Respondent sent charges through to SADTU in respect of Mr Magadu in August 2011, but at no stage was a disciplinary hearing scheduled or held, and no disciplinary action was taken against Mr Magadu. After approximately 11 months the
suspension was lifted, and no disciplinary action was taken against Mr Magadu after the suspension was lifted.
27. The notice of precautionary suspension provided that a condition of the suspension was that a disciplinary hearing would be held within 60 days from the date of the precautionary suspension and that the chairperson of the hearing may, after the
commencement of the hearing, decide on any postponement of the hearing. This meant that the disciplinary hearing should have been held by approximately 18 September 2011. This did not happen and Mr Magadu had not been summoned to a
disciplinary hearing.
28. The Disciplinary Code and Procedures for Educators, Schedule 2, item 6(1), provides that suspension may be for a maximum period of 3 months for serious misconduct in terms of section 17 of the Employment of Educators Act.
29. Mr Magadu could not take annual leave because paragraph (f) of the notice of precautionary suspension was clear that he needed to be available on his cellular telephone or at home if the Department needed to get hold of him, and if he ‘wished to
leave the jurisdictional area of the Department during normal working hours, [he] will be required to provide the Department with the necessary leave document’, but then paragraph (h) stated that he could not enter the premises of the Department
during the period of his suspension other than to attend to proceedings against him or unless directed [to enter the premises] by the Office of the Superintendent General.
30. The only reference to leave was in paragraph (f) and Mr Magadu did not leave the jurisdictional area except on weekends.
31. The process for taking leave is that an employee needs to get an official leave update from Human Resources, the employee then gets a leave application form from his manager and engages with his manager / supervisor. Mr Magadu said that he
was denied that right through the suspension conditions.
32. Mr Magadu gave evidence in respect of the Determination and Directive on Leave of Absence in the Public Service (“The Leave Directive”), Chapter 5 deals with annual leave, and he referred to and read out paragraph 5.14 of the Leave Directive.
33. The Head of Department’s request for Treasury to approve the payment of the leave to the 54 employees was not authorized by Treasury, as communicated to the HOD (Education), Mr Ngonzo, by the acting Superintendent General & Head Official of
Treasury, Mr Kalimashe. Mr Kalimashe makes reference to a letter from Mr Ngonzo to him dated 21 June 2013, which was not included in the documents submitted as evidence.
34. Mr Magadu said that in his opinion one HOD could not over-rule another HOD, but could provide advice.
35. The letter from Treasury initially advising Mr Ngonzo, on 19 June 2013, that the leave pay-out had not been approved referred to the fact that suspension is a precautionary measure, and employees could take annual leave whilst on suspension. In
addition, it referred to the SMS Handbook (Chapter 3, paragraph 5.1(4)(b)) which requires that requests and motivations for leave payments in respect of leave which was denied should be lodged by no later than 31 July in respect of each year, and
Mr Ngonzo’s letter dated 27 May 2013 was in respect of leave which expired at the end of June 2012.
36. Also with regard to Treasury’s non-authorisation of the pay-out of the leave, a letter was included in the Bundle from Mr Mbulelo Sogoni, Director General in the Office of the Premier, dated 12 June 2013, to the HOD Provincial Planning and Treasury,
indicating that the provision for the pay out of leave (the Determination and Directive on Leave of Absence in the Public Service ) had certain conditions, which were not met, and in addition, “being placed on suspension is not a basis on which leave
can be paid out. Furthermore, placing an employee on suspension is not tantamount to sending the employee on any form of leave. It is merely a precautionary measure and nothing therefore prohibits the employee from applying for annual leave
while on suspension. If such an application was not made and denied, there is no basis to pay out the leave.”
37. Mr Ngonzo’s letter to the Superintendent General, Planning and Provincial Treasury, was dated 27 May 2013, and indicated that the Department had approved the cash payment in respect of unused leave credits to employees who were suspended
from duty in 2011/2012 “beyond the legal permissible period”. There is a request to the Superintendent-General to authorise the cash payments to the employees, which details are included as Addendum 2, and there is an indication that funds are
available ‘on item under Programme 1’ in the Department’s budget.
38. Under cross-examination Mr Magadu said that he understood from his suspension conditions that he needed to stay in Bhisho, and that he simply needed to wait for the ‘employer to access [him]’. He could not apply for leave because he could
not access the workplace, he was not allowed to, and if he did, he would be seen to be perpetuating the misconduct. His laptop was removed from him and his work cell-phone. He said that he would not have asked someone else to apply for
leave on his behalf, because his relatives saw the article in the Daily Dispatch saying he was a hooligan.
39. With regard to the responsibility of Treasury, Mr Magadu said they had an overarching responsibility for monitoring the finances of the Departments.
40. Mr Magadu said that with regard to the time frames, they had engaged in June and July of 2012 already, although the letter reflecting the discussions was only produced in 2013.
41. Under re-examination Mr Magadu indicated that he could only get the leave forms from the employer, and he could not do this, as he was refused entry to the premises.
42. Mr S Manzi, the Applicants’ second witness, is employed as the Deputy Chief Education Specialist in the Support and Governance Directorate. He was suspended on 17th May 2011 and he is one of the applicants in this matter. After his
suspension was lifted on 9 June 2012, he and all of the suspended employees reported back to work on 18 June 2012 and underwent a number of processes initiated by the employer such as a wellness programme, other reinstatement
programmes, and a motivational speaker was arranged for the employees who had been suspended.
43. Mr Ngonzo, the Head of Department then gave a clear instruction to the Labour Relations Director, Mr Pretorius, to deal with the HR issues relating to the suspended employees, and meetings were then convened by the office of Human Resources
Management. The issues that were addressed related to leave and subsidised vehicles, because the employees who were on suspension did not take their leave and their subsidised vehicles were also affected as the employees on suspension
did not do any work.
44. The persons who participated from the Department’s side on what was called ‘the technical task team’ that was put together to investigate these matters comprised Mr Pretorius, the Director of Labour Relations, Mr Stowman, the Acting Director of
Human Resources Admin and Mr Harmse, dealing with auxiliary services.
45. Mr Manzi testified that with regard to the leave entitlement, the employer had agreed that they [the employees who had been suspended, and who are now the applicants in this matter] were entitled to their unused leave days and they had
discussed the manner in which the employer would repay the unused leave days. They agreed on four options that the employees could choose from in respect of the leave encashment. The employees agreed on the 80/20 option, which was 80%
payment out of the leave and 20% which should be taken as leave.
46. Under cross-examination Mr Manzi, referring back to his suspension, said that whilst the conditions of service remained unchanged, and taking annual leave is a condition of service, he could not exercise it because he was physically removed from
the office, and he did not approach his supervisor about annual leave because he was suspended and the conditions stipulated in the suspension letter applied to him.
47. Certain documentary evidence was submitted by Mr Time, with the agreement of Mr Payi, who indicated that he accepted that the documentary evidence comprised evidence of employees who had been on suspension in previous matters, who
had been paid out their leave encashment. Mr Payi said that the Respondent’s view is that this was a mistake made by the Department and it did not affect the current matter.
Documentary evidence submitted by the applicants, and admitted fully by the Respondent
48. Mr Time went through the documents which showed that 7 employees employed by the Department were suspended in 2006, specifically Mr Gaca was suspended between 22 December 2006 and 22 September 2008, without a disciplinary hearing
being convened. He was paid out for the leave that he could not take whilst he was suspended. Similarly, this occurred in respect of Mr Fray, Mr Hector, Mr J R Swart, Mr Tom, Mr Ntshanga and Mr January. They were all paid out their leave
based on their not being able to take leave over their suspensions, and these payments had been approved by the then HOD Professor Harry Nengwenkulu. He also referred to an employee by the name of Sharon Maasdorp whose leave had been
added to her capped leave.
The Applicants’ Closing Argument
49. The Respondent acted in a manner that is unlawful, unreasonable and procedurally unfair when it reneged on its agreement to pay out the applicants’ unused leave, who had been suspended beyond the legally permissible limit.
50. The Respondent was obliged to apply the Determination and Directive on Leave of Absence in the Public Service and act reasonably in this regard.
51. Schedule 2 of the Disciplinary Code and Procedures for Educators at item 6 specifies that the Respondent may suspend an educator for a maximum period of 3 months (90 days).
52. The applicants were all suspended without being afforded an opportunity to make representations as to why an adverse decision should not be made. Reference is made to the decision of the Constitutional Court in Zondi V MEC for Traditional and
Local Government Affairs where Judge Ngcobo held that “the right to notice before an adverse decision is made in a fundamental requirement of fairness.”
53. The Respondent is also required to act consistently, and this was highlighted in the case National Union of Metalworkers of South Africa v Haggie Rand.
54. The Applicant then referred to specific aspects of its evidence which proved that unfair labour practices had been committed:
- Mr Magadu testified that he was unable to use his leave credits due to his precautionary suspension. The Leave Directive requires at 5.11 that employees must be cautioned timeously if, at the end of the relevant leave cycle, they have not
utilized their leave entitlements. The measures applied by the Respondent [due to the precautionary suspension] prohibited him applying for leave and the leave forms were not accessible as they were in the premises of the Respondent.
- The article in the Daily Dispatch caused embarrassment to him and his family.
- The context of the measures applied by the Respondent [relating to the precautionary suspension] excluded the Applicants from any activities including applying for leave which is an interaction between supervisor and supervisee.
55. The Applicants’ case pivots on the conditions applied by the Respondent not to access the premises of the Respondent and the unreasonable denial by the Head of Department of Treasury to pay out the leave credits of the Applicants.
56. With regard to consistency, Mr Time referred to the 7 cases of officials who had been unable to take leave over their prolonged suspension periods, and they were permitted to encash their leave that had expired and not been taken, on the basis
that they were unable to take annual leave whilst they were suspended.
57. Reference was made to the Respondent’s witnesses, and that the evidence of Mr Tshangana was not relevant to the dispute.
58. The applicants argued that they had a right to procedural fairness under section 33 of the Constitution and under the Promotion of Access to Justice Act, section 6.
Respondent’s case
59. At the outset of the Respondent’s case, a postponement / adjournment was requested, based on the non-attendance of the Respondent’s witnesses from the Offices of the Premier and Provincial Treasury. This postponement was granted, and a
separate ruling on this postponement application was issued to the parties. The Respondent did call one witness on the 1st April 2014, and thereafter the further witness was called on the 16th April 2014.
60. The first witness for the Respondent was Mr K Pearce, a Deputy Director in Human Resources Administration at the Department. The policies used in the Department for leave is the Determination of Leave of Absence Directive and Resolution 7 of
2001. There is no difference between the Resolution and the Directive. Mr Pearce read out the relevant sections of the Directive and the Resolution. He further read out the detail from the document submitted, an internal memorandum to the Acting
Head of Education, from the Director of Labour Relations, dated 15th February 2013, recorded the technical task team’s work around the issues of annual leave for the employees who had been suspended, and the recommendation to the HOD in
respect of the encashment of annual leave that was not taken over the periods of suspensions.
61. Under cross-examination Mr Pearce confirmed that if there was a decision regarding the encashment of unused leave entitlement, the following persons would need to approve it:
1. The Director of Human Resources Administration;
2. The Director of Labour Relations;
3. The Chief Director: Human Resources Management and Development;
4. The Deputy Director: General Human Resources Management and Development;
5. The Chief Financial Officer; and finally,
6. The Head of Department.
62. He confirmed that if the Head of Department approved the encashment of leave, it meant that he had applied his mind and made a decision on it.
63. Mr Pearce said that in his understanding leave could only be paid out in a few instances, and that is where it had been applied for and refused, and then on termination.
64. The Respondent’s second witness was Mr Vuyo Tshangana, a Director in Norms and Standards (Provincial Treasury). His function involves, amongst other aspects, responsibility for overseeing the implementation of the Public Finance Management
Act, (“PFMA”), providing guidance on the implementation of the PFMA and providing advice to Departments on how to apply the provisions of the PFMA. Treasury is also involved if approval is required through the exercise of ‘conditions’, as such,
certain items will, because of the budget availability, require treasury approval.
65. The Head of Department of Treasury acquires his / her authority from section 17(1)(a) of the PFMA:
“17. Establishment.—(1) There is a provincial treasury for each province, consisting of—
(a) the MEC for finance in the province, who is the head of the provincial treasury; and
(b) the provincial department responsible for financial matters in the province.
(2) The MEC for finance as the head of a provincial treasury takes the policy and other decisions of the treasury, except those decisions taken as a result of a delegation or instruction in terms of section 20.”
66. Mr Tshangana testified that by virtue of the powers that are exercised by the Head of Treasury, this official may override the powers of the Head of a Provincial Department where it relates to financial issues. There are circumstances where the Head of Provincial Treasury can veto the decision of a Provincial Head of Department, in terms of section 20(2)(c).
20. Delegations by provincial treasuries.
(1) The MEC for finance in a province may, in writing, delegate any of the powers entrusted or delegated to the provincial treasury in terms of this Act to the head of the department referred to in section 17 (1) (b), or instruct that head of department to
perform any of the duties assigned to the provincial treasury in terms of this Act.
(2) A delegation or instruction in terms of subsection (1) to the head of the department referred to in section 17 (1) (b)—
(a) is subject to any limitations or conditions that the MEC for finance may impose;
(b) may authorise that head—
(i) to, in writing, sub-delegate the delegated power to another treasury official or the holder of a specific post in that treasury, or to the accounting officer for a provincial department, or to the accounting authority for a provincial public entity in the province; or
(ii) to instruct another provincial treasury official or the holder of a specific post in that treasury, or the accounting officer for a provincial department, or the accounting authority for a provincial public entity in the province, to perform the assigned duty; and
(c) does not divest the MEC for finance of the responsibility concerning the exercise of the delegated power or the performance of the assigned duty.
(3) The MEC for finance may confirm, vary or revoke any decision taken by the head of the department referred to in section 17 (1) (b), as a result of a delegation or instruction in terms of subsection (1), or by a treasury official or accounting officer or
accounting authority as a result of an authorisation in terms of subsection (2) (b), subject to any rights that may have become vested as a consequence of the decision.”
67. Mr Tshangana said that Treasury would not normally get involved in the day to day running of a Department, however, where Treasury picked up that there are risks, it could issue an instruction on a particular line item. This could be, for example, to
prevent overspending. This was done previously in the Department of Education where controls were put in place in December 2011, where certain powers of system controllers who reported to the Head of Department were withdrawn. This was in
respect of the powers to authorise certain payments in the system, to personnel, because of pressures on the budget. Therefore in this instance before payments were made to personnel they needed to obtain authorisation from Treasury.
68. Mr Tshangana submitted a document which was a letter from the Eastern Cape Provincial Treasury to the Accounting Officer of the Department of Health, to illustrate Treasury’s involvement. In this document measures were put in place by Treasury
to ‘arrest spiralling overdraft’. Examples of these measures implemented by Treasury include the stopping of new appointments, use of consultants would require Provincial Treasury approval, amongst others.
69. When faced with an expenditure related to an HR function, because HR issues are normally regulated by the Office of the Premier, Treasury would seek guidance from the Office of the Premier (“OTP”) regarding the controls in respect of Human
Resources prescripts. The OTP is the custodian of Human Resources issues in the Province.
70. Mr Tshangana read out the definition of irregular expenditure in terms of the PFMA, which is as follows:
“irregular expenditure” means expenditure, other than unauthorised expenditure, incurred in contravention of or that is not in accordance with a requirement of any applicable legislation, including—
(a) this Act; or
(b) the State Tender Board Act, 1968 (Act No. 86 of 1968), or any regulations made in terms of that Act; or
(c) any provincial legislation providing for procurement procedures in that provincial government;”
71. His understanding is that before a person incurs expenditure they must comply with their prescripts, for example the supply chain practices, IT etc. Once irregular expenditure is incurred it is regarded as financial misconduct in terms of section 45(c) of the Act. If irregular expenditure occurs the rule for Provincial Treasury is in terms of section 18(1)(g):
“18. Functions and powers.—(1) A provincial treasury must—
(g) must intervene by taking appropriate steps, which may include the withholding of funds, to address a serious or persistent material breach of this Act by a provincial department or a provincial public entity;”
72. He testified that Treasury would need to make various value judgements to decide how to address this type of issue, and it could be addressed by withdrawing the delegation or preventing the transaction, because it is in breach of the law.
Treasury is allowed to override matters where there is a possible breach of the law in terms of section 20(2)(i) [this should have referred to 18(1)(i)] – “(i) may do anything further that is necessary to fulfil its responsibilities effectively.”
73. If a Department ignores an instruction from Treasury, Departments are expected to comply with any instructions to prevent or deal with irregular expenditure in terms of section 18(1)(a) and (b), and when it is found that an accounting officer has
breached his duty to prevent irregular expenditure and incurred irregular expenditure, then section 81 would apply, specifically section 81(1)(b) regarding financial misconduct.
The Respondent’s Closing Argument
Arguments related to the unfair suspension disputes:
The Respondent’s arguments were detailed and are set out below in full.
74. “It is common cause that the applicants on this matter were suspended from duty but at different times in 2010, 2011 and 2012 by the Department of Education and the precautionary suspension from duty were withdrawn on 9th June 2012. The
employer did not deem it necessary to contest the issue of the alleged unfair suspension on the reason that the two witnesses that were called by the applicant confirmed that they were reinstated on 13 June 2012 in terms of the letter referred to
above (Item 24 of the applicant’s bundle refers). Therefore, the issue of the alleged unfair suspension has already been addressed through the withdrawal of the precautionary suspension.
75. Although the matter of the alleged unfair suspensions was not challenged the applicants are not a homogeneous group and should the decision be in favour of the applicants each case will have to be considered according to its merit and demerits
particularly those who are members of the Senior Management Service and had been formally charged and the disciplinary hearing took place.
76. It is therefore our contestation that the issue of unfair suspension was not the main reason for the dispute hence it was not even part of the applicant’s initial referral of the dispute for conciliation and arbitration (ELRC Form E1) particularly paragraph
3 (c) read in conjunction with 7(b) on page 2 – 9.
77. Mr Time the applicants representative indicated that he represented all the applicants in the matter but only two witnesses were called and their evidence was limited to the group of employees that were suspended in May 2011 and July 2011 and
are based at head office. Furthermore, the employee bundle only has four letters pages 14, 17, 18 and 22. The difficulty in this matter is that the evidence led was in relation to what happened at head office and the media article in the Daily
Dispatch refers to head office employees that were suspended in 2011.
78. In addition, the other applicants have already left the public service due to various reasons Zibi SS – retired in April 2013; Bacela AN – resigned; Kali MH – Dismissed; Zituta CV – Dismissed.
79. Although the limitation was not raised but I believe it would be difficult to generalize that every applicant faced the same circumstances in that the only evidence presented covered the May and July 2011 group. Employees who were suspended in
January 2012 and March 2012 and reinstated on 13 June 2012 should have applied for their accrued leave credit which they allowed to lapse namely B. Madikane (48) and RC. Barlow (49) on page 9.
80. It is therefore our contestation that the issue of unfair suspension was not the main reason for the dispute hence it was not even part of the applicant’s initial referral of the dispute for conciliation and arbitration (ELRC Form E1) particularly paragraph
3 (c) read in conjunction with 7(b) on page 2 – 9.
81. In this regard it may also be important to note that the relief sought by the applicants as stated in the application on paragraph 6 on page 4 is that “the Eastern Cape Department of Education must pay all affected employees their leave days for the
period 2011/2012 as these employees were not in a position to take their annual leave for the period due to circumstances that they were subjected to by the employer. Despite the emphasis on suspension in the evidence led during the arbitration
process we can conclude that the matter in dispute was the leave encashment of which the defendant had focussed throughout the hearing process”.
Arguments related to the unfair conduct in respect of benefits:
82. “The argument for leave encashment is premised on the following issues as per the evidence led by the 2 witnesses of the applicant:
• The unfair suspension from duty
• The prohibitive conditions set by the employer in the precautionary suspension letters they received.
• The statement attributed to Mr Mannya the former Head of Education that appeared in the article of the Daily Dispatch dated 20 July 2011 (Page 45) of which Mr Magadu claim to have been labelled as a hooligan.
• They had no access to facilities to make necessary leave arrangement with the department.
• A three person task team that included Mr W. Payi as Chief Director (employer representative in the dispute) established by the head of department had recommended the payment for the unused leave credit.
• The letter written by the Superintendent General to Ms M. Mbina-Mthembu the Head of Provincial Treasury requesting the authorisation of cash payment of leave credits to the employees listed Annexure (page 37)
• The applicants contended that the head of the Provincial Treasury has an equal status with that of the Head of Education and as such has no veto powers over the other head of department.
• The following documents were submitted by the applicant to further substantiate the validity of their entitlement for the payment of their unused leave credit
o The numerous payments that were made to Mr Gaca following the withdrawal of his precautionary suspension as a precedent (Exhibit B- Page 1)
o The letter written to a certain Ms Sharon Maasdorp who is not among the applicants on behalf of the Acting Director Human Resource Administration in response to a her claim of payment of unused leave credit (Exhibit B -Page 7).
83. In the evidence led it has been argued by the applicant that the department had by the reasons of the recommendation of the task team and letter written to the Provincial Treasury referred to above approved the payment of the lapsed leave credit
and by so doing legitimatised the process contrary to the stipulated procedure in the Directive on leave of absence in the Public Service.
84. To this extent the applicant disputed the authority of the Superintendent General and Head Official of Treasury in this province who in her letter addressed to Mr Ngonzo the Head of Education (Page 40) declined the payment of unused leave credit
based on the advice of the Office of the Premier as the custodian of human resource management policies in the province.
85. In response to the letter from the Provincial Treasury the Office of the Premier raised non-compliance with the stipulated procedure as contained in the Determination and Directive on Leave of Absence in the Public Service issued by the Minister of
Public Service and Administration in August 2012.
86. The Director General of the Office of the Premier said that, “having been placed on suspension is not a basis on which leave can be paid out. Furthermore, placing an employee on suspension is not tantamount to sending the employee on any form
of leave. It is merely a precautionary measure and nothing therefore prohibits the employee from applying for annual leave while on suspension. If such an application was not made and denied, there is no basis to pay out the leave.
87. The applicant’s argument is that the stringent conditions prohibited them from accessing the facilities to make such applications and to substantiate the claim submitted the article that appeared on the Daily Dispatch as referred in paragraph 5(c)
supra. Mr Magadu indicated that he could not even send his sister or cousin to the department given the implication of the article for which he was labelled a hooligan. This statement from Mr Magadu in his evidence in chief is against the condition
set out in his letter of precautionary suspension in page 20 paragraph (b) that stated “during your suspension you will receive a full pay and will remain subject to all conditions of your employment.”
88. Whilst paragraph (f) of the same letter states that “You will be required to be available either on your cellular telephone or at home should the Employer or any authorised representative need clarity from you concerning any of these issues relating to
the investigation or should any information relating to your work be required from you. Should you wish to leave the jurisdictional area during normal working hours, you will be required to provide the Department with the necessary leave
documentation”
89. Reading from these paragraphs which were also referred to in the cross examination of the applicant’s witnesses it is evident that the applicants were never denied the right to apply for a leave of absence from duty nor had they made any effort to
apply for vacation leave as required but relied on their selective interpretation of the set conditions or measures for the precautionary suspension including the department’s flouting of its own policy as indicated by the Office of the Premier and the
Provincial Treasury.
90. Perhaps it might be necessary to examine whether employees who did not apply for leave which should have been denied by a supervisor or delegated person are entitled to be paid the used and lapsed leave credit. In this regard. The
Determination and Directive on Leave of absence in the Public Service provides the following:
- Office based Public Service Employees are entitled to an annual leave with full pay during each leave cycle of 12 months, commencing on 01 January to 31 December of each year.
