ELRC188 -20/21KZN

Case: ELRC188 -20/21KZN
Date of Award:02 November 2021
Panelist : Vuyiso Ngcengeni
Province : KwaZulu Natal
Employee : Zamokuhle Emmanuel Nxumalo
Employer : Department of Education – KwaZulu Natal
Issue : Unfair Labour Practice - Suspension
Venue : Virtual

Employer representative : Mr Brian Mdlalose
Telephone : 082 972 4505
Email : brian.mdlalose@vodamail.co.za; brian.mdlalose@kzndoe.gov.za

Employee Representative : Himself
Cell :
Email : zama.nxumalo6814@gmail.com


ARBITRATION AWARD

DETAILS OF THE HEARING AND REPRESENTATION
1. The matter was scheduled before me on a number of days, the first being the 8th of February 2021 and the last being the 28th of September 2021.

2. The matter was heard virtually, under auspices of the Education Labour Relations Council (the Council), in terms of s186(2)(b) of the Labour Relations Act of 1996 as amended (LRA).

3. The Employee was present and he represented himself, whilst the Employer was represented by Mr Brian Mdlalose.

4. The hearing was conducted mainly in English, and where necessary, there was an isiZulu interpreter.

5. The employee submitted bundle A which is made of 137 pages. The bundle includes extracts from the Employment of Educators Act, Act no 76 of 1998, as amended (the EEA), which was published on the 19th of September 2011, a letter written by Ms Shabalala to the District regarding the missing SGB Minutes, Circulars – 50/2019 and 51/2016, condonation ruling of the late referral, the Employee’s suspension letter amongst others.

6. The Employer submitted bundle B made of four Annexures submitted to the Employer by the school, and C which is the report compiled by Mr BE Vilakazi about the Employee’s behaviour.

7. I received all the closing arguments by the 5th of October 2021.


ISSUE TO BE DETERMINED
8. I am called upon to determine whether the Employer has committed a misconduct when it suspended the employee, on the ground below: -

8.1 The Employer failed to conduct proper investigation on the matter, as it failed to investigate the roles and decisions of officials connected to the allegations levelled against him,
8.2 The Employer took minutes and documents that the Employee intended to use in his defence against the allegations levelled against him,
8.3 Inconsistency in that there are other accused officials whom were offered an opportunity to respond before they were suspended, whereas the same offer was not extended to him.

9. The Employee seeks the following as relief: -

9.1 Independent investigation to be conducted by an independent person,
9.2 The Employer must give back the documents it took whilst he was on suspension,
9.3 The roles and decisions of the Department of Education Officials must be investigated..

BACKGROUND TO THE DISPUTE
10. At the time of the last sitting of this arbitration, the Employee was still employed as a School Principal at Muzikayise Primary School. The school is based in the Amajuba district.

11. He was employed by the Employer on the 15th of January 1992. He was suspended on the 22nd of August 2019 for a period of three months. At the time of this arbitration hearing, the Employee was no longer on suspension.

12. He referred the matter to the Council for conciliation on the 2nd of September 2020. The late referral was condoned on the 22nd f October 2020, and thus set down for arbitration for the 8th of February 2021.


13. The Employee was suspended pending investigation into the following allegations of misconduct: -
It is alleged that you committed acts of misconduct in that you prevented educators to asume duties at the school, locking the gates so that the school cannot be accessible to the two newly appointed educators and displaying gross insubordination by shouting and pointing a finger at the circuit manager making allegation that the circuit manager was selling posts. In view of the seriousness of the allegations it is not considered in the best interest of the Department for you to remain at Muzikayise Primary School.

SURVEY OF EVIDENCE AND SUBMISSIONS
Employee’s case

The Employee testified under oath as follows:-
14. The Employer failed to give him the opportunity to reply and clarify the allegations, before suspending him, as required by the disciplinary code, which is part of the EEA and on section 6 says “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 educator may jeopardise any investigation into the alleged misconduct or endanger the well-being or safety of any person at the work-place.” He requested the Employer to provide him with the investigation report and the Employer failed to do so.

15. When there were two educators, Mrs Zulu and Mr NF Mkhize, reporting to the school for the first time, he asked them for letters of appointment and since they did not have them, he therefore called the police. As the school, they had a contract of cooperation with the local police. The police did not evict the two educators.

16. The Chief Director, AT Gumede, had told him not to allow educators at the school without appointment letters stating which subjects were they going to teach.

17. The facts on the allegations against him were not investigated. Ms N Hlongwane said the Employee must appoint temporary educators who were at the school. The said conversation took place telephonically and it was not investigated.

18. It is not clear as to how did he prejudice the Employer, as it was not disputed that he did not close the gate. He did not close the gate, neither did he shout to the Circuit Manager, Mr BS Vilakazi. He had an argument with Vilakazi and there were School Management Team members present, and the argument was tense.

19. Mrs Nxumalo did not investigate the allegations against him.

20. In terms of section 3 (a) of the Employment of Educators Act, “subject to paragraph (m), any appointment, promotion or transfer to any post on the educator establishment on a public school may only be made on the recommendation of the governing body of the public school and, if there are educators in the provincial Department of Basic Education concerned who are in excess of the educator establishment of a public school due to operational requirements, that recommendation may only be made from candidates identified by the Head of Department, who are in excess and suitable for the post concerned.”

21. When the educators is new, the School Governing Body (SGB) should conduct interviews and the only educators who are an exception are those that are in excess. Mrs TP Zulu and Mr NF Mkhize were not in excess.

22. The process as set out by the EEA was not followed. If the educator is placed at the school by the Head of Department (HOD), then the HOD has to consult with the SGB. It is the school’s responsibility to determine its needs and in this case, the school needed people with maths and technology for grade 7. Mr NF Mkhize said he did not have the required subjects, being Maths and Technology. Mkhize also wrote a letter in this regard and that letter is one of the documents that the Employer took from his office whilst he was on suspension.

