ELRC644-20/21 EC
Text
ELRC555-21/22EC
Award Date:
02 February 2022
Panelist: Jonathan Gruss
Case No.: ELRC555-21/22EC
Date of Award: 2 February 2022
In the ARBITRATION between:
NAPTOSA obo Chris van der Merwe
(Applicant)
and
Department of Higher Education & Training
(Respondent)
Applicant’s representative: Mr Adams
Respondent’s representative: Mr Sesant
:
Summary: Section 186(2)(b) of the Labour Relations Act, Act 66 of 1995 as amended – unfair labour practice relating to suspension .
DETAILS OF HEARING AND REPRESENTATION
1. This dispute was scheduled for arbitration in terms of Section 191(5)(a)(iv) of the Labour Relations Act 66 of 1995 as amended (“the LRA”) read with Clause 7.1.3 of the ELRC Constitution : ELRC Dispute Resolution Procedures (2021). The hearing was held via Zoom (virtual) on 17 January 2022 and the proceedings were electronically recorded. The applicant, Chris van der Merwe’s Union, NAPTOSA referred an unfair labour practice dispute to the ELRC. The applicant was represented by Mr Adams, an official from NAPTOSA and the respondent, Department of Higher Education and Training were represented by Mr Sesant, a lecturer and temporary labour support in the employ of the respondent. The parties agreed to submit written closing arguments by no later 24 January 2022 and submitted written closing arguments as agreed.
ISSUE TO BE DECIDED
2. This dispute concerns an alleged unfair labour practice regarding a precautionary suspension by the respondent.
INTRODUCTION
3. At the commencement of the arbitration when narrowing the issues the following is recorded:
3.1 facts that are common cause;
The applicant is employed by the respondent as the Head of Department at the Port Elizabeth TVET College situated at the Struandale Campus in Gqeberha. The applicant has been in the employ of the respondent since 1985. The applicant was suspended with salary on 18 October 2021 as a precautionary measure pending finalising of a disciplinary hearing. The charges on which he was suspended relate to alleged sexual harassment. On 3 January 2022, the applicant’s was served with a notice to attend disciplinary hearing scheduled for 9-10 January 2022. Thereafter, on the instance and request of the applicant’s representative, Mr Adams due to him having to isolate as a consequence to Covid 19, the disciplinary hearing was postponed. The applicant’s disciplinary hearing was thereafter scheduled for 31 January 2022 and 1 February 2022.
3.2 facts that are in dispute
The applicant submits that the charged for which he was suspended does not warrant suspension and some of the charges stem as far back as 2013 and only came to light after he was suspended. In terms of Clause 7.2(c) of PSCBC Resolution 1 of 2003 that provides as it relates to an employee who is suspended or transferred as a precautionary measure, the employer must hold a disciplinary hearing within a month or 60 days, depending on the complexity of the matter and the length of the investigation. The chair of the hearing must then decide on any further postponement.
The respondent submits that the applicant was suspended as from 18 October 2021 when he was served with a suspension notice and the respondent applied to the chairperson of the applicant’s disciplinary hearing for the applicant’s suspension to be extended and the request for an extension was granted. When calculating the 60 day period you should not include holidays.
3.3 The applicant seeks an order setting aside his suspension so that he may return to work.
APPLICANT’S EVIDENCE
4. The applicant testified under oath to the following effect.
4.1 He confirms the correctness of the arguments presented by his representative. The charges that initially gave rise to his suspension dated back to 2018 and after he was suspended additional charges arose from another complainant dating back to 2013. This was not the first time that allegations concerning alleged incidents of sexual harassment were made against him dating back to 2018 and after the charges were previously investigated by a legal firm, no evidence of sexual harassment were found to substantiate the allegations and nothing came thereof. It was a Union who lodged the current complaint against him with the respondent.
4.2 The Resolution provides that an employee may be suspended on full pay or transferred if the employee is alleged to have committed a serious offence; and the employer believes that the employee’s presence in the workplace might jeopardise any investigation into the alleged misconduct or endangered the wellbeing or safety of any person or state property. There is no evidence presented that he would tamper or unduly influence the complainants.
SURVEY OF EVIDENCE AND ARGUMENT
5. This is a brief summary of evidence considered as provided for in terms of Section 138(7)(a) of the LRA relevant to the dispute at hand and does not reflect all the evidence and arguments heard and considered in deciding this matter.
ANALYSIS OF EVIDENCE AND ARGUMENT
6. There is a dispute how days are calculated as it related to the 60 day period. The respondent has referred me to the Interpretation Act, 33 of 1957 and has argued that you must exclude the first day and holidays and weekends. Considering this, the respondent was of the view that it is safe to say the employer was still within the time limit when the notice was provided to the applicant.
7. The interpretation Act as referred to by the respondent as it defines the reckoning of a number of days, stipulates that when a particular number of days is prescribed for doing any act, or for any other purpose, the same shall reckoned exclusively of the first and inclusively of the last day, unless the last day happens to fall on a Sunday or on any public holiday, in which case the time shall be reckoning exclusively of the first day and exclusively also every such Sunday or public holiday.
8. What does this mean? We are not referring to work days, the words “and exclusively also every such Sunday or public holiday indicates the contrary. Had the words indicated Sundays and public holidays as plural and not referred to a singular every such Sunday or public holiday, this means when we are referring to when a day end on a Sunday or on a public holiday. Therefore, the 60th day ended on 17.December 2021.
