PSES198-10/11FS & PSES628-09/10FS
PSES198-10/11FS & PSES628-09/10FS
Award Date:
31 January 2011
Case Number: PSES198-10/11FS & PSES628-09/10FS
Province: Free State
Applicant: PSA Obo Yoliswa Shiela Kotoyi-Mosala
Respondent: Department of Education, Free State
Issue: Unfair Labour Practice - Suspension
Venue: Bloemfontein
Award Date: 31 January 2011
Arbitrator: E Maree
EDUCATION LABOUR
RELATIONS COUNCIL
Panellist : E MAREE
Case Number : PSES198-10/11FS
PSES628-09/10FS
Date of Award : 31 January 2011
In the ARBITRATION between
PSA OBO YOLISWA SHIELA KOTOYI- MOSALA
Applicant
and
DEPARTMENT OF EDUCATION [DOE] – FREE STATE
Respondent
Applicant’s representative Mr. J. Greeff
Applicant’s address Fax [051] 403 1300
Respondent’s representative Mr. P.T. Masihlehlo
Respondent’s address Fax 086 634 1246
DETAILS OF HEARING AND REPRESENTATION
1. The matter was heard on 24 January 2011 at the premises of the Xhariep Education District situated at 106 Selbourne Avenue, Katleho Building, Bloemfontein.
2. The applicant was represented by Mr. J. Greeff an official from PSA while the respondent was represented by Mr. P.T. Masihleho.
3. The applicant submitted bundles A, B and C and the respondent bundle D.
4. The applicant referred 2 cases. The 1st case PSES198-10/11 FS dealt with her suspension and the 2nd one PSES628-09/10 dealt with her demotion and final written warning.
5. These cases had previously been joined and were set down to be heard simultaneously on the 24th of January 2011.
6. On the day of the arbitration the matter proceeded and it was agreed that evidence relating to the suspension matter would be heard first where after the demotion matter would immediately proceed.
7. At the conclusion of the evidence regarding the suspension matter, the demotion matter proceeded. It however, became clear during the cross-examination of the applicant that this matter had been referred prematurely.
8. It was then agreed that case PSES628-09/1-FS that deals with the demotion and the final written warning would be withdrawn and the case closed due to the fact that it had been prematurely referred.
9. The case that therefore would be determined is PSES198-10/11 that deals with the suspension.
ISSUES TO BE DECIDED
10. I have to determine whether the respondent committed an unfair labour practice when the applicant was suspended on the 10th of February 2010.
11. In the event that the respondent indeed committed an unfair labour practice, I have to determine appropriate relief.
SURVEY OF EVIDENCE AND ARGUMENT
THE APPLICANT’S EVIDENCE
12. The applicant, YOLISWA SHIELA KOTOYI-MOSALA under oath testified that:
a] She was the HOD : Foundation Phase at Marang Primary School;
b] She was suspended on the 10th of February 2010 [Bundle C pages 2 7 3];
c] The suspension letter was handed to her by Mr. Tladi who did not confirm her address when he handed her the letter;
d] She had not yet attended a disciplinary hearing and is still suspended ‘until today’.
e] On the 29th of October 2010 Mr. Greeff her union representative handed her the notification to attend the disciplinary hearing after the notice of set down [Bundle A page 12] had been send to attend the suspension matter;
f] The arbitration had been scheduled on a number of occasions and the respondent never attempted to serve her with the notice of the disciplinary hearing on any of these occasions;
g] The respondent had therefore been able to reach her either via her union or at the arbitration sittings;
h] During October 2010 her salary was terminated [Bundle C pages 23 & 24];
i] It is reflected [Bundle C page 25] that her salary was terminated as ‘disciplinary sanction’ but she had never attended a disciplinary hearing;
j] Due to the fact that she had not received her salary she was unable to pay her debit orders, her medical aid was suspended and her policies not paid;
k] She was also as a result of her suspension not paid her 1% bonus appraisal or the 7,5% salary increase;
l] The effect of the suspension on her ‘is terrible, horrible’ and affected her credit record;
m] The suspension also ‘touched the husband and children’ as she could not give any reason why she was at home;
n] The suspension also affected her work security and reputation as an educator.