- At least 10 days must be taken as leave days during the annual leave cycle and this is a compulsory requirement.
- The remaining leave days, if any, must be taken by no later than 6 months after the expiry of the relevant leave cycle (30 June of the year following the cycle), where after, the unused.
- It is the responsibility of the Supervisor to ensure that all employees under his or her control utilise their leave entitlement in terms of the annual leave measures prescribed herein.
- The Supervisor shall not unreasonably refuse to grant to supervisees who apply for leave and in this regard it must be noted that it is not the intention of the department to pay out any leave days whatsoever and that all attempts must be made to
grant leave applied for in terms of the entitlement. The refusal of leave must be based only on service delivery requirements.
- In instances where the supervisor is unable to grant leave applied for due service delivery requirements, the supervisor after consultation with the supervisee must endeavour to reschedule his/her leave taking within the prescribed 18 month period
and this must be conveyed to the supervisee in writing by the supervisor.
- In instances where it is not possible to reschedule or grant the leave within the prescribed 18 month period, the supervisor must submit the application together with reasons substantiating the refusal of the leave to the head of department or his /her
delegate for a decision. Should it be decided that the leave cannot be granted, such a decision together with reasons must be conveyed in writing to the supervisee concerned.
- If due to the employer’s service delivery requirements an employee’s application for leave is denied and not rescheduled, such leave will upon request, be paid out to the employee at the end of the prescribed 18 month period. The employee’s
request for payment of unused leave credits must be;
o In writing ; and
o Accompanied by written proof of refusal of leave by the Head of Department or his /her delegate
- Heads of Department must, at the end of the relevant 18 months period report to the relevant legislature on the number of employees denied annual leave, reasons for such denial and the amount paid in this regard.
- Employee shall be paid a cash value in respect of unused leave credit upon termination of service and in terms of clause 3.9 and such payment will be limited to a maximum number of days equivalent to the prescribed annual leave entitlement.
91. The emphasis being that nowhere in the Determination and Directive on leave of absence in the Public Service or departmental policy a precautionary suspension or suspension is set as a condition or qualify an employee for payment of unused or
lapsed leave credit other than the conditions set above.
92. It is important to note that Mr K. Pearce a Deputy Director in the Department of Education that testified on behalf of the defendant in the matter indicated that the Departmental policy on leave of absence is not different from the Determination and
Directive on Leave of absence in the Public Service as explained in the preceding paragraphs. In addition, he confirmed that the department cannot act contrary to the prescripts or policy.
93. The applicants were entitled to annual leave as provided in the public service. They continued to accrue annual leave whilst on suspension and were at liberty to submit leave applications during and subsequent to their suspension.
94. The aforementioned prescripts set out the procedure for and circumstances under which payment in lieu of accrued leave credit can be made as outlined in the preceding paragraphs. It is only in compliance with the prescripts, aforementioned that
any employee will be entitled to be paid for accrued leave. It is this context that the Superintendent General and Head official of the Provincial Treasury acting on the advice of the Office of the Premier declined to authorise the requested payment by
the defendant in this matter.
95. The applicant has in this regard argued that the Head of Education had approved the payment and confirmed the availability of funds and thus complied with the prescripts. Whilst it is a fact that the head of Education approved the payment but it
is evident that there was an error of judgement on the part of the head of education in that none of the applicants had complied with the procedure explained above and such insisting on such payment may constitute an irregular expenditure as
defined in Section 1 of the Public Finance Management Act, 1999(as amended).
96. Mr Vuyo Tshangana a Senior Manager for Norms and Standards employed by the Department of Planning and Provincial Treasury who testified on behalf of the department explained power and functions vested in the head of the Superintended
General as the Head Official of the Provincial Treasury in relation to the powers of Heads of Provincial Departments as Accounting Officers as defined in the Public Finance Management Act including the functions of a Treasury as defined in Section
18 of the Public Finance Management Act, 2009 (Act 1 of 2009) He explained that the Provincial Treasury among other things is required to monitor the budget and expenditure by provincial departments and other State institutions.
97. He alluded to the fact that the Provincial Treasury where it has no expertise solicits such advice from other sources and in this instance which involves the interpretation of human resource management policy it approached the Office of the Premier.
In addition he indicated that heads of department as Accounting are issued delegations based on the provisions of Section 20 of the Public Finance Management Act, 2009 and as such Treasury is ultimately accountable for expenditure on the
Provincial Revenue Fund. He indicated that by virtue of such legislative authority can override the decision of heads of department and where necessary withdraw certain functions or take any steps necessary to prevent irregular expenditure or
over-expenditure of allocated budget.
98. In addition he indicated that the Provincial Treasury has in terms of Section 18 of the Public Finance Management Act, 2009 placed austerity measures for both the Departments of Health and Education that have not yet been withdrawn. In this
regard a letter addressed to the Accounting Officer of the Department of Health dated 9 December 2011 which he claimed to be similar to the other one written to the Department of Education was submitted. Therefore, the action of the
Superintendent General and Head Official of Provincial Treasury in the matter in dispute was lawful.
99. In his opinion officials that are on precautionary suspension should have applied for a leave of absence as specified in the governing prescripts which is a normal practice in the public service. This further supported the validity of statement made
by the Director General of the Office of the Premier who in his advice to the Provincial Treasury stated that “placing an employee on suspension is not tantamount to sending the employee on any form of leave. It is merely a precautionary measure
and nothing therefore prohibits the employee from applying for annual leave while on suspension.
100. He defined irregular expenditure as an expenditure incurred in contravention of or that is not in accordance with a requirement of any applicable legislation including human resource management legislation. To this extent that the responsible official
may be liable for a charge of financial misconduct of which he referred to the provisions of Section 45 of the Public Finance Management Act. In regard to the breach of the provisions of the Act by an Accounting Officer he sighted the provisions of
Section 81 that apply in such circumstances.
101. The applicants have earlier raised the issue of previous payment on similar circumstances that established a precedent to justify their entitlement for payment in lieu of unused leave credit. The applicant’s representative listed a number of officials
that include Gaca, Hector, Swartz, Z. Tom and et cetera who were on precautionary suspension and the payment was approved by Prof. H. Nengwenkulu (ex-Head of Education). In this regard letters addressed to Mr Gaca including PERSAL print
outs as proof of payment were submitted. In another case a recent commitment made to Ms Maasdorp issued on 7 June 2012.
102. Perhaps the call if for even handed administration of justice in this matter. However, the challenge is whether a wrong decision taken in the past makes it right. We would like to argue that the omission to consider the leave prescripts by the former
heads of department of education does not make it acceptable to continue with an error. To this extent the advice from the Office of the Premier as communicated by the Provincial Treasury need serious consideration. It would be incorrect for the
department to insist on payment even though it has been informed that the decision was incorrect hence the request for authorisation of payment was declined.
103. Although the circumstances were not explained regarding the commitment letter to Ms Maasdorp it is clear that it was issued without the knowledge of the head of department by someone who acted on behalf of the Director Human Resource
Administration. There were no details submitted to verify the basis for such a decision suffice to say the letter may be invalid in that payment can only be effected based on existing prescripts. In this regard clause 3.9 of the Determination and
Directive on leave of absence states that “ employees shall be paid a cash value of unused leave credit upon termination of service and such payment will be limited to a maximum number of days equivalent to the prescribed annual leave
entitlement. Therefore, the letter under the circumstances may be regarded as invalid and the employer in its response indicated that on both instances has a remedy in terms of the provisions of Section 38 of the Public Service Act, 1994 (Act 103 of
1994) as amended.
104. Regarding wrongly granted remuneration Section 38 referred to above state that:
- (1) (a) If an incorrect salary, salary level, salary scale or reward is awarded to an employee, the relevant executive authority shall correct it with effect from the date on which it commenced.
- Paragraph (a) shall apply notwithstanding the fact that the employee concerned was unaware that an error had been made in the case where the correction amounts to a reduction of his or her salary.
- (2) If an employee contemplated in subsection (1) has in respect of his or her salary, including any portion of any allowance or other remuneration or any other benefit calculated on his or her basic salary or salary scale or awarded to him or her by
reason of his or her basic salary-
o been underpaid, an amount equal to the amount of the underpayment shall be paid to him or her, and that other benefit which he or she did not receive, shall be awarded to him or her as from a current date; or
o been overpaid or received any such other benefit not due to him or her-
- an amount equal to the amount of the overpayment shall be recovered from him or her by way of the deduction from his or her salary of such instalments as the relevant accounting officer may determine if he or she is in the service of the State, or, if
he or she is not so in service, by way of deduction from any moneys owing to him or her by the State, or by way of legal proceedings, or partly in the former manner and partly in the latter manner;
105. Reading the above extract from the Public Service Act it is evident that the department has legal means to recover such payment made with compliance to the policy directive regarding leave of absence in the public service. As such the
department cannot be compelled to continue with a wrong act to make it a right thing.
106. Clause 3.5 and 3.9 of Directive on Leave of absence in the Public Service clearly state that “ it is only in compliance with the prescripts, aforementioned, that any employee will be entitled to be paid for accrued leave. Such payment must also be
paid not later than six months after the expiry of the relevant cycle, where after unused leave credits shall be forfeited”.
107. In the circumstances thereof the applicants forfeited their unused leave credits at the end of six months after the expiry of the relevant leave cycle that is June 2011 and June 2012 and therefore not entitled to leave pay out. The reason of the alleged
unfair labour practice does not constitute the basis for payment in lieu of accrued leave credit.
108. It is our contestation that the issue of unfair suspension was not the main reason for the dispute hence it was not even part of the applicant’s initial referral of the dispute for conciliation and arbitration (ELRC Form E1) particularly paragraph 3 (c) read
in conjunction with 7(b) on page 2 – 9. Be that as it may be, the referred suspensions have since been withdrawn and the applicants reinstated in the former positions with effect from 13 June 2012.
109. Furthermore, evidence led was in relation to the applicants that were on precautionary suspension as from May 2011 and July 2011 and nothing on the listed employees.
110. The other applicants were subsequently charged and hearing took place and the unfairness of the suspension should have been raised and challenged in those sittings.
111. The issue of the precedent may not be followed blindly in that two wrongs may not make it right. The omission to consider the leave prescripts by the former heads of department of education does not make it acceptable to continue with an error.
To this extent the advice from the Office of the Premier as communicated by the Provincial Treasury need serious consideration. It would be incorrect for the department to insist on payment even though it has been informed that the decision was
incorrect hence the request for authorisation of payment was declined
112. To this extent the department has a remedy in terms of Section 38 of the Public Service Act, 1994 (Act 103 of 1994) as amended”.
Analysis of evidence and argument
113. There are two unfair labour practice disputes that need to be determined, the first being a dispute about unfair suspension in terms of section 186(2)(b) and the other being an unfair labour practice related to benefits in terms of section 186(2)(a). The analysis addresses the two disputes separately.
Analysis relating the alleged unfair suspension dispute
114. At the outset of the arbitration hearing proceedings I raised concerns about the evidence that would be submitted in respect of the alleged unfair suspensions, especially given that there were 54 applicants, with varying suspension dates / periods,
and it was indicated that only two witnesses would be testifying in this regard.
115. I asked the parties to address me on this, after they had discussed it, and hence the parties placed on record that the letter reflecting the applicants details (appended to this award, pages 8 and 9 of the bundle) reflected the applicants dates of
suspension correctly.
116. The Respondent did raise at the outset that the suspensions had all been lifted, and this was agreed as being common cause, and the Respondent questioned whether there was still a dispute given that the suspensions had been lifted. The
Applicant said that it was necessary to lead evidence on this dispute as it is linked to the dispute regarding the benefits, and as such, it remained a dispute. However, the Applicant has not sought relief specific to this dispute.
117. With regard to the dispute regarding the suspensions, Mr Magadu was the first witness in this regard, and he referred to his letter suspending him, which was signed and dated by Advocate Mannya on the 15th July 2011. Within the letter, the first
sentence reads as follows:
“My notice of intention to suspend you dated 15th July 2011 has relevance.
Having waived your rights to provide me with your written reasons as to why I should not suspend you pending finalization of investigations [sic] of allegations levelled against you, you are now hereby suspended with immediate effect, pending the finalization of the investigation.”
118. Mr Magadu identified the signature of his senior, the Director, on the letter, which showed that his senior only received the precautionary suspension letter on the 20th July 2011. The letter was also not signed by Mr Magadu. Mr Magadu gave clear
and uncontested evidence that he was in a meeting with his Director on the 15th July 2011, the date that the notice of intention to suspend was purportedly served on him, along with the notice of suspension letter, and that he was on authorised
sick leave on the 18th to the 20th July 2011. It was not contested by the Respondent, and in fact was common cause that Mr Magadu was not afforded an opportunity to make representations as to why he should not be suspended. I accept that
Mr Magadu found out about his suspension from an article in the newspaper, with the sub-heading “Mannya vows to deal with ‘hooligans’”.
119. The notices of precautionary suspension provides that a condition of the suspension is that a disciplinary hearing would be held within 60 days from the date of the precautionary suspension and the chairperson of the hearing may, after the
commencement of the hearing, decide on any postponement of the hearing.
120. The applicant has referred to the Employment of Educators Act, Schedule 2, which provides as follows (my emphasis):
“Suspension
6. (1) In the case of serious misconduct in terms of section 17, the employer may suspend the educator on full pay for a maximum period of three months.
(2) In the case of misconduct in terms of section 18, the employer may suspend an educator in accordance with the procedure contemplated in sub-item (1), or transfer the educator to another post if the employer believes that the presence of the educator may jeopardise any investigation into the alleged misconduct, or endanger the well-being or safety of any person at the work-place.
(3) (a) If an educator is suspended or transferred, the employer must do everything possible to conclude a disciplinary hearing within one month of the suspension or transfer;
(b) The presiding officer may decide on any further postponement. Such a postponement must not exceed 90 days from the date of suspension.
(c) If the proceedings are not concluded within 90 days, the employer must enquire from the presiding officer what the reasons for the delay are and give directions for the
speedy conclusion of the proceedings.”
I accept Mr Magadu’s evidence and applicant’s argument in respect of Mr Magadu’s suspension, specifically that he was not afforded an opportunity to provide reasons why he should not be suspended, and that his suspension was in excess of the maximum period permitted in terms of Schedule 2.
121. The Respondent argued that “It is common cause that the applicants on this matter were suspended from duty but at different times in 2010, 2011 and 2012 by the Department of Education and the precautionary suspension from duty were
withdrawn on 9th June 2012. The employer did not deem it necessary to contest the issue of the alleged unfair suspension on the reason that the two witnesses that were called by the applicant confirmed that they were reinstated on 13 June 2012
in terms of the letter referred to above (Item 24 of the applicant’s bundle refers). Therefore, the issue of the alleged unfair suspension has already been addressed through the withdrawal of the precautionary suspension.”
I do not accept the Respondent’s argument as set out in the paragraph above, and I record that it was agreed as being common cause that the applicants were suspended on the different dates, and further, that witnesses were not required to testify as to these dates, on the basis that it was agreed that the dates on the list in pages 8 and 9 of the Bundle were accepted as the dates of the suspensions.
Further, whilst the Respondent may have believed that the issue of the alleged ‘unfair suspension’ had been addressed through the lifting of the suspensions, this was in fact not the case, and the Applicant made it clear that they were pursuing this claim. Whether or not the Respondent chose to ‘contest the issue’ is irrelevant.
The applicant did not call further witnesses in respect of the unfair suspension claim, on the basis that certain facts were accepted as being common cause:
- the letters in the file represented the letters given to certain groups of applicants, and on the basis that the key issues relating to these applicants were agreed to be common cause – namely, none of the applicants were afforded hearings before
they were suspended, they were all suspended for the periods commencing on the dates set out in Addendum 1 and ending on 9 June 2012, and none of the applicants were disciplined after their suspensions were lifted.
- The groups of applicants were those that were suspended in May 2011 and July 2011. As such, no further evidence needed to be led in respect of the applicants that fell within these ambits.
The Respondent is correct and its argument is accepted insofar as evidence was not led in respect of the suspensions of applicants who were suspended in 2010, or the periods falling outside of May and July 2011.
122. The Respondent argued that “Furthermore, evidence led was in relation to the applicants that were on precautionary suspension as from May 2011 and July 2011 and nothing on the listed employees. The other applicants were subsequently
charged and hearing took place and the unfairness of the suspension should have been raised and challenged in those sittings.”
I accept the Respondent’s argument relating to evidence not being led in respect of applicants other than those suspended in May and July 2011, in respect of the suspensions. The evidence relating to the suspensions applied only the applicants who were suspended in May 2011 and between 15 and 21 July 2011. This was agreed by the parties when matters that were common cause were agreed upon, specifically at my request, because the dates of the suspensions of the applicants were different, and it was necessary to determine whether other circumstances were different as well, including the letters that were issued to the applicants for their suspensions. As such, no evidence was presented, with regard to the alleged unfair suspensions, in respect of the applicants whose suspensions dates were not on these specific dates and I am unable to rule on whether their suspensions were fair or unfair.
This does not apply to the issue of ‘benefits’, as it was agreed that the suspension dates set out on Pages 8 and 9 of the Bundle (Addendum 1) were the correct suspension dates, and that the process of determining whether the applicants should be paid out for leave that was accrued over their suspension periods, with the resultant agreement, is reflected in pages 37 and 38 of the Bundle.
I do not accept the respondent’s argument that certain applicants were subsequently charged and hearings took place, as this is contrary to what the respondent agreed with the applicant upfront as being common cause, and no evidence to this effect was led by the respondent during the arbitration hearing.
123. The Respondent argued further that “Although the matter of the alleged unfair suspensions was not challenged the applicants are not a homogeneous group and should the decision be in favour of the applicants each case will have to be considered
according to its merit and demerits particularly those who are members of the Senior Management Service and had been formally charged and the disciplinary hearing took place.”
I do not accept this argument in full, except insofar as reflected in the previous paragraph. The Respondent agreed in the arbitration proceedings that all of the applicants were suspended on the dates set out on pages 8 and 9, and that the applicants who were suspended during May 2011, and between 15 and 21 July 2011 had not been afforded pre-suspensions hearings, and all of the applicants suspended on these dates had not been subjected to disciplinary hearings before or after their suspensions were lifted.
The substantive fairness of the suspensions was not raised as an issue in this matter. What is being challenged was the procedural fairness, and the specific matters were agreed as being common cause and undisputed. At no stage during the proceedings did the respondent state that some applicants should be distinguished from others based on their seniority, nor at any point was it stated that any applicants were subjected to disciplinary hearings.
124. The Respondent argued that “It is therefore our contestation that the issue of unfair suspension was not the main reason for the dispute hence it was not even part of the applicant’s initial referral of the dispute for conciliation and arbitration (ELRC
Form E1) particularly paragraph 3 (c) read in conjunction with 7(b) on page 2 – 9.”
Irrespective of whether the issue was the main reason for the dispute or not, it is recorded as a dispute, and whilst it was not referred to specifically in the ELRC form E1, it was specifically recorded in the Certificate of Outcome of the conciliation process, and recorded in the pre-arbitration minute as being a separate dispute. In addition, it was reflected and clarified at the outset of these proceedings as being a separate dispute. The Respondent’s argument is therefore not accepted.
125. The Respondent further argued in its closing argument that “Mr Time, the applicants representative indicated that he represented all the applicants in the matter but only two witnesses were called and their evidence was limited to the group of
employees that were suspended in May 2011 and July 2011 and are based at head office. Furthermore, the employee bundle only has four letters pages 14, 17, 18 and 22. The difficulty in this matter is that the evidence led was in relation to what
happened at head office and the media article in the Daily Dispatch refers to head office employees that were suspended in 2011.”
I have already addressed this argument, it is accepted in that the 4 letters of suspension referred to and included in the employee bundle were accepted as reflecting agreement on certain matters that were common cause, as set out previously. Where the applicants do not fall within the groups that are ‘covered’ by the four letters, it is accepted that no evidence has been presented in respect of their suspensions.
126. The Respondent submitted, for the first time in its closing arguments submitted on 29 April 2014, that “the other applicants have already left the public service due to various reasons Zibi SS – retired in April 2013; Bacela AN – resigned; Kali MH –
Dismissed; Zituta CV – Dismissed”. This was not raised during the proceedings. I am unable to verify whether this is correct or not, and the Applicant has not been afforded an opportunity to respond to this. However, as indicated previously, it
was agreed by the applicant and the respondent that the list of names of the applicants on pages 8 and 9 of the Bundle are the correct details of the applicants, and that their suspension details are correct, and pages 37 and 38 (addendum 2)
correctly reflect their accumulated leave details, and the encashment values of this accumulation. I therefore accept these details as being correct.
127. The reasons for the suspensions were not presented as evidence or argument regarding the fairness or otherwise of the suspensions. The bases for the arguments that the suspensions were ‘unfair’ were confined to procedural grounds, specifically
that there was no opportunity for the applicants to hear the reasons for the suspensions and provide reasons as to why they should not be suspended (i.e. the audi alteram partem rule was not complied with), and because the suspensions
exceeded the legally permissible time periods.
128. The Applicant argued that it was unfair that the applicants were not afforded a hearing / notice prior to their suspensions being imposed and cited the following authoirty “the decision of the Constitutional Court in Zondi V MEC for Traditional and
Local Government Affairs where Judge Ngcobo held that “the right to notice before an adverse decision is made in a fundamental requirement of fairness.” I accept the Applicant’s argument in this regard, and it was supported by the Labour Appeal
Court in Member of the Executive Council for Education, North West Provincial Government v Gradwell , which also addressed the differing Labour Court approaches to this question The LAC stated at 44 (my emphasis):
“The proposition that all suspensions should be procedurally fair to avoid the stigma of an unfair labour practice, on the other hand, requires some qualification. Fairness by its nature is flexible. Ultimately, procedural fairness depends in each case upon the weighing and balancing of a range of factors including the nature of the decision, the rights, interests and expectations affected by it, the circumstances in which it is made, and the consequences resulting from it. When dealing with a holding operation suspension, as opposed to a suspension as a disciplinary sanction, the right to a hearing, or more accurately the standard of procedural fairness, may legitimately be attenuated, for three principal reasons. Firstly, as in the present case, precautionary suspensions tend to be on full pay with the consequence that the prejudice flowing from the action is significantly contained and minimised. Secondly, the period of suspension often will be (or at least should be) for a limited duration. The SMS Handbook for example imposes a 60-day limitation. And, thirdly, the purpose of the suspension – the protection of the integrity of the investigation into the alleged misconduct – risks being undermined by a requirement of an in depth preliminary investigation. Provided the safeguards of no loss of remuneration and a limited period of operation are in place, the balance of convenience in most instances will favour the employer. Therefore, an opportunity to make written representations showing cause why a precautionary suspension should not be implemented will ordinarily be acceptable and adequate compliance with the requirements of procedural fairness.
129. The Labour Appeal Court therefore accepts that there is a requirement, where an employee is about to be suspended as a precautionary measure, at the very least, for the employee to have ‘an opportunity to make written representations’ where the
other ‘safeguards’ are in place such as a limited period of operation [meaning the suspensions are for a limited period]. In this instance, this safeguard relating to a limited time of suspension was not in place, and the Applicants, except for
Applicant 49, RC Barlow, were suspended for periods of time in excess of the legally permissible periods.
130. The Respondent should have followed some form of pre-suspension process, and this should also have been more than ‘obtaining written representations showing cause why precautionary suspensions should not be implemented’. I accept that it
is common cause that the Respondent did not follow any pre-suspension procedures in respect of the applicants who were suspended in May and July 2011, in that it did not follow a process of asking for written inputs from any of these specific
applicants, nor did it hold hearings. This was not disputed by the Respondent, and in fact was agreed by the Respondent as being common cause.