23. In terms of EEA 3(c) “The governing body must submit, in order of preference to the Head of Department a least of at least three names of recommended candidates….

(d) When the Head of Department considers the recommendation contemplated in paragraph (c), he or she must, before making appointment, ensure that the governing body has met the requirements in paragraph (b).”

24. Zulu had broken her service and in terms of section 6(a)(1) and 3(a) of the EEA, she was supposed to apply first to the HOD because she had taken a break from the service. So there is no way that the appointment letter was not needed. The Employer never consulted the SGB, to ensure that Zulu and Mkhize met the school’s requirements.

25. Many people were involved in this issue and the Employer failed to completely investigate it. These people include the SGB and the parents.

26. Before he was suspended, there was a meeting which was also attended by Nzama and a member of parliament, where Nzama said to him, they needed to have a separate meeting, and that did not happen.

27. Ms Nxumalo, who represented the Employer, refused to give him the investigation report, and told him that there was no report. He was very confused when he got the charges, as according to him, the school was functioning normally. The allegations that he disturbed the functioning of the school are not correct, if anything, he followed the instruction of his seniors who said he must keep the temporary educators.

28. In terms of the Collective Agreement – 4/2018, when an educator has been at the school for three months at least, he or she must be considered. The two temporary educators at the school had five months and 12 months and Hlongwane relied on this when she advised Nzama. So it was unlawful for Vilakazi to bring those educators to the school without following due process. No circular gave Vilakazi the right to do the aforesaid.

29. He needs his lost documents and these include the minutes of the SGB meeting of either the 1st or 2nd quarter of 2019.

30. He was supposed to be suspended and charged within three months, but he was not charged within this period and that was so painful and although he was paid during the suspension, his dignity was destroyed. The Employer brought three vans full of police to escort him out of the school.

31. The Employer need to be consistent, other Head Office officials, including Mr Ngcobo, who is a Director, had investigations conducted against them and submitted to the union, SADTU. Also, Ngcobo was offered an opportunity to respond to allegations, yet the same was not afforded to him.

32. Had the Employer investigated the allegations against him, it would have seen that the two educators had no appointment letters, did not qualify for appointment and that the appointment processes were not followed.

33. Cross examination – Due to the absence of the investigation report, he did not prepare himself adequately. He was subjected to a disciplinary hearing after his suspension, he was given enough time to prepare for the hearing. However, the allegations were ambiguous, not clear, hence he did not prepare adequately.

34. As a Manager, he does not think that he abused his powers when he called the Police, whom they have a partnership with. When he is at the school, he represents the Employer and the Circuit Manager.

35. He never said that there was anyone who sold posts, all he did was merely to indicate the discrepancies between what Vilakazi wrote and what was said during the disciplinary hearing. He did not say that he disputes having said someone sold post during his evidence in chief.

36. He agreed that the evidence he sought from the Police was in relation to the two educators. Vilakazi had previously said during one meeting at the school, that if they have any problems, they must call the Police. Vilakazi further explained his advice such that if there are people at the school, who are not supposed to be at the school, they must call the police, so since the two educators were not supposed to be at the school, he called the police accordingly. So it is clear that he did not need an advice to call the Police to chase them away.

37. It was not the first time that the two educators were at the school. He was advised by Gumede not to allow educators without appointment letters at the school. He told the educators to leave and they did not, as he does not have the powers to manhandle them, he the called the Police. He does not have the powers as the Principal to chase people away. He did not manhandle them. He never abused his powers.

38. He submitted three annexures (B2, B3, B4 and B5) for the appointment of three educators and he needed an educator to teach Natural sciences and Maths, and the other one to teach Maths and Technology for grade 7. The status of these documents indicated that there was someone who was a temporary educator at the school. He did not take law unto himself, he was advised by Hlongwane that temporary educators must be placed to the posts. There was no appointment letter that indicated what Mkhize and Zulu were there to teach.

39. When it was put to him that Annexure A requires an educator who would teach Accounting, Economics and Business studies for grade 7, he said that post was not for Mkhize as he did not have an appointment letter stating so, and also, that Mkhize was not qualified to teach the three subjects at a Senior Phase. He disputed that Mkhize was placed at the school by the Department of Education, and submitted that he was placed at the school by Mr Mdlalose (the Employer representative in this matter). When educators are sent by the Department, they are from the surplus pool and the placement is done in consultation with the SGB, and further, they are given appointment letters.

40. He was not informed that placing of the educators was approved by the HOD, all they told him was that the District Director was satisfied with Mdlalose’s explanation, saying they were surplus educators. Mkhize was new and had never taught before.

41. He did not ask Vilakazi why Mkhize was placed at the school, because when an educator is placed at the school, he or she comes with an appointment letter which explains the subjects the educator is to teach and also the name of the person who appointed him / her. It was not the first time he received educators at the school, educators have always brought appointment letters with them. He did not have an example of the appointment letter he was talking about. He does not undermine Vilakazi.

42. He disputed that he was misleading the arbitration when saying educators always brought appointment letters with them. He disputed that level one educators do not come with appointment letters. He also disputed that appointment letters only come after the resumption of duty letters have been received by the Department from the school. Only the educators appointed by the SGB come with no appointment letters, as he goes to collect the appointment letters from the Department.

43. The SGB is responsible to interview the educators from level one to level four, whether they would be substitute or permanent educators.

44. He never interfered with the placement of educators and he never rejected them. All he said was that they were not qualified to teach the subjects for which he needed educators. The educators did not serve the school’s needs as articulated in the annexures. He disputed that Mkhize was qualified to teach the three subjects mentioned above. Zulu’s qualification was a Junior primary diploma, meaning she was qualified to teach at level grade R to three, and thus did not meet the school needs. She was never qualified to teach Maths and Technology at Intermediary phase (grade 4 to 7).

