PSES377-13/14EC
PSES377-13/14EC
Award Date:
25 February 2014
Case Number: PSES377-13/14EC
Province: Eastern Cape
Applicant: PSA obo John Solomzi Wolsak
Respondent: Department of Education: Eastern Cape
Issue: Unfair Labour Practice - Promotion/Demotion
Venue: Mt Fletcher
Award Date: 25 February 2014
Arbitrator: Malusi Mbuli
ELRC ARBITRATION AWARD
Case Number: PSES377-13/14
Panelists: Malusi Mbuli
Date of Award: 25-02-2014
In the ARBITRATION between
PSA obo John Solomzi Wolsak
(Applicant)
And
Department of Education – Eastern Cape Province
(Respondent)
DETAILS OF THE HEARING AND REPRESENTATION
1. The matter came before the ELRC for arbitration under section 186 {2} (a) as an Unfair Labour Practice dispute. It was set down for arbitration hearing at the Department of Education Mt Fletcher District Offices in Mt
Fletcher on the 21st of February 2014.
2. The applicant Mr. John Solomzi Wolsak attended the hearing and was represented by Mr. O. B. Mbuyeleni an official of the applicant’s trade union PSA.
3. The respondent Department of Education – Eastern Cape was also present at the hearing and was represented by Mrs. N. Fikeni, an official of the respondent.
4. The matter was finalized on the same day and the parties agreed to file their arguments not later than the 28th of February 2014 and both of the arguments were filed not later than the 25th of February 2014.
ISSUE TO BE DECIDED
5. I am required to determine whether or not the employer has committed an unfair labour practice by demoting the applicant as a disciplinary action.
SURVEY OF EVIDENCE
6. The parties did not lead any evidence on the matter but submitted heads of arguments and documents because the facts in this dispute were common cause. It follows that the matter was not recorded and the
party’s arguments and documents will form the record of the proceedings.
7. Issues that are common:
− That the applicant was working for the respondent as a Principal and was subjected to a disciplinary hearing on the allegations of
− (1) negligent mismanagement of state finances,
− (2) Wrongful use of the state property and money without obtaining approval from the District Director and the Department of Education.
− (3) Willfully, intentionally or negligently damaged or caused loss to the property of the state, a school, further education and training institution, an adult learning.
− The applicant pleaded guilty to the 3 allegations that were leveled against him both at the disciplinary hearing and the arbitration hearing.
− The applicant was then issued with a sanction of a demotion after he mitigated his sanction.
8. Issue that is in dispute:
− Whether the applicant’s demotion was fair.
ANALYSIS OF EVIDENCE AND ARGUMENT
9. Both the applicant and the respondent filed their arguments in this matter. The applicant’s representative argues that the applicant’s demotion was unfair because the sanction of a demotion was too harsh in the
circumstances.
10. He argued that the applicant was not trained on the handling of the section 21 schools funding and was therefore not up to scratch in terms of performing work in this area.
11. He argues further that the employer has started deducting the employee’s salary in order to recover the amount allegedly misused by the applicant.
12. In as far as this part is concerned I do not know what was the reason for the deduction of the employee’s salary because the sanction that was issued by the employer and which is subject of this arbitration is the
demotion of the applicant.
13. He further argues that the chairperson of the hearing and the one of the appeal failed to take into account the mitigating circumstances of the applicant when they issued the sanction of a demotion.
14. The respondent’s representative on the other hand argues that the sanction of a demotion that was issued to the applicant was fair because he has been charged and found guilty of serious transgression.
15. It is not disputed that the charges for which the applicant was charged are serious acts of misconduct and in this case the applicant could have been given a sanction of a dismissal.
16. I believe that the chairperson took into account the applicants mitigating circumstances and hence he / she imposed a sanction short of dismissal which is a demotion.
17. The fact that the applicant was not work shopped if he was not work shopped cannot be raised as a defense or even a mitigating factor because the applicant knew the rule or at least is expected to have known
the rule.
18. Section 185 of the Labour Relations Act 66 of 1995 as amended categorizes and condemn any unlawful act or omission by the employer and describes that act or omission as an unfair labour practice under
section 186 (2).
19. The question that this award has to answer is whether the conduct of the employer in demoting the applicant was fair. There is a valid reason for the employer to impose the sanction of a demotion and this act
cannot be said to be unfair.
20. The applicant pleaded guilty to the 3 charges for which he has been charged and subsequently found guilty and the fact that he pleaded guilty cannot serve as a defense but only a mitigating factor.
21. In the circumstances I make the following award.
AWARD
22. The demotion of the applicant by the respondent from the position of a Principal to that of a Deputy Principal was fair and did not constitute any unfair labour practice as contemplated by section 186 (2) (b) of the
Labour Relations Act 66 of 1995 as amended.