THE RESPONDENT’S EVIDENCE
13. On behalf of the respondent, POGISHO MICHAEL TLADI under oath testified that:
a] He is the Assistant Director Labour Relations and as such is responsible inter alia for training and investigation of misconduct;
b] Bundle C pages 2 & 3 reflect the applicant’s letter of suspension for alleged assault of the Principal;
c] The Marang School was dysfunctional due to the applicant’s actions and this was not in the interest of the learners, school or the other educators to keep the applicant at the school;
d] The HOD, MEC and the Portfolio Committee for Education were informed and an instruction was given to Labour Relations to investigate the issue and to suspend the applicant;
e] The Principal was also suspended and other educators were transferred and the school was rendered dysfunctional;
f] The applicant was therefore suspended during February 2010 and the investigation commenced immediately;
g] The delay to serve the applicant with a notice of hearing was caused by the fact that the respondent was unable to get hold of the applicant as the address given to the respondent was wrong;
h] The applicant could not be found at address given to the respondent [Bundle D page 12];
j] The respondent also visited the school but no information was forthcoming to assist the respondent;
k] The respondent intended to schedule the hearing for April or May but the applicant could not be found. The respondent then requested the Director to authorise the Finance department to stop the applicant’s salary in an attempt to get her to avail herself;
l] June had a ‘very short academic time’ and during June/July the World cup was held. Finance also misplaced the letter to stop the applicant’s salary which was then only done for October 2010;
m] The applicant then contacted the respondent via her union and a notice of set down was served via the union at their request;
n] The disciplinary hearing was scheduled for the 8th of December 2010 but the applicant submitted a medical certificate and she did not attend it;
o] The applicant’s salary that was not paid for October 2010 was then reinstated;
p] The matter could therefore not be set down earlier as the applicant could not be served with a notice of set down. It is the duty of an employee to ensure that the employer is in possession of correct contact details;
q] The applicant’s salary was ‘frozen’ [Bundle C page 25] in an attempt to get hold of her and not as a result of any disciplinary action;
r] The ‘freeze’ of the applicant’s salary was necessary as the respondent had to get hold of her in order to serve the disciplinary documentation.
CLOSING ARGUMENT
14. Oral closing arguments were submitted on behalf of both parties.
I have studied these arguments and would reflect relevant parts if necessary.
ANALYSIS OF EVIDENCE AND ARGUMENT
15. Section 186[2] [b] of the Labour Relations Act 66 of 1995 defines an unfair labour practise as follows:
[2] Unfair labour practice means any unfair act or omission that arises between an employer and an employee involving –
[b] the unfair suspension of an employee or any other unfair disciplinary action short of dismissal in respect of an employee’.
16. The applicant was suspended on the 10th of February 2010 and testified that her suspension must be uplifted and compensation awarded due to the delay by the respondent in timeously convening a disciplinary hearing.
17. It needs to be stated at the outset that only 2 issues were placed in dispute regarding the suspension.
18. The first issue in dispute dealt with the fact that a disciplinary hearing was not timeously convened [this impacts on the procedural fairness of the suspension] and secondly that the applicant’s salary had not been paid for October 2010.
19. The applicant did not dispute any substantive aspects. The applicant did not contend that there was no prima facie case that she had committed misconduct nor that there was a good reason to remove her from the workplace pending the outcome of the disciplinary hearing,
20. Regarding the procedural aspects it was also not disputed on behalf of the applicant that the audi alteram rule had been complied with. As stated the only procedural issue was the length of the suspension.
21. The only 2 issues thus that needs to be determined is if the length of the suspension [procedural] was unfair and if the ‘freezing’ of the applicant’s salary was allowed.
22. According to the applicant she resides at two addresses, the one as indicated on the respondent’s system and a 2nd address as reflected in her correspondence to the respondent.
23. Therefore, the applicant testified, it was her view that the respondent had no reasonable explanation for not convening a disciplinary hearing.
24. On behalf of the respondent it was submitted that there is one address for the applicant on the respondent’s system but that when the notice of set down was taken to this address they were informed that the applicant no longer resides there.
25. It was further testified on behalf of the respondent that they had no knowledge of the 2nd address and that it is the duty of an employee to keep his or her details updated with the respondent.
26. The respondent further submitted that in order to get hold of the applicant to serve a notification on her, her salary was suspended for September and October 2010.
27. As a result of not being paid the applicant via her union contacted the respondent and it was then agreed that all notices to the applicant would be served via her union.