45. He never discriminated against anyone on the basis of age, including Zulu. The two educators were not legally placed at the school, because their placement was not in compliance with the South African Schools Act (SASA) and the EEA. One does not just come to the school, even if he or she is the HOD. What Mdlalose did was wrong.

46. He is aware of the categories or priorities set out on Circular no 51 or 2016 when appointing teachers.

47. There was a letter that Mkhize wrote and gave to him, in which he said he could not teach Maths at grade 7. But this letter was missing. He disputed that Mkhize was placed at the school to teach Accounting, Economics and Business studies as there were no documents stating that.

48. He did not agree that the Department has the discretion to appoint in terms of the Circular, and said it has to do that in conjuction with the SGB. He understands clause 10.1 of the said Circular to be saying surplus or excess educators should be given priority, and the EEA has to be complied with. If Zulu and Mkhize were surplus educators, he was going to accept them, provided that they would have shown him letters of appointment. Until there is a letter stating that the two were placed by the HOD, he would continue to say they were not placed correctly.

49. The two educators were placed by Mdlalose, not by the Department. He could not deny that appointment letters for the two educators were sent to the school, and were signed by the District Director. He disputes that he disrespected Vilakazi and that he threatened him. It is Vilakazi who talked bad about him, because he (Vilakazi) supported Mdlalose. There was no insubordination on his side, the only thing that existed was an argument. He denied that Vilakazi came with the two educators and instructed him to accept them. He agreed that Vilakazi instructed him with a letter to give the two educators duty loads. He disputes being insubordinate by refusing to follow Vilakazi’s written instruction, because people who are senior to Vilakazi told him otherwise. So he was not disrespectful to Vilakazi.

50. He agreed that a disciplinary hearing is a form of investigation. Despite Long v SAB case on consultation before suspension, his contract of employment says he must be consulted [p 98(2)(c)]. As far as he knows, suspension is effected in order to allow the Employer to conduct investigations without interference by the Employee. He never locked the gate at the school. Investigation is different from a disciplinary hearing. Vilakazi never came to the school to interview anyone, all he did was to come with the three educators. He did not refuse to follow Vilakazi’s instruction, all he did was to explain the type of educators they needed.

51. He agreed that failure to follow instructions given to him by Vilakazi would amount to insubordination. However, the instruction given by Vilakazi was not lawful, as it was against SASA which makes it the SGB’s responsibility to staff the school. He recognises Circula 51 of 2016, and its clause 10 disagrees with the manner in which the two educators were placed at the school.

Ms Nomalizo Shabalala (Shabalala) testified on behalf of the Employee as follows: -

52. She was the secretary of the SGB. On the first of October 2020, she discovered that some pages were missing from the SGB minutes book and they appeared to have been ripped off. She reported the incident to the Employee and he advised her to write a letter to Mr B Mdlalose. She wrote the letter and Mdlalose did not reply.

53. Cross examination – She could not remember what was contained in the missing pages. The Employee was in his office when she reported the issue to him. There was nothing that has been raised by the SGB which would have wanted her to look for the missing pages. She could not comment on the statement by the Employee that the missing pages have detrimentally affected the SGB.

Mr Madoda Cyril Nsele (Nsele) testified on behalf of the Employee as follows: -

54. He works at the Majuba college and he represented the Employee in the disciplinary hearing. In the disciplinary hearing, the Presiding Officer said they did not have an investigation report.

55. The EEA says when post level one teachers are appointed, the SGB must conduct the interviews.

56. Cross examination – He is here to testify about the investigation report. He did not see the Employer’s bundle during the disciplinary hearing.

57. When the Employer removed the Employee from the school, his understanding is that it did so, so as to ascertain the veracity of the allegations. Therefore the absence of an investigation report smacks of conspiracy of some sort. A disciplinary hearing is not part of the investigation.

58. When one is carrying out an investigation, he or she calls all the people who are involved in the matter, and that did not happen in this case. The Employer only called those people that it wanted to call only.

59. He had no comment on the version that Vilakazi gave several instructions to the Employee which the Employee never carried out, also on the difficulties Vilakazi faced at the school.

60. He was referring to Section 3(a)(m) of the EEA when he said that level 1 educators must be appointed by the SGB. He is aware of Circulars that are issued by the Employer which govern the Department and those include issues such as filling of positions, revision of priorities and directive for implementation.

61. He knows the content of Circular 54 / 2017 (p 17) and its context was to give opportunities to young people who have not been employed before as educators. He did not comment when put to him that as per the Circular, when filling a position through the submission of Annexures, there is no requirement for the Department to consult the SGB.

62. He did not know that Zulu had served as a substitute educator for more than 12 months consecutively at the time she reported to the school.


Mr Vuyani Zondo (Zondo) testified on behalf of the Employee as follows: -

63. He is a parent of a learner at the school. He was present in the meeting that took place in September 2019, in which the District Director and Mrs Dudu Sibiya, a Member of Parliament, were present.

64. As the SGB, they spoke to Nzama, who is the Director, and Nzama said he would not employ teachers without consulting the union and the principal.

65. The reason for them to speak to Nzama was to seek reasons for the dismissal of Maths and Technology teachers from the school (temporary teachers) and also why did the Department bring unqualified teachers to the school and dismiss qualified teacher who were recommended by the Employee.

66. Cross examination – he is not a member of the SGB, he was elected after a parents meeting that was held at the school, to go and speak with Nzama. He does not know whether the SGB was functional or not and nor whether the SGB is elected to represent the parents or not. He has heard of the SGB before, but does not know what it does.

