ELRC 388-20/21 FS

Award  Date:

30 March 2021

Arbitrator: SHIRAZ MAHOMED OSMAN Case Reference No: ELRC 388-20/21 FS
Date of award: 30 MARCH 2021

In the arbitration between:

SADTU obo J Mofotsanyane Employee party

and

Department of Education – Free State Employer party


DETAILS OF HEARING AND REPRESENTATION

1. The present dispute between SADTU obo Ms. J Mofotsanyane (hereinafter referred to as the employee) and The Department of Education-Free State (hereinafter referred to as the employer) was referred to, Inquiry by Arbitrator in terms of Section 186 (2) of the Labour Relations Act no.66 of 1995, as amended (the Act). At the Arbitration hearing, which was held virtually, on 24March 2021, the applicant was represented by Mr. B Mbhele of SADTU and the respondent was represented by Mr. S Moloi.

ISSUES TO BE DECIDED

2. I am to decide whether the respondent had committed an unfair labour practice, in that whether, it was unfair to suspend the applicant for more than three months as per the prescribed period. Whether it is fair to transfer the applicant, for more than a month. And whether the respondent was justified to cutting the applicant’s salary and whether it was fair for not paying the applicant both her rural allowance as well as her hostel supervision allowance.

BACKGROUND

3. The employee is a Principal, and was suspended in, October 2019.
4. Indeed, The (the letter “t” must be small letter) applicant was paid her salary, but she was not paid her rural allowance & hostel supervision allowance.
5. The applicant had indeed received the above allowances prior to her suspension. She is employed at a rural school, which included a hostel.
6. The matter was referred to the Council by the applicant. Conciliation failed and the matter was referred to Arbitration, in terms of Section 191 of the Act.

SURVEY OF EVIDENCE AND ARGUMENT

7. Both parties were given the opportunity to submit opening statements, call witnesses and submit oral closing arguments.
8. The applicant called two witnesses, Ms. Jane Mofatsanyane (the applicant) and Ms. Malepoka Omefe Molefe (applicant’s daughter in law).
9. Both parties submitted bundles of documents, and they were accepted to be what they purported to be.
10. A pre-arbitration meeting was held and a signed copy of the minutes was handed in.
11. Herewith, brief reasons for my decision, in terms of Section 138 (7) of the Act. Should any of the evidence or argument not be reflected hereunder, then it does not mean that it was not considered.