28. It was stated by the applicant that she could therefore be reached at two addressed as known to the respondent or via her union.
29. The respondent denied this and stated that besides not knowing the applicant’s 2nd address the union only came on board after the ‘freezing’ of the applicant’s salary.
30. It was common cause that after the applicant’s union contacted the respondent her salary was reinstated and she was reimbursed for the 2 months’ she had not been paid.
31. Furthermore, the applicant was then served with a notice to attend a disciplinary hearing on the 8th of December 2010 which she did not attend as she was ill and submitted a medical certificate to that effect.
32. I am to determine if the suspension of the applicant amounts to an unfair labour practise and should be uplifted as the period from the day of the suspension on the 10th of February 2010 until the date the hearing was scheduled on the 8th of December was unreasonably long.
33. In terms of Item 6 of the Disciplinary Code for Educators the employer ‘must do everything possible to conclude a hearing within one month of the suspension [Item 6[3] [a].
34. It is further stated [Item 6[3] [b] that further postponements may be granted by the chairperson but this period cannot exceed 90-days from the date of suspension.
35. It is also further stated [Item 6[3] [c] that if the matter is then not concluded within the 90-day period the employer must enquire from the presiding officer the reasons for this.
36. In this matter the applicant could not be served with a notice to attend a hearing as her whereabouts were unknown and therefore a hearing was not scheduled nor a chairperson appointed.
37. Evidence was rendered on behalf of the respondent as to the steps taken to serve the notice and the reasons for the delay.
38. In Highveld District Council v CCMA & others [2003] 24 ILJ 517 [LAC] the court stated as follows:
‘’Where the parties to a collective agreement or an employment contract agree to a procedure to be followed in disciplinary proceedings, the fact of their agreement will ordinarily go a long way towards proving that the procedure is fair as contemplated in section 188[1] [b].The mere fact that a procedure is an agreed one does not, however, make it fair. By the same token, the fact that an agreed procedure was not followed does not in itself mean that the procedure actually followed was unfair’’.
39. The LAC [supra] further stated [521C] that ‘’When deciding whether a particular procedure was fair, the tribunal judging the fairness must scrutinise the procedure actually followed. It must decide whether in all the circumstances the procedure was fair’’.
40. In view of this the failure to follow a disciplinary code is not per se unfair. The departure from the code must be measured again the general standards of fairness as set out in the LRA and the Code of Good Practise.
40. The explanation of the respondent regarding the procedure followed is fair regarding the steps taken to get hold of the applicant at her known address. One also has to take into regard that there was a long June holiday due to the world cup.
41. I accept the explanation submitted on behalf of the respondent that they attempted after the applicant’s suspension to get hold of her at the address she had provided and accept as true that it is the duty of an employee to keep contact details at the employer updated.
42. It is clear from the evidence that during October 2010 when the union contacted the respondent and after the salary of the applicant was reinstated she was also served with a notification to attend the hearing on the 8th of December 2010. This hearing was then not attended by the applicant due to illness.
43. The explanation of the respondent regarding the period that lapsed since the applicant had been suspended and the day it was ultimately set down is reasonable and I cannot find that in view of the explanation offered that the delay was unreasonably long.
44. Therefore although Item 6 of the Disciplinary Code for Educators sets out the procedure to be followed, in view of the respondent’s explanation for the delay, I cannot find on the facts presented that the delay was unreasonable or that the respondent was responsible for it and that the deviation from the code was unfair.
45. If the respondent’s explanation for the delay is measure against the general standards of fairness espoused by the LRA and Code of Good Practise it can be considered as reasonable.
46. The other issue that needs to be dealt with is the ‘freezing’ of the applicant’s salary which the respondent testified was done as last resort to get hold of her.
47. It was common cause that the applicant’s salary had not been paid for September and October 2010 and when she contacted the respondent was then paid her salary for these 2 months’.
48. Preventative suspensions must be on full pay. The respondent testified as to the reason why they suspended the applicant’s salary.
49. An employer can deviate from its code as discussed above. It means therefore that the employer could deviate from the procedures as set out in the code provided it still complies with the principles of fairness set out in the LRA and Code.
50. It therefore also means that they could deviate from the code and revert to the non-payment of salary if in the circumstances and measured against the LRA and the Code this can be seen as fair.