131. With regard to the right to procedural fairness in respect of a precautionary suspension, the Labour Appeal Court in MEC v Gradwell, supra, quotes, with approval, Grogan’s stance in Workplace Law:
“As Grogan rightly points out, insofar as a precautionary suspension invariably forms part of the procedure leading to disciplinary action it is inherently disciplinary in nature. Consequently, the dictates of fairness (procedural and substantive) apply to all suspensions equally, regardless of the form a particular suspension takes, be it employed as a holding operation or as a disciplinary sanction or penalty.”
The Court then goes on to state, at 45:
“The right to a hearing prior to a precautionary suspension arises therefore not from the Constitution, PAJA or as an implied term of the contract of employment, but is a right located within the provisions of the LRA, the correlative of the duty on employers not to subject employees to unfair labour practices. That being the case, the right is a statutory right for which statutory remedies have been provided together with statutory mechanisms for resolving disputes in regard to those rights.”
132. There were no pre-suspension “hearings” of any nature in respect of the identified applicants. Mr Magadu found out about his suspension from reading about it in the newspaper.
133. In the same judgement, the Labour Appeal Court stated, at 41:
“In most cases, the Labour Court has held the view that the audi alteram partem rule applies in precautionary suspension cases, notwithstanding the mitigation of the detrimental consequences by the payment of full pay, because the prejudice an employee may suffer as a result of suspension is not limited to financial loss but may extend to issues of integrity, dignity, reputation and standing in the community.”
This impact is also referred to in Muller & others v Chairman, Minister’s Council, House of Representatives & others by Howie, J, where, although this case is no longer persuasive due to it being based on the premise that suspensions were administrative action and therefore governed by the Promotion of Administrative Justice Act , which has been ruled in Chirwa v Transnet Ltd & others as not being applicable to unfair labour practices in terms of the Labour Relations Act, the Court’s statement does create awareness of the actual impact of suspension, even though it may be fully paid, on employees:
“The implications of being barred from going to work and pursuing one’s chosen calling, and of being seen by the community round one to be so barred, are not so immediately realised by the outside observer . . . There are indeed substantial social and personal implications inherent in that aspect of suspension . ..”
134. When Mr Magadu testified about his embarrassment when his family members read about him in the newspaper, and that he was labelled a ‘hooligan’, I accept that this is testimony about the ‘other’ impact of precautionary suspension on him as
an employee, being the negative impact that extends to dignity, reputation and standing in the community.
135. This is also of relevance to the issue relating to the ability to ‘take annual leave’ which is addressed below. The applicants were instructed by the employer to remain away from work, and this continued for extended periods of time. They were
instructed not to make contact with any person in the Department, other than the Superintendent General. The recent high profile case of Zwelinzima Vavi, General Secretary of COSATU, being suspended is an indication of how seriously one must
comply with the conditions in suspension letters. If an employee breaches the conditions, these breaches can and generally will be added to the ‘list of allegations’ against the employee. I will refer to this further when I address the issue of
substantive and procedural fairness relating to ‘benefits’.
136. The Labour Court in Minister of Labour v General Public Service Sectoral Bargaining Council & others ruled on the decision of a Bargaining Council Commissioner who found that the suspension of an employee was procedurally unfair on the basis
that the duration of the suspension exceeded the maximum period stipulated in Resolution 1 of 2003 of the Public Service Coordinated Bargaining Council. The Minister took this on review, which was unsuccessful, and the Court found, at 13:
“It is clear from the facts placed before the arbitrator that the suspension of the third respondent exceeded 60 days. He was only charged after an award was issued by the arbitrator. The disciplinary hearing did not proceed thereafter. The arbitrator
correctly found that the applicant committed an unfair labour practice.”
137. In terms of the accepted and agreed documentary evidence submitted reflecting the names of the applicants to this matter, and their respective suspension dates, (annexed to this outcome as Addendum 1) the following Applicants fall within the categories where it was agreed as common cause that they were not given pre-suspension hearings and were not disciplined during or after their suspensions, are as follows:
Suspended in May 2011:
Applicant Number Name
1. Tshali, LT
5. Manzi, S
6. Mashalaba, P
7. Ngoma, MSW
19. Dingane, Y
29. Nyoka, N
30. Xoko, M
Applicants suspended in July 2011 on 15, 18, 19 and 21 July 2011 :
31. Ralane, W
32. Luke, AM
33. Magadu, N
34. Mancoko, M
35. Time, V
36. Coto, M
37. Kewuit, N
38. Makapela, B
39. Mpakama, N
40. Mpagalala, V
41. Noza, Y
42. Ndibongo, C
43. Nxele, A
44. Rashe, M
45. Sambane, N
46. Mtirara, A
47. Gontshi, NP
138. The respondent and the applicant agreed that the list on pages 8 and 9 of the Bundle comprise the correct details of the applicants and their dates of suspension. The applicants where I accept that the evidence submitted applies to them are
listed above. The Applicant did not submit any evidence in respect of the remainder of the applicants to indicate that their suspensions were unfair. All of the applicants listed above were suspended for periods far in excess of 90 days permitted
in terms of Schedule 2, referred to above. Even if a hearing had been convened within 60 days (2 months) of the suspensions, and the suspensions for then extended by a presiding officer of a hearing for a further allowable 90 days (3 months), all
of the suspensions were in excess of 5 months.
139. As such, it is accepted that the applicants listed above were suspended without any hearings and without the opportunity to submit representations as to why they should not be suspended, and this in itself is sufficient to render each of the
suspensions procedurally unfair. In addition, the applicants’ suspensions were all in excess of the periods permitted in schedule 2, and on this additional basis, they are procedurally unfair.
140. No evidence nor argument was put forward by either party in respect of the substantive fairness of the suspensions, and as such I cannot make a ruling in this regard, other than to state that the onus of proving that the suspensions are
substantively unfair rests with the Applicants, and this onus has not been discharged.
Analysis of the evidence and arguments in respect of the dispute relating to the alleged unfair labour practice related to benefits
141. The essence of this dispute is that the applicants contend that they were suspended for lengthy periods of time, and that they were unable to take annual leave over these period, because of the conditions attached to their suspensions. They
therefore accrued this leave. Upon their return to work, after their suspensions were lifted, the HOD set up a task team to investigate the annual leave that had accrued to each applicant from their respective periods of suspension, and as a result
of the task team’s submissions, the HOD agreed that the applicants had been suspended beyond the legally permissible periods, and agreed that 80 percent of their accrued leave should be encashed and paid out to them, and the balance
should be taken by them as annual leave. This was seen as being in compliance with the Determination and Directive on Leave of Absence in the Public Service and was submitted to Treasury for their approval. Treasury did not approve it, as it
took advice from the Office of the Premier, who said that the circumstances in respect of each of the applicants did not comply with the requirements set out in the Leave Directive, and the staff had also not complied with the time frames in the
SMS handbook. In addition, the respondent argued that the employees could in fact have taken annual leave whilst on suspension. The leave encashment payments were therefore not approved. The fact that other employees had been paid out
on the basis that they could not take leave whilst on precautionary suspension was regarded by the respondent as a mistake, and it should not be regarded as precedent.
142. It is also important to distinguish the applicants listed in Addendum 1, who are the applicants to this matter, and the persons listed on pages 37 and 38, who are the employees who were part of the agreement with the HOD whereby it was agreed
that their accrued annual leave would be encashed. The evidence submitted in this arbitration hearing has been in respect of the applicants who were listed in the agreement with the HOD. The Applicants’ evidence and argument relating to the
accrued leave as a benefit applies specifically to the applicants who were assessed by the Task Team to qualify for the leave encashment, and the evidence and argument from both parties has been in respect of the process relating to the
suspensions, the ability to take leave, the process followed by the HOD and the then non-approval by Treasury.
143. As such, I find that the applicants who were not part of this encashment process and who are not listed on pages 37 and 38, have not had evidence submitted during this arbitration hearing about the fairness or otherwise of their benefits relating to
the accrual of their annual leave and their inability to take such leave. There is therefore no case that has been made by the Applicant’s representative relating to these applicants. The applicants who were not part of the encashment process and
agreement with the HOD are:
Applicant Number Name Persal Number Suspension
Eighteenth Applicant Baartman, JS 50412698 14-Sept-11
Nineteenth Applicant Dingane, Y 53544750 20-May-11
Twentieth Applicant Futshane, G 52667707 14-June-11
Twenty-first Applicant Wagner, D 50477021 08-Nov-11
Twenty-second Applicant Ntswahlana, ZP 54959861 09-April-10
Twenty-fourth Applicant Cabela, NE 52638391 05-May-10
Twenty-fifth Applicant Mayana, S 13590537 30-Jan-09
Twenty-sixth Applicant Muila, KM 52100359 27-Nov-10
Twenty-seventh Applicant Ndabambi, N 11132752 22-Sept-10
Twenty-eighth Applicant Nodunyelwa, ZM 53649231 15-Nov-11
Forty-eighth Applicant Madikane, B 53891538 24-Jan-12
Forty-ninth Applicant Barlow, RC 173449972 28-Mar-12
Fiftieth Applicant Kali, MH 53644255 15-June-10
Fifty-first Applicant Zituta, CV 52155510 15-June-10
Fifty-second Applicant Daniels, SH 50756567 13-Oct-10
Fifty-third Applicant Petana, MH 13765825 11-April-11
Fifty-fourth Applicant Pieterse, VB 51684578 07-Nov-11
144. I therefore accept that the evidence submitted in this arbitration in respect of alleged unfair conduct related to benefits applies to the following applicants:
Applicant Number Name Persal Number Suspension
First Applicant Tshali, LT 52147355 25-May-11
Second Applicant Lyons, SD 50101722 30-June-10
Third Applicant Gaca, MS 52168221 06-Jan-11
Fourth Applicant Mtiya, PE 52865819 21-Sept-10
Fifth Applicant Manzi, S 52768309 25-May-11
Sixth Applicant Mashalaba, P 12157911 25-May-11
Seventh Applicant Ngoma, MSW 52118363 25-May-11
Eighth Applicant Baadjies, MS 81762551 15-June-10
Ninth Applicant Bacela, AN 52044947 05-Jan-11
Tenth Applicant Kasper, L 50652109 30-June-10
Eleventh Applicant Kolo, T 52712168 05-Jan-11
Twelfth Applicant Sigenu, B 51998165 03-Aug-10
Thirteenth Applicant Zibi, SS 16082613 20-Dec-10
Fourteenth Applicant Godlo, HN 52677443 05-Jan-11
Fifteenth Applicant Lutya, L 53092856 10-Nov-10
Sixteenth Applicant Nabe, NP 52112276 15-June-10
Seventeenth Applicant Ngaso, KE 52116735 15-June-10
Twenty-third Applicant Joja, ND 15090248 31-Jan-11
Twenty-ninth Applicant Nyoka, N 52858804 25-May-11
Thirtieth Applicant Xoko, M 53029178 25-May-11
Thirty-first Applicant Ralane, W 11118504 15-July-11
Thirty-second Applicant Luke, AM 52725723 18-July-11
Thirty-third Applicant Magadu, N 52078671 18-July-11
Thirty-fourth Applicant Mancoko, M 52084256 18-July-11
Thirty-fifth Applicant Time, V 52145867 19-July-11
Thirty-sixth Applicant Coto, M 11080787 21-July-11
Thirty-seventh Applicant Kewuti, N 53040783 21-July-11
Thirty-eighth Applicant Makapela, B 54523001 21-July-11
Thirty-ninth Applicant Mpakama, N 52851095 21-July-11
Fortieth Applicant Mpagalala, V 52105610 21-July-11
Forty-first Applicant Nciza, Y 52113272 21-July-11
Forty-second Applicant Ndibongo, C 54620945 21-July-11
Forty-third Applicant Nxele, A 52942015 21-July-11
Forty-fourth Applicant Rashe, M 52134296 21-July-11
Forty-fifth Applicant Sambane, N 15773787 21-July-11
Forty-sixth Applicant Mtirara, A 15889551 21-July-11
Forty-seventh Applicant Gontshi, NP 52599566 21-July-11
145. My assessment of evidence and argument that follows applies only to the 37 applicants as listed at 144 above, and not to the 17 applicants listed at 143, for the reason already provided. Therefore, the reference to the applicants shall distinguish
between the “37 applicants” (who were part of the Task Team and HOD process) and the “17 applicants”, who are listed at 143.
146. The notices of precautionary suspension submitted as documentary evidence, and agreed by the Applicant and the Respondent as being the document that was issued to each of the suspended applicants , with different dates of suspension, all
contained clauses to the following effect:
[The suspended employees] at paragraph (f) needed to be available on their cellular telephones or at home if the Department needed to get hold of them, and if they ‘wished to leave the jurisdictional area of the Department during normal working hours, [they] will be required to provide the Department with the necessary leave document’. Paragraph (h) stated that the suspended employees could not enter the premises of the Department during the period of his [their] suspension other than to attend to proceedings against them or unless directed [to enter the premises] by the Office of the Superintendent General.
Paragraph (i) states “you will be prohibited to seek any information and / or documentation, whether in hard copy or electronic format from members of staff of the Department. Any requests that you may have in this regard should be addressed to me directly.” This means that any requests for documentation needed to be addressed to the Superintendent General, and not any other employee of the Department. The letter goes on to state that any breach of the conditions could constitute misconduct.
147. The applicants’ version is that they were denied the benefit of taking annual leave over the periods of their suspensions, because the conditions of their suspensions prohibited them from doing so. The Respondent’s version is that the applicants
could apply for and take annual leave whilst they were on suspension. I will address the question of compliance with the Leave Directive, and the powers of Treasury thereafter.
148. It is important to consider the facts related to precautionary suspensions in general. A precautionary suspension means that a person is suspended from work, usually based on suspicions that the employee has committed a serious disciplinary
offence, and it is necessary to prevent the employee from accessing the office and from carrying out any work, whilst an investigation is conducted into the serious allegations. It is accepted as a principle of fairness in labour law (See the Labour
Appeal Court decision of MEC v Gradwell, supra) that the suspensions should not continue for too long, given the negative impact on the employee of being barred from the workplace and needing to remain at home or nearby, whilst waiting to either
be called into a disciplinary hearing, or called back to work if the investigation results in no need for a disciplinary hearing.
149. I accept that suspensions pending disciplinary hearings should be limited in duration, and usually should not exceed a stipulated period, depending on the particular company’s disciplinary rules. As such it is not normally envisaged that
precautionary suspensions would span almost an entire annual leave cycle, or more.
150. Within the negative context of a precautionary suspension, when an employee is waiting to be called in to the company at any stage, and waiting to be summonsed to a disciplinary hearing, the question needs to be asked whether it is likely that the
employee will choose to ‘go on holiday’, during this period, which is what the bulk of an employee’s annual leave is generally used for. It is also difficult for an employee on suspension to predict when the disciplinary hearing will be held.
151. Whilst there has been a lot of technical argument and debate around the submission that the 37 applicants can in fact ‘take annual leave’ whilst on suspension, the reality is that the suspensions should be for no longer than 60 or 90 days, and
unless annual leave was pre-arranged prior to the suspension, the circumstances do not lend themselves to an employee taking their vacation over this period, when their jobs are most likely at risk due to serious misconduct that they are
suspected of, and they could be summoned by the employer to answer questions or come into the office at any point in time. Similarly, a disciplinary hearing may and should be convened within a relatively short period.
152. The points made above reflect the practical reality of a suspension. The various judgements referred to above also reflect the unpleasant consequences of a suspension:
“…notwithstanding the mitigation of the detrimental consequences by the payment of full pay, because the prejudice an employee may suffer as a result of suspension is not limited to financial loss but may extend to issues of integrity, dignity, reputation and standing in the community ”
Therefore, in this context, I find it difficult to agree with the Respondent’s argument that “precautionary suspension is merely a precautionary measure and nothing prohibits the employee from applying for annual leave while on suspension’. Precautionary suspension is accepted as having negative consequences for employees. It is not simply a situation where employees, and the 37 applicants in particular, would choose over this period to ‘go on holiday.’ This is aside from the conditions attached to the suspensions, which are addressed below.
153. Both Mssrs Magadu and Manzi indicated that they did not take annual leave over the periods of their suspensions, because they firstly could not physically arrange for the annual leave and could not obtain the necessary documents to apply for
annual leave, given that this required their presence in the office and their engagement with their supervisors, which was strictly and very clearly prohibited in their notices of suspension, and secondly, because they did not think that they were
permitted to take annual leave whilst suspended.
154. Mr Magadu also spoke of his embarrassment about his suspension with his family and friends. I accept that this contributes to the inability of the applicants to apply for annual leave, and also a reluctance to get other people involved on their
behalf.
155. It is also important to note that not one of the applicants took annual leave over the periods that they were suspended. This was agreed by the parties as being common cause at the outset of the arbitration proceedings. It was also a factor in the
decision of the Task Team and HOD to allow the 37 applicants to encash their untaken and accrued annual leave. This is an important factor which supports the applicant’s version that they could not apply for and take annual leave whilst on
suspension.
156. The Respondent argued that the suspension notices gave a clear indication that the applicants were permitted to take annual leave, through the clause:
“f) You will be required to be available either on your cellular phone or at home should the Employer or any duly authorised representative need clarity from you concerning any of the issues relating to the investigation or should any information relating to your work be required from you. Should you wish to leave the jurisdictional area of the Department during normal working hours, you will be required to provide the department with the necessary leave documentation;”
157. I do not accept that this is a clear indication to the applicants who were on suspension that they could apply for annual leave. The sentences are constructed in a way that they form one paragraph. It indicates firstly that the employee will be
required to be available on their cellular phone or at home so that they can be contacted about the investigation or work. Linked to that requirement – that they are contactable, is if they wish to ‘leave the jurisdictional area of the Department they
are required to provide the Department with the necessary leave documentation’.
158. This phrase does not convey to the applicants that they are entitled to take annual leave whilst they are suspended. It conveys the message that they need to be available to answer questions, and then it speaks about if they wish to ‘leave the
jurisdictional area’ they must provide the necessary leave forms. The lack of clarity of this statement, combined with the very clear statements to the contrary in the same letter (as set out below), are a clear indication that the 37 applicants could
not in fact take annual leave over the periods of their prolonged suspensions.
159. There is also no guidance to the applicants in the letter as to what they would need to do if they wanted to take annual leave, for example how they should access their annual leave entitlement (given that their suspensions deprived them of access
to the information system), how they will engage with their supervisors about suitable dates (given that they are prohibited from contacting anyone in the Department), and of course how they will ensure that the dates do not clash with a disciplinary
hearing.
160. I accept the applicant’s evidence that it was impossible for them to establish the leave due to them, and then establish when taking annual leave would suit their supervisors, without actually engaging with their supervisors, and without access to
the Respondent’s information management systems, to check their leave availability. In addition, I also accept that in Mr Magadu’s case he felt ashamed to ask his wife or another person to go and ask for documents from the department, given the
fact that he was on precautionary suspension due to alleged serious misconduct.
161. In addition, the precautionary suspension letters state the following:
“c) the disciplinary enquiry will be held within 60 days from the date of your precautionary suspension.
…..
h) You shall not enter the premises of the Department during the period of your suspension, other than to attend to any proceedings against you or unless so directed by the Office of the Superintendent General;
i) You will be prohibited to seek any information and / or documentation, whether in hard copy or electronic format from members of staff or any other Department. Any requests that you may have in this regard should be addressed to me directly.
…..
You will be requested to adhere to these conditions punctually since any breach thereof could constitute misconduct.”
162. Paragraphs (h) and (i) conflict with the Respondent’s version that the applicants could apply for leave. It is common cause that a leave application would involve obtaining a numbered form from the premises of the Respondent, thus entering the
premises of the Respondent, or, if the applicants felt comfortable doing this, then asking a relative to collect the form, which would entail ‘seeking documentation ….from members of staff or any other Department.’ This is prohibited in the notice of
suspension. It is also impractical for the applicants to contact the Superintendent General to obtain leave forms, and information relating to their leave entitlements.
163. From the evidence of Mr Manzi, I accept that the HOD of Education, Mr Ngonzo, understood the negative impact that extended periods of suspension have on employees, hence the processes that were put in place where the 37 applicants returned
to work, most after a period of 10 months or more. The 37 applicants went through a wellness programme, other reinstatement programmes, and a motivational speaker was arranged for them.
164. I accept that the HOD applied his mind to the results of the investigation conducted by the Task Team and the recommendations in this regard. I accept that he then decided that the 37 applicants, whom he accepted and acknowledged had been
suspended beyond the legally permissible periods, were unable to take annual leave whilst on suspension. I accept that the HOD, based on the Task Team’s submission to him, accepted that the Determination and Directive on Leave of Absence
in the Public Service, issued in August 2012 by the Minister for the Public Service and Administration, should be applied to the 37 applicants in the specific circumstances.
165. I accept that the 37 applicants were all aware of the process followed by the Task Team, and the agreement by the HOD, and they were therefore expecting to be paid out in terms of the agreement with the HOD.
166. I further accept the Respondent’s evidence led through Mr Pearce and Mr Tshangana, and as set out in the Respondent’s argument, that a direct reading of the relevant clauses in the Determination and Directive on Leave of Absence in the Public
Service, issued in August 2012 by the Minister for the Public Service and Administration, indicates that the clauses related to when the applicants would be entitled to the leave encashments do not apply to the applicants, and I accept the evidence
submitted by the Respondent that Provincial Treasury does have the authority not to authorise these payments, even if they are within the Department’s budget. I therefore do not accept the applicant’s evidence and argument in this regard. Mr
Magadu provided his opinion in relation to the respective levels of authority of heads of department from different departments, however Mr Tshangana gave direct evidence on this, and it is within his scope of expertise and field of work.
167. As such, I will not deal with the evidence of Mr Tshangana, who was a credible witness testifying about matters within his ambit of understanding and expertise, and it is unnecessary to address the numerous arguments put forward by the
Respondent as to the role and level of authority of Treasury, and the interpretation of the Determination and Directive on Leave of Absence in the Public Service, issued in August 2012 by the Minister for the Public Service and Administration. I
accept the evidence and argument that a plain reading of this Directive shows that it does not apply to the 37 applicants in their particular circumstances. I accept that the Directive on Leave does not make specific provision for employees who
were unable to take leave on the basis of being suspended for a lengthy period and that employees who cannot take leave on this basis are thus omitted from the Directive.
168. However, I also find that the investigation and recommendations by the Task Team confirmed that the Directive should, in fairness, make provision for situations such as that faced by the 37 applicants, and that the HOD accepted and endorsed this
approach. I find that this supports a finding that the 37 applicants were in fact deprived of their right to take annual leave, and the attempt to apply the Directive to the 37 applicants recognises this, and recognises that the 37 applicants should not
continue to be deprived of the benefit of their annual leave.
169. As submitted during evidence and in Respondent’s argument, the Determination and Directive on Leave of Absence in the Public Service, issued in August 2012 by the Minister for the Public Service and Administration, provides for the encashment
of unused leave at 5.14:
“If, due to the employer’s service delivery requirements, an employee’s application for leave is denied and not rescheduled, such leave must, upon request, be paid out to the employee at the end of the 6 months’ period referred to in 5.6 above.
Employee requests for payment of unused leave credits must be:
5.14.1 in writing; and
5.14.2 accompanied by written proof of refusal of leave by the Head of Department.
170. It is correct that the applicants did not apply for leave, and were thus not denied leave through refused applications.
171. I find that the 37 applicants were however deprived of their ability to use their leave through the fact that they were all on extended periods, beyond the periods permitted by the Respondent, of precautionary suspensions. The leave accrued to
them, because they remained in the respondent’s employ.