67. He could not dispute that his statement regarding the functions of the SGB is unbelievable, and also when told that he had no business being in the September meeting as his presence undermined the SGB.

68. There are teachers who were dismissed at the school as the Employee told them so. He never checked his child’s school books to see whether indeed, there was lack of work due to the dismissed teachers.

69. The Employee told him that the teachers that were employed by the Department were unqualified. He did not verify whether the teachers were indeed not qualified or otherwise. He could not dispute that he was misled.

70. He does not agree that he was fed wrong information. He is not aware of a meeting that took place on 20 August 2019 between Sadtu and Nzama. If the Employee had said that there was such a meeting, he would then agree. He accepts everything that the Employee says as truth.

71. The Employee argued that –

71.1 The Employer did not appoint an investigator and thus there was no investigation conducted prior to him being put on precautionary suspension, in terms of schedule 2 of the EEA. So the aim of the Employer to suspend him was to humiliate him. Therefore the suspension was unfair as the Employer had failed to follow the disciplinary procedure.

71.2 The precautionary suspension was more than three months or 90 days, which made it even more unacceptable and unfair. The suspension was also punitive as there was no investigation conducted, and this is supported by the email on p48, which is from Miss Nokuthula Nxumalo. The Employer misled the arbitration when he said there was an investigation report.

71.3 Schedule 2 of the EEA outlines the principles underlying the code and says (a) discipline is a corrective and not a punitive measure, (b) discipline must be applied in a prompt, fair, consistent and just manner, (d) a disciplinary code is necessary for the efficient of service and the fair treatment of educator, (d) the disciplinary hearing must be concluded in the shortest possible time frame. Therefore, his precautionary suspension was punitive because it was not meant for investigation, but to humiliate him in front of educators and the community at large and this was unfair labour practice. Further, it was unfair because the discipline process was not conducted in a prompt, fair, consistent and just manner.

71.4 Van Niekerk J of the Labour Court, recently commented on the suspension of employees (in a judgement in which he referred to a previous judgement by Molahlehi) in which the court noted “There is, however, a need to send a message to employers that they should refrain from hastily resorting to suspending employees when there are no valid reasons to do so. Suspensions have a detrimental impact on the affected employee ad may prejudice his or her reputation, advancement, job security, and fulfilment. It is therefore necessary that suspensions are based on substantive reasons and fair procedures are followed. …unfair suspension may well render the disciplinary procedure to be unfair, so suspension should only be considered with good cause.”

71.5 Just like the Court above said, he suffered his reputation, advancement, fulfilment and job security were prejudiced. The Employer had no valid reason to put him on suspension, because there was no investigation done. Also, the Employer did not keep him informed about the reasons for the delay that went beyond three months / 90 days, as he was entitled to a prompt and effective finalisation of his matter.

71.6 He needs the documents that were taken from his office. Even though he requested Mr BN Mdlalose to investigate the issue of the missing documents, Mdlalose did not even respond to his request, yet he was the one who suggested that he (Employee) should write letters. Instead of conducting investigation, Vilakazi, when suspending him with immediate effect, took his (Employee’s) evidence with him.

71.7 The Employer failed to interview the Department officials who were involved in the matter, those are Mr RT Nzama (District Director) and Miss N Hlongwane (Provincial Human Resources department). The two officials made important decisions in relation to the employment of the two educators in this matter. Therefore it was an unfair labour practice to continue with a disciplinary hearing without calling the two officials to give evidence.

71.8 The EEA Schedule 2, clause 6 on (d) says “At the time of the enquiry contemplated in paragraph (c) the employer may, after giving the educator an opportunity to make representations, direct that the further suspension will be without pay.” This is one more reason as to why his suspension was unfair as his right to be consulted arises from the EEA. The Constitutional Court in Long v SAB said “employers should be cautious about deciding to place an employee on precautionary suspension without such opportunity to make presentation, However, the right to be provided with an opportunity to make presentations may arise from other sources such as a contract of employment, a collective agreement, a disciplinary code and procedure and/or an established workplace practice.” Therefore, the Employer should not be selective in applying Long.

71.9 He was treated differently by the Employer as it gave an opportunity to give reasons why Thami Magubane should not be suspended (p113). This is another ground of unfair labour practice meted against him.

71.10 The Employer was not consistent in how it dealt with him. Vilakazi was appointed by Nzama to investigate Zulu, and yet, he was not Zulu’s immediate supervisor, so he was appointed as someone who would be impartial. Yet, in his case, no one was appointed to investigate, which amounts to unfair labour practice, as they were treated differently.

71.11 The Employer failed to perform its obligation and duty to conduct the investigation with two officials, whilst he was suspended. Therefore it was an unfair labour practice to continue with the disciplinary hearing without an investigation and evidence of the two officials.

Employer’s case

Mr BSE Vilakazi testified on behalf of the Employer as follows: -

72. He is the Circuit Manager and the school falls under his management. His duties include supporting the schools, appointment of educators and providing administrative support to the principals at the schools.

73. When appointing permanent and temporary educators, he signs the filling of such posts, after the principal shall have completed and submitted Annexure A for permanent posts.

74. In 2019, he got three Annexure A from the school and he signed them. As the posts were the result of PPN, there was a Circular that was issued by the Department which states that the powers to fill such posts is vested with District. As a norm, once such Annexures are received and approved, the District will call the appointed educators by telephone and tell them to report to the school to which they are appointed, and that was the process in this case.

75. Around April-May 2019, he received a call from Mdlalose, telling him that the Employee was chasing away the educators placed at the school. He then called the Employee and asked him why he did so, the Employee could not explain the reasons. He instructed the Employee to take the educators as placed and that if he had any grievances against the Department, he should raise such in writing. The Employee agreed.

76. As time went on, he learnt that the Employee never called the educators back to the school. When the schools closed, they as the District held a meeting with the Employee and the Employee agreed that he will not turn back the educators.