51. The respondent explained the problems encountered in contacting the applicant in order to serve her with a notification. As last resort her salary was ‘frozen’ in an attempt to get her to contact the employer a tactic that proved successful.
52. Was this however, fair especially in view of the fact that an employer has a contractual duty to pay an employee her salary even if there is a suspension?
53. The respondent’s code provide {Item 6[3] [d]} the procedure to be followed to effect suspension without pay.
54. It is clear this procedure was not followed and it needs to be determined if the respondent’s failure to follow this was fair given the circumstances of the case. In other words can the respondent’s failure to follow its code be it be condoned and considered as fair.
55. Can an employer as a last resort in an attempt to get hold of an employee stop the salary of that employee even if this failure to pay constitutes a breach of contract?
56. It is my view that given the circumstances of this case the respondent could deviate from its own code and resort to the non-payment of salary in order to get the applicant to avail herself.
57. The respondent further then paid the applicant’s salary when she contacted them.
58. The applicant’s claim at the arbitration was that her suspension must be uplifted and she be paid compensation due to the long delay in convening a disciplinary hearing. The applicant’s claim was not that there was an unfair labour practise as her salary had been not been paid. Despite this however, the issue was testified to and had been dealt with.
59. Even if one accepts that the respondent’s freezing of the salary was unfair, I would not order the payment of compensation given the reasons for the ‘freezing’, the circumstances that led to this as well as the fact that the respondent immediately paid the applicant her salary for one month when she contacted them. It needs to be said that the applicant is not entirely blameless. As employee she had a duty to ensure that the respondent had her correct contact details. Furthermore, after her suspension she did nothing to expedite the process either by going to her union or contacting the respondent in order to determine why she was not served with a notice. One gets the distinct feeling that despite testifying that she ‘could no longer explain to any one’ why she was at home, she was all too happy to be at home, doing nothing and receiving a salary for it.
60. It has been found that the delay given the circumstances was not unreasonable and in view of this there was no unfair labour practise.
FINDING
61. I am therefore not satisfied that applicant proved that the respondent committed an unfair labour practise.
62. The applicant’s prayer that the suspension be uplifted and she be paid compensation for the delay is therefore not granted.
AWARD
62. As a result of the above finding the dispute is dismissed.
DATED AT PRETORIA ON THIS 31st DAY OF JANUARY 2011
Panelist
E MAREE
Province: Free State
Applicant: PSA Obo Yoliswa Shiela Kotoyi-Mosala
Respondent: Department of Education, Free State
Issue: Unfair Labour Practice - Suspension
Venue: Bloemfontein
Award Date: 31 January 2011
Arbitrator: E Maree
EDUCATION LABOUR
RELATIONS COUNCIL
Panellist : E MAREE
Case Number : PSES198-10/11FS
PSES628-09/10FS
Date of Award : 31 January 2011
In the ARBITRATION between
PSA OBO YOLISWA SHIELA KOTOYI- MOSALA
Applicant
and
DEPARTMENT OF EDUCATION [DOE] – FREE STATE
Respondent
Applicant’s representative Mr. J. Greeff
Applicant’s address Fax [051] 403 1300
Respondent’s representative Mr. P.T. Masihlehlo
Respondent’s address Fax 086 634 1246
DETAILS OF HEARING AND REPRESENTATION
1. The matter was heard on 24 January 2011 at the premises of the Xhariep Education District situated at 106 Selbourne Avenue, Katleho Building, Bloemfontein.
2. The applicant was represented by Mr. J. Greeff an official from PSA while the respondent was represented by Mr. P.T. Masihleho.
3. The applicant submitted bundles A, B and C and the respondent bundle D.
4. The applicant referred 2 cases. The 1st case PSES198-10/11 FS dealt with her suspension and the 2nd one PSES628-09/10 dealt with her demotion and final written warning.
5. These cases had previously been joined and were set down to be heard simultaneously on the 24th of January 2011.
6. On the day of the arbitration the matter proceeded and it was agreed that evidence relating to the suspension matter would be heard first where after the demotion matter would immediately proceed.
7. At the conclusion of the evidence regarding the suspension matter, the demotion matter proceeded. It however, became clear during the cross-examination of the applicant that this matter had been referred prematurely.
8. It was then agreed that case PSES628-09/1-FS that deals with the demotion and the final written warning would be withdrawn and the case closed due to the fact that it had been prematurely referred.
