ELRC 85-20/21KZN
ELRC 85-20/21KZN
Text
Award Date:
17 November 2020
IN THE ELRC ARBITRATION
BETWEEN:
ZAMOKUHLE E NXUMALO Applicant
and
DEPARTMENT OF EDUCATION: KZN PROVINCE Respondent
ARBITRATION AWARD
Case Number: ELRC 85-20/21KZN
Last date of arbitration: 21 September 2020
Certain written submissions to be made
Date of award: 17 November 2020
VUYOKAZI NGWENYA
ELRC Arbitrator
Education Labour Relations Council
ELRC Building
261 West Avenue
Centurion
Tel: 012 663 0452
Fax: 012 643 1601
E-mail: gen.sec@elrc.org.za SelloM@elrc.org.za MatloseM@elrc.org.za
Website: www.elrc.org.za
DETAILS OF HEARING AND REPRESENTATION
1. The arbitration hearing was held via Zoom and conducted on 21 September 2020. The Applicant is Zamokuhle E Nxumalo, represented himself. The Respondent is the KwaZulu Natal Department of Education, District office: Amajuba. The Respondent was represented by Mr Nhlanhla Brian Mdlalose, a Deputy Director at the Amajuba District.
TERMS OF REFERENCE AND ISSUES TO BE DECIDED
2. The arbitration takes place in terms of the referral of the dispute by the Applicant. The Applicant is employed by the Respondent as a principal at Muzikayise Senior Primary School.
3. This is an unfair labour practice dispute, the Applicant is challenging the conduct of the Respondent in suspending him and desires that the suspension be so uplifted.
PRELIMINARY ISSUES
4. Parties submitted bundles of documents in support of their respective cases.
5. Given the fact that due to COVID-19 regulations, the matter had to be conducted via Zoom and parties were given more than enough time to submit written formal submissions and to reply (if needs ) after receiving each other’s written submission. The award was drafted after all time frames given to parties had lapsed.
SUMMARY OF EVIDENCE AND ARGUMENTS
6. Applicant’s case:
6.1 His suspension is unfair in the sense that he was not called to present reasons why he should not be suspended.
6.2 Secondly, the reasons for suspending him are not sound. He believed that the Respondent is out to frustrate him for no apparent reasons.
6.3 The documents that he submitted i.e Constitution of the Republic, LLM thesis by one CM Grigor on suspension is proof enough that the Respondent’s actions are unconstitutional and violate his human dignity.
6.4 The allegations levelled against him are untrue i.e he refused to give duty load to two educators, and that he incited grade 7 parents against two educators.
6.5 He wanted the suspension to be uplifted and be given authority by this Council to reverse/set aside any decision that the Respondent could have made in his absence.
7. Respondent’s case
7.1 The Respondent’s representative stated the following:
7.2 The Applicant’s suspension was taken as a precautionary measure.
7.3 There were a number of allegations against the Applicant and he was also a threat to an ongoing case.
7.4 He has been suspended before and when that suspension was uplifted he caused havoc and the Respondent had no option but to suspend him again.
7.5 His suspension is with full pay and benefits.
SUMMARY OF ARGUMENTS
8. As mentioned above, this hearing was conducted via Zoom and parties were given extra number of days to submit any written relevant information. Both parties complied.
ANALYSIS OF EVIDENCE AND ARGUMENT
9. I confirm that I have considered evidence presented by both parties.
10. This is one of the cases where, for lack of a better expression, the Commissioner/Panelist is really at a loss regarding the content of argument presented by the Applicant.
11. The Applicant is a principal of a school, in other words, he is the most senior educator at Muzikayise Primary School but sadly his conduct leaves a lot to be desired.
12. I say this because of the manner in which he conducted himself at these proceedings and the avalanche of documents provided by him seem to suggest that he either does not understand the importance of the office he occupies or has no respect for his employer, the Respondent.
13. The Applicant provided me with the entire Bill of Rights and when I enquired and asked him to deal with what he considered to be relevant for his case, his response was that the entire Constitutional Bill of Rights was relevant. He also produced a number of articles/opinions by different writers on suspensions in the public sector and again he insisted that they were all relevant. I found no relevance for this particular matter.
14. The Applicant was initially suspended from duty and that suspension was uplifted by the Respondent after some time. Due to other allegations against the Applicant and his further conduct, the Respondent suspended him from duty on 25 June 2020 for the second time after it became clear that the school was ungovernable and there were investigations that had to be undertaken in his absence.