172. It is common cause that not one of the applicants applied for or took annual leave over the periods of their suspensions. I accept that the 37 applicants entered into discussions and engaged with the Task Team after returning from their
suspensions, with a view to addressing this untaken annual leave, which was not utilised due to circumstances for which the Respondent was responsible.
173. I have not taken into account the fact that there are previous cases of employees who were paid out annual leave based on the fact that they could not take this annual leave while they were suspended. As such, I have disregarded both the
applicant’s and the respondent’s evidence and arguments in this regard. The evidence, although it was common cause, did not provide sufficient detail to establish if the circumstances were sufficiently comparable with those of the applicants in
this matter, nor how the respondent had made the decision to pay out the annual leave.
174. From a substantive perspective, the 37 applicants are entitled to use the benefit of their annual leave, and they were deprived of the use of this benefit over the duration of the periods of their suspensions, due to the actions of the Respondent. The
Respondent placed them all on various periods of precautionary suspension, and the conditions of the suspensions resulted in a situation where the 37 applicants could not, and did not, use this benefit to which they are entitled.
175. In addition, the Task Team and the HOD recognised that the 37 applicants were deprived of this benefit, and attempted to remedy this through the application of the Determination and Directive on Leave of Absence in the Public Service, issued in
August 2012 by the Minister for the Public Service and Administration.
176. The Office of the Premier (“OTP”) interpreted the Directive, and found that the it could not be applied to the 37 applicants. The OTP did not advise the 37 applicants of this, but advised Treasury who thereafter advised the HOD.
177. No evidence was presented to show that either the OTP or Treasury engaged with the HOD to discuss this matter and ways of addressing the factual situation that 37 employees had not taken annual leave, all for the same reason.
178. I accept the Applicant’s argument that the respondent does have an obligation to all of its employees to ensure that they take their annual leave, and that although an attempt was made to address the accrued leave, this was unsuccessful as the
agreement in respect of how the annual leave was to be dealt with was not honoured. It therefore did not meet its obligation in this instance. This contributed to the unfairness experienced by the applicants in respect of their accrued and untaken
leave.
179. I do not accept that the 37 applicants were ‘out of time’ in terms of submitting their requests for annual leave. Mr Magadu gave evidence that the applicants engaged with the ‘employer’ [the Respondent] in June and July 2012. This evidence was
not disputed by the Respondent. The circumstances of the accrued leave for these 37 applicants is unusual, as there is a large group of applicants who were suspended from work for extended periods of time. They did raise the matter of their
accrued leave via a Task Team set up by the Head of Department, and I accept that this is sufficient to meet the requirement that they raised the issue with their supervisors timeously.
180. The employer, through the acts of the HOD, the final decision-maker in the Provincial Department, chose to deal with the accrued and untaken leave in a specific manner, and made a decision to allow the leave to be encashed. This was then,
through no fault of the 37 applicants, found to be out of line with the Determination and Directive on Leave of Absence in the Public Service . It is unacceptable for the applicants to be penalised for a time frame that was not met due to the HOD’s
process, and not their own.
181. From a procedural perspective, no evidence was presented to show that the Respondent engaged the 37 applicants properly, or at all, after the instruction was issued to the HOD from the OTP and Treasury. The HOD or the OTP should have
engaged with the 37 applicants regarding the reasons why the HOD’s decision was not approved or implemented, and why the Directive was found not to apply to them. The decision not to honour the agreement made between the HOD and the 37
applicants clearly had negative consequences for these applicants, and the Respondent should have explained the decision and reasoning to them. In this manner, other ways of addressing the fact that all of the applicants did not use of their
annual leave over the periods of their suspensions could have been explored.
182. Instead, the Respondent approached the matter in a technical manner simply by stating that Treasury had not approved the payments based on their finding that the Determination and Directive on Leave of Absence in the Public Service does not
apply to them. The Respondent then indicated that it did not have proof of when the issue regarding the accrued leave was raised, and therefore it was assuming that the applicants did not meet the deadline as per the SMS policy and the Directive.
The respondent chose to allow the applicants’ accrued and untaken annual leave to lapse, even in the face of its own non-compliance with prescripts – being the prescripts relating to the duration of suspensions. The applicants then approached
the Council with their allegation of an unfair labour practice relating to the Respondent’s conduct relating to a benefit.
183. This matter has been referred under the auspices of an alleged unfair labour practice in respect of an act or an omission by the employer relating to benefits. Whilst the Applicants have positioned their claim as relating to the encashment of their
annual leave for the periods that they were suspended, I find that the true nature of the dispute relates to the applicants’ entitlement to annual leave whilst employed, and the right to use that annual leave. As such, although the parties did not
question whether the nature of the benefit in this matter fell within the definition of ‘benefit’ in terms of the unfair labour practice definition, it is clear and accepted that annual leave is a ‘benefit’ and as such falls within the ambit of the unfair labour
practice definition. This is confirmed in Jansen van Vuuren v South African Airways (Pty) Ltd and another where the Labour Court determined a matter related to unfair discrimination, and was also tasked with arbitrating the same matter which was
simultaneously referred on the basis of an unfair labour practice. The Court in this matter found that annual leave is a benefit in terms of the unfair labour practice definition.
Substantive fairness in respect of the alleged unfair suspensions
184. No evidence was submitted by the Applicant in respect of the substantive fairness of the suspensions.
185. The onus is on the applicant to prove an unfair labour practice and as such, and the applicant has failed to make a case in respect of substantive unfairness of the suspensions.
Procedural fairness in respect of the alleged unfair suspensions
186. I accept that evidence was submitted, and accepted as being common cause , in respect of applicants (1). Tshali, LT; (5.) Manzi, S; (6.) Mashalaba, P; (7.) Ngoma, MSW; (19.) Dingane, Y; (29.) Nyoka, N; (30.) Xoko, M; (31.) Ralane, W; (32.) Luke,
AM; (33.) Magadu, N; (34.) Mancoko, M; (35.) Time, V; (36.) Coto, M; (37.) Kewuit, N; (38.) Makapela, B; (39.) Mpakama, N; (40.) Mpagalala, V; (41.) Noza, Y; (42.) Ndibongo, C; (43.) Nxele, A; (44.) Rashe, M; (45.) Sambane, N; (46.) Mtirara, A; (47.)
Gontshi, NP, that showed that these applicants were suspended without pre-suspension hearings or processes, and they were suspended for periods of approximately 11 months each, in excess of the period permitted in terms of schedule 2 of the
Employment of Educators Act.
187. The Labour Appeal Court has ruled that some form of hearing must take place before an employee is suspended, and in the present matter, where employees are extended without the safeguard of a limited period of suspension, this requirement is
more important.
188. On these bases, and for the reasons set out in my analysis above, I find that the suspensions of the applicants set out above to be procedurally unfair, and I find this to constitute an unfair labour practice related to suspension in terms of section 186(2)(b) of the Labour Relations Act.
189. No evidence was presented in respect of the remainder of the applicants and I therefore find that their suspensions were not proven to be procedurally unfair.
Substantive fairness in respect of the alleged unfair labour practice relating to benefits
190. The applicants are entitled to use of their annual leave, in law and equity.
191. The applicants have requested that I rule that the respondent’s conduct is unfair administrative action in terms of PAJA (supra). However, it has been definitely ruled in Chirwa v Transnet Ltd & others that the provisions of PAJA are not applicable
to unfair labour practices in terms of the Labour Relations Act. I therefore cannot make a ruling in this regard, but am confined to the unfair labour practice definition in the Labour Relations Act, and the fairness provisions applicable thereto.
192. I find that the employer’s action of suspending the 37 applicants for lengthy periods, with the conditions attached to such suspensions, resulted in these applicants not being able to use and enjoy the benefit of their annual leave over the
suspension periods.
193. The Respondent’s Determination and Directive on Leave of Absence in the Public Service only caters for situations where an employee applies for leave and is denied leave due to work reasons, and does not cater for a situation where an employee is deprived of his/her leave benefit for other employer-related reasons, where the employee does not have the ability to apply for leave.
194. The 37 applicants in this instance could not apply for leave and as such could not meet the conditions set out in the Directive.
195. The omission in the Respondent’s Directive in respect of addressing other circumstances where annual leave cannot be taken by an employee, and its narrow construction in this instance, has resulted in unfairness towards the 37 applicants, in that it has not provided them with a way in which to benefit from the annual leave of which they were deprived.
196. The Respondent’s conduct has been further unfair in the following manner. Initially the Respondent, via the Task Team and the actions of the HOD, endeavoured to acknowledge the unique and prejudicial circumstances in which the 37 applicants found themselves, and entered into an agreement with these applicants, thus ensuring that they did not lose the right to their leave benefits. However, thereafter the Respondent was unable to honour this agreement, with the outcome not only that the 37 applicants were deprived of their benefit, but the Respondent’s stance of simply referring to the Leave Directive and failing to acknowledge that the Respondent had acted unfairly in suspending the 37 applicants for the lengths of time they were suspended, made it impossible for the 37 applicants to find an internal remedy for the loss of the use of their leave benefits. The Respondent did not engage with them over alternative solutions.
197. Respondent did not appear to be concerned that these applicants, 37 in total, would simply lose the annual leave that had accrued to them over the periods that they were suspended by the Respondent, beyond the ‘legally permissible periods.’
198. Annual leave clearly falls within the scope of the definition of benefits in terms of the an unfair labour practice definition; the Respondent’s Leave Directive does not cater for a situation where an employee is deprived of the use of this benefit, due to suspension, and the Respondent’s suspension procedures and notification letter does not provide for a clear right and ability for employees to apply for annual leave whilst on suspension. In fact, the conditions attached to suspensions make it almost impossible for employees to exercise this right. I find this omission in the Directive, and the deprivation of the 37 applicants’ right to use or benefit from their annual leave to be unfair.
199. With regard to the remaining 17 applicants, the evidence submitted in respect of the agreement with the HOD does not apply to these applicants, and evidence has not been submitted for these 17 applicants in respect of benefits relating to their leave benefits, accrued leave or encashment of leave. There is therefore no evidence applicable to these 17 applicants to establish whether an unfair labour practice was committed or not. The onus rests on the applicants to prove unfair conduct, and as such, the applicants have failed to discharge the onus in respect of these 17 applicants.
Procedural fairness in respect of the alleged unfair labour practice relating to benefits
200. I have already addressed the various factors resulting in my finding that a flawed and unfair procedure was followed by Respondent when addressing the issue of the 37 applicants’ accrued annual leave.
201. It needs to be reiterated that the initial procedure followed by the Task Team and HOD in addressing the issue of the 37 applicants’ accrued leave was completely fair and attempted to find a fair solution to the deprivation of the 37 applicants’ rights to use or benefit from their annual leave, which they were deprived of whist on suspension.
202. Thereafter, the procedure followed by the Respondent was unfair. It reneged on the agreement entered into by the HOD with the 37 applicants without engaging with the applicants in this regard, and took a legalistic and unfair stance with the result that the applicants would simply have been denied the use of their annual leave, and would in fact forfeit it.
203. The procedure followed by the Respondent’s in respect of the provision of benefits in this matter is thus unfair.
Relief
204. The applicants have not requested any relief in respect of the first dispute, being the unfair labour practice in respect of suspension, in terms of section 186(2)(b), and as such no relief is awarded.
205. In terms of section 193(4) “An arbitrator appointed in terms of this Act may determine any unfair labour practice dispute referred to the arbitrator, on terms that the arbitrator deems reasonable, which may include ordering reinstatement, re-employment or compensation.”
206. The applicant has requested that the Respondent be ordered and directed to pay the applicants the encashment of unused leave credits as reflected in the agreement with the Head of Department. I am however limited to ordering compensation, in accordance with section 193(4).
207. Section 194(4) provides that “The compensation awarded to an employee in respect of an unfair labour practice must be just and equitable in all the circumstances, but not more than the equivalent of 12 months’ remuneration.”
208. The 37 applicants should have been entitled to use the leave that accrued to them over the periods of their suspensions. The Respondent deprived them of this right. The Respondent has calculated the various amounts of leave that accrued to the 37 applicants, and these details are included in Addendum 2 . The Addendum sets out the days of leave due to each of the 37 applicants, for the periods over which they were suspended, and which have not been used by the applicants.
209. The agreement in Addendum 2 anticipated that the 37 applicants would receive 80% of this accrued leave as an encashment and the remainder would be credited to the applicants’ annual leave, for the applicants to use.
210. It would therefore be fair and equitable in the circumstances to award each of the 37 applicants compensation equivalent to 100% of the leave accrued to them, and not taken by them, over the periods of their suspensions.
211. The number of days leave for each applicant is set out in Addendum 2, and has already been audited by the Respondent.
212. The Respondent and the Applicant can however verify these leave figures prior to any compensation being paid, provided it is paid by the date stipulated below.
Award
213. The existence of an unfair labour practice in terms of section 186(2)(b) relating to suspension has not been established in respect of the following applicants: Second Applicant: Lyons, SD; Third Applicant: Gaca, MS; Fourth Applicant: Mtiya, PE; Eighth Applicant: Baadjies, MS; Ninth Applicant: Bacela, AN; Tenth Applicant: Kasper, L; Eleventh Applicant: Kolo, T; Twelfth Applicant: Sigenu, B; Thirteenth Applicant: Zibi, SS; Fourteenth Applicant: Godlo, HN; Fifteenth Applicant: Lutya, L; Sixteenth Applicant: Nabe, NP; Seventeenth Applicant: Ngaso, KE; Eighteenth Applicant: Baartman, JS; Twentieth Applicant: Futshane, G; Twenty-first Applicant: Wagner, D; Twenty-second Applicant: Ntswahlana, ZP; Twenty-third Applicant: Joja, ND; Twenty-fourth Applicant: Cabela, NE; Twenty-fifth Applicant: Mayana, S; Twenty-sixth Applicant: Muila, KM; Twenty-seventh Applicant: Ndabambi, N; Twenty-eighth Applicant: Nodunyelwa, ZM; Forty-eighth Applicant: Madikane, B; Forty-ninth Applicant: Barlow, RC; Fiftieth Applicant: Kali, MH; Fifty-first Applicant: Zituta, CV; Fifty-second Applicant: Daniels, SH; Fifty-third Applicant: Petana, MH; Fifty-fourth Applicant: Pieterse, VB, and as such the application in relation to these applicants is dismissed.
214. The existence of an unfair labour practice in terms of section 186(2)(b) relating to suspension has been established in respect of the following (1). Tshali, LT; (5.) Manzi, S; (6.) Mashalaba, P; (7.) Ngoma, MSW; (19.) Dingane, Y; (29.) Nyoka, N; (30.) Xoko, M; (31.) Ralane, W; (32.) Luke, AM; (33.) Magadu, N; (34.) Mancoko, M; (35.) Time, V; (36.) Coto, M; (37.) Kewuit, N; (38.) Makapela, B; (39.) Mpakama, N; (40.) Mpagalala, V; (41.) Noza, Y; (42.) Ndibongo, C; (43.) Nxele, A; (44.) Rashe, M; (45.) Sambane, N; (46.) Mtirara, A; (47.) Gontshi, NP and the applicants’ claims are upheld. The conduct of the Respondent is found to be an unfair labour practice in terms of section 186(2)(b) of the Labour Relations Act.
215. No relief has been sought in relation to the unfair labour practices relating to suspension, and as such, no relief is ordered.
216. The existence of an unfair labour practice in terms of section 186(2)(a) relating to benefits has not been established in respect of the following 17 applicants: Eighteenth Applicant: Baartman, JS; Nineteenth Applicant: Dingane, Y; Twentieth Applicant: Futshane, G; Twenty-first Applicant: Wagner, D; Twenty-second Applicant: Ntswahlana, ZP; Twenty-fourth Applicant: Cabela, NE; Twenty-fifth Applicant: Mayana, S; Twenty-sixth Applicant: Muila, KM; Twenty-seventh Applicant: Ndabambi, N; Twenty-eighth Applicant: Nodunyelwa, ZM; Forty-eighth Applicant: Madikane, B; Forty-ninth Applicant: Barlow, RC; Fiftieth Applicant: Kali, MH; Fifty-first Applicant: Zituta, CV; Fifty-second Applicant: Daniels, SH; Fifty-third Applicant: Petana, MH; Fifty-fourth Applicant: Pieterse, VB, and their applications are accordingly dismissed.
217. The existence of an unfair labour in terms of section 186(2)(a) relating to benefits has been established in respect of the following 37 applicants - First Applicant : Tshali, LT; Second Applicant: Lyons, SD; Third Applicant: Gaca, MS.; Fourth Applicant: Mtiya, PE; Fifth Applicant: Manzi, S; Sixth Applicant: Mashalaba, P; Seventh Applicant: Ngoma, MSW; Eighth Applicant: Baadjies, MS.; Ninth Applicant: Bacela, AN; Tenth Applicant: Kasper, L; Eleventh Applicant: Kolo, T; Twelfth Applicant: Sigenu, B; Thirteenth Applicant: Zibi, SS; Fourteenth Applicant: Godlo, HN; Fifteenth Applicant: Lutya, L; Sixteenth Applicant: Nabe, NP; Seventeenth Applicant: Ngaso, KE; Twenty-third Applicant: Joja, ND; Twenty-ninth Applicant: Nyoka, N; Thirtieth Applicant: Xoko, M; Thirty-first Applicant: Ralane, W; Thirty-second Applicant: Luke, AM; Thirty-third Applicant: Magadu, N; Thirty-fourth Applicant: Mancoko, M; Thirty-fifth Applicant: Time, V; Thirty-sixth Applicant: Coto, M; Thirty-seventh Applicant: Kewuti, N; Thirty-eighth Applicant: Makapela, B; Thirty-ninth Applicant: Mpakama, N; Fortieth Applicant: Mpagalala,V; Forty-first Applicant: Nciza, Y; Forty-second Applicant: Ndibongo, C; Forty-third Applicant: Nxele, A; Forty-fourth Applicant: Rashe, M; Forty-fifth Applicant: Sambane, N; Forty-sixth Applicant: Mtirara, A; Forty-seventh Applicant: Gontshi, N and the applicants’ claims are thus upheld. The conduct of the Respondent is found to be an unfair labour practice in terms of section 186(2)(a) of the Labour Relations Act.
218. Compensation equal to 100% of the cash value of the annual leave accrued and not taken over their respective periods of suspension, the precise detail of which is set out in Addendum 2, is awarded to each of the 37 listed applicants. The parties agreed that the quantification of payment for annual leave will be verified between them if necessary as a result of this arbitration process. However, should it be necessary to determine the amounts due to the applicants in respect of this award, I retain my terms of reference and jurisdiction to determine the amounts payable, and this shall be determined in a manner and in accordance with a process that I shall direct once appraised of the nature of the issues in dispute. The parties are hereby directed to inform me, in writing, on or before 30 June 2014 that the respective payments have been made to the applicants, or if not, precisely what the issues are in relation to such payments, and I will issue appropriate directions.
219. Payment of the amounts due to the 37 applicants, after the necessary statutory deductions and subject to a verification exercise between the applicants and the respondent if required, shall be made by no later than 30 June 2014, subject to clause 218.
SIGNED AT GRAHAMSTOWN ON THIS 3rd DAY OF JUNE 2014.
Michelle Huber
Province: Eastern Cape
Applicant: SADTU obo Nyoka, N and 53 others
Respondent: Department of Education: Eastern Cape
Issue: Unfair Labour Practice - Provision of Benefits
Venue: Grahamstown
Award Date: 3 June 2014
Arbitrator: Michelle Huber
IN THE EDUCATION LABOUR RELATIONS COUNCIL ARBITRATION
HELD AT EAST LONDON
In the arbitration between
SADTU obo Nyoka, N and 53 others
APPLICANT
AND
The Department of Education – Eastern Cape
RESPONDENT
ARBITRATION AWARD
CASE NUMBER: PSES559-13/14EC
DATES OF HEARING: 31st March, 1st and 16th April 2014
DATES CLOSING ARGUMENTS RECEIVED: 24 and 29 April 2014
DATE ALL DOCUMENTS RECEIVED 29 April 2014
DATE OF SUBMISSION OF OUTCOME 17 May 2014
NAME OF PANELLIST: Michelle Huber
Details of hearing and representation
1. This matter was referred for arbitration to the Education Labour Relations Council in terms of section 186(2) of the Labour Relations Act 66 of 1995 (“the LRA”) and was heard at the offices of the Buffalo City FET College on Monday 31st March,
Tuesday 1st April and Wednesday 16th April 2014.
2. The applicants were represented by Mr Velelo Time from the South African Democratic Teachers’ Union (SADTU) and the Respondent was represented by Mr Welile Payi from the Eastern Cape Department of Education.
3. The closing arguments were required to be submitted via facsimile by or before close of business on the 25th April 2014. I received the Applicants’ closing arguments on the 24th April 2014 and, after being informed by the ELRC that the
Respondent had requested additional time to submit its closing arguments, I received the Respondent’s closing arguments on 29th April 2014.
Issues to be decided
4. The purpose of this arbitration is to determine two issues:
4.1 whether or not the suspensions of the applicants constitute an unfair labour practice in terms of section 186(2)(b) of the Labour Relations Act 66 of 1995; and
4.2 whether or not the circumstances in respect of the Applicants’ annual leave encashment, relating to annual leave accrued over the periods of their suspensions, constitute an unfair labour practice in terms of section 186(2)(a) of the Labour Relations
Act 66 of 1995.
Background
5. The Respondent is the Department of Education, based in the Eastern Cape.
6. The Applicants are office based employees who are, or were at the time of the alleged unfair labour practices, employed by the Respondent in the Eastern Cape.
7. The 54 applicants were placed on precautionary suspension for various periods between 2009 and 2012. The exact commencement and end dates of these suspensions are set out under the heading ‘matters that are common cause’.
8. The first dispute concerns the fairness or otherwise of these suspensions.
9. The second dispute concerns an agreement by the Head of Department in the Eastern Cape whereby the HOD acknowledged that the applicants, insofar as they are reflected in the list of names that formed part of the agreement on pages 37 and
38 of the Bundle, and attached as Addendum 2 to this Award, were suspended beyond the ‘legal permissible period’ in 2011/ 2012. The agreement made provision for the applicants to be paid out their accrued leave as an 80% encashment, with
the balance of the leave to be available for the applicants to use. This decision by the Head of Department was not supported by Treasury and as such it was not implemented. The second dispute concerns the fairness or otherwise of the
Respondent’s conduct in respect of the accrued annual leave and its encashment.
Survey of evidence
Matters that are common cause
10. It was agreed by the parties that pages 8 and 9 of the employee’s bundle of documents (“the Bundle”) correctly reflect the names of the applicants and the dates of their suspensions. It was agreed that all of their suspensions were lifted on 9
June 2012.
11. It was agreed that pages 37 and 38 in the bundle of documents is an audited list of the persons whom the HOD agreed were suspended in excess of the permissible periods and who would be entitled to an encashment of their annual leave that
had accrued and was not taken during the periods that they were suspended. As such, this document constitutes the detail of the annual leave accrued by each applicant and the Rand values of 80% of the leave that was not taken over the
suspension periods. It was agreed that this would, if necessary through the outcome from this arbitration hearing, be subjected to a verification exercise.
12. It is common cause that none of the applicants had taken annual leave over their suspension periods.
13. It is common cause that none of the applicants were issued with notices of intentions to suspend them, nor were they given an opportunity to make representations as to why they should not be suspended, prior to their suspensions taking effect.
14. It is common cause that no disciplinary proceedings were instituted in respect of any of the applicants after their suspensions were lifted.
15. It is common cause that an agreement was reached whereby the applicants, insofar as they are listed on pages 37 and 38 (addendum 2), were meant to be paid out 80% of the rand value (encashment) of their annual leave that was not taken over
their periods of suspension, with the detail of this agreement and the specific amounts due set out on pages 36, 37 and 38 in the Bundle of documents. These are attached as Addendum 2.
