ELRC644-20/21 EC
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ELRC801- 20/21FS
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Award Date:
02 November 2021
Case No. ELRC801- 20/21FS
In the matter between
ELIOS PHAKISO KHEDAMA Applicant
and
DEPARTMENT OF EDUCATION-FREE STATE Respondent
_________________________________________________________
ARBITRATOR: YOLISA NDZUTA
HEARD: 5 OCTOBER 2021
DATE OF AWARD: 02 NOVEMBER 2021
SUMMARY: Labour Relations Act 66 of 1995 – Section 186(2)(a) - unfair labour practice is conduct by the employer relating to the promotion, demotion, probation (excluding disputes about dismissals for a reason relating to probation) or training of an employee or relating to the provision of benefits to an employee
SUMMARY: Whether the Employer (the Respondent) is perpetrating an Unfair Labour Practice on the Employee (the Applicant) by enforcing a suspension on said employee.
ARBITRATION AWARD
PARTICULARS OF PROCEEDINGS AND REPRESENTATION
1. The matter was set down for arbitration on the 5th of October 2021.
2. At the onset of the proceedings, the parties confirmed receipt of the notice of set down and there were no pre-liminary issues.
3. The Applicant (the employee) attended in person while being represented by Mrs Anja Muir and the Respondent was represented by Mr Solomon Moloi.
4. The parties advised that there was no dispute of fact and requested that that matter be argued by means of written submissions.
5. The parties were advised that said request must be followed by an Application in terms of section 18 of the ELRC Constitution which would require a ruling to be made prior. The parties also indicated that they had not concluded a Pre-Arbitration minute.
6. The request for section 18 proceedings was withdrawn and the arbitration proceedings ensued.
THE ISSUE IN DISPUTE
7. I am to determine whether the Applicant as a referring party is being subjected to an unfair labour practice relating to his suspension.
THE BACKGROUND TO THE DISPUTE
8. In these proceedings the Applicant referred a dispute pertaining to his alleged unfair labour practice that he is enduring at the hand of the Respondent.
9. The Applicant was a Principal of Refengkgotso Public School, which is in Sasolburg within the Fezile Dabi Education District.
10. The Applicant was suspended from his duties by the Respondent from the 6th of May 2019 for an alleged financial mismanagement charge to which the Applicant had denied.
11. After a lengthy investigation period the Applicant was formally charged and was eventually cleared of all charges on the 8th of November 2020 however the suspension still persisted.
SURVEY OF EVIDENCE AND ARGUMENT
12. Before addressing the evidence and arguments subject to the submissions, I will address fact that the Respondent placed on record that they do not dispute any evidence nor will they be making any submissions save for the attempts to place the Applicant in another school.
13. It is trite that anybody parties who avers an allegation of unfair labour practice, bears the onus to establish same and prove same on a balance of probabilities.
14. Although the Applicant’s testimony was without any cross examination, that on its own does not automatically establish the unfair labour practice.
15. The Applicant’s submissions can be summarized as follows:
a. The Applicant has been on suspension since the 6th of May 2021 however same suspension was pending an investigation for disciplinary proceedings to be instituted. Same proceedings concluded and resulted in discharge of the Applicant.
b. Considering that the reason for the Applicant’s suspension resulted in a discharge, the suspension ought to have been withdrawn and the Applicant returned to work.
c. The Respondent does not deny the above and confirmed that the suspension still persists.
d. The Applicant’s dignity and integrity has been compromised due to the prolonged suspension to which the Respondent admitted though the suspension persists, they are making means to place the Applicant in another school due to issues of safety.
16. The Respondent’s Submissions can be summarized as follows:
a. The Applicant is still suspended due to safety concerns.
b. The Employer is considering instituting a lateral transfer however the issue at hand relates to finding a post to transfer the Applicant to.
c. The Applicant’s transfer and placement is considered as a priority.
17. I now turn to the analysis of the submissions in relation to the applicable law.
ANALYSIS OF THE SUBMISSIONS
18. I repeat my earlier premise being, it is trite law that any parties who avers an allegation of unfair labour practice, bears the onus to establish same and prove same on a balance of probabilities.
19. In considering the above, the arguments and submissions before myself will be assessed juxtaposed to the above premise.
20. It is worth noting that an unfair labour practice carries a specific definition to which same definition includes “the unfair suspension of an employee or any other unfair disciplinary action short of dismissal inn respect of an employee”
21. In Allan Long vs South African Breweries Pty (Ltd), CCT 61/18 the courts considered what constitutes unfair suspension. In the said judgement the court upheld the notion that suspension is a precautionary measure pending disciplinary action.
22. In Mayaba v Commission for Conciliation Mediation And Arbitration and Another (J2204/2014) [2014] ZALCJHB 364 (19 September 2014) the court held that suspension pending disciplinary proceedings cannot be the conduct of disciplinary proceedings thus must have a specific and rational purpose.
23. It is evident that the purpose was fulfilled and thereafter the suspension ought to be lifted thus in the absence of such purpose the prolonged suspension is without reason thus unjustifiable.
24. In the premises I make the following award.
AWARD
25. The Applicant (Mr Elias Khedama), has proven that he is subject to an unfair labour practice.
26. The Respondent (the Department of Basic Education- Free State) , is ordered to lift the suspension of the Applicant immediately.
27. The Respondent is to place the Applicant in a vacancy of equal grade and standing within Thirty (30) days of this award.