ANALYSIS OF EVIDENCE AND ARGUMENT

12. I must state from the outset that the evidence placed before me in respect of the issues I have to decide upon, is limited. It is not in dispute that the applicant had been suspended pending an investigation in, October 2019. She was recalled to work in, February 2020; albeit, to the district office, as a precautionary transfer, where she worked till January 2021. Essentially, the respondent disputed that the applicant be paid her rural allowance and hostel supervision allowance, as the applicant had not conducted these duties whilst she was on suspension. The respondent insisted that the applicant was not entitled to these payments, whilst on suspension.
13. Ms. Mofatsanyane testified on her own behalf that, she was indeed suspended in October 2019. Since January 2020, she had not received either the rural allowance or hostel supervision allowance.
14. The applicant was suspended without any notice and a letter was issued to her indicating that she was suspended. The applicant took ill and suffered from depression. Through the excess medication prescribed to her, she had developed ulcers and her chronic conditions had gotten worse. The entire community had become aware that she was suspended from work. Her grandson had to be removed from school as she could not afford his school fees.
15. Under cross-examination, nothing was disputed neither did anything new emerge out of it. Instead the respondent tried to extrapolate from its investigation that the applicant had been involved in the mismanagement of school resources as per the report of it’s investigation. The applicant insisted that she had had an unqualified audit from the school auditors. This information is hardly relevant to the dispute. Indeed, the respondent had exercised its right to suspend the applicant as a precaution it however did so for over a year.
16. Since the applicant’s testimony is not challenged I must accept that she suffered humiliation, distress and had taken ill as a result of her suspension.
17. Ms. Molefe, testified as follows:- that she had taken the applicant to hospital and that the applicant had been admitted on two occasions to the hospital. The Applicant’s son was forced to drop out of school as the applicant could not afford to pay her son’s school fees. The applicant could not take her motor vehicle for a service.
18. Under cross-examination, again, nothing had emerged. Instead the respondent attempted to challenge the reason for the applicant’s hospitalisation, suggesting that it could have been as a result of the applicant mismanaging school funds that led to her illness. I am not convinced with this assertion. In any event, the witness is not a medical practitioner and would not be able to confirm the reasons for the applicant’s depression.
19. Indeed, the witness confirmed that the applicant had taken ill and had to seek medical attention. The applicant had also suffered financial prejudice.
20. The respondent did not call any witnesses. Instead he (the Respondent’s representative, namely, Mr Moloi) argued that the applicant was not entitled to allowances as she had not worked in the period of her suspension. He said that the allowances were only paid for services rendered. The applicant had received her salary for the period of her absence. Since there were no additional services provided then no additional allowances were due. This argument flies in the face of logic. If one were to accept this argument then the question is:- “why was the applicant paid her salary during the period of her suspension?”
21. The applicant’s argument is more plausible and is sound in law. The applicant argued that the applicant’s allowances were part of her remuneration as outlined in Section 213 of the Labour Relations Act no 66 of 1995, as amended. There was no agreement between the parties that the applicant’s remuneration be reduced for the period of her suspension.
22. In terms of the Constitution of the Republic of South Africa, everyone has the right to fair labour practices.
23. Section 186 (2) provides that an unfair labour practice is any unfair act or omission that arises between an employer and an employee.
24. Section 6 of Schedule 2 Item 6. (3) of the Employment of Educators Act (EEA) allows for an educator to be suspended or transferred for misconduct and that the employer must do everything possible to conclude a disciplinary hearing within one month of the suspension or transfer. The applicant was not charged or invited to a disciplinary hearing for the entire period of her “precautionary” suspension or transfer.
25. The respondent breached the provisions of the EEA.
26. In any event, the respondent referred to an investigation report which was apparently concluded in September 2019. The investigation was apparently concluded prior to the applicant’s suspension, therefore, it is not probable that the applicant was on precautionary suspension. I believe that once the respondent became aware of the report, it decided to suspend the applicant in the guise of a precautionary suspension and transfer. Maybe the respondent was not decided on what charges to bring against the applicant. Nonetheless, the respondent failed to charge the applicant within the prescribed time frame and neither had it done so when the respondent had finally uplifted the applicant’s precautionary transfer.
27. In Mogothle v Premier of The North West Province & another [2009] 4 BBLR 331 (LC) where the court noted that the suspension of an employee pending an enquiry into alleged misconduct is equivalent to an arrest and should therefore be used only where there is a reasonable apprehension that the employee would interfere with investigations or pose some other threat.
28. Since the investigation was concluded prior to the applicant’s suspension the applicant had posed no threat to any internal investigation.
29. In terms of the issue of whether the applicant’s allowances formed part of her remuneration. Section 213 of the Act& Section 35 (5) of the Basic Conditions of Employment Act 75 of 1977 (BCEA) defines remuneration” means any payment in money or in kind, or both in money and in kind, made or owing to any person in return for that person working for any other person, including the State.
30. The Minister of Labour published a schedule G 24489 in July 2003 as to what constituted remuneration. It reads as follows: The following payments are included in an employee’s remuneration for the purposes of calculating pay for annual leave in terms of section 21, payment instead of notice in terms of section 38 and severance pay in terms of section 41—(a) Housing or accommodation allowance or subsidy or housing or accommodation received as a benefit in kind;(b) Car allowance of provision of a car, except to the extent that the car is provided to enable the employee to work;(c) Any cash payments made to an employee, except those listed as exclusions in terms of this schedule;(d) Any other payment in kind received by an employee, except those listed as exclusions in terms of this schedule;(e) Employer’s contributions to medical aid, pension, provident fund or similar schemes;(f) Employer’s contributions to funeral or death benefit schemes.
31. The following items do not form part of remuneration for the purpose of these calculations—(a) Any cash payment or payment in kind provided to enable the employee to work (for example, an equipment, tool or similar allowance or the provision of transport or the payment of a transport allowance to enable the employee to travel to and from work);(b) A relocation allowance;(c) Gratuities (for example, tips received from customers) and gifts from the employer;(d) Share incentive schemes;(e) Discretionary payments not related to an employee’s hours of work or performance (for example, a discretionary profit-sharing scheme);(f) An entertainment allowance;(g) An education or schooling allowance.
32. Clearly the applicant’s allowances fall under the category of remuneration as defined by the Minister of Labour. The allowances were included in her scope of work. Had the applicant been in her position then she would have earned both the rural allowance as well as the hostel supervision allowance, after all she was employed at a rural school with a hostel. The applicant had received her other allowances including medical aid and pension and therefore in the same vein is entitled to the disputed allowances as it forms part of her salary/remuneration, which she would have earned in the normal course of employment.
33. From the above, I am convinced that the applicant’s suspension was unfair; her precautionary transfer was for an over extended period of time and that it was unfair not to have paid her the disputed allowances.