16. During the course of the arbitration proceedings I requested that the parties meet outside of the arbitration hearing to establish what matters were common cause, relating to the suspensions of the 54 applicants, given that there are different dates
and possibly different facts applicable to the suspensions. The applicant’s representative and the respondent’s representative informed me that they had agreed, in respect of the suspensions and the evidence relating to the suspensions, that
there are three groups of suspended applicants. The first group received suspension letters dated 17 May 2011, however the dates of their suspensions were either the 20th or 25th May 2011. It was agreed that the letters all of the applicants who
received suspension letters with this date received the same letters as those of Mr Xoxo and Mr Tshali, at pages 14 to 16 and 17 to 19 of the Bundle of documents. The second group of applicants received letters dated 15 or 18 July 2011 (however
the dates of their suspensions were between 15 and 20 July 2011), and it was agreed that they all received letters that were the same as that in the bundle on pages 20 to 21, being the suspension letter for Mr Magadu. The third group of applicants
were those that received suspension letters dated 21 July 2011, and it was agreed that they all received letters that were the same as that for Mr Mtirara, included in the Bundle at pages 22 and 23.
It is important to record that the suspension letters for the four applicants in the bundle are exactly the same, with slight differences to the second paragraph only. However, the content of each letter is exactly the same, and clearly comes from a standard document used by the Respondent for precautionary suspensions.
In this award, I have combined groups 2 and 3 into one group who were suspended in July, because their suspension letters may have been issued on the same dates, but the dates of their actual suspensions varied to slightly different dates in July, between the 15th and the 21st.
It was further agreed between the parties that it is common cause that for these three categories of applicants, set out above, the evidence that is led by the applicant’s two witnesses is applicable to all three categories. What was specifically agreed as being common cause is that there was no process followed in respect of a pre-suspension hearing, the lengths of the suspensions were agreed as being those reflected on pages 8 and 9 (reflected in Addendum 1), disciplinary hearings were not held after the suspensions were lifted, and no presiding officers had convened hearings in respect of any of the applicants and agreed to postponed and increase the lengths of the suspensions.
17. It is common cause that Treasury did not approve the payments.
18. It is common cause that all of the applicants’ suspensions had been lifted on 9 June 2012.
19. During the course of the arbitration, after the applicant had closed its case, the respondent agreed that the applicant’s representative could introduce documentary evidence detailing other employees from the Department who had been placed on
suspension and who had been paid out their annual leave. The Respondent accepted that these facts were correct and this evidence is thus common cause, specifically that certain employees had been suspended previously, and were unable to
take their annual leave. They were thus permitted to encash their annual leave.
Applicants’ case
20. Mr Nceba Magadu, the applicant’s first witness is employed as a Deputy Chief Education Specialist in the Directorate: Institutional Development, Support and Governance at the Department of Education in the Eastern Cape. On the 18th to the 20th
July 2011 he had been on authorised sick leave. He had read in the Daily Dispatch on the 20th July 2011 that he had been suspended.
21. A copy of the article from the Daily Dispatch was submitted which stated that he and four other ‘workers’ had been suspended for “contravening a court order and harassing other workers to join protests”. He had not received a notice of
suspension, and wrote to his Director, Ntsikelelo Vazi (Director: Institutional Development Support & Governance), to request an explanation for the article in the Daily Dispatch. This letter was submitted as evidence, along with Mr Vazi’s response
indicating that he (Mr Vazi) had not been aware of the suspension. Mr Magadu collected this letter of response from Mr Vazi on the 21st July 2011.
22. My Magadu referred to a letter in the bundle of documents submitted as evidence, and accepted by the Respondent, with the subject “Precautionary suspension: yourself”. The letter was from Advocate M Mannya, the Head of Education, and
signed and dated by Advocate Mannya on 15th July 2011. It was addressed to Mr Magadu.
23. Mr Magadu had not been served with a letter of suspension on 15 July 2011, and the letter that purported to suspend him on the 15th July 2011 was only received by Mr Magadu’s Director, Mr Vazi, on the 20th July 2011. This was confirmed
through a letter to Mr Magadu from his Director, dated 21 July 2011. Correspondence from Mr Vazi to the Superintendent-General (Advocate Mannya) indicated that Mr Vazi intended to give Mr Magadu’s suspension letter to him when he ‘returned to
work’ on the 21st July 2011.
24. Mr Magadu did not receive a notice of intention to suspend and was therefore not given an opportunity to make representations in respect of the suspension. The suspension letter in the bundle of documents was not signed by him.
25. Mr Magadu is one of the 54 applicants in this matter, and his name is reflected on the list of persons with whom the HOD had agreed should be paid out 80% of their leave, as reflected on pages 37 and 38 of the Bundle of documents.
26. The Respondent sent charges through to SADTU in respect of Mr Magadu in August 2011, but at no stage was a disciplinary hearing scheduled or held, and no disciplinary action was taken against Mr Magadu. After approximately 11 months the
suspension was lifted, and no disciplinary action was taken against Mr Magadu after the suspension was lifted.
27. The notice of precautionary suspension provided that a condition of the suspension was that a disciplinary hearing would be held within 60 days from the date of the precautionary suspension and that the chairperson of the hearing may, after the
commencement of the hearing, decide on any postponement of the hearing. This meant that the disciplinary hearing should have been held by approximately 18 September 2011. This did not happen and Mr Magadu had not been summoned to a
disciplinary hearing.
28. The Disciplinary Code and Procedures for Educators, Schedule 2, item 6(1), provides that suspension may be for a maximum period of 3 months for serious misconduct in terms of section 17 of the Employment of Educators Act.
29. Mr Magadu could not take annual leave because paragraph (f) of the notice of precautionary suspension was clear that he needed to be available on his cellular telephone or at home if the Department needed to get hold of him, and if he ‘wished to
leave the jurisdictional area of the Department during normal working hours, [he] will be required to provide the Department with the necessary leave document’, but then paragraph (h) stated that he could not enter the premises of the Department
during the period of his suspension other than to attend to proceedings against him or unless directed [to enter the premises] by the Office of the Superintendent General.
30. The only reference to leave was in paragraph (f) and Mr Magadu did not leave the jurisdictional area except on weekends.
31. The process for taking leave is that an employee needs to get an official leave update from Human Resources, the employee then gets a leave application form from his manager and engages with his manager / supervisor. Mr Magadu said that he
was denied that right through the suspension conditions.
32. Mr Magadu gave evidence in respect of the Determination and Directive on Leave of Absence in the Public Service (“The Leave Directive”), Chapter 5 deals with annual leave, and he referred to and read out paragraph 5.14 of the Leave Directive.
33. The Head of Department’s request for Treasury to approve the payment of the leave to the 54 employees was not authorized by Treasury, as communicated to the HOD (Education), Mr Ngonzo, by the acting Superintendent General & Head Official of
Treasury, Mr Kalimashe. Mr Kalimashe makes reference to a letter from Mr Ngonzo to him dated 21 June 2013, which was not included in the documents submitted as evidence.
34. Mr Magadu said that in his opinion one HOD could not over-rule another HOD, but could provide advice.
35. The letter from Treasury initially advising Mr Ngonzo, on 19 June 2013, that the leave pay-out had not been approved referred to the fact that suspension is a precautionary measure, and employees could take annual leave whilst on suspension. In
addition, it referred to the SMS Handbook (Chapter 3, paragraph 5.1(4)(b)) which requires that requests and motivations for leave payments in respect of leave which was denied should be lodged by no later than 31 July in respect of each year, and
Mr Ngonzo’s letter dated 27 May 2013 was in respect of leave which expired at the end of June 2012.
36. Also with regard to Treasury’s non-authorisation of the pay-out of the leave, a letter was included in the Bundle from Mr Mbulelo Sogoni, Director General in the Office of the Premier, dated 12 June 2013, to the HOD Provincial Planning and Treasury,
indicating that the provision for the pay out of leave (the Determination and Directive on Leave of Absence in the Public Service ) had certain conditions, which were not met, and in addition, “being placed on suspension is not a basis on which leave
can be paid out. Furthermore, placing an employee on suspension is not tantamount to sending the employee on any form of leave. It is merely a precautionary measure and nothing therefore prohibits the employee from applying for annual leave
while on suspension. If such an application was not made and denied, there is no basis to pay out the leave.”
37. Mr Ngonzo’s letter to the Superintendent General, Planning and Provincial Treasury, was dated 27 May 2013, and indicated that the Department had approved the cash payment in respect of unused leave credits to employees who were suspended
from duty in 2011/2012 “beyond the legal permissible period”. There is a request to the Superintendent-General to authorise the cash payments to the employees, which details are included as Addendum 2, and there is an indication that funds are
available ‘on item under Programme 1’ in the Department’s budget.
38. Under cross-examination Mr Magadu said that he understood from his suspension conditions that he needed to stay in Bhisho, and that he simply needed to wait for the ‘employer to access [him]’. He could not apply for leave because he could
not access the workplace, he was not allowed to, and if he did, he would be seen to be perpetuating the misconduct. His laptop was removed from him and his work cell-phone. He said that he would not have asked someone else to apply for
leave on his behalf, because his relatives saw the article in the Daily Dispatch saying he was a hooligan.
39. With regard to the responsibility of Treasury, Mr Magadu said they had an overarching responsibility for monitoring the finances of the Departments.
40. Mr Magadu said that with regard to the time frames, they had engaged in June and July of 2012 already, although the letter reflecting the discussions was only produced in 2013.
41. Under re-examination Mr Magadu indicated that he could only get the leave forms from the employer, and he could not do this, as he was refused entry to the premises.
42. Mr S Manzi, the Applicants’ second witness, is employed as the Deputy Chief Education Specialist in the Support and Governance Directorate. He was suspended on 17th May 2011 and he is one of the applicants in this matter. After his
suspension was lifted on 9 June 2012, he and all of the suspended employees reported back to work on 18 June 2012 and underwent a number of processes initiated by the employer such as a wellness programme, other reinstatement
programmes, and a motivational speaker was arranged for the employees who had been suspended.
43. Mr Ngonzo, the Head of Department then gave a clear instruction to the Labour Relations Director, Mr Pretorius, to deal with the HR issues relating to the suspended employees, and meetings were then convened by the office of Human Resources
Management. The issues that were addressed related to leave and subsidised vehicles, because the employees who were on suspension did not take their leave and their subsidised vehicles were also affected as the employees on suspension
did not do any work.
44. The persons who participated from the Department’s side on what was called ‘the technical task team’ that was put together to investigate these matters comprised Mr Pretorius, the Director of Labour Relations, Mr Stowman, the Acting Director of
Human Resources Admin and Mr Harmse, dealing with auxiliary services.
45. Mr Manzi testified that with regard to the leave entitlement, the employer had agreed that they [the employees who had been suspended, and who are now the applicants in this matter] were entitled to their unused leave days and they had
discussed the manner in which the employer would repay the unused leave days. They agreed on four options that the employees could choose from in respect of the leave encashment. The employees agreed on the 80/20 option, which was 80%
payment out of the leave and 20% which should be taken as leave.
46. Under cross-examination Mr Manzi, referring back to his suspension, said that whilst the conditions of service remained unchanged, and taking annual leave is a condition of service, he could not exercise it because he was physically removed from
the office, and he did not approach his supervisor about annual leave because he was suspended and the conditions stipulated in the suspension letter applied to him.
47. Certain documentary evidence was submitted by Mr Time, with the agreement of Mr Payi, who indicated that he accepted that the documentary evidence comprised evidence of employees who had been on suspension in previous matters, who
had been paid out their leave encashment. Mr Payi said that the Respondent’s view is that this was a mistake made by the Department and it did not affect the current matter.
Documentary evidence submitted by the applicants, and admitted fully by the Respondent
48. Mr Time went through the documents which showed that 7 employees employed by the Department were suspended in 2006, specifically Mr Gaca was suspended between 22 December 2006 and 22 September 2008, without a disciplinary hearing
being convened. He was paid out for the leave that he could not take whilst he was suspended. Similarly, this occurred in respect of Mr Fray, Mr Hector, Mr J R Swart, Mr Tom, Mr Ntshanga and Mr January. They were all paid out their leave
based on their not being able to take leave over their suspensions, and these payments had been approved by the then HOD Professor Harry Nengwenkulu. He also referred to an employee by the name of Sharon Maasdorp whose leave had been
added to her capped leave.
The Applicants’ Closing Argument
49. The Respondent acted in a manner that is unlawful, unreasonable and procedurally unfair when it reneged on its agreement to pay out the applicants’ unused leave, who had been suspended beyond the legally permissible limit.
50. The Respondent was obliged to apply the Determination and Directive on Leave of Absence in the Public Service and act reasonably in this regard.
51. Schedule 2 of the Disciplinary Code and Procedures for Educators at item 6 specifies that the Respondent may suspend an educator for a maximum period of 3 months (90 days).
52. The applicants were all suspended without being afforded an opportunity to make representations as to why an adverse decision should not be made. Reference is made to the decision of the Constitutional Court in Zondi V MEC for Traditional and
Local Government Affairs where Judge Ngcobo held that “the right to notice before an adverse decision is made in a fundamental requirement of fairness.”
53. The Respondent is also required to act consistently, and this was highlighted in the case National Union of Metalworkers of South Africa v Haggie Rand.
54. The Applicant then referred to specific aspects of its evidence which proved that unfair labour practices had been committed:
- Mr Magadu testified that he was unable to use his leave credits due to his precautionary suspension. The Leave Directive requires at 5.11 that employees must be cautioned timeously if, at the end of the relevant leave cycle, they have not
utilized their leave entitlements. The measures applied by the Respondent [due to the precautionary suspension] prohibited him applying for leave and the leave forms were not accessible as they were in the premises of the Respondent.
- The article in the Daily Dispatch caused embarrassment to him and his family.
- The context of the measures applied by the Respondent [relating to the precautionary suspension] excluded the Applicants from any activities including applying for leave which is an interaction between supervisor and supervisee.
55. The Applicants’ case pivots on the conditions applied by the Respondent not to access the premises of the Respondent and the unreasonable denial by the Head of Department of Treasury to pay out the leave credits of the Applicants.
56. With regard to consistency, Mr Time referred to the 7 cases of officials who had been unable to take leave over their prolonged suspension periods, and they were permitted to encash their leave that had expired and not been taken, on the basis
that they were unable to take annual leave whilst they were suspended.
57. Reference was made to the Respondent’s witnesses, and that the evidence of Mr Tshangana was not relevant to the dispute.
58. The applicants argued that they had a right to procedural fairness under section 33 of the Constitution and under the Promotion of Access to Justice Act, section 6.
Respondent’s case
59. At the outset of the Respondent’s case, a postponement / adjournment was requested, based on the non-attendance of the Respondent’s witnesses from the Offices of the Premier and Provincial Treasury. This postponement was granted, and a
separate ruling on this postponement application was issued to the parties. The Respondent did call one witness on the 1st April 2014, and thereafter the further witness was called on the 16th April 2014.
60. The first witness for the Respondent was Mr K Pearce, a Deputy Director in Human Resources Administration at the Department. The policies used in the Department for leave is the Determination of Leave of Absence Directive and Resolution 7 of
2001. There is no difference between the Resolution and the Directive. Mr Pearce read out the relevant sections of the Directive and the Resolution. He further read out the detail from the document submitted, an internal memorandum to the Acting
Head of Education, from the Director of Labour Relations, dated 15th February 2013, recorded the technical task team’s work around the issues of annual leave for the employees who had been suspended, and the recommendation to the HOD in
respect of the encashment of annual leave that was not taken over the periods of suspensions.
61. Under cross-examination Mr Pearce confirmed that if there was a decision regarding the encashment of unused leave entitlement, the following persons would need to approve it:
1. The Director of Human Resources Administration;
2. The Director of Labour Relations;
3. The Chief Director: Human Resources Management and Development;
4. The Deputy Director: General Human Resources Management and Development;
5. The Chief Financial Officer; and finally,
6. The Head of Department.
62. He confirmed that if the Head of Department approved the encashment of leave, it meant that he had applied his mind and made a decision on it.
63. Mr Pearce said that in his understanding leave could only be paid out in a few instances, and that is where it had been applied for and refused, and then on termination.
64. The Respondent’s second witness was Mr Vuyo Tshangana, a Director in Norms and Standards (Provincial Treasury). His function involves, amongst other aspects, responsibility for overseeing the implementation of the Public Finance Management
Act, (“PFMA”), providing guidance on the implementation of the PFMA and providing advice to Departments on how to apply the provisions of the PFMA. Treasury is also involved if approval is required through the exercise of ‘conditions’, as such,
certain items will, because of the budget availability, require treasury approval.
65. The Head of Department of Treasury acquires his / her authority from section 17(1)(a) of the PFMA:
“17. Establishment.—(1) There is a provincial treasury for each province, consisting of—
(a) the MEC for finance in the province, who is the head of the provincial treasury; and
(b) the provincial department responsible for financial matters in the province.
(2) The MEC for finance as the head of a provincial treasury takes the policy and other decisions of the treasury, except those decisions taken as a result of a delegation or instruction in terms of section 20.”
66. Mr Tshangana testified that by virtue of the powers that are exercised by the Head of Treasury, this official may override the powers of the Head of a Provincial Department where it relates to financial issues. There are circumstances where the Head of Provincial Treasury can veto the decision of a Provincial Head of Department, in terms of section 20(2)(c).
20. Delegations by provincial treasuries.
(1) The MEC for finance in a province may, in writing, delegate any of the powers entrusted or delegated to the provincial treasury in terms of this Act to the head of the department referred to in section 17 (1) (b), or instruct that head of department to
perform any of the duties assigned to the provincial treasury in terms of this Act.
(2) A delegation or instruction in terms of subsection (1) to the head of the department referred to in section 17 (1) (b)—
(a) is subject to any limitations or conditions that the MEC for finance may impose;
(b) may authorise that head—
(i) to, in writing, sub-delegate the delegated power to another treasury official or the holder of a specific post in that treasury, or to the accounting officer for a provincial department, or to the accounting authority for a provincial public entity in the province; or
(ii) to instruct another provincial treasury official or the holder of a specific post in that treasury, or the accounting officer for a provincial department, or the accounting authority for a provincial public entity in the province, to perform the assigned duty; and
(c) does not divest the MEC for finance of the responsibility concerning the exercise of the delegated power or the performance of the assigned duty.
(3) The MEC for finance may confirm, vary or revoke any decision taken by the head of the department referred to in section 17 (1) (b), as a result of a delegation or instruction in terms of subsection (1), or by a treasury official or accounting officer or
accounting authority as a result of an authorisation in terms of subsection (2) (b), subject to any rights that may have become vested as a consequence of the decision.”
67. Mr Tshangana said that Treasury would not normally get involved in the day to day running of a Department, however, where Treasury picked up that there are risks, it could issue an instruction on a particular line item. This could be, for example, to
prevent overspending. This was done previously in the Department of Education where controls were put in place in December 2011, where certain powers of system controllers who reported to the Head of Department were withdrawn. This was in
respect of the powers to authorise certain payments in the system, to personnel, because of pressures on the budget. Therefore in this instance before payments were made to personnel they needed to obtain authorisation from Treasury.
68. Mr Tshangana submitted a document which was a letter from the Eastern Cape Provincial Treasury to the Accounting Officer of the Department of Health, to illustrate Treasury’s involvement. In this document measures were put in place by Treasury
to ‘arrest spiralling overdraft’. Examples of these measures implemented by Treasury include the stopping of new appointments, use of consultants would require Provincial Treasury approval, amongst others.
69. When faced with an expenditure related to an HR function, because HR issues are normally regulated by the Office of the Premier, Treasury would seek guidance from the Office of the Premier (“OTP”) regarding the controls in respect of Human
Resources prescripts. The OTP is the custodian of Human Resources issues in the Province.
70. Mr Tshangana read out the definition of irregular expenditure in terms of the PFMA, which is as follows:
“irregular expenditure” means expenditure, other than unauthorised expenditure, incurred in contravention of or that is not in accordance with a requirement of any applicable legislation, including—
(a) this Act; or
(b) the State Tender Board Act, 1968 (Act No. 86 of 1968), or any regulations made in terms of that Act; or
(c) any provincial legislation providing for procurement procedures in that provincial government;”
71. His understanding is that before a person incurs expenditure they must comply with their prescripts, for example the supply chain practices, IT etc. Once irregular expenditure is incurred it is regarded as financial misconduct in terms of section 45(c) of the Act. If irregular expenditure occurs the rule for Provincial Treasury is in terms of section 18(1)(g):
“18. Functions and powers.—(1) A provincial treasury must—
(g) must intervene by taking appropriate steps, which may include the withholding of funds, to address a serious or persistent material breach of this Act by a provincial department or a provincial public entity;”
72. He testified that Treasury would need to make various value judgements to decide how to address this type of issue, and it could be addressed by withdrawing the delegation or preventing the transaction, because it is in breach of the law.
Treasury is allowed to override matters where there is a possible breach of the law in terms of section 20(2)(i) [this should have referred to 18(1)(i)] – “(i) may do anything further that is necessary to fulfil its responsibilities effectively.”
73. If a Department ignores an instruction from Treasury, Departments are expected to comply with any instructions to prevent or deal with irregular expenditure in terms of section 18(1)(a) and (b), and when it is found that an accounting officer has
breached his duty to prevent irregular expenditure and incurred irregular expenditure, then section 81 would apply, specifically section 81(1)(b) regarding financial misconduct.
The Respondent’s Closing Argument
Arguments related to the unfair suspension disputes:
The Respondent’s arguments were detailed and are set out below in full.
74. “It is common cause that the applicants on this matter were suspended from duty but at different times in 2010, 2011 and 2012 by the Department of Education and the precautionary suspension from duty were withdrawn on 9th June 2012. The
employer did not deem it necessary to contest the issue of the alleged unfair suspension on the reason that the two witnesses that were called by the applicant confirmed that they were reinstated on 13 June 2012 in terms of the letter referred to
above (Item 24 of the applicant’s bundle refers). Therefore, the issue of the alleged unfair suspension has already been addressed through the withdrawal of the precautionary suspension.
75. Although the matter of the alleged unfair suspensions was not challenged the applicants are not a homogeneous group and should the decision be in favour of the applicants each case will have to be considered according to its merit and demerits
particularly those who are members of the Senior Management Service and had been formally charged and the disciplinary hearing took place.
76. It is therefore our contestation that the issue of unfair suspension was not the main reason for the dispute hence it was not even part of the applicant’s initial referral of the dispute for conciliation and arbitration (ELRC Form E1) particularly paragraph
3 (c) read in conjunction with 7(b) on page 2 – 9.
77. Mr Time the applicants representative indicated that he represented all the applicants in the matter but only two witnesses were called and their evidence was limited to the group of employees that were suspended in May 2011 and July 2011 and
are based at head office. Furthermore, the employee bundle only has four letters pages 14, 17, 18 and 22. The difficulty in this matter is that the evidence led was in relation to what happened at head office and the media article in the Daily
Dispatch refers to head office employees that were suspended in 2011.
78. In addition, the other applicants have already left the public service due to various reasons Zibi SS – retired in April 2013; Bacela AN – resigned; Kali MH – Dismissed; Zituta CV – Dismissed.
79. Although the limitation was not raised but I believe it would be difficult to generalize that every applicant faced the same circumstances in that the only evidence presented covered the May and July 2011 group. Employees who were suspended in
January 2012 and March 2012 and reinstated on 13 June 2012 should have applied for their accrued leave credit which they allowed to lapse namely B. Madikane (48) and RC. Barlow (49) on page 9.
80. It is therefore our contestation that the issue of unfair suspension was not the main reason for the dispute hence it was not even part of the applicant’s initial referral of the dispute for conciliation and arbitration (ELRC Form E1) particularly paragraph
3 (c) read in conjunction with 7(b) on page 2 – 9.