9. The case that therefore would be determined is PSES198-10/11 that deals with the suspension.
ISSUES TO BE DECIDED
10. I have to determine whether the respondent committed an unfair labour practice when the applicant was suspended on the 10th of February 2010.
11. In the event that the respondent indeed committed an unfair labour practice, I have to determine appropriate relief.
SURVEY OF EVIDENCE AND ARGUMENT
THE APPLICANT’S EVIDENCE
12. The applicant, YOLISWA SHIELA KOTOYI-MOSALA under oath testified that:
a] She was the HOD : Foundation Phase at Marang Primary School;
b] She was suspended on the 10th of February 2010 [Bundle C pages 2 7 3];
c] The suspension letter was handed to her by Mr. Tladi who did not confirm her address when he handed her the letter;
d] She had not yet attended a disciplinary hearing and is still suspended ‘until today’.
e] On the 29th of October 2010 Mr. Greeff her union representative handed her the notification to attend the disciplinary hearing after the notice of set down [Bundle A page 12] had been send to attend the suspension matter;
f] The arbitration had been scheduled on a number of occasions and the respondent never attempted to serve her with the notice of the disciplinary hearing on any of these occasions;
g] The respondent had therefore been able to reach her either via her union or at the arbitration sittings;
h] During October 2010 her salary was terminated [Bundle C pages 23 & 24];
i] It is reflected [Bundle C page 25] that her salary was terminated as ‘disciplinary sanction’ but she had never attended a disciplinary hearing;
j] Due to the fact that she had not received her salary she was unable to pay her debit orders, her medical aid was suspended and her policies not paid;
k] She was also as a result of her suspension not paid her 1% bonus appraisal or the 7,5% salary increase;
l] The effect of the suspension on her ‘is terrible, horrible’ and affected her credit record;
m] The suspension also ‘touched the husband and children’ as she could not give any reason why she was at home;
n] The suspension also affected her work security and reputation as an educator.
THE RESPONDENT’S EVIDENCE
13. On behalf of the respondent, POGISHO MICHAEL TLADI under oath testified that:
a] He is the Assistant Director Labour Relations and as such is responsible inter alia for training and investigation of misconduct;
b] Bundle C pages 2 & 3 reflect the applicant’s letter of suspension for alleged assault of the Principal;
c] The Marang School was dysfunctional due to the applicant’s actions and this was not in the interest of the learners, school or the other educators to keep the applicant at the school;
d] The HOD, MEC and the Portfolio Committee for Education were informed and an instruction was given to Labour Relations to investigate the issue and to suspend the applicant;
e] The Principal was also suspended and other educators were transferred and the school was rendered dysfunctional;
f] The applicant was therefore suspended during February 2010 and the investigation commenced immediately;
g] The delay to serve the applicant with a notice of hearing was caused by the fact that the respondent was unable to get hold of the applicant as the address given to the respondent was wrong;
h] The applicant could not be found at address given to the respondent [Bundle D page 12];
j] The respondent also visited the school but no information was forthcoming to assist the respondent;
k] The respondent intended to schedule the hearing for April or May but the applicant could not be found. The respondent then requested the Director to authorise the Finance department to stop the applicant’s salary in an attempt to get her to avail herself;
l] June had a ‘very short academic time’ and during June/July the World cup was held. Finance also misplaced the letter to stop the applicant’s salary which was then only done for October 2010;
m] The applicant then contacted the respondent via her union and a notice of set down was served via the union at their request;
n] The disciplinary hearing was scheduled for the 8th of December 2010 but the applicant submitted a medical certificate and she did not attend it;
o] The applicant’s salary that was not paid for October 2010 was then reinstated;
p] The matter could therefore not be set down earlier as the applicant could not be served with a notice of set down. It is the duty of an employee to ensure that the employer is in possession of correct contact details;
q] The applicant’s salary was ‘frozen’ [Bundle C page 25] in an attempt to get hold of her and not as a result of any disciplinary action;
r] The ‘freeze’ of the applicant’s salary was necessary as the respondent had to get hold of her in order to serve the disciplinary documentation.
CLOSING ARGUMENT
14. Oral closing arguments were submitted on behalf of both parties.
I have studied these arguments and would reflect relevant parts if necessary.