REMEDY

34. The applicant sought 6 months’ remuneration as compensation. She earned R 35 473.75 per month. She sought to be paid rural allowances in the amount of R 28 003.80 and hostel supervision allowance in the amount of R 77 155.35. These amounts were agreed by the respondent, in the pre-arbitration minute.
35. In terms of Section 193, an arbitrator may determine any unfair labour practice dispute referred to the council, on terms that the arbitrator deems reasonable, which may include ordering reinstatement, re-employment or compensation.
36. Section 194 provides that 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.
37. There is no mitigation presented by the respondent in respect of the applicant’s relief.
38. I am persuaded that the applicant had indeed suffered emotionally and was financially prejudiced as a result of her allowances being taken away. The applicant was hospitalised as a result of the suspension and prolonged transfer.
39. In terms of Section 195 of the Act, an order or award of compensation made is in addition to, and not a substitute for, any other amount to which the employee is entitled in terms of any law, collective agreement or contract of employment.
40. In ARB Electrical Wholesalers (Pty) Ltd v Hibbert {2015} 11 BLLR 1081 (LAC)the Court held that compensatory relief in terms of the LRA is not strictly speaking a payment for the loss of a job or the unfair labour practice but in fact a monetary relief for the injured feeling or and humiliation that the employee suffered at the hands of the employer. The monetary relief constitutes solace to provide satisfaction to an employee whose constitutionally protected right to fair labour practice has been violated. It is not a token amount hence the need for it to be just and equitable and to this end salary is used as one of the tools to determine what is “just and equitable”
41. In Minister of Justice & Constitutional Development v Tsishonga (2009) 30 ILJ 1899 (LAC) the Court suggested that in cases of non-patrimonial loss, just and equitable compensation is determined by a number of relevant factors including but not limited to: the nature of the seriousness of the injuria; the circumstances in which the infringement took place; the behaviour of the defendant (whether the motive was honourable or malicious); the extent of the plaintiff’s humiliation or distress; the abuse of the relationship between the parties; and the attitude of the defendant after the injuria had taken place.
42. I am satisfied that the applicant had suffered humiliation; she had been hospitalised for depression; her chronic illnesses had gotten worse and that the duration of her suspension and transfer, was excessive. I am nonetheless not persuaded to award her 6 months remuneration as compensation but 3 months. The respondent had no defence in respect of the applicant’s extended suspension the applicant was indeed paid a portion of her total remuneration. The respondent had indeed abused its relationship with the applicant. I am indeed mindful of the fact that the applicant is the custodian of education in the public sector. The remedy ought not to punish the respondent in dispensing of its mandate in providing education to the public. In the circumstances three months remuneration at R 35 473.75 is awarded
43. The amounts for rural allowance as well as hostel supervision allowance as per paragraph 34, above, are also awarded.



AWARD

44. The respondent had indeed committed an unfair labour practice.
45. The respondent is ordered to pay the applicant the sum of R211 580.40 (two hundred and eleven thousand five hundred and eighty rand and forty cents) as per the amounts claimed in paragraph 34 and the compensation in paragraph 42, above, by no later than 15 April 2021, directly into the bank account of the applicant, into which she is ordinarily paid her salary.

Signed at Kimberley on this 30 day of March 2021

ELRC PANELLIST
SHIRAZ MAHOMED OSMAN