81. In this regard it may also be important to note that the relief sought by the applicants as stated in the application on paragraph 6 on page 4 is that “the Eastern Cape Department of Education must pay all affected employees their leave days for the
period 2011/2012 as these employees were not in a position to take their annual leave for the period due to circumstances that they were subjected to by the employer. Despite the emphasis on suspension in the evidence led during the arbitration
process we can conclude that the matter in dispute was the leave encashment of which the defendant had focussed throughout the hearing process”.
Arguments related to the unfair conduct in respect of benefits:
82. “The argument for leave encashment is premised on the following issues as per the evidence led by the 2 witnesses of the applicant:
• The unfair suspension from duty
• The prohibitive conditions set by the employer in the precautionary suspension letters they received.
• The statement attributed to Mr Mannya the former Head of Education that appeared in the article of the Daily Dispatch dated 20 July 2011 (Page 45) of which Mr Magadu claim to have been labelled as a hooligan.
• They had no access to facilities to make necessary leave arrangement with the department.
• A three person task team that included Mr W. Payi as Chief Director (employer representative in the dispute) established by the head of department had recommended the payment for the unused leave credit.
• The letter written by the Superintendent General to Ms M. Mbina-Mthembu the Head of Provincial Treasury requesting the authorisation of cash payment of leave credits to the employees listed Annexure (page 37)
• The applicants contended that the head of the Provincial Treasury has an equal status with that of the Head of Education and as such has no veto powers over the other head of department.
• The following documents were submitted by the applicant to further substantiate the validity of their entitlement for the payment of their unused leave credit
o The numerous payments that were made to Mr Gaca following the withdrawal of his precautionary suspension as a precedent (Exhibit B- Page 1)
o The letter written to a certain Ms Sharon Maasdorp who is not among the applicants on behalf of the Acting Director Human Resource Administration in response to a her claim of payment of unused leave credit (Exhibit B -Page 7).
83. In the evidence led it has been argued by the applicant that the department had by the reasons of the recommendation of the task team and letter written to the Provincial Treasury referred to above approved the payment of the lapsed leave credit
and by so doing legitimatised the process contrary to the stipulated procedure in the Directive on leave of absence in the Public Service.
84. To this extent the applicant disputed the authority of the Superintendent General and Head Official of Treasury in this province who in her letter addressed to Mr Ngonzo the Head of Education (Page 40) declined the payment of unused leave credit
based on the advice of the Office of the Premier as the custodian of human resource management policies in the province.
85. In response to the letter from the Provincial Treasury the Office of the Premier raised non-compliance with the stipulated procedure as contained in the Determination and Directive on Leave of Absence in the Public Service issued by the Minister of
Public Service and Administration in August 2012.
86. The Director General of the Office of the Premier said that, “having been placed on suspension is not a basis on which leave can be paid out. Furthermore, placing an employee on suspension is not tantamount to sending the employee on any form
of leave. It is merely a precautionary measure and nothing therefore prohibits the employee from applying for annual leave while on suspension. If such an application was not made and denied, there is no basis to pay out the leave.
87. The applicant’s argument is that the stringent conditions prohibited them from accessing the facilities to make such applications and to substantiate the claim submitted the article that appeared on the Daily Dispatch as referred in paragraph 5(c)
supra. Mr Magadu indicated that he could not even send his sister or cousin to the department given the implication of the article for which he was labelled a hooligan. This statement from Mr Magadu in his evidence in chief is against the condition
set out in his letter of precautionary suspension in page 20 paragraph (b) that stated “during your suspension you will receive a full pay and will remain subject to all conditions of your employment.”
88. Whilst paragraph (f) of the same letter states that “You will be required to be available either on your cellular telephone or at home should the Employer or any authorised representative need clarity from you concerning any of these issues relating to
the investigation or should any information relating to your work be required from you. Should you wish to leave the jurisdictional area during normal working hours, you will be required to provide the Department with the necessary leave
documentation”
89. Reading from these paragraphs which were also referred to in the cross examination of the applicant’s witnesses it is evident that the applicants were never denied the right to apply for a leave of absence from duty nor had they made any effort to
apply for vacation leave as required but relied on their selective interpretation of the set conditions or measures for the precautionary suspension including the department’s flouting of its own policy as indicated by the Office of the Premier and the
Provincial Treasury.
90. Perhaps it might be necessary to examine whether employees who did not apply for leave which should have been denied by a supervisor or delegated person are entitled to be paid the used and lapsed leave credit. In this regard. The
Determination and Directive on Leave of absence in the Public Service provides the following:
- Office based Public Service Employees are entitled to an annual leave with full pay during each leave cycle of 12 months, commencing on 01 January to 31 December of each year.
- At least 10 days must be taken as leave days during the annual leave cycle and this is a compulsory requirement.
- The remaining leave days, if any, must be taken by no later than 6 months after the expiry of the relevant leave cycle (30 June of the year following the cycle), where after, the unused.
- It is the responsibility of the Supervisor to ensure that all employees under his or her control utilise their leave entitlement in terms of the annual leave measures prescribed herein.
- The Supervisor shall not unreasonably refuse to grant to supervisees who apply for leave and in this regard it must be noted that it is not the intention of the department to pay out any leave days whatsoever and that all attempts must be made to
grant leave applied for in terms of the entitlement. The refusal of leave must be based only on service delivery requirements.
- In instances where the supervisor is unable to grant leave applied for due service delivery requirements, the supervisor after consultation with the supervisee must endeavour to reschedule his/her leave taking within the prescribed 18 month period
and this must be conveyed to the supervisee in writing by the supervisor.
- In instances where it is not possible to reschedule or grant the leave within the prescribed 18 month period, the supervisor must submit the application together with reasons substantiating the refusal of the leave to the head of department or his /her
delegate for a decision. Should it be decided that the leave cannot be granted, such a decision together with reasons must be conveyed in writing to the supervisee concerned.
- If due to the employer’s service delivery requirements an employee’s application for leave is denied and not rescheduled, such leave will upon request, be paid out to the employee at the end of the prescribed 18 month period. The employee’s
request for payment of unused leave credits must be;
o In writing ; and
o Accompanied by written proof of refusal of leave by the Head of Department or his /her delegate
- Heads of Department must, at the end of the relevant 18 months period report to the relevant legislature on the number of employees denied annual leave, reasons for such denial and the amount paid in this regard.
- Employee shall be paid a cash value in respect of unused leave credit upon termination of service and in terms of clause 3.9 and such payment will be limited to a maximum number of days equivalent to the prescribed annual leave entitlement.
91. The emphasis being that nowhere in the Determination and Directive on leave of absence in the Public Service or departmental policy a precautionary suspension or suspension is set as a condition or qualify an employee for payment of unused or
lapsed leave credit other than the conditions set above.
92. It is important to note that Mr K. Pearce a Deputy Director in the Department of Education that testified on behalf of the defendant in the matter indicated that the Departmental policy on leave of absence is not different from the Determination and
Directive on Leave of absence in the Public Service as explained in the preceding paragraphs. In addition, he confirmed that the department cannot act contrary to the prescripts or policy.
93. The applicants were entitled to annual leave as provided in the public service. They continued to accrue annual leave whilst on suspension and were at liberty to submit leave applications during and subsequent to their suspension.
94. The aforementioned prescripts set out the procedure for and circumstances under which payment in lieu of accrued leave credit can be made as outlined in the preceding paragraphs. It is only in compliance with the prescripts, aforementioned that
any employee will be entitled to be paid for accrued leave. It is this context that the Superintendent General and Head official of the Provincial Treasury acting on the advice of the Office of the Premier declined to authorise the requested payment by
the defendant in this matter.
95. The applicant has in this regard argued that the Head of Education had approved the payment and confirmed the availability of funds and thus complied with the prescripts. Whilst it is a fact that the head of Education approved the payment but it
is evident that there was an error of judgement on the part of the head of education in that none of the applicants had complied with the procedure explained above and such insisting on such payment may constitute an irregular expenditure as
defined in Section 1 of the Public Finance Management Act, 1999(as amended).
96. Mr Vuyo Tshangana a Senior Manager for Norms and Standards employed by the Department of Planning and Provincial Treasury who testified on behalf of the department explained power and functions vested in the head of the Superintended
General as the Head Official of the Provincial Treasury in relation to the powers of Heads of Provincial Departments as Accounting Officers as defined in the Public Finance Management Act including the functions of a Treasury as defined in Section
18 of the Public Finance Management Act, 2009 (Act 1 of 2009) He explained that the Provincial Treasury among other things is required to monitor the budget and expenditure by provincial departments and other State institutions.
97. He alluded to the fact that the Provincial Treasury where it has no expertise solicits such advice from other sources and in this instance which involves the interpretation of human resource management policy it approached the Office of the Premier.
In addition he indicated that heads of department as Accounting are issued delegations based on the provisions of Section 20 of the Public Finance Management Act, 2009 and as such Treasury is ultimately accountable for expenditure on the
Provincial Revenue Fund. He indicated that by virtue of such legislative authority can override the decision of heads of department and where necessary withdraw certain functions or take any steps necessary to prevent irregular expenditure or
over-expenditure of allocated budget.
98. In addition he indicated that the Provincial Treasury has in terms of Section 18 of the Public Finance Management Act, 2009 placed austerity measures for both the Departments of Health and Education that have not yet been withdrawn. In this
regard a letter addressed to the Accounting Officer of the Department of Health dated 9 December 2011 which he claimed to be similar to the other one written to the Department of Education was submitted. Therefore, the action of the
Superintendent General and Head Official of Provincial Treasury in the matter in dispute was lawful.
99. In his opinion officials that are on precautionary suspension should have applied for a leave of absence as specified in the governing prescripts which is a normal practice in the public service. This further supported the validity of statement made
by the Director General of the Office of the Premier who in his advice to the Provincial Treasury stated that “placing an employee on suspension is not tantamount to sending the employee on any form of leave. It is merely a precautionary measure
and nothing therefore prohibits the employee from applying for annual leave while on suspension.
100. He defined irregular expenditure as an expenditure incurred in contravention of or that is not in accordance with a requirement of any applicable legislation including human resource management legislation. To this extent that the responsible official
may be liable for a charge of financial misconduct of which he referred to the provisions of Section 45 of the Public Finance Management Act. In regard to the breach of the provisions of the Act by an Accounting Officer he sighted the provisions of
Section 81 that apply in such circumstances.
101. The applicants have earlier raised the issue of previous payment on similar circumstances that established a precedent to justify their entitlement for payment in lieu of unused leave credit. The applicant’s representative listed a number of officials
that include Gaca, Hector, Swartz, Z. Tom and et cetera who were on precautionary suspension and the payment was approved by Prof. H. Nengwenkulu (ex-Head of Education). In this regard letters addressed to Mr Gaca including PERSAL print
outs as proof of payment were submitted. In another case a recent commitment made to Ms Maasdorp issued on 7 June 2012.
102. Perhaps the call if for even handed administration of justice in this matter. However, the challenge is whether a wrong decision taken in the past makes it right. We would like to argue that the omission to consider the leave prescripts by the former
heads of department of education does not make it acceptable to continue with an error. To this extent the advice from the Office of the Premier as communicated by the Provincial Treasury need serious consideration. It would be incorrect for the
department to insist on payment even though it has been informed that the decision was incorrect hence the request for authorisation of payment was declined.
103. Although the circumstances were not explained regarding the commitment letter to Ms Maasdorp it is clear that it was issued without the knowledge of the head of department by someone who acted on behalf of the Director Human Resource
Administration. There were no details submitted to verify the basis for such a decision suffice to say the letter may be invalid in that payment can only be effected based on existing prescripts. In this regard clause 3.9 of the Determination and
Directive on leave of absence states that “ employees shall be paid a cash value of unused leave credit upon termination of service and such payment will be limited to a maximum number of days equivalent to the prescribed annual leave
entitlement. Therefore, the letter under the circumstances may be regarded as invalid and the employer in its response indicated that on both instances has a remedy in terms of the provisions of Section 38 of the Public Service Act, 1994 (Act 103 of
1994) as amended.
104. Regarding wrongly granted remuneration Section 38 referred to above state that:
- (1) (a) If an incorrect salary, salary level, salary scale or reward is awarded to an employee, the relevant executive authority shall correct it with effect from the date on which it commenced.
- Paragraph (a) shall apply notwithstanding the fact that the employee concerned was unaware that an error had been made in the case where the correction amounts to a reduction of his or her salary.
- (2) If an employee contemplated in subsection (1) has in respect of his or her salary, including any portion of any allowance or other remuneration or any other benefit calculated on his or her basic salary or salary scale or awarded to him or her by
reason of his or her basic salary-
o been underpaid, an amount equal to the amount of the underpayment shall be paid to him or her, and that other benefit which he or she did not receive, shall be awarded to him or her as from a current date; or
o been overpaid or received any such other benefit not due to him or her-
- an amount equal to the amount of the overpayment shall be recovered from him or her by way of the deduction from his or her salary of such instalments as the relevant accounting officer may determine if he or she is in the service of the State, or, if
he or she is not so in service, by way of deduction from any moneys owing to him or her by the State, or by way of legal proceedings, or partly in the former manner and partly in the latter manner;
105. Reading the above extract from the Public Service Act it is evident that the department has legal means to recover such payment made with compliance to the policy directive regarding leave of absence in the public service. As such the
department cannot be compelled to continue with a wrong act to make it a right thing.
106. Clause 3.5 and 3.9 of Directive on Leave of absence in the Public Service clearly state that “ it is only in compliance with the prescripts, aforementioned, that any employee will be entitled to be paid for accrued leave. Such payment must also be
paid not later than six months after the expiry of the relevant cycle, where after unused leave credits shall be forfeited”.
107. In the circumstances thereof the applicants forfeited their unused leave credits at the end of six months after the expiry of the relevant leave cycle that is June 2011 and June 2012 and therefore not entitled to leave pay out. The reason of the alleged
unfair labour practice does not constitute the basis for payment in lieu of accrued leave credit.
108. It is our contestation that the issue of unfair suspension was not the main reason for the dispute hence it was not even part of the applicant’s initial referral of the dispute for conciliation and arbitration (ELRC Form E1) particularly paragraph 3 (c) read
in conjunction with 7(b) on page 2 – 9. Be that as it may be, the referred suspensions have since been withdrawn and the applicants reinstated in the former positions with effect from 13 June 2012.
109. Furthermore, evidence led was in relation to the applicants that were on precautionary suspension as from May 2011 and July 2011 and nothing on the listed employees.
110. The other applicants were subsequently charged and hearing took place and the unfairness of the suspension should have been raised and challenged in those sittings.
111. The issue of the precedent may not be followed blindly in that two wrongs may not make it right. The omission to consider the leave prescripts by the former heads of department of education does not make it acceptable to continue with an error.
To this extent the advice from the Office of the Premier as communicated by the Provincial Treasury need serious consideration. It would be incorrect for the department to insist on payment even though it has been informed that the decision was
incorrect hence the request for authorisation of payment was declined
112. To this extent the department has a remedy in terms of Section 38 of the Public Service Act, 1994 (Act 103 of 1994) as amended”.
Analysis of evidence and argument
113. There are two unfair labour practice disputes that need to be determined, the first being a dispute about unfair suspension in terms of section 186(2)(b) and the other being an unfair labour practice related to benefits in terms of section 186(2)(a). The analysis addresses the two disputes separately.
Analysis relating the alleged unfair suspension dispute
114. At the outset of the arbitration hearing proceedings I raised concerns about the evidence that would be submitted in respect of the alleged unfair suspensions, especially given that there were 54 applicants, with varying suspension dates / periods,
and it was indicated that only two witnesses would be testifying in this regard.
115. I asked the parties to address me on this, after they had discussed it, and hence the parties placed on record that the letter reflecting the applicants details (appended to this award, pages 8 and 9 of the bundle) reflected the applicants dates of
suspension correctly.
116. The Respondent did raise at the outset that the suspensions had all been lifted, and this was agreed as being common cause, and the Respondent questioned whether there was still a dispute given that the suspensions had been lifted. The
Applicant said that it was necessary to lead evidence on this dispute as it is linked to the dispute regarding the benefits, and as such, it remained a dispute. However, the Applicant has not sought relief specific to this dispute.
117. With regard to the dispute regarding the suspensions, Mr Magadu was the first witness in this regard, and he referred to his letter suspending him, which was signed and dated by Advocate Mannya on the 15th July 2011. Within the letter, the first
sentence reads as follows:
“My notice of intention to suspend you dated 15th July 2011 has relevance.
Having waived your rights to provide me with your written reasons as to why I should not suspend you pending finalization of investigations [sic] of allegations levelled against you, you are now hereby suspended with immediate effect, pending the finalization of the investigation.”
118. Mr Magadu identified the signature of his senior, the Director, on the letter, which showed that his senior only received the precautionary suspension letter on the 20th July 2011. The letter was also not signed by Mr Magadu. Mr Magadu gave clear
and uncontested evidence that he was in a meeting with his Director on the 15th July 2011, the date that the notice of intention to suspend was purportedly served on him, along with the notice of suspension letter, and that he was on authorised
sick leave on the 18th to the 20th July 2011. It was not contested by the Respondent, and in fact was common cause that Mr Magadu was not afforded an opportunity to make representations as to why he should not be suspended. I accept that
Mr Magadu found out about his suspension from an article in the newspaper, with the sub-heading “Mannya vows to deal with ‘hooligans’”.
119. The notices of precautionary suspension provides that a condition of the suspension is that a disciplinary hearing would be held within 60 days from the date of the precautionary suspension and the chairperson of the hearing may, after the
commencement of the hearing, decide on any postponement of the hearing.
120. The applicant has referred to the Employment of Educators Act, Schedule 2, which provides as follows (my emphasis):
“Suspension
6. (1) In the case of serious misconduct in terms of section 17, the employer may suspend the educator on full pay for a maximum period of three months.
(2) In the case of misconduct in terms of section 18, the employer may suspend an educator in accordance with the procedure contemplated in sub-item (1), or transfer the educator to another post if the employer believes that the presence of the educator may jeopardise any investigation into the alleged misconduct, or endanger the well-being or safety of any person at the work-place.
(3) (a) If an educator is suspended or transferred, the employer must do everything possible to conclude a disciplinary hearing within one month of the suspension or transfer;
(b) The presiding officer may decide on any further postponement. Such a postponement must not exceed 90 days from the date of suspension.
(c) If the proceedings are not concluded within 90 days, the employer must enquire from the presiding officer what the reasons for the delay are and give directions for the
speedy conclusion of the proceedings.”
I accept Mr Magadu’s evidence and applicant’s argument in respect of Mr Magadu’s suspension, specifically that he was not afforded an opportunity to provide reasons why he should not be suspended, and that his suspension was in excess of the maximum period permitted in terms of Schedule 2.
121. The Respondent argued that “It is common cause that the applicants on this matter were suspended from duty but at different times in 2010, 2011 and 2012 by the Department of Education and the precautionary suspension from duty were
withdrawn on 9th June 2012. The employer did not deem it necessary to contest the issue of the alleged unfair suspension on the reason that the two witnesses that were called by the applicant confirmed that they were reinstated on 13 June 2012
in terms of the letter referred to above (Item 24 of the applicant’s bundle refers). Therefore, the issue of the alleged unfair suspension has already been addressed through the withdrawal of the precautionary suspension.”
I do not accept the Respondent’s argument as set out in the paragraph above, and I record that it was agreed as being common cause that the applicants were suspended on the different dates, and further, that witnesses were not required to testify as to these dates, on the basis that it was agreed that the dates on the list in pages 8 and 9 of the Bundle were accepted as the dates of the suspensions.
Further, whilst the Respondent may have believed that the issue of the alleged ‘unfair suspension’ had been addressed through the lifting of the suspensions, this was in fact not the case, and the Applicant made it clear that they were pursuing this claim. Whether or not the Respondent chose to ‘contest the issue’ is irrelevant.
The applicant did not call further witnesses in respect of the unfair suspension claim, on the basis that certain facts were accepted as being common cause:
- the letters in the file represented the letters given to certain groups of applicants, and on the basis that the key issues relating to these applicants were agreed to be common cause – namely, none of the applicants were afforded hearings before
they were suspended, they were all suspended for the periods commencing on the dates set out in Addendum 1 and ending on 9 June 2012, and none of the applicants were disciplined after their suspensions were lifted.
- The groups of applicants were those that were suspended in May 2011 and July 2011. As such, no further evidence needed to be led in respect of the applicants that fell within these ambits.
The Respondent is correct and its argument is accepted insofar as evidence was not led in respect of the suspensions of applicants who were suspended in 2010, or the periods falling outside of May and July 2011.
122. The Respondent argued that “Furthermore, evidence led was in relation to the applicants that were on precautionary suspension as from May 2011 and July 2011 and nothing on the listed employees. The other applicants were subsequently
charged and hearing took place and the unfairness of the suspension should have been raised and challenged in those sittings.”
I accept the Respondent’s argument relating to evidence not being led in respect of applicants other than those suspended in May and July 2011, in respect of the suspensions. The evidence relating to the suspensions applied only the applicants who were suspended in May 2011 and between 15 and 21 July 2011. This was agreed by the parties when matters that were common cause were agreed upon, specifically at my request, because the dates of the suspensions of the applicants were different, and it was necessary to determine whether other circumstances were different as well, including the letters that were issued to the applicants for their suspensions. As such, no evidence was presented, with regard to the alleged unfair suspensions, in respect of the applicants whose suspensions dates were not on these specific dates and I am unable to rule on whether their suspensions were fair or unfair.
This does not apply to the issue of ‘benefits’, as it was agreed that the suspension dates set out on Pages 8 and 9 of the Bundle (Addendum 1) were the correct suspension dates, and that the process of determining whether the applicants should be paid out for leave that was accrued over their suspension periods, with the resultant agreement, is reflected in pages 37 and 38 of the Bundle.
I do not accept the respondent’s argument that certain applicants were subsequently charged and hearings took place, as this is contrary to what the respondent agreed with the applicant upfront as being common cause, and no evidence to this effect was led by the respondent during the arbitration hearing.
123. The Respondent argued further that “Although the matter of the alleged unfair suspensions was not challenged the applicants are not a homogeneous group and should the decision be in favour of the applicants each case will have to be considered
according to its merit and demerits particularly those who are members of the Senior Management Service and had been formally charged and the disciplinary hearing took place.”
I do not accept this argument in full, except insofar as reflected in the previous paragraph. The Respondent agreed in the arbitration proceedings that all of the applicants were suspended on the dates set out on pages 8 and 9, and that the applicants who were suspended during May 2011, and between 15 and 21 July 2011 had not been afforded pre-suspensions hearings, and all of the applicants suspended on these dates had not been subjected to disciplinary hearings before or after their suspensions were lifted.
The substantive fairness of the suspensions was not raised as an issue in this matter. What is being challenged was the procedural fairness, and the specific matters were agreed as being common cause and undisputed. At no stage during the proceedings did the respondent state that some applicants should be distinguished from others based on their seniority, nor at any point was it stated that any applicants were subjected to disciplinary hearings.
124. The Respondent argued that “It is therefore our contestation that the issue of unfair suspension was not the main reason for the dispute hence it was not even part of the applicant’s initial referral of the dispute for conciliation and arbitration (ELRC
Form E1) particularly paragraph 3 (c) read in conjunction with 7(b) on page 2 – 9.”
Irrespective of whether the issue was the main reason for the dispute or not, it is recorded as a dispute, and whilst it was not referred to specifically in the ELRC form E1, it was specifically recorded in the Certificate of Outcome of the conciliation process, and recorded in the pre-arbitration minute as being a separate dispute. In addition, it was reflected and clarified at the outset of these proceedings as being a separate dispute. The Respondent’s argument is therefore not accepted.