77. Nzama instructed him that when the schools open, he must go and place the educators at the school. He did so and presented the educators to the School Management Team (SMT).

78. After the SMT meeting, the Employee behaved in an unbecoming manner, calling him ‘this person’ and saying it was him (Vilakazi) that brought the educators to the school, saying he was not going to accept the educators and that he (Vilakazi) must take them to wherever he wants.

79. Subsequently, there were correspondences between Nzama and the Employee, where Nzama informed the Employee to take the educators.

80. He left the educators at the school and instructed the Employee to give them duty loads. He also told the Employee that the three educators were placed at the school by the Province, not the District.

81. Around end of July 2019, the two educators called him, telling him that the gates at the school were locked and they were outside as the Employee was denying them access to the school. The educators were Mkhize and Zulu. They also said the Employee did not give them duty loads.

82. He went to the school and found the two educators locked outside the school and he instructed the security guard to open the gates and the security guard refused, saying the Employee instructed him not to open the gates. He then called the Employee and the Employee did not answer the phone.

83. That had a serious impact on his work at the school, as the security guard barred him from performing his duties, based on an instruction by the Employee. He felt confused and frustrated as he could not use force. He manages thirty four schools in the Circuit and he has never been in such a situation, where he was prevented from performing his duties.

84. In the KZN Province, there is a memorandum of understanding signed by the Department and SAPS for co-operation between the schools and the nearest police station whenever there were issues. He had never given an instruction that Police should be called when dealing with staffing issues. On the 26th of July 2019, the Employee called Police to come and remove the educators, referring to them as intruders.

85. Upon discovering that the Employee never gave the educators the duty loads, he again gave the Employee a verbal instruction to do so, and further warned the Employee against not following the instructions and also not to chase educators away.

86. The Employee at first said the educators were not qualified, which is untrue as they were fully qualified. Mkhize had a PGC and specialised in Economic Management Sciences, so the Employee was not being truthful when he said Mkhize did not qualify, so as Zulu who was placed at the school for Maths at Senior Phase and she qualified for that and she has taught it before.

87. During 2019-2020, there were a number of complaints raised by the two educators, saying that the Employee was ill-treating them. He investigated the matter and found that indeed, the allegations were true.

88. It is true that when educators are appointed, they are given appointment letters, but such comes at a later stage, after an educator has been told to report at the school, and a resumption report from the school has been sent to the District. There is no provision for SGB involvement on Annexure A appointments.

89. The District never received any complaints from SGB or the union regarding the two educators. After the educators were chased away, the SGB asked for a meeting with the District and it was satisfied with the initiatives taken by the District.

90. A number of reasons led to the suspension of the Employee and those are that the Employee made it difficult for him to do his work; chased him away from the school; threatened him physically and he shouted at him. The Employee became a law unto himself, he became so unruly, not listening and not taking instructions from him, and at that time, the school was ungovernable. The Employee degraded him in front of staff, SMT members and there were some few parents at the school.


91. There was investigation conducted at the school, so it is not true to say there was no investigation. He submitted the reports after the Employee was charged and those were about the Employee’s behaviour and the fact that he chased him, as his Supervisor, away from the school, resulting in him not doing what he came to the school to do. Those reports constitute an investigation.

92. It was necessary for the Employee to be suspended, as there were chaos at the school. After the Employee was suspended, the environment at the school was normalised and he was able to support the school.

93. In terms of the EEA, permanent educators are appointed without the involvement of the SGB. The SGB is involved on promotional appointments. Parental issues are handled by the SGB at a school and any group of parents acting outside of the SGB is illegitimate.

94. Cross examination – The EEA says the Employer may conduct investigations, not must, and misconducts are classified into two categories: serious and less serious (s17 and 18 respectively). S17 provides that the supervisor cannot conduct any form of investigation, but must write a report on the allegations to the Department, identify the potential witnesses and the Department would decide on whether to conduct a formal investigation or go to a disciplinary hearing, which is also an investigation. So it does not mean if the Employer conducts a disciplinary enquiry, then such is not an investigation.

95. He conducted an investigation (bundle C), hence the report he wrote to the District, recommending that action be taken against the Employee (P48 – email). Mrs B Mdlalose and Ms N Nxumalo also conducted investigations. During his investigations, he took statements from other employees and also wrote a letter to the Employee, asking for his response on the allegations levelled against him. Unfortunately, the Employee chose not to respond. He asked various other people at the school and they declined to provide statements, citing fear of victimisation, and those include Mrs Shabalala, Mrs Mbatha, Ms Mfusi.

96. The precautionary suspension was effected with full benefits, pending the disciplinary enquiry, and it was done after he had submitted a report to the District. As he is the Employee’s supervisor, there is no need for him to be appointed as investigator, when there are allegations against the Employee, he has to investigate the allegations. His investigation report was part of the bundles in the disciplinary hearing and the Employee cross examined him on it.

97. The disciplinary hearing could have taken place within 90 days and it did not, it took place after 90 days. The Employee was not denied justice, because he was suspended with full benefits. It was unfortunate that the suspension went beyond 90 days.

98. The missing pages from the SGB minutes book were obtained and the allegation that they were taken to conceal evidence was cleared. As the Employee’s supervisor, the Employee had never reported to him that there were minutes missing. He is not aware of a letter from Mkhize saying he cannot teach Maths and all he is aware of is a letter that Mkhize wrote to him, saying the Employee was forcing him to teach Maths, against what he was placed at the school for.

99. He could not investigate the Provincial Officials of the Department, when they knew nothing about the allegations, the key people were involved in the investigations, and those are people who were present when the Employee chased the educators away from the school, the Provincial Officials or SGB members were not present. The HOD also could not have been privy to the events as he was not present.