15. The Respondent’s representative stated that one of the reasons that the Applicant had to be suspended again was that, upon his return, he unilaterally reversed decisions that the Respondent had taken and disturbed measures that were put in place to ensure stability, hence havoc ensued. I have no reason to doubt the integrity of the Respondent’s representative. In fact, I am inclined to agree with him because the Applicant informed me, as a ELRC Panelist that he is seeking relief that the ELRC must authorize him to reverse all decisions made by the Respondent in his absence. Not only do I not have jurisdiction to declare such, but the Applicant’s boldness and lack of reasoning is worrying. He has been an educator for 28 years and a school principal for 4 to 5 years yet his reasoning showed a complete lack of respect and understanding of the Respondent’s processes.
16. The Applicant sought to dwell on the allegations against him and wanted that they be indirectly dealt with in this forum. I lack authority to do so as well. Those allegations are part of the investigation that the Respondent wanted to investigate in his absence.
17. The Applicant’s suspension is precautionary and not punitive. In other words, it was not as a result of a disciplinary process.
18. The Respondent is permitted in law to put its employees on precautionary suspension and conduct an investigation in a manner that it deems appropriate and is on the face of it, objectively fair and just.
19. I find no fault with the Respondent’s actions. The Respondent did not have to seek the Applicant’s input/comment before suspending the Applicant.
20. The Applicant was suspended on 25 June 2020 and he referred his dispute to this forum soon thereafter. There is no evidence to show that such suspension is protracted and aimed at frustrating the Applicant.
21. The facts in this case are so clear that the Respondent’s representative really did not have a case to respond to.
22. Precautionary suspensions remain the prerogative of the Employer and the employee can successfully challenge same if there are valid and sound reasons. The Applicant dismally failed to do so.
REMEDY
23. There is no remedy to be afforded to the Applicant for he has suffered no harm.
AWARD
24. The Respondent, the KwaZulu Natal Department of Education did not perpentrate an unfair labour practice relating to suspension when they suspended the Applicant, Zamokuhle E Nxumalo as a precautionary measure.
VUYOKAZI NGWENYA
Arbitrator
PSES85-20/21 KZN 17 November 2020
BETWEEN:
ZAMOKUHLE E NXUMALO Applicant
and
DEPARTMENT OF EDUCATION: KZN PROVINCE Respondent
ARBITRATION AWARD
Case Number: ELRC 85-20/21KZN
Last date of arbitration: 21 September 2020
Certain written submissions to be made
Date of award: 17 November 2020
VUYOKAZI NGWENYA
ELRC Arbitrator
Education Labour Relations Council
ELRC Building
261 West Avenue
Centurion
Tel: 012 663 0452
Fax: 012 643 1601
E-mail: gen.sec@elrc.org.za SelloM@elrc.org.za MatloseM@elrc.org.za
Website: www.elrc.org.za
DETAILS OF HEARING AND REPRESENTATION
1. The arbitration hearing was held via Zoom and conducted on 21 September 2020. The Applicant is Zamokuhle E Nxumalo, represented himself. The Respondent is the KwaZulu Natal Department of Education, District office: Amajuba. The Respondent was represented by Mr Nhlanhla Brian Mdlalose, a Deputy Director at the Amajuba District.
TERMS OF REFERENCE AND ISSUES TO BE DECIDED
2. The arbitration takes place in terms of the referral of the dispute by the Applicant. The Applicant is employed by the Respondent as a principal at Muzikayise Senior Primary School.
3. This is an unfair labour practice dispute, the Applicant is challenging the conduct of the Respondent in suspending him and desires that the suspension be so uplifted.
PRELIMINARY ISSUES
4. Parties submitted bundles of documents in support of their respective cases.
5. Given the fact that due to COVID-19 regulations, the matter had to be conducted via Zoom and parties were given more than enough time to submit written formal submissions and to reply (if needs ) after receiving each other’s written submission. The award was drafted after all time frames given to parties had lapsed.
SUMMARY OF EVIDENCE AND ARGUMENTS
6. Applicant’s case:
6.1 His suspension is unfair in the sense that he was not called to present reasons why he should not be suspended.
6.2 Secondly, the reasons for suspending him are not sound. He believed that the Respondent is out to frustrate him for no apparent reasons.