Yolisa Ndzuta
Panelist: ELRC
In the matter between
ELIOS PHAKISO KHEDAMA Applicant
and
DEPARTMENT OF EDUCATION-FREE STATE Respondent
_________________________________________________________
ARBITRATOR: YOLISA NDZUTA
HEARD: 5 OCTOBER 2021
DATE OF AWARD: 02 NOVEMBER 2021
SUMMARY: Labour Relations Act 66 of 1995 – Section 186(2)(a) - unfair labour practice is conduct by the employer relating to the promotion, demotion, probation (excluding disputes about dismissals for a reason relating to probation) or training of an employee or relating to the provision of benefits to an employee
SUMMARY: Whether the Employer (the Respondent) is perpetrating an Unfair Labour Practice on the Employee (the Applicant) by enforcing a suspension on said employee.
ARBITRATION AWARD
PARTICULARS OF PROCEEDINGS AND REPRESENTATION
1. The matter was set down for arbitration on the 5th of October 2021.
2. At the onset of the proceedings, the parties confirmed receipt of the notice of set down and there were no pre-liminary issues.
3. The Applicant (the employee) attended in person while being represented by Mrs Anja Muir and the Respondent was represented by Mr Solomon Moloi.
4. The parties advised that there was no dispute of fact and requested that that matter be argued by means of written submissions.
5. The parties were advised that said request must be followed by an Application in terms of section 18 of the ELRC Constitution which would require a ruling to be made prior. The parties also indicated that they had not concluded a Pre-Arbitration minute.
6. The request for section 18 proceedings was withdrawn and the arbitration proceedings ensued.
THE ISSUE IN DISPUTE
7. I am to determine whether the Applicant as a referring party is being subjected to an unfair labour practice relating to his suspension.
THE BACKGROUND TO THE DISPUTE
8. In these proceedings the Applicant referred a dispute pertaining to his alleged unfair labour practice that he is enduring at the hand of the Respondent.
9. The Applicant was a Principal of Refengkgotso Public School, which is in Sasolburg within the Fezile Dabi Education District.
10. The Applicant was suspended from his duties by the Respondent from the 6th of May 2019 for an alleged financial mismanagement charge to which the Applicant had denied.
11. After a lengthy investigation period the Applicant was formally charged and was eventually cleared of all charges on the 8th of November 2020 however the suspension still persisted.
SURVEY OF EVIDENCE AND ARGUMENT
12. Before addressing the evidence and arguments subject to the submissions, I will address fact that the Respondent placed on record that they do not dispute any evidence nor will they be making any submissions save for the attempts to place the Applicant in another school.
13. It is trite that anybody parties who avers an allegation of unfair labour practice, bears the onus to establish same and prove same on a balance of probabilities.
14. Although the Applicant’s testimony was without any cross examination, that on its own does not automatically establish the unfair labour practice.
15. The Applicant’s submissions can be summarized as follows:
a. The Applicant has been on suspension since the 6th of May 2021 however same suspension was pending an investigation for disciplinary proceedings to be instituted. Same proceedings concluded and resulted in discharge of the Applicant.
b. Considering that the reason for the Applicant’s suspension resulted in a discharge, the suspension ought to have been withdrawn and the Applicant returned to work.
c. The Respondent does not deny the above and confirmed that the suspension still persists.
d. The Applicant’s dignity and integrity has been compromised due to the prolonged suspension to which the Respondent admitted though the suspension persists, they are making means to place the Applicant in another school due to issues of safety.
16. The Respondent’s Submissions can be summarized as follows:
a. The Applicant is still suspended due to safety concerns.
b. The Employer is considering instituting a lateral transfer however the issue at hand relates to finding a post to transfer the Applicant to.
c. The Applicant’s transfer and placement is considered as a priority.
17. I now turn to the analysis of the submissions in relation to the applicable law.
ANALYSIS OF THE SUBMISSIONS
18. I repeat my earlier premise being, it is trite law that any parties who avers an allegation of unfair labour practice, bears the onus to establish same and prove same on a balance of probabilities.
19. In considering the above, the arguments and submissions before myself will be assessed juxtaposed to the above premise.
20. It is worth noting that an unfair labour practice carries a specific definition to which same definition includes “the unfair suspension of an employee or any other unfair disciplinary action short of dismissal inn respect of an employee”
21. In Allan Long vs South African Breweries Pty (Ltd), CCT 61/18 the courts considered what constitutes unfair suspension. In the said judgement the court upheld the notion that suspension is a precautionary measure pending disciplinary action.
22. In Mayaba v Commission for Conciliation Mediation And Arbitration and Another (J2204/2014) [2014] ZALCJHB 364 (19 September 2014) the court held that suspension pending disciplinary proceedings cannot be the conduct of disciplinary proceedings thus must have a specific and rational purpose.
23. It is evident that the purpose was fulfilled and thereafter the suspension ought to be lifted thus in the absence of such purpose the prolonged suspension is without reason thus unjustifiable.
24. In the premises I make the following award.
AWARD
25. The Applicant (Mr Elias Khedama), has proven that he is subject to an unfair labour practice.
26. The Respondent (the Department of Basic Education- Free State) , is ordered to lift the suspension of the Applicant immediately.
27. The Respondent is to place the Applicant in a vacancy of equal grade and standing within Thirty (30) days of this award.
Yolisa Ndzuta
Panelist: ELRC