100. He disputes that there was inconsistency, as he investigated and submitted a report, he is not empowered to decide on whether to appoint an investigator or not. There is no way that the Employee was treated in a different way than the others. He even gave the Employee the report to make his own submission and the Employee made none.

101. There are a number of Circulars that guide the Department on appointment of educators. There is a Provincial database and the district office matches educators to the needs of the school and then appoint them accordingly. The SGB is only involved on promotions, not substantive vacant posts. He is not responsible for bringing teachers to the schools, the Human Resources is responsible, and he signs the documents.

Mrs Xolile Sanelisiwe Thusi (Thusi) testified on behalf of the Employer as follows: -

102. She is employed as an Assistant Director and is responsible for staffing of school within the District, in respect of levels 1 and promotional posts.

103. Appointment of post level one is done through the submission of Annexure A by the schools, which has the details such as the subjects and the phase to be taught. The Annexure is signed by the Principal of the school and by the Circuit Manager.

104. She received the Annexures from the school and the school requested that certain people be appointed to the posts, that request was declined by the District as the school could not appoint the educators for substantive posts, only the District could. There were other educators who took priority than those that the school wanted to be appointed.

105. They thus identified educators in terms of the requirements set out in the Annexure As. It is not true that they sent unqualified educators to the school. Mkhize has a National Diploma and a PGCE which qualified him as an educator on Economic and Management science, including Accounting. Zulu was placed at the school to teach Maths, and she could have been placed either on Annexure A – B3 or B5 as there was no specific requirement for her to teach Maths. She is an old educator whose qualification allowed her to teach across the phases, and she had taught grade 6 Maths in the past.

106. They were guided by Circular 51/2016, so the SGB was not involved.

107. Zulu had a break in service and at the time that they sent her to the school, she had been back for a period of two years as a substitute educator, and her placement was made in consultation with the Province in accordance with the Circular as she was appointed on a PPN post.

108. Educators are called and told to report to a particular school, then a day or two later, they call the school to confirm whether the educator did report to the school, if so, then the principal completes a resumption form and sends it to the District. They then compile the appointment letter. It was not the first time that they have placed educators at the school. She has never heard of any complaints regarding the three educators placed at the school.

109. Cross examination – Over and above the EEA, there are Circulars and Collective Agrrement that guides them on how to do staffing. When a circular is issued, it is a directive, crafted from the EEA, so she would not do something that is illegal. The Circular simplifies what the EEA says.

110. The SGB is not involved on appointments of level 1 educators. They complied fully with Circular 51/2016. The appointment of the two educators was done in consultation with the Head Office which was responsible to activate their appointments. Mkhize was identified by the Head Office.

111. All stakeholders including the school principals are aware of how level 1 educators are appointed. She denies that they did not fully apply the Circular.

Arguments
112. This case cannot be argued without zooming into the background leading to his precautionary suspension and ultimately, the disciplinary hearing that he was subjected to.

113. In or about March 2019, the Employer approved the allocation of new posts to schools where there was an increase in learner enrolment and schools that were undergoing the transformation of the schooling system. The school was transformed from being a junior primary school to a fully-fledged Primary School, hence the allocation of additional posts for utilisation during the 2019 academic year. The allocation of posts were communicated to school principals with an instruction that the posts were to be filled after securing the approval of the Head of Department (p12 of bundle A). The procedure to fill the substantive vacant posts is that the school principal completes Annexure A form and the Employee did so and submitted some to the District office.

114. The testimony of Thusi that the appointment of post level one educators does not follow the recommendation of SGB and that the same are sent to schools without any placement letters was not disputed. It was also undisputed that some level one educators had been placed at the school before, with recommendation of the SGB.

115. Evidence was led to show how disrespectful the Employee became during the course of the year 2019. Vilakazi testified that the Employee went into rampant campaign of disobedience, including in one instance where the Employee unceremoniously left the school when he was called by Mr M Nkosi, an Education Specialist, and in one instance, he threatened Vilakazi and told him to leave the school. Despite the Employee being told to desist from such actions, he continued to show disregard to the Department’s procedures.

116. Following the demonstration of abusive and unruly behaviour, the Employee had to be placed on precautionary suspension as his presence at the school was posing a threat to safety of other employees. The precautionary suspension was effected in terms of item (6) of schedule 2 of the EEA.

117. The disciplinary code (schedule 2) limits the period of precautionary suspension to 90 days. It is prudent that we indicate to the Council that the Employee’s precautionary suspension period did not exceed the prescribed period. The claim by the Employee that there was no investigation done following his precautionary suspension are unfounded in that report from the Circuit Manager (bundle C) clearly shows the extent to which the Employee went about demonstrating abusive and insubordinate and insolent behaviour. Numerous interactions with educators, in particular Zulu and Mkhize led to charges being preferred against the Employee.

118. Another demonstration of disregard of the Departmental procedures by the Employee was brought to light by Thusi, who said she visited the school on the 26th of August 2019 and found that teachers whose contracts had expired were told to remain at the school by the Employee, which decision the Employee took on his own as the SMT did not anything about the said teachers.

119. On the issue of the minutes and the letters the Employee complained about, Shabalala could not place the so called missing documents at the hands of the Employer. It would therefore be an impossible task for the Employer to return documents that it never took. On the letter purportedly written by Mkhize, it is correct that Mkhize is unable to teach Maths and Technology in grade 7 and his area of expertise is Economic Management Sciences (EMS).

120. They gathered all the information necessary to establish a prima facie case against the Employee. It was on the basis of such information that a charge was drawn and served to the Employee for him to appear before a disciplinary hearing. It is on these basis that the Respondent implores the Council to dismiss this application.


ANALYSIS OF EVIDENCE AND ARGUMENTS


121. Item 6(2) of schedule 2 provides “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 of any person at the work place”.