125. The Respondent further argued in its closing argument that “Mr Time, the applicants representative indicated that he represented all the applicants in the matter but only two witnesses were called and their evidence was limited to the group of
employees that were suspended in May 2011 and July 2011 and are based at head office. Furthermore, the employee bundle only has four letters pages 14, 17, 18 and 22. The difficulty in this matter is that the evidence led was in relation to what
happened at head office and the media article in the Daily Dispatch refers to head office employees that were suspended in 2011.”
I have already addressed this argument, it is accepted in that the 4 letters of suspension referred to and included in the employee bundle were accepted as reflecting agreement on certain matters that were common cause, as set out previously. Where the applicants do not fall within the groups that are ‘covered’ by the four letters, it is accepted that no evidence has been presented in respect of their suspensions.
126. The Respondent submitted, for the first time in its closing arguments submitted on 29 April 2014, that “the other applicants have already left the public service due to various reasons Zibi SS – retired in April 2013; Bacela AN – resigned; Kali MH –
Dismissed; Zituta CV – Dismissed”. This was not raised during the proceedings. I am unable to verify whether this is correct or not, and the Applicant has not been afforded an opportunity to respond to this. However, as indicated previously, it
was agreed by the applicant and the respondent that the list of names of the applicants on pages 8 and 9 of the Bundle are the correct details of the applicants, and that their suspension details are correct, and pages 37 and 38 (addendum 2)
correctly reflect their accumulated leave details, and the encashment values of this accumulation. I therefore accept these details as being correct.
127. The reasons for the suspensions were not presented as evidence or argument regarding the fairness or otherwise of the suspensions. The bases for the arguments that the suspensions were ‘unfair’ were confined to procedural grounds, specifically
that there was no opportunity for the applicants to hear the reasons for the suspensions and provide reasons as to why they should not be suspended (i.e. the audi alteram partem rule was not complied with), and because the suspensions
exceeded the legally permissible time periods.
128. The Applicant argued that it was unfair that the applicants were not afforded a hearing / notice prior to their suspensions being imposed and cited the following authoirty “the decision of the Constitutional Court in Zondi V MEC for Traditional and
Local Government Affairs where Judge Ngcobo held that “the right to notice before an adverse decision is made in a fundamental requirement of fairness.” I accept the Applicant’s argument in this regard, and it was supported by the Labour Appeal
Court in Member of the Executive Council for Education, North West Provincial Government v Gradwell , which also addressed the differing Labour Court approaches to this question The LAC stated at 44 (my emphasis):
“The proposition that all suspensions should be procedurally fair to avoid the stigma of an unfair labour practice, on the other hand, requires some qualification. Fairness by its nature is flexible. Ultimately, procedural fairness depends in each case upon the weighing and balancing of a range of factors including the nature of the decision, the rights, interests and expectations affected by it, the circumstances in which it is made, and the consequences resulting from it. When dealing with a holding operation suspension, as opposed to a suspension as a disciplinary sanction, the right to a hearing, or more accurately the standard of procedural fairness, may legitimately be attenuated, for three principal reasons. Firstly, as in the present case, precautionary suspensions tend to be on full pay with the consequence that the prejudice flowing from the action is significantly contained and minimised. Secondly, the period of suspension often will be (or at least should be) for a limited duration. The SMS Handbook for example imposes a 60-day limitation. And, thirdly, the purpose of the suspension – the protection of the integrity of the investigation into the alleged misconduct – risks being undermined by a requirement of an in depth preliminary investigation. Provided the safeguards of no loss of remuneration and a limited period of operation are in place, the balance of convenience in most instances will favour the employer. Therefore, an opportunity to make written representations showing cause why a precautionary suspension should not be implemented will ordinarily be acceptable and adequate compliance with the requirements of procedural fairness.
129. The Labour Appeal Court therefore accepts that there is a requirement, where an employee is about to be suspended as a precautionary measure, at the very least, for the employee to have ‘an opportunity to make written representations’ where the
other ‘safeguards’ are in place such as a limited period of operation [meaning the suspensions are for a limited period]. In this instance, this safeguard relating to a limited time of suspension was not in place, and the Applicants, except for
Applicant 49, RC Barlow, were suspended for periods of time in excess of the legally permissible periods.
130. The Respondent should have followed some form of pre-suspension process, and this should also have been more than ‘obtaining written representations showing cause why precautionary suspensions should not be implemented’. I accept that it
is common cause that the Respondent did not follow any pre-suspension procedures in respect of the applicants who were suspended in May and July 2011, in that it did not follow a process of asking for written inputs from any of these specific
applicants, nor did it hold hearings. This was not disputed by the Respondent, and in fact was agreed by the Respondent as being common cause.
131. With regard to the right to procedural fairness in respect of a precautionary suspension, the Labour Appeal Court in MEC v Gradwell, supra, quotes, with approval, Grogan’s stance in Workplace Law:
“As Grogan rightly points out, insofar as a precautionary suspension invariably forms part of the procedure leading to disciplinary action it is inherently disciplinary in nature. Consequently, the dictates of fairness (procedural and substantive) apply to all suspensions equally, regardless of the form a particular suspension takes, be it employed as a holding operation or as a disciplinary sanction or penalty.”
The Court then goes on to state, at 45:
“The right to a hearing prior to a precautionary suspension arises therefore not from the Constitution, PAJA or as an implied term of the contract of employment, but is a right located within the provisions of the LRA, the correlative of the duty on employers not to subject employees to unfair labour practices. That being the case, the right is a statutory right for which statutory remedies have been provided together with statutory mechanisms for resolving disputes in regard to those rights.”
132. There were no pre-suspension “hearings” of any nature in respect of the identified applicants. Mr Magadu found out about his suspension from reading about it in the newspaper.
133. In the same judgement, the Labour Appeal Court stated, at 41:
“In most cases, the Labour Court has held the view that the audi alteram partem rule applies in precautionary suspension cases, notwithstanding the mitigation of the detrimental consequences by the payment of full pay, because the prejudice an employee may suffer as a result of suspension is not limited to financial loss but may extend to issues of integrity, dignity, reputation and standing in the community.”
This impact is also referred to in Muller & others v Chairman, Minister’s Council, House of Representatives & others by Howie, J, where, although this case is no longer persuasive due to it being based on the premise that suspensions were administrative action and therefore governed by the Promotion of Administrative Justice Act , which has been ruled in Chirwa v Transnet Ltd & others as not being applicable to unfair labour practices in terms of the Labour Relations Act, the Court’s statement does create awareness of the actual impact of suspension, even though it may be fully paid, on employees:
“The implications of being barred from going to work and pursuing one’s chosen calling, and of being seen by the community round one to be so barred, are not so immediately realised by the outside observer . . . There are indeed substantial social and personal implications inherent in that aspect of suspension . ..”
134. When Mr Magadu testified about his embarrassment when his family members read about him in the newspaper, and that he was labelled a ‘hooligan’, I accept that this is testimony about the ‘other’ impact of precautionary suspension on him as
an employee, being the negative impact that extends to dignity, reputation and standing in the community.
135. This is also of relevance to the issue relating to the ability to ‘take annual leave’ which is addressed below. The applicants were instructed by the employer to remain away from work, and this continued for extended periods of time. They were
instructed not to make contact with any person in the Department, other than the Superintendent General. The recent high profile case of Zwelinzima Vavi, General Secretary of COSATU, being suspended is an indication of how seriously one must
comply with the conditions in suspension letters. If an employee breaches the conditions, these breaches can and generally will be added to the ‘list of allegations’ against the employee. I will refer to this further when I address the issue of
substantive and procedural fairness relating to ‘benefits’.
136. The Labour Court in Minister of Labour v General Public Service Sectoral Bargaining Council & others ruled on the decision of a Bargaining Council Commissioner who found that the suspension of an employee was procedurally unfair on the basis
that the duration of the suspension exceeded the maximum period stipulated in Resolution 1 of 2003 of the Public Service Coordinated Bargaining Council. The Minister took this on review, which was unsuccessful, and the Court found, at 13:
“It is clear from the facts placed before the arbitrator that the suspension of the third respondent exceeded 60 days. He was only charged after an award was issued by the arbitrator. The disciplinary hearing did not proceed thereafter. The arbitrator
correctly found that the applicant committed an unfair labour practice.”
137. In terms of the accepted and agreed documentary evidence submitted reflecting the names of the applicants to this matter, and their respective suspension dates, (annexed to this outcome as Addendum 1) the following Applicants fall within the categories where it was agreed as common cause that they were not given pre-suspension hearings and were not disciplined during or after their suspensions, are as follows:
Suspended in May 2011:
Applicant Number Name
1. Tshali, LT
5. Manzi, S
6. Mashalaba, P
7. Ngoma, MSW
19. Dingane, Y
29. Nyoka, N
30. Xoko, M
Applicants suspended in July 2011 on 15, 18, 19 and 21 July 2011 :
31. Ralane, W
32. Luke, AM
33. Magadu, N
34. Mancoko, M
35. Time, V
36. Coto, M
37. Kewuit, N
38. Makapela, B
39. Mpakama, N
40. Mpagalala, V
41. Noza, Y
42. Ndibongo, C
43. Nxele, A
44. Rashe, M
45. Sambane, N
46. Mtirara, A
47. Gontshi, NP
138. The respondent and the applicant agreed that the list on pages 8 and 9 of the Bundle comprise the correct details of the applicants and their dates of suspension. The applicants where I accept that the evidence submitted applies to them are
listed above. The Applicant did not submit any evidence in respect of the remainder of the applicants to indicate that their suspensions were unfair. All of the applicants listed above were suspended for periods far in excess of 90 days permitted
in terms of Schedule 2, referred to above. Even if a hearing had been convened within 60 days (2 months) of the suspensions, and the suspensions for then extended by a presiding officer of a hearing for a further allowable 90 days (3 months), all
of the suspensions were in excess of 5 months.
139. As such, it is accepted that the applicants listed above were suspended without any hearings and without the opportunity to submit representations as to why they should not be suspended, and this in itself is sufficient to render each of the
suspensions procedurally unfair. In addition, the applicants’ suspensions were all in excess of the periods permitted in schedule 2, and on this additional basis, they are procedurally unfair.
140. No evidence nor argument was put forward by either party in respect of the substantive fairness of the suspensions, and as such I cannot make a ruling in this regard, other than to state that the onus of proving that the suspensions are
substantively unfair rests with the Applicants, and this onus has not been discharged.
Analysis of the evidence and arguments in respect of the dispute relating to the alleged unfair labour practice related to benefits
141. The essence of this dispute is that the applicants contend that they were suspended for lengthy periods of time, and that they were unable to take annual leave over these period, because of the conditions attached to their suspensions. They
therefore accrued this leave. Upon their return to work, after their suspensions were lifted, the HOD set up a task team to investigate the annual leave that had accrued to each applicant from their respective periods of suspension, and as a result
of the task team’s submissions, the HOD agreed that the applicants had been suspended beyond the legally permissible periods, and agreed that 80 percent of their accrued leave should be encashed and paid out to them, and the balance
should be taken by them as annual leave. This was seen as being in compliance with the Determination and Directive on Leave of Absence in the Public Service and was submitted to Treasury for their approval. Treasury did not approve it, as it
took advice from the Office of the Premier, who said that the circumstances in respect of each of the applicants did not comply with the requirements set out in the Leave Directive, and the staff had also not complied with the time frames in the
SMS handbook. In addition, the respondent argued that the employees could in fact have taken annual leave whilst on suspension. The leave encashment payments were therefore not approved. The fact that other employees had been paid out
on the basis that they could not take leave whilst on precautionary suspension was regarded by the respondent as a mistake, and it should not be regarded as precedent.
142. It is also important to distinguish the applicants listed in Addendum 1, who are the applicants to this matter, and the persons listed on pages 37 and 38, who are the employees who were part of the agreement with the HOD whereby it was agreed
that their accrued annual leave would be encashed. The evidence submitted in this arbitration hearing has been in respect of the applicants who were listed in the agreement with the HOD. The Applicants’ evidence and argument relating to the
accrued leave as a benefit applies specifically to the applicants who were assessed by the Task Team to qualify for the leave encashment, and the evidence and argument from both parties has been in respect of the process relating to the
suspensions, the ability to take leave, the process followed by the HOD and the then non-approval by Treasury.
143. As such, I find that the applicants who were not part of this encashment process and who are not listed on pages 37 and 38, have not had evidence submitted during this arbitration hearing about the fairness or otherwise of their benefits relating to
the accrual of their annual leave and their inability to take such leave. There is therefore no case that has been made by the Applicant’s representative relating to these applicants. The applicants who were not part of the encashment process and
agreement with the HOD are:
Applicant Number Name Persal Number Suspension
Eighteenth Applicant Baartman, JS 50412698 14-Sept-11
Nineteenth Applicant Dingane, Y 53544750 20-May-11
Twentieth Applicant Futshane, G 52667707 14-June-11
Twenty-first Applicant Wagner, D 50477021 08-Nov-11
Twenty-second Applicant Ntswahlana, ZP 54959861 09-April-10
Twenty-fourth Applicant Cabela, NE 52638391 05-May-10
Twenty-fifth Applicant Mayana, S 13590537 30-Jan-09
Twenty-sixth Applicant Muila, KM 52100359 27-Nov-10
Twenty-seventh Applicant Ndabambi, N 11132752 22-Sept-10
Twenty-eighth Applicant Nodunyelwa, ZM 53649231 15-Nov-11
Forty-eighth Applicant Madikane, B 53891538 24-Jan-12
Forty-ninth Applicant Barlow, RC 173449972 28-Mar-12
Fiftieth Applicant Kali, MH 53644255 15-June-10
Fifty-first Applicant Zituta, CV 52155510 15-June-10
Fifty-second Applicant Daniels, SH 50756567 13-Oct-10
Fifty-third Applicant Petana, MH 13765825 11-April-11
Fifty-fourth Applicant Pieterse, VB 51684578 07-Nov-11
144. I therefore accept that the evidence submitted in this arbitration in respect of alleged unfair conduct related to benefits applies to the following applicants:
Applicant Number Name Persal Number Suspension
First Applicant Tshali, LT 52147355 25-May-11
Second Applicant Lyons, SD 50101722 30-June-10
Third Applicant Gaca, MS 52168221 06-Jan-11
Fourth Applicant Mtiya, PE 52865819 21-Sept-10
Fifth Applicant Manzi, S 52768309 25-May-11
Sixth Applicant Mashalaba, P 12157911 25-May-11
Seventh Applicant Ngoma, MSW 52118363 25-May-11
Eighth Applicant Baadjies, MS 81762551 15-June-10
Ninth Applicant Bacela, AN 52044947 05-Jan-11
Tenth Applicant Kasper, L 50652109 30-June-10
Eleventh Applicant Kolo, T 52712168 05-Jan-11
Twelfth Applicant Sigenu, B 51998165 03-Aug-10
Thirteenth Applicant Zibi, SS 16082613 20-Dec-10
Fourteenth Applicant Godlo, HN 52677443 05-Jan-11
Fifteenth Applicant Lutya, L 53092856 10-Nov-10
Sixteenth Applicant Nabe, NP 52112276 15-June-10
Seventeenth Applicant Ngaso, KE 52116735 15-June-10
Twenty-third Applicant Joja, ND 15090248 31-Jan-11
Twenty-ninth Applicant Nyoka, N 52858804 25-May-11
Thirtieth Applicant Xoko, M 53029178 25-May-11
Thirty-first Applicant Ralane, W 11118504 15-July-11
Thirty-second Applicant Luke, AM 52725723 18-July-11
Thirty-third Applicant Magadu, N 52078671 18-July-11
Thirty-fourth Applicant Mancoko, M 52084256 18-July-11
Thirty-fifth Applicant Time, V 52145867 19-July-11
Thirty-sixth Applicant Coto, M 11080787 21-July-11
Thirty-seventh Applicant Kewuti, N 53040783 21-July-11
Thirty-eighth Applicant Makapela, B 54523001 21-July-11
Thirty-ninth Applicant Mpakama, N 52851095 21-July-11
Fortieth Applicant Mpagalala, V 52105610 21-July-11
Forty-first Applicant Nciza, Y 52113272 21-July-11
Forty-second Applicant Ndibongo, C 54620945 21-July-11
Forty-third Applicant Nxele, A 52942015 21-July-11
Forty-fourth Applicant Rashe, M 52134296 21-July-11
Forty-fifth Applicant Sambane, N 15773787 21-July-11
Forty-sixth Applicant Mtirara, A 15889551 21-July-11
Forty-seventh Applicant Gontshi, NP 52599566 21-July-11
145. My assessment of evidence and argument that follows applies only to the 37 applicants as listed at 144 above, and not to the 17 applicants listed at 143, for the reason already provided. Therefore, the reference to the applicants shall distinguish
between the “37 applicants” (who were part of the Task Team and HOD process) and the “17 applicants”, who are listed at 143.
146. The notices of precautionary suspension submitted as documentary evidence, and agreed by the Applicant and the Respondent as being the document that was issued to each of the suspended applicants , with different dates of suspension, all
contained clauses to the following effect:
[The suspended employees] at paragraph (f) needed to be available on their cellular telephones or at home if the Department needed to get hold of them, and if they ‘wished to leave the jurisdictional area of the Department during normal working hours, [they] will be required to provide the Department with the necessary leave document’. Paragraph (h) stated that the suspended employees could not enter the premises of the Department during the period of his [their] suspension other than to attend to proceedings against them or unless directed [to enter the premises] by the Office of the Superintendent General.
Paragraph (i) states “you will be prohibited to seek any information and / or documentation, whether in hard copy or electronic format from members of staff of the Department. Any requests that you may have in this regard should be addressed to me directly.” This means that any requests for documentation needed to be addressed to the Superintendent General, and not any other employee of the Department. The letter goes on to state that any breach of the conditions could constitute misconduct.
147. The applicants’ version is that they were denied the benefit of taking annual leave over the periods of their suspensions, because the conditions of their suspensions prohibited them from doing so. The Respondent’s version is that the applicants
could apply for and take annual leave whilst they were on suspension. I will address the question of compliance with the Leave Directive, and the powers of Treasury thereafter.
148. It is important to consider the facts related to precautionary suspensions in general. A precautionary suspension means that a person is suspended from work, usually based on suspicions that the employee has committed a serious disciplinary
offence, and it is necessary to prevent the employee from accessing the office and from carrying out any work, whilst an investigation is conducted into the serious allegations. It is accepted as a principle of fairness in labour law (See the Labour
Appeal Court decision of MEC v Gradwell, supra) that the suspensions should not continue for too long, given the negative impact on the employee of being barred from the workplace and needing to remain at home or nearby, whilst waiting to either
be called into a disciplinary hearing, or called back to work if the investigation results in no need for a disciplinary hearing.
149. I accept that suspensions pending disciplinary hearings should be limited in duration, and usually should not exceed a stipulated period, depending on the particular company’s disciplinary rules. As such it is not normally envisaged that
precautionary suspensions would span almost an entire annual leave cycle, or more.
150. Within the negative context of a precautionary suspension, when an employee is waiting to be called in to the company at any stage, and waiting to be summonsed to a disciplinary hearing, the question needs to be asked whether it is likely that the
employee will choose to ‘go on holiday’, during this period, which is what the bulk of an employee’s annual leave is generally used for. It is also difficult for an employee on suspension to predict when the disciplinary hearing will be held.
151. Whilst there has been a lot of technical argument and debate around the submission that the 37 applicants can in fact ‘take annual leave’ whilst on suspension, the reality is that the suspensions should be for no longer than 60 or 90 days, and
unless annual leave was pre-arranged prior to the suspension, the circumstances do not lend themselves to an employee taking their vacation over this period, when their jobs are most likely at risk due to serious misconduct that they are
suspected of, and they could be summoned by the employer to answer questions or come into the office at any point in time. Similarly, a disciplinary hearing may and should be convened within a relatively short period.
152. The points made above reflect the practical reality of a suspension. The various judgements referred to above also reflect the unpleasant consequences of a suspension:
“…notwithstanding the mitigation of the detrimental consequences by the payment of full pay, because the prejudice an employee may suffer as a result of suspension is not limited to financial loss but may extend to issues of integrity, dignity, reputation and standing in the community ”
Therefore, in this context, I find it difficult to agree with the Respondent’s argument that “precautionary suspension is merely a precautionary measure and nothing prohibits the employee from applying for annual leave while on suspension’. Precautionary suspension is accepted as having negative consequences for employees. It is not simply a situation where employees, and the 37 applicants in particular, would choose over this period to ‘go on holiday.’ This is aside from the conditions attached to the suspensions, which are addressed below.
153. Both Mssrs Magadu and Manzi indicated that they did not take annual leave over the periods of their suspensions, because they firstly could not physically arrange for the annual leave and could not obtain the necessary documents to apply for
annual leave, given that this required their presence in the office and their engagement with their supervisors, which was strictly and very clearly prohibited in their notices of suspension, and secondly, because they did not think that they were
permitted to take annual leave whilst suspended.
154. Mr Magadu also spoke of his embarrassment about his suspension with his family and friends. I accept that this contributes to the inability of the applicants to apply for annual leave, and also a reluctance to get other people involved on their
behalf.
155. It is also important to note that not one of the applicants took annual leave over the periods that they were suspended. This was agreed by the parties as being common cause at the outset of the arbitration proceedings. It was also a factor in the
decision of the Task Team and HOD to allow the 37 applicants to encash their untaken and accrued annual leave. This is an important factor which supports the applicant’s version that they could not apply for and take annual leave whilst on
suspension.
156. The Respondent argued that the suspension notices gave a clear indication that the applicants were permitted to take annual leave, through the clause:
“f) You will be required to be available either on your cellular phone or at home should the Employer or any duly authorised representative need clarity from you concerning any of the issues relating to the investigation or should any information relating to your work be required from you. Should you wish to leave the jurisdictional area of the Department during normal working hours, you will be required to provide the department with the necessary leave documentation;”
157. I do not accept that this is a clear indication to the applicants who were on suspension that they could apply for annual leave. The sentences are constructed in a way that they form one paragraph. It indicates firstly that the employee will be
required to be available on their cellular phone or at home so that they can be contacted about the investigation or work. Linked to that requirement – that they are contactable, is if they wish to ‘leave the jurisdictional area of the Department they
are required to provide the Department with the necessary leave documentation’.
158. This phrase does not convey to the applicants that they are entitled to take annual leave whilst they are suspended. It conveys the message that they need to be available to answer questions, and then it speaks about if they wish to ‘leave the
jurisdictional area’ they must provide the necessary leave forms. The lack of clarity of this statement, combined with the very clear statements to the contrary in the same letter (as set out below), are a clear indication that the 37 applicants could
not in fact take annual leave over the periods of their prolonged suspensions.
159. There is also no guidance to the applicants in the letter as to what they would need to do if they wanted to take annual leave, for example how they should access their annual leave entitlement (given that their suspensions deprived them of access
to the information system), how they will engage with their supervisors about suitable dates (given that they are prohibited from contacting anyone in the Department), and of course how they will ensure that the dates do not clash with a disciplinary
hearing.
160. I accept the applicant’s evidence that it was impossible for them to establish the leave due to them, and then establish when taking annual leave would suit their supervisors, without actually engaging with their supervisors, and without access to
the Respondent’s information management systems, to check their leave availability. In addition, I also accept that in Mr Magadu’s case he felt ashamed to ask his wife or another person to go and ask for documents from the department, given the
fact that he was on precautionary suspension due to alleged serious misconduct.
161. In addition, the precautionary suspension letters state the following:
“c) the disciplinary enquiry will be held within 60 days from the date of your precautionary suspension.