6.3 The documents that he submitted i.e Constitution of the Republic, LLM thesis by one CM Grigor on suspension is proof enough that the Respondent’s actions are unconstitutional and violate his human dignity.
6.4 The allegations levelled against him are untrue i.e he refused to give duty load to two educators, and that he incited grade 7 parents against two educators.
6.5 He wanted the suspension to be uplifted and be given authority by this Council to reverse/set aside any decision that the Respondent could have made in his absence.
7. Respondent’s case
7.1 The Respondent’s representative stated the following:
7.2 The Applicant’s suspension was taken as a precautionary measure.
7.3 There were a number of allegations against the Applicant and he was also a threat to an ongoing case.
7.4 He has been suspended before and when that suspension was uplifted he caused havoc and the Respondent had no option but to suspend him again.
7.5 His suspension is with full pay and benefits.
SUMMARY OF ARGUMENTS
8. As mentioned above, this hearing was conducted via Zoom and parties were given extra number of days to submit any written relevant information. Both parties complied.
ANALYSIS OF EVIDENCE AND ARGUMENT
9. I confirm that I have considered evidence presented by both parties.
10. This is one of the cases where, for lack of a better expression, the Commissioner/Panelist is really at a loss regarding the content of argument presented by the Applicant.
11. The Applicant is a principal of a school, in other words, he is the most senior educator at Muzikayise Primary School but sadly his conduct leaves a lot to be desired.
12. I say this because of the manner in which he conducted himself at these proceedings and the avalanche of documents provided by him seem to suggest that he either does not understand the importance of the office he occupies or has no respect for his employer, the Respondent.
13. The Applicant provided me with the entire Bill of Rights and when I enquired and asked him to deal with what he considered to be relevant for his case, his response was that the entire Constitutional Bill of Rights was relevant. He also produced a number of articles/opinions by different writers on suspensions in the public sector and again he insisted that they were all relevant. I found no relevance for this particular matter.
14. The Applicant was initially suspended from duty and that suspension was uplifted by the Respondent after some time. Due to other allegations against the Applicant and his further conduct, the Respondent suspended him from duty on 25 June 2020 for the second time after it became clear that the school was ungovernable and there were investigations that had to be undertaken in his absence.
15. The Respondent’s representative stated that one of the reasons that the Applicant had to be suspended again was that, upon his return, he unilaterally reversed decisions that the Respondent had taken and disturbed measures that were put in place to ensure stability, hence havoc ensued. I have no reason to doubt the integrity of the Respondent’s representative. In fact, I am inclined to agree with him because the Applicant informed me, as a ELRC Panelist that he is seeking relief that the ELRC must authorize him to reverse all decisions made by the Respondent in his absence. Not only do I not have jurisdiction to declare such, but the Applicant’s boldness and lack of reasoning is worrying. He has been an educator for 28 years and a school principal for 4 to 5 years yet his reasoning showed a complete lack of respect and understanding of the Respondent’s processes.
16. The Applicant sought to dwell on the allegations against him and wanted that they be indirectly dealt with in this forum. I lack authority to do so as well. Those allegations are part of the investigation that the Respondent wanted to investigate in his absence.
17. The Applicant’s suspension is precautionary and not punitive. In other words, it was not as a result of a disciplinary process.
18. The Respondent is permitted in law to put its employees on precautionary suspension and conduct an investigation in a manner that it deems appropriate and is on the face of it, objectively fair and just.
19. I find no fault with the Respondent’s actions. The Respondent did not have to seek the Applicant’s input/comment before suspending the Applicant.
20. The Applicant was suspended on 25 June 2020 and he referred his dispute to this forum soon thereafter. There is no evidence to show that such suspension is protracted and aimed at frustrating the Applicant.
21. The facts in this case are so clear that the Respondent’s representative really did not have a case to respond to.
22. Precautionary suspensions remain the prerogative of the Employer and the employee can successfully challenge same if there are valid and sound reasons. The Applicant dismally failed to do so.
REMEDY
23. There is no remedy to be afforded to the Applicant for he has suffered no harm.
AWARD
24. The Respondent, the KwaZulu Natal Department of Education did not perpentrate an unfair labour practice relating to suspension when they suspended the Applicant, Zamokuhle E Nxumalo as a precautionary measure.
VUYOKAZI NGWENYA
Arbitrator
PSES85-20/21 KZN 17 November 2020
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