122. It is common cause that the Employee was suspended with full benefits and also that his suspension went beyond 90 days. Further, it is common cause that the Employee, on behalf of the school, submitted four Annexure A in which he requested educators. Only two of these educators provided appear to have caused the disagreement between the Employee and the Employer, thus leading to the suspension of the Employee. Those are Zulu and Mkhize.

123. Although much of the hearing touched on whether Zulu and Mkhize qualified to be placed at the school, it is not required of me to delve deeper into that as that is an ancillary to the main dispute, which is about the fairness of the suspension. The main issue that has led to the confrontation as submitted by the Employee is that the two educators (educators) had no appointment letters, and that appointment letters would have specified what subjects were they placed at the school to teach, so in the absence of the appointment letters, he saw them as having no right to be at the school, and therefore trespassing.

124. I must also mention that it is common cause that the educators had no appointment letters when they reported at the school. It is however in dispute as to whether they should have had appointment letters on their first day or not.

125. The Employee submitted that the educators should have had their appointment letters with them when they reported at the school. Both the Employer’s witnesses said there was no requirement for the educators to have appointment letters on their first day of reporting at the school, and that letters are sent to the school a few days later, after the District has received letters of resumption of duties from the school.

126. The Employee mentioned that Gumede had advised him not to accept any educator at the school without an appointment letter. Although he stated that level one educators always brought with them appointment letters on their first day, when asked to provide an example of such a letter, despite having plenty opportunity to do so, given that the matter was heard over a period spanning seven months, he did not produce any evidence of the said letter.

127. It is therefore apparent that the Employee’s version absolutely lacks merit. He was very content when he said there are such letters, and in fact, the letters are crucial as they are the basis on which he chased away the educators from the school. His reliance in what he said was an instruction from Gumede is also without any basis, as he could not substantiate such a claim.

128. The Employee submitted that his suspension was unfair as it was not in compliance with the EEA, as he was not offered the opportunity to explain his side before being suspended, and also, because there was no investigation report.

129. The Employee relied on section 6 of the EEA which says —

“ (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 subitem (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.

(d) At the time of the enquiry contemplated in paragraph

(c) the employer may, after giving the educator an opportunity to make representations, direct that the further suspension will be without pay.”

130. It is apparent from the EEA that the issue of giving the Employee an opportunity to make representations only comes into consideration when the Employer is considering that the suspension, beyond 90 days should be without pay. This was not the issue in this matter so this provision did not arise at all.

131. Vilakazi stated that he investigated the matter as the immediate superior to the Employee. He stated that the suspension was fair because the Employee had made the school ungovernable, the Employee had chased him away from the school; threatened him physically and he shouted at him and that the Employee became a law unto himself, he became so unruly, not listening and not taking instructions from him.

132. The Employee disputed that he disrespected Vilakazi and that he threatened him and submitted that it is Vilakazi who talked bad about him. He submitted that there was no insubordination on his side, the only thing that existed was a serious argument.

133. The Employee conceded that Vilakazi instructed him with a letter to give the two educators duty loads, but disputed being insubordinate by refusing to follow Vilakazi’s written instruction, because people who are senior to Vilakazi told him otherwise. He submitted that he had an argument with Vilakazi and there were SMT members present, and the argument was tense.

134. The Constitutional Court in Long v South African Breweries (Pty) Ltd and Others [2018] ZACC 7 recently held On para 24 held ‘”the Labour Court’s finding that an employer is not required to give an employee an opportunity to make representations prior to a precautionary suspension, cannot be faulted. As the Labour Court correctly stated, the suspension imposed on the applicant was a precautionary measure, not a disciplinary one. Where the suspension is precautionary and not punitive, there is no requirement to afford the employee an opportunity to make representations”.

….On para 25, it held that “In determining whether the precautionary suspension was permissible, the Labour Court reasoned that the fairness of the suspension is determined by assessing first, whether there is a fair reason for suspension and secondly, whether it prejudices the employee. The finding that the suspension was for a fair reason, namely for an investigation to take place, cannot be faulted. Generally where the suspension is on full pay, cognisable prejudice will be ameliorated. The Labour Court’s finding that the suspension was precautionary and did not materially prejudice the applicant, even if there was no opportunity for pre-suspension representations, is sound.”

135. The EEA “Employers of educators and other persons.—(1) Save as is otherwise provided in this section –
….

(3) For the purposes of creating posts –

(a) On the educator establishment of the Department of Education, the Minister shall be the employer of educators in the service of the said Department; and

(b) on the educator establishment of a provincial department of education, the Member of the Executive Council shall be the employer of educators in the service of that department.”

136. As mentioned above, the Employee only included few pages, purporting to be from the EEA. However, the page in which he largely relied on, section 3(3)(a) is not consistent with what is written in the EEA. It is thus not clear what version of the EEA the Employee’s few pages came from, as the citation on p5 is exactly the same as the EEA that I have referred to.

137. In view of the foregoing, the Employee therefore had relied in a document that is no longer in place, as the basis for his statement that the Circulars do not enjoy precedence over the EEA, which means his submission therefore has no basis.

138. As a witness, the Employee did not cover himself in glory, as his testimony was riddled with contradictions. Just to highlight a few, during cross examination, he said that he told the educators to leave the school premises and they did not, as he does not have the powers to manhandle them, he then called the Police. However, he went further and said that as the Principal of the school, he does not have the powers to chase people away. And yet again, he denied ever abusing his powers.

139. The above responses are incoherent. The Employee is fully aware that he had no powers to chase people away from the school, yet it is common cause that he chased the educators away and for him, that is not an abuse of power. I must say I find his denial of having abused his powers bizarre, to say the least. Simply put, when he chased the educators away, using powers that he never had, he was abusing his position, exercising powers that he did not have.