…..
h) You shall not enter the premises of the Department during the period of your suspension, other than to attend to any proceedings against you or unless so directed by the Office of the Superintendent General;
i) You will be prohibited to seek any information and / or documentation, whether in hard copy or electronic format from members of staff or any other Department. Any requests that you may have in this regard should be addressed to me directly.
…..
You will be requested to adhere to these conditions punctually since any breach thereof could constitute misconduct.”
162. Paragraphs (h) and (i) conflict with the Respondent’s version that the applicants could apply for leave. It is common cause that a leave application would involve obtaining a numbered form from the premises of the Respondent, thus entering the
premises of the Respondent, or, if the applicants felt comfortable doing this, then asking a relative to collect the form, which would entail ‘seeking documentation ….from members of staff or any other Department.’ This is prohibited in the notice of
suspension. It is also impractical for the applicants to contact the Superintendent General to obtain leave forms, and information relating to their leave entitlements.
163. From the evidence of Mr Manzi, I accept that the HOD of Education, Mr Ngonzo, understood the negative impact that extended periods of suspension have on employees, hence the processes that were put in place where the 37 applicants returned
to work, most after a period of 10 months or more. The 37 applicants went through a wellness programme, other reinstatement programmes, and a motivational speaker was arranged for them.
164. I accept that the HOD applied his mind to the results of the investigation conducted by the Task Team and the recommendations in this regard. I accept that he then decided that the 37 applicants, whom he accepted and acknowledged had been
suspended beyond the legally permissible periods, were unable to take annual leave whilst on suspension. I accept that the HOD, based on the Task Team’s submission to him, accepted that the Determination and Directive on Leave of Absence
in the Public Service, issued in August 2012 by the Minister for the Public Service and Administration, should be applied to the 37 applicants in the specific circumstances.
165. I accept that the 37 applicants were all aware of the process followed by the Task Team, and the agreement by the HOD, and they were therefore expecting to be paid out in terms of the agreement with the HOD.
166. I further accept the Respondent’s evidence led through Mr Pearce and Mr Tshangana, and as set out in the Respondent’s argument, that a direct reading of the relevant clauses in the Determination and Directive on Leave of Absence in the Public
Service, issued in August 2012 by the Minister for the Public Service and Administration, indicates that the clauses related to when the applicants would be entitled to the leave encashments do not apply to the applicants, and I accept the evidence
submitted by the Respondent that Provincial Treasury does have the authority not to authorise these payments, even if they are within the Department’s budget. I therefore do not accept the applicant’s evidence and argument in this regard. Mr
Magadu provided his opinion in relation to the respective levels of authority of heads of department from different departments, however Mr Tshangana gave direct evidence on this, and it is within his scope of expertise and field of work.
167. As such, I will not deal with the evidence of Mr Tshangana, who was a credible witness testifying about matters within his ambit of understanding and expertise, and it is unnecessary to address the numerous arguments put forward by the
Respondent as to the role and level of authority of Treasury, and the interpretation of the Determination and Directive on Leave of Absence in the Public Service, issued in August 2012 by the Minister for the Public Service and Administration. I
accept the evidence and argument that a plain reading of this Directive shows that it does not apply to the 37 applicants in their particular circumstances. I accept that the Directive on Leave does not make specific provision for employees who
were unable to take leave on the basis of being suspended for a lengthy period and that employees who cannot take leave on this basis are thus omitted from the Directive.
168. However, I also find that the investigation and recommendations by the Task Team confirmed that the Directive should, in fairness, make provision for situations such as that faced by the 37 applicants, and that the HOD accepted and endorsed this
approach. I find that this supports a finding that the 37 applicants were in fact deprived of their right to take annual leave, and the attempt to apply the Directive to the 37 applicants recognises this, and recognises that the 37 applicants should not
continue to be deprived of the benefit of their annual leave.
169. As submitted during evidence and in Respondent’s argument, the Determination and Directive on Leave of Absence in the Public Service, issued in August 2012 by the Minister for the Public Service and Administration, provides for the encashment
of unused leave at 5.14:
“If, due to the employer’s service delivery requirements, an employee’s application for leave is denied and not rescheduled, such leave must, upon request, be paid out to the employee at the end of the 6 months’ period referred to in 5.6 above.
Employee requests for payment of unused leave credits must be:
5.14.1 in writing; and
5.14.2 accompanied by written proof of refusal of leave by the Head of Department.
170. It is correct that the applicants did not apply for leave, and were thus not denied leave through refused applications.
171. I find that the 37 applicants were however deprived of their ability to use their leave through the fact that they were all on extended periods, beyond the periods permitted by the Respondent, of precautionary suspensions. The leave accrued to
them, because they remained in the respondent’s employ.
172. It is common cause that not one of the applicants applied for or took annual leave over the periods of their suspensions. I accept that the 37 applicants entered into discussions and engaged with the Task Team after returning from their
suspensions, with a view to addressing this untaken annual leave, which was not utilised due to circumstances for which the Respondent was responsible.
173. I have not taken into account the fact that there are previous cases of employees who were paid out annual leave based on the fact that they could not take this annual leave while they were suspended. As such, I have disregarded both the
applicant’s and the respondent’s evidence and arguments in this regard. The evidence, although it was common cause, did not provide sufficient detail to establish if the circumstances were sufficiently comparable with those of the applicants in
this matter, nor how the respondent had made the decision to pay out the annual leave.
174. From a substantive perspective, the 37 applicants are entitled to use the benefit of their annual leave, and they were deprived of the use of this benefit over the duration of the periods of their suspensions, due to the actions of the Respondent. The
Respondent placed them all on various periods of precautionary suspension, and the conditions of the suspensions resulted in a situation where the 37 applicants could not, and did not, use this benefit to which they are entitled.
175. In addition, the Task Team and the HOD recognised that the 37 applicants were deprived of this benefit, and attempted to remedy this through the application of the Determination and Directive on Leave of Absence in the Public Service, issued in
August 2012 by the Minister for the Public Service and Administration.
176. The Office of the Premier (“OTP”) interpreted the Directive, and found that the it could not be applied to the 37 applicants. The OTP did not advise the 37 applicants of this, but advised Treasury who thereafter advised the HOD.
177. No evidence was presented to show that either the OTP or Treasury engaged with the HOD to discuss this matter and ways of addressing the factual situation that 37 employees had not taken annual leave, all for the same reason.
178. I accept the Applicant’s argument that the respondent does have an obligation to all of its employees to ensure that they take their annual leave, and that although an attempt was made to address the accrued leave, this was unsuccessful as the
agreement in respect of how the annual leave was to be dealt with was not honoured. It therefore did not meet its obligation in this instance. This contributed to the unfairness experienced by the applicants in respect of their accrued and untaken
leave.
179. I do not accept that the 37 applicants were ‘out of time’ in terms of submitting their requests for annual leave. Mr Magadu gave evidence that the applicants engaged with the ‘employer’ [the Respondent] in June and July 2012. This evidence was
not disputed by the Respondent. The circumstances of the accrued leave for these 37 applicants is unusual, as there is a large group of applicants who were suspended from work for extended periods of time. They did raise the matter of their
accrued leave via a Task Team set up by the Head of Department, and I accept that this is sufficient to meet the requirement that they raised the issue with their supervisors timeously.
180. The employer, through the acts of the HOD, the final decision-maker in the Provincial Department, chose to deal with the accrued and untaken leave in a specific manner, and made a decision to allow the leave to be encashed. This was then,
through no fault of the 37 applicants, found to be out of line with the Determination and Directive on Leave of Absence in the Public Service . It is unacceptable for the applicants to be penalised for a time frame that was not met due to the HOD’s
process, and not their own.
181. From a procedural perspective, no evidence was presented to show that the Respondent engaged the 37 applicants properly, or at all, after the instruction was issued to the HOD from the OTP and Treasury. The HOD or the OTP should have
engaged with the 37 applicants regarding the reasons why the HOD’s decision was not approved or implemented, and why the Directive was found not to apply to them. The decision not to honour the agreement made between the HOD and the 37
applicants clearly had negative consequences for these applicants, and the Respondent should have explained the decision and reasoning to them. In this manner, other ways of addressing the fact that all of the applicants did not use of their
annual leave over the periods of their suspensions could have been explored.
182. Instead, the Respondent approached the matter in a technical manner simply by stating that Treasury had not approved the payments based on their finding that the Determination and Directive on Leave of Absence in the Public Service does not
apply to them. The Respondent then indicated that it did not have proof of when the issue regarding the accrued leave was raised, and therefore it was assuming that the applicants did not meet the deadline as per the SMS policy and the Directive.
The respondent chose to allow the applicants’ accrued and untaken annual leave to lapse, even in the face of its own non-compliance with prescripts – being the prescripts relating to the duration of suspensions. The applicants then approached
the Council with their allegation of an unfair labour practice relating to the Respondent’s conduct relating to a benefit.
183. This matter has been referred under the auspices of an alleged unfair labour practice in respect of an act or an omission by the employer relating to benefits. Whilst the Applicants have positioned their claim as relating to the encashment of their
annual leave for the periods that they were suspended, I find that the true nature of the dispute relates to the applicants’ entitlement to annual leave whilst employed, and the right to use that annual leave. As such, although the parties did not
question whether the nature of the benefit in this matter fell within the definition of ‘benefit’ in terms of the unfair labour practice definition, it is clear and accepted that annual leave is a ‘benefit’ and as such falls within the ambit of the unfair labour
practice definition. This is confirmed in Jansen van Vuuren v South African Airways (Pty) Ltd and another where the Labour Court determined a matter related to unfair discrimination, and was also tasked with arbitrating the same matter which was
simultaneously referred on the basis of an unfair labour practice. The Court in this matter found that annual leave is a benefit in terms of the unfair labour practice definition.
Substantive fairness in respect of the alleged unfair suspensions
184. No evidence was submitted by the Applicant in respect of the substantive fairness of the suspensions.
185. The onus is on the applicant to prove an unfair labour practice and as such, and the applicant has failed to make a case in respect of substantive unfairness of the suspensions.
Procedural fairness in respect of the alleged unfair suspensions
186. I accept that evidence was submitted, and accepted as being common cause , in respect of applicants (1). Tshali, LT; (5.) Manzi, S; (6.) Mashalaba, P; (7.) Ngoma, MSW; (19.) Dingane, Y; (29.) Nyoka, N; (30.) Xoko, M; (31.) Ralane, W; (32.) Luke,
AM; (33.) Magadu, N; (34.) Mancoko, M; (35.) Time, V; (36.) Coto, M; (37.) Kewuit, N; (38.) Makapela, B; (39.) Mpakama, N; (40.) Mpagalala, V; (41.) Noza, Y; (42.) Ndibongo, C; (43.) Nxele, A; (44.) Rashe, M; (45.) Sambane, N; (46.) Mtirara, A; (47.)
Gontshi, NP, that showed that these applicants were suspended without pre-suspension hearings or processes, and they were suspended for periods of approximately 11 months each, in excess of the period permitted in terms of schedule 2 of the
Employment of Educators Act.
187. The Labour Appeal Court has ruled that some form of hearing must take place before an employee is suspended, and in the present matter, where employees are extended without the safeguard of a limited period of suspension, this requirement is
more important.
188. On these bases, and for the reasons set out in my analysis above, I find that the suspensions of the applicants set out above to be procedurally unfair, and I find this to constitute an unfair labour practice related to suspension in terms of section 186(2)(b) of the Labour Relations Act.
189. No evidence was presented in respect of the remainder of the applicants and I therefore find that their suspensions were not proven to be procedurally unfair.
Substantive fairness in respect of the alleged unfair labour practice relating to benefits
190. The applicants are entitled to use of their annual leave, in law and equity.
191. The applicants have requested that I rule that the respondent’s conduct is unfair administrative action in terms of PAJA (supra). However, it has been definitely ruled in Chirwa v Transnet Ltd & others that the provisions of PAJA are not applicable
to unfair labour practices in terms of the Labour Relations Act. I therefore cannot make a ruling in this regard, but am confined to the unfair labour practice definition in the Labour Relations Act, and the fairness provisions applicable thereto.
192. I find that the employer’s action of suspending the 37 applicants for lengthy periods, with the conditions attached to such suspensions, resulted in these applicants not being able to use and enjoy the benefit of their annual leave over the
suspension periods.
193. The Respondent’s Determination and Directive on Leave of Absence in the Public Service only caters for situations where an employee applies for leave and is denied leave due to work reasons, and does not cater for a situation where an employee is deprived of his/her leave benefit for other employer-related reasons, where the employee does not have the ability to apply for leave.
194. The 37 applicants in this instance could not apply for leave and as such could not meet the conditions set out in the Directive.
195. The omission in the Respondent’s Directive in respect of addressing other circumstances where annual leave cannot be taken by an employee, and its narrow construction in this instance, has resulted in unfairness towards the 37 applicants, in that it has not provided them with a way in which to benefit from the annual leave of which they were deprived.
196. The Respondent’s conduct has been further unfair in the following manner. Initially the Respondent, via the Task Team and the actions of the HOD, endeavoured to acknowledge the unique and prejudicial circumstances in which the 37 applicants found themselves, and entered into an agreement with these applicants, thus ensuring that they did not lose the right to their leave benefits. However, thereafter the Respondent was unable to honour this agreement, with the outcome not only that the 37 applicants were deprived of their benefit, but the Respondent’s stance of simply referring to the Leave Directive and failing to acknowledge that the Respondent had acted unfairly in suspending the 37 applicants for the lengths of time they were suspended, made it impossible for the 37 applicants to find an internal remedy for the loss of the use of their leave benefits. The Respondent did not engage with them over alternative solutions.
197. Respondent did not appear to be concerned that these applicants, 37 in total, would simply lose the annual leave that had accrued to them over the periods that they were suspended by the Respondent, beyond the ‘legally permissible periods.’
198. Annual leave clearly falls within the scope of the definition of benefits in terms of the an unfair labour practice definition; the Respondent’s Leave Directive does not cater for a situation where an employee is deprived of the use of this benefit, due to suspension, and the Respondent’s suspension procedures and notification letter does not provide for a clear right and ability for employees to apply for annual leave whilst on suspension. In fact, the conditions attached to suspensions make it almost impossible for employees to exercise this right. I find this omission in the Directive, and the deprivation of the 37 applicants’ right to use or benefit from their annual leave to be unfair.
199. With regard to the remaining 17 applicants, the evidence submitted in respect of the agreement with the HOD does not apply to these applicants, and evidence has not been submitted for these 17 applicants in respect of benefits relating to their leave benefits, accrued leave or encashment of leave. There is therefore no evidence applicable to these 17 applicants to establish whether an unfair labour practice was committed or not. The onus rests on the applicants to prove unfair conduct, and as such, the applicants have failed to discharge the onus in respect of these 17 applicants.
Procedural fairness in respect of the alleged unfair labour practice relating to benefits
200. I have already addressed the various factors resulting in my finding that a flawed and unfair procedure was followed by Respondent when addressing the issue of the 37 applicants’ accrued annual leave.
201. It needs to be reiterated that the initial procedure followed by the Task Team and HOD in addressing the issue of the 37 applicants’ accrued leave was completely fair and attempted to find a fair solution to the deprivation of the 37 applicants’ rights to use or benefit from their annual leave, which they were deprived of whist on suspension.
202. Thereafter, the procedure followed by the Respondent was unfair. It reneged on the agreement entered into by the HOD with the 37 applicants without engaging with the applicants in this regard, and took a legalistic and unfair stance with the result that the applicants would simply have been denied the use of their annual leave, and would in fact forfeit it.
203. The procedure followed by the Respondent’s in respect of the provision of benefits in this matter is thus unfair.
Relief
204. The applicants have not requested any relief in respect of the first dispute, being the unfair labour practice in respect of suspension, in terms of section 186(2)(b), and as such no relief is awarded.
205. In terms of section 193(4) “An arbitrator appointed in terms of this Act may determine any unfair labour practice dispute referred to the arbitrator, on terms that the arbitrator deems reasonable, which may include ordering reinstatement, re-employment or compensation.”
206. The applicant has requested that the Respondent be ordered and directed to pay the applicants the encashment of unused leave credits as reflected in the agreement with the Head of Department. I am however limited to ordering compensation, in accordance with section 193(4).
207. Section 194(4) provides that “The compensation awarded to an employee in respect of an unfair labour practice must be just and equitable in all the circumstances, but not more than the equivalent of 12 months’ remuneration.”
208. The 37 applicants should have been entitled to use the leave that accrued to them over the periods of their suspensions. The Respondent deprived them of this right. The Respondent has calculated the various amounts of leave that accrued to the 37 applicants, and these details are included in Addendum 2 . The Addendum sets out the days of leave due to each of the 37 applicants, for the periods over which they were suspended, and which have not been used by the applicants.
209. The agreement in Addendum 2 anticipated that the 37 applicants would receive 80% of this accrued leave as an encashment and the remainder would be credited to the applicants’ annual leave, for the applicants to use.
210. It would therefore be fair and equitable in the circumstances to award each of the 37 applicants compensation equivalent to 100% of the leave accrued to them, and not taken by them, over the periods of their suspensions.
211. The number of days leave for each applicant is set out in Addendum 2, and has already been audited by the Respondent.
212. The Respondent and the Applicant can however verify these leave figures prior to any compensation being paid, provided it is paid by the date stipulated below.
Award
213. The existence of an unfair labour practice in terms of section 186(2)(b) relating to suspension has not been established in respect of the following applicants: Second Applicant: Lyons, SD; Third Applicant: Gaca, MS; Fourth Applicant: Mtiya, PE; Eighth Applicant: Baadjies, MS; Ninth Applicant: Bacela, AN; Tenth Applicant: Kasper, L; Eleventh Applicant: Kolo, T; Twelfth Applicant: Sigenu, B; Thirteenth Applicant: Zibi, SS; Fourteenth Applicant: Godlo, HN; Fifteenth Applicant: Lutya, L; Sixteenth Applicant: Nabe, NP; Seventeenth Applicant: Ngaso, KE; Eighteenth Applicant: Baartman, JS; Twentieth Applicant: Futshane, G; Twenty-first Applicant: Wagner, D; Twenty-second Applicant: Ntswahlana, ZP; Twenty-third Applicant: Joja, ND; Twenty-fourth Applicant: Cabela, NE; Twenty-fifth Applicant: Mayana, S; Twenty-sixth Applicant: Muila, KM; Twenty-seventh Applicant: Ndabambi, N; Twenty-eighth Applicant: Nodunyelwa, ZM; Forty-eighth Applicant: Madikane, B; Forty-ninth Applicant: Barlow, RC; Fiftieth Applicant: Kali, MH; Fifty-first Applicant: Zituta, CV; Fifty-second Applicant: Daniels, SH; Fifty-third Applicant: Petana, MH; Fifty-fourth Applicant: Pieterse, VB, and as such the application in relation to these applicants is dismissed.
214. The existence of an unfair labour practice in terms of section 186(2)(b) relating to suspension has been established in respect of the following (1). Tshali, LT; (5.) Manzi, S; (6.) Mashalaba, P; (7.) Ngoma, MSW; (19.) Dingane, Y; (29.) Nyoka, N; (30.) Xoko, M; (31.) Ralane, W; (32.) Luke, AM; (33.) Magadu, N; (34.) Mancoko, M; (35.) Time, V; (36.) Coto, M; (37.) Kewuit, N; (38.) Makapela, B; (39.) Mpakama, N; (40.) Mpagalala, V; (41.) Noza, Y; (42.) Ndibongo, C; (43.) Nxele, A; (44.) Rashe, M; (45.) Sambane, N; (46.) Mtirara, A; (47.) Gontshi, NP and the applicants’ claims are upheld. The conduct of the Respondent is found to be an unfair labour practice in terms of section 186(2)(b) of the Labour Relations Act.
215. No relief has been sought in relation to the unfair labour practices relating to suspension, and as such, no relief is ordered.
216. The existence of an unfair labour practice in terms of section 186(2)(a) relating to benefits has not been established in respect of the following 17 applicants: Eighteenth Applicant: Baartman, JS; Nineteenth Applicant: Dingane, Y; Twentieth Applicant: Futshane, G; Twenty-first Applicant: Wagner, D; Twenty-second Applicant: Ntswahlana, ZP; Twenty-fourth Applicant: Cabela, NE; Twenty-fifth Applicant: Mayana, S; Twenty-sixth Applicant: Muila, KM; Twenty-seventh Applicant: Ndabambi, N; Twenty-eighth Applicant: Nodunyelwa, ZM; Forty-eighth Applicant: Madikane, B; Forty-ninth Applicant: Barlow, RC; Fiftieth Applicant: Kali, MH; Fifty-first Applicant: Zituta, CV; Fifty-second Applicant: Daniels, SH; Fifty-third Applicant: Petana, MH; Fifty-fourth Applicant: Pieterse, VB, and their applications are accordingly dismissed.
217. The existence of an unfair labour in terms of section 186(2)(a) relating to benefits has been established in respect of the following 37 applicants - First Applicant : Tshali, LT; Second Applicant: Lyons, SD; Third Applicant: Gaca, MS.; Fourth Applicant: Mtiya, PE; Fifth Applicant: Manzi, S; Sixth Applicant: Mashalaba, P; Seventh Applicant: Ngoma, MSW; Eighth Applicant: Baadjies, MS.; Ninth Applicant: Bacela, AN; Tenth Applicant: Kasper, L; Eleventh Applicant: Kolo, T; Twelfth Applicant: Sigenu, B; Thirteenth Applicant: Zibi, SS; Fourteenth Applicant: Godlo, HN; Fifteenth Applicant: Lutya, L; Sixteenth Applicant: Nabe, NP; Seventeenth Applicant: Ngaso, KE; Twenty-third Applicant: Joja, ND; Twenty-ninth Applicant: Nyoka, N; Thirtieth Applicant: Xoko, M; Thirty-first Applicant: Ralane, W; Thirty-second Applicant: Luke, AM; Thirty-third Applicant: Magadu, N; Thirty-fourth Applicant: Mancoko, M; Thirty-fifth Applicant: Time, V; Thirty-sixth Applicant: Coto, M; Thirty-seventh Applicant: Kewuti, N; Thirty-eighth Applicant: Makapela, B; Thirty-ninth Applicant: Mpakama, N; Fortieth Applicant: Mpagalala,V; Forty-first Applicant: Nciza, Y; Forty-second Applicant: Ndibongo, C; Forty-third Applicant: Nxele, A; Forty-fourth Applicant: Rashe, M; Forty-fifth Applicant: Sambane, N; Forty-sixth Applicant: Mtirara, A; Forty-seventh Applicant: Gontshi, N and the applicants’ claims are thus upheld. The conduct of the Respondent is found to be an unfair labour practice in terms of section 186(2)(a) of the Labour Relations Act.
218. Compensation equal to 100% of the cash value of the annual leave accrued and not taken over their respective periods of suspension, the precise detail of which is set out in Addendum 2, is awarded to each of the 37 listed applicants. The parties agreed that the quantification of payment for annual leave will be verified between them if necessary as a result of this arbitration process. However, should it be necessary to determine the amounts due to the applicants in respect of this award, I retain my terms of reference and jurisdiction to determine the amounts payable, and this shall be determined in a manner and in accordance with a process that I shall direct once appraised of the nature of the issues in dispute. The parties are hereby directed to inform me, in writing, on or before 30 June 2014 that the respective payments have been made to the applicants, or if not, precisely what the issues are in relation to such payments, and I will issue appropriate directions.
219. Payment of the amounts due to the 37 applicants, after the necessary statutory deductions and subject to a verification exercise between the applicants and the respondent if required, shall be made by no later than 30 June 2014, subject to clause 218.
SIGNED AT GRAHAMSTOWN ON THIS 3rd DAY OF JUNE 2014.
Michelle Huber