23. The applicant is therefore not entitled to any relief.
Signature:
Commissioner: Malusi Mbuli
Province: Eastern Cape
Applicant: PSA obo John Solomzi Wolsak
Respondent: Department of Education: Eastern Cape
Issue: Unfair Labour Practice - Promotion/Demotion
Venue: Mt Fletcher
Award Date: 25 February 2014
Arbitrator: Malusi Mbuli
ELRC ARBITRATION AWARD
Case Number: PSES377-13/14
Panelists: Malusi Mbuli
Date of Award: 25-02-2014
In the ARBITRATION between
PSA obo John Solomzi Wolsak
(Applicant)
And
Department of Education – Eastern Cape Province
(Respondent)
DETAILS OF THE HEARING AND REPRESENTATION
1. The matter came before the ELRC for arbitration under section 186 {2} (a) as an Unfair Labour Practice dispute. It was set down for arbitration hearing at the Department of Education Mt Fletcher District Offices in Mt
Fletcher on the 21st of February 2014.
2. The applicant Mr. John Solomzi Wolsak attended the hearing and was represented by Mr. O. B. Mbuyeleni an official of the applicant’s trade union PSA.
3. The respondent Department of Education – Eastern Cape was also present at the hearing and was represented by Mrs. N. Fikeni, an official of the respondent.
4. The matter was finalized on the same day and the parties agreed to file their arguments not later than the 28th of February 2014 and both of the arguments were filed not later than the 25th of February 2014.
ISSUE TO BE DECIDED
5. I am required to determine whether or not the employer has committed an unfair labour practice by demoting the applicant as a disciplinary action.
SURVEY OF EVIDENCE
6. The parties did not lead any evidence on the matter but submitted heads of arguments and documents because the facts in this dispute were common cause. It follows that the matter was not recorded and the
party’s arguments and documents will form the record of the proceedings.
7. Issues that are common:
− That the applicant was working for the respondent as a Principal and was subjected to a disciplinary hearing on the allegations of
− (1) negligent mismanagement of state finances,
− (2) Wrongful use of the state property and money without obtaining approval from the District Director and the Department of Education.
− (3) Willfully, intentionally or negligently damaged or caused loss to the property of the state, a school, further education and training institution, an adult learning.
− The applicant pleaded guilty to the 3 allegations that were leveled against him both at the disciplinary hearing and the arbitration hearing.
− The applicant was then issued with a sanction of a demotion after he mitigated his sanction.
8. Issue that is in dispute:
− Whether the applicant’s demotion was fair.
ANALYSIS OF EVIDENCE AND ARGUMENT
9. Both the applicant and the respondent filed their arguments in this matter. The applicant’s representative argues that the applicant’s demotion was unfair because the sanction of a demotion was too harsh in the
circumstances.
10. He argued that the applicant was not trained on the handling of the section 21 schools funding and was therefore not up to scratch in terms of performing work in this area.
11. He argues further that the employer has started deducting the employee’s salary in order to recover the amount allegedly misused by the applicant.
12. In as far as this part is concerned I do not know what was the reason for the deduction of the employee’s salary because the sanction that was issued by the employer and which is subject of this arbitration is the
demotion of the applicant.
13. He further argues that the chairperson of the hearing and the one of the appeal failed to take into account the mitigating circumstances of the applicant when they issued the sanction of a demotion.
14. The respondent’s representative on the other hand argues that the sanction of a demotion that was issued to the applicant was fair because he has been charged and found guilty of serious transgression.
15. It is not disputed that the charges for which the applicant was charged are serious acts of misconduct and in this case the applicant could have been given a sanction of a dismissal.
16. I believe that the chairperson took into account the applicants mitigating circumstances and hence he / she imposed a sanction short of dismissal which is a demotion.
17. The fact that the applicant was not work shopped if he was not work shopped cannot be raised as a defense or even a mitigating factor because the applicant knew the rule or at least is expected to have known
the rule.
18. Section 185 of the Labour Relations Act 66 of 1995 as amended categorizes and condemn any unlawful act or omission by the employer and describes that act or omission as an unfair labour practice under
section 186 (2).
19. The question that this award has to answer is whether the conduct of the employer in demoting the applicant was fair. There is a valid reason for the employer to impose the sanction of a demotion and this act
cannot be said to be unfair.
20. The applicant pleaded guilty to the 3 charges for which he has been charged and subsequently found guilty and the fact that he pleaded guilty cannot serve as a defense but only a mitigating factor.
21. In the circumstances I make the following award.
AWARD
22. The demotion of the applicant by the respondent from the position of a Principal to that of a Deputy Principal was fair and did not constitute any unfair labour practice as contemplated by section 186 (2) (b) of the
Labour Relations Act 66 of 1995 as amended.
23. The applicant is therefore not entitled to any relief.
Signature:
Commissioner: Malusi Mbuli