ANALYSIS OF EVIDENCE AND ARGUMENT
15. Section 186[2] [b] of the Labour Relations Act 66 of 1995 defines an unfair labour practise as follows:
[2] Unfair labour practice means any unfair act or omission that arises between an employer and an employee involving –
[b] the unfair suspension of an employee or any other unfair disciplinary action short of dismissal in respect of an employee’.
16. The applicant was suspended on the 10th of February 2010 and testified that her suspension must be uplifted and compensation awarded due to the delay by the respondent in timeously convening a disciplinary hearing.
17. It needs to be stated at the outset that only 2 issues were placed in dispute regarding the suspension.
18. The first issue in dispute dealt with the fact that a disciplinary hearing was not timeously convened [this impacts on the procedural fairness of the suspension] and secondly that the applicant’s salary had not been paid for October 2010.
19. The applicant did not dispute any substantive aspects. The applicant did not contend that there was no prima facie case that she had committed misconduct nor that there was a good reason to remove her from the workplace pending the outcome of the disciplinary hearing,
20. Regarding the procedural aspects it was also not disputed on behalf of the applicant that the audi alteram rule had been complied with. As stated the only procedural issue was the length of the suspension.
21. The only 2 issues thus that needs to be determined is if the length of the suspension [procedural] was unfair and if the ‘freezing’ of the applicant’s salary was allowed.
22. According to the applicant she resides at two addresses, the one as indicated on the respondent’s system and a 2nd address as reflected in her correspondence to the respondent.
23. Therefore, the applicant testified, it was her view that the respondent had no reasonable explanation for not convening a disciplinary hearing.
24. On behalf of the respondent it was submitted that there is one address for the applicant on the respondent’s system but that when the notice of set down was taken to this address they were informed that the applicant no longer resides there.
25. It was further testified on behalf of the respondent that they had no knowledge of the 2nd address and that it is the duty of an employee to keep his or her details updated with the respondent.
26. The respondent further submitted that in order to get hold of the applicant to serve a notification on her, her salary was suspended for September and October 2010.
27. As a result of not being paid the applicant via her union contacted the respondent and it was then agreed that all notices to the applicant would be served via her union.
28. It was stated by the applicant that she could therefore be reached at two addressed as known to the respondent or via her union.
29. The respondent denied this and stated that besides not knowing the applicant’s 2nd address the union only came on board after the ‘freezing’ of the applicant’s salary.
30. It was common cause that after the applicant’s union contacted the respondent her salary was reinstated and she was reimbursed for the 2 months’ she had not been paid.
31. Furthermore, the applicant was then served with a notice to attend a disciplinary hearing on the 8th of December 2010 which she did not attend as she was ill and submitted a medical certificate to that effect.
32. I am to determine if the suspension of the applicant amounts to an unfair labour practise and should be uplifted as the period from the day of the suspension on the 10th of February 2010 until the date the hearing was scheduled on the 8th of December was unreasonably long.
33. In terms of Item 6 of the Disciplinary Code for Educators the employer ‘must do everything possible to conclude a hearing within one month of the suspension [Item 6[3] [a].
34. It is further stated [Item 6[3] [b] that further postponements may be granted by the chairperson but this period cannot exceed 90-days from the date of suspension.
35. It is also further stated [Item 6[3] [c] that if the matter is then not concluded within the 90-day period the employer must enquire from the presiding officer the reasons for this.
36. In this matter the applicant could not be served with a notice to attend a hearing as her whereabouts were unknown and therefore a hearing was not scheduled nor a chairperson appointed.
37. Evidence was rendered on behalf of the respondent as to the steps taken to serve the notice and the reasons for the delay.
38. In Highveld District Council v CCMA & others [2003] 24 ILJ 517 [LAC] the court stated as follows:
‘’Where the parties to a collective agreement or an employment contract agree to a procedure to be followed in disciplinary proceedings, the fact of their agreement will ordinarily go a long way towards proving that the procedure is fair as contemplated in section 188[1] [b].The mere fact that a procedure is an agreed one does not, however, make it fair. By the same token, the fact that an agreed procedure was not followed does not in itself mean that the procedure actually followed was unfair’’.
39. The LAC [supra] further stated [521C] that ‘’When deciding whether a particular procedure was fair, the tribunal judging the fairness must scrutinise the procedure actually followed. It must decide whether in all the circumstances the procedure was fair’’.