140. Other critical part of the Employee’s testimony that I find contradictory is that when it was put to him that Annexure A requires an educator who would teach Accounting, Economics and Business studies for grade 7, the Employee said that that post was not for Mkhize as he did not have an appointment letter stating so, and further that Mkhize was not qualified to teach the three subjects at a Senior Phase. Yet, he went on and said that he never interfered with the placement of educators and that he never rejected them.

141. The foregoing is inconsistent with the fact that he has said that he chased the educators away and called the police to assist in that regard as he could not manhandle them. Also, by saying that ‘that post was not for Mkhize’, is clearly in tune with his intention as indicated in the names of the educators he submitted with the Annexure As, which was to appoint the educators he already earmarked for the positions. That is one of the reasons for him to chase Mkhize away, and that in my understanding is interfering with the placement of educators by the Employer.

142. The Employee agreed that failure to follow instructions given to him by Vilakazi would amount to insubordination. However, he stated that the instruction given by Vilakazi was not lawful, as it was against SASA which makes it the SGB’s responsibility to staff the school. Granted that the Employee felt that the instruction was illegal, for all it is worth, he should have raised the matter within the hierarchy of the Department, and he did not have to just refuse to obey the instruction and then hope that the matter would end at that level.

143. I have noted that the Employee had an opportunity to seek further clarity on the placement of the educators at the school, and he would have sought that firstly from Vilakazi. There is no evidence that the Employee had sought such clarity. Again, the Employee has in fact acknowledged that he failed to follow Vilakazi’s instruction, which amounts to insubordination. Although he mentioned that the instruction was illegal, he provided no evidence to indicate that he took up the issuing of an alleged illegal instruction by Vilakazi, within the higher echelons of the Department. In fact, his labelling of the instruction to accept the educators as illegal and inconsistent with SASA is based on his alleged view that the SGB should have been consulted. That view is misguided and has no basis, given Circular 51/2016.

144. Furthermore, the Employee was criss-crossing on his reasons for not following the instruction, firstly saying Vilakazi’s superiors have told him not to accept teachers at the school without appointment letters, and then that the instruction was illegal, and thirdly that he did not refuse to follow Vilakazi’s instruction, all he did was to explain the type of educators they needed. For all intense and purposes, the multiple reasons submitted by the Employee are an attempt to obfuscate what is a clear transgression of insubordination and interference with the duties of Vilakazi.

145. Zondo’s testimony is completely unreliable, as firstly, he was not an SGB member, and therefore his participation in the events that are central to the suspension of the Employee was unwarranted. Secondly, under cross examination, he conceded that he did not know anything about the qualifications of the educators, and that all what he talked about was what he heard from the Employee.

146. In the circumstances, the situation at the school on the day that the events ventilated above took place paint a picture of chaos and indeed, the Employee was the main instigator of such a sad situation. Although the Employee denied having threatened Vilakazi, he did not deny that he chased him away. The Employee submitted that all he had with Vilakazi was a serious argument and that on its own paints a chaotic picture in my view, given that it took place between the Employee and his superior, in front of many other people. It is likely that the two would have different characterisation of the serious argument. Whatever the characterisation, at the end, the two educators were turned back, and were not given duty loads as per the instructions, police were called and gates were locked.

147. In the premises, it is my view that the suspension accorded with para 25 of the Long judgement and thus cannot be faulted as I believe that the Employee’s presence at the school during the investigation would have jeopardised the investigation.

148. On the issue of there been no investigation, it is trite law that a disciplinary enquiry is also an investigation. The fact that the Employer did not interview certain officials whom the Employee would have preferred to be interviewed, cannot and does not negate the fact that investigations were conducted up to and including the disciplinary hearing.

149. If anything, the Employee was at liberty to call any witness /es that he would have preferred to be interviewed, as the conclusion to be drawn is that such witness /es would have testified on behalf of the Employee, or corroborated his version. Other than that, I can’t find fault when the Employer chose whom to interview for the purposes of its investigations.

150. It is also worth bearing in mind that this dispute is about events that unfolded prior to the disciplinary hearing, and to that end, the issues of witnesses and statements that were submitted in the disciplinary hearing fall outside of the parameters of this case, and they could be pursued separately, in case the Employee feels aggrieved by the disciplinary hearing outcomes.

151. During cross examination, the Employee mentioned that due to the absence of the investigation report, he did not prepare himself adequately for the disciplinary hearing. Yet, he further mentioned that he was given enough time to prepare for the hearing, however, because the allegations were ambiguous and not clear, he did not prepare adequately.

152. I must mention that the above is fraught with such blatant contradictions, such that his main complaint, as it is that there was no proper investigation conducted, is left with little if any weight at all. It is evident that his complaint stems from the missing documents, which he could not outline how the absence thereof would have prejudiced him. There is no dispute on the fact that Mkhize was not placed at the school to teach Maths, also, there was nothing substantial raised regarding the missing pages from the SGB minutes.

153. The claim of inconsistency in that the Employee was treated differently from Zulu, as he was allegedly investigated by Vilakazi, who was not impartial, whereas Zulu was investigated by someone who was impartial, appears lousy and inconsistent with the Employee’s elaborate claim that there was no investigation in this matter. There is no evidence placed before me that dictates how investigations should be conducted and the applicable protocols thereto. That said, it is difficult for me to make a finding in favour of the Employee, simply on the basis of his own observations and aspirations.

154. It is therefore my considered view that the Employee has, on the balance of probabilities, failed to indicate that his suspension amounted to unfair labour practice.
AWARD

155. The suspension of the Employee, Mr Zamokuhle Emmanuel Nxumalo by the Employer, the Department of Education does not constitute an unfair labour practice.
156. The application is dismissed.


Vuyiso Ngcengeni Panelist / Commissioner