40. In view of this the failure to follow a disciplinary code is not per se unfair. The departure from the code must be measured again the general standards of fairness as set out in the LRA and the Code of Good Practise.
40. The explanation of the respondent regarding the procedure followed is fair regarding the steps taken to get hold of the applicant at her known address. One also has to take into regard that there was a long June holiday due to the world cup.
41. I accept the explanation submitted on behalf of the respondent that they attempted after the applicant’s suspension to get hold of her at the address she had provided and accept as true that it is the duty of an employee to keep contact details at the employer updated.
42. It is clear from the evidence that during October 2010 when the union contacted the respondent and after the salary of the applicant was reinstated she was also served with a notification to attend the hearing on the 8th of December 2010. This hearing was then not attended by the applicant due to illness.
43. The explanation of the respondent regarding the period that lapsed since the applicant had been suspended and the day it was ultimately set down is reasonable and I cannot find that in view of the explanation offered that the delay was unreasonably long.
44. Therefore although Item 6 of the Disciplinary Code for Educators sets out the procedure to be followed, in view of the respondent’s explanation for the delay, I cannot find on the facts presented that the delay was unreasonable or that the respondent was responsible for it and that the deviation from the code was unfair.
45. If the respondent’s explanation for the delay is measure against the general standards of fairness espoused by the LRA and Code of Good Practise it can be considered as reasonable.
46. The other issue that needs to be dealt with is the ‘freezing’ of the applicant’s salary which the respondent testified was done as last resort to get hold of her.
47. It was common cause that the applicant’s salary had not been paid for September and October 2010 and when she contacted the respondent was then paid her salary for these 2 months’.
48. Preventative suspensions must be on full pay. The respondent testified as to the reason why they suspended the applicant’s salary.
49. An employer can deviate from its code as discussed above. It means therefore that the employer could deviate from the procedures as set out in the code provided it still complies with the principles of fairness set out in the LRA and Code.
50. It therefore also means that they could deviate from the code and revert to the non-payment of salary if in the circumstances and measured against the LRA and the Code this can be seen as fair.
51. The respondent explained the problems encountered in contacting the applicant in order to serve her with a notification. As last resort her salary was ‘frozen’ in an attempt to get her to contact the employer a tactic that proved successful.
52. Was this however, fair especially in view of the fact that an employer has a contractual duty to pay an employee her salary even if there is a suspension?
53. The respondent’s code provide {Item 6[3] [d]} the procedure to be followed to effect suspension without pay.
54. It is clear this procedure was not followed and it needs to be determined if the respondent’s failure to follow this was fair given the circumstances of the case. In other words can the respondent’s failure to follow its code be it be condoned and considered as fair.
55. Can an employer as a last resort in an attempt to get hold of an employee stop the salary of that employee even if this failure to pay constitutes a breach of contract?
56. It is my view that given the circumstances of this case the respondent could deviate from its own code and resort to the non-payment of salary in order to get the applicant to avail herself.
57. The respondent further then paid the applicant’s salary when she contacted them.
58. The applicant’s claim at the arbitration was that her suspension must be uplifted and she be paid compensation due to the long delay in convening a disciplinary hearing. The applicant’s claim was not that there was an unfair labour practise as her salary had been not been paid. Despite this however, the issue was testified to and had been dealt with.
59. Even if one accepts that the respondent’s freezing of the salary was unfair, I would not order the payment of compensation given the reasons for the ‘freezing’, the circumstances that led to this as well as the fact that the respondent immediately paid the applicant her salary for one month when she contacted them. It needs to be said that the applicant is not entirely blameless. As employee she had a duty to ensure that the respondent had her correct contact details. Furthermore, after her suspension she did nothing to expedite the process either by going to her union or contacting the respondent in order to determine why she was not served with a notice. One gets the distinct feeling that despite testifying that she ‘could no longer explain to any one’ why she was at home, she was all too happy to be at home, doing nothing and receiving a salary for it.
60. It has been found that the delay given the circumstances was not unreasonable and in view of this there was no unfair labour practise.
FINDING
61. I am therefore not satisfied that applicant proved that the respondent committed an unfair labour practise.
62. The applicant’s prayer that the suspension be uplifted and she be paid compensation for the delay is therefore not granted.
AWARD
62. As a result of the above finding the dispute is dismissed.
DATED AT PRETORIA ON THIS 31st DAY OF JANUARY 2011
Panelist
E MAREE