9. Clause 7.2(c) of the PSCBC Resolution 1 of 2003 under the banner of precautionary suspension does not refer to duration of a suspension but stipulates that the employer must hold a disciplinary hearing within a month or 60 days, depending on the complexity of the matter and the length of the investigation. The chair of the hearing must then decide on any further postponements.
10. What this informs me as it relates to the duration of a suspension is that the disciplinary hearing must be held within a month or 60 days. This implies that should the matter be complex, the length of the investigation is a factor that must be taken into consideration. It is the chair of the disciplinary hearing who must decide on this. The applicant suspension by implication was extended by the chairperson.
11. I accept that the 60 day period ended on 17 December 2021 and the notice for the applicant to attend his disciplinary hearing was served on him on 3 January 2022, as it relates to the 60 day period to hold a disciplinary hearing, I do not believe that the delay is excessive and therefore I cannot conclude that it was unfair considering that we are dealing with a national department. It appears after the applicant was suspended further allegation based on the investigation came to attend of the respondent. This clearly contributed to the delay in instituting charges against the applicant.
12. As soon as the formal complaint was made against the applicant although by a trade union, the respondent was obliged to investigate the allegation and sexual harassment is always serious especially where an alleged perpetrator is a manger.
13. In terms of Section 6 (3) of the Employment Equity Act 55 of 1998 as amended (EEA) harassment of an employee is a form of discrimination and is prohibited on any one or a combination of grounds of unfair discrimination listed in subsecton (1). Section 10(6)(aA)(ii) of the EEA further provides and refers that an employee may refer a dispute to the CCMA for arbitration if the employee alleges unfair discrimination on the ground of sexual harassment.
14. Section 60(1) of EEA provides that if it is alleged that an employee, whilst at work, contravened a provision of the EEA, or engages in any conduct that, if engaged in by that employee’s employer, would constitute a contravention of the provisions of the EEA, the alleged conduct must immediately be brought to the attention of the employer. Subsection 2 further provides that the employer must consult all relevant parties and must take the necessary steps to eliminate the alleged conduct and comply with the provisions of the EEA. If the employer as contained in subsection 3 fails to take the necessary steps referred to in subsection 2, and it is proved that the employee has contravened the relevant provisions, the employer must be deemed also to have contravened that provision. However, subsection 4 provides that despite subsection 3, an employer is not liable for the conduct of an employee if that employer is able to prove that it did all that was reasonably practical to ensure that the employee would not act in contravention of the EEA.
15. The respondent had no choice but to suspend the applicant. Whether the allegation are trumped up without just foundation, that enquiry is to be determined by the chairperson of the applicant’s disciplinary hearing. The applicant’s disciplinary hearing was justifiably postponed on the first instance due to Mr Adams not been able to attend the applicant’s disciplinary hearing. The disciplinary hearing was scheduled to continue on 31 January 2022 and 1 February 2022. I am unaware as to the current status of the applicant’s disciplinary hearing.
16. Clause 7.2 (b) of the Resolution stipulates that a suspension of this kind is a precautionary measure that does not constitute a judgement and must be on full pay. This award does not evaluate whether there are sufficient grounds to charge the applicant with serious misconduct or whether his prosecution is malicious or whether he has been falsely accused.
17. I therefore make the following order.
AWARD
18. The applicant, Chris van der Merwe has failed to establish that the respondent, Department of Higher Education and Training committed an unfair labour practice relating to his precautionary suspension and or the duration thereof.
19. The applicant is not entitled to any relief.
Name: Jonathan Gruss
(ELRC) Arbitrator
Case No.: ELRC555-21/22EC
Date of Award: 2 February 2022
In the ARBITRATION between:
NAPTOSA obo Chris van der Merwe
(Applicant)
and
Department of Higher Education & Training
(Respondent)
Applicant’s representative: Mr Adams
Respondent’s representative: Mr Sesant
:
Summary: Section 186(2)(b) of the Labour Relations Act, Act 66 of 1995 as amended – unfair labour practice relating to suspension .
DETAILS OF HEARING AND REPRESENTATION
1. This dispute was scheduled for arbitration in terms of Section 191(5)(a)(iv) of the Labour Relations Act 66 of 1995 as amended (“the LRA”) read with Clause 7.1.3 of the ELRC Constitution : ELRC Dispute Resolution Procedures (2021). The hearing was held via Zoom (virtual) on 17 January 2022 and the proceedings were electronically recorded. The applicant, Chris van der Merwe’s Union, NAPTOSA referred an unfair labour practice dispute to the ELRC. The applicant was represented by Mr Adams, an official from NAPTOSA and the respondent, Department of Higher Education and Training were represented by Mr Sesant, a lecturer and temporary labour support in the employ of the respondent. The parties agreed to submit written closing arguments by no later 24 January 2022 and submitted written closing arguments as agreed.
ISSUE TO BE DECIDED
2. This dispute concerns an alleged unfair labour practice regarding a precautionary suspension by the respondent.
INTRODUCTION
3. At the commencement of the arbitration when narrowing the issues the following is recorded:
3.1 facts that are common cause;
The applicant is employed by the respondent as the Head of Department at the Port Elizabeth TVET College situated at the Struandale Campus in Gqeberha. The applicant has been in the employ of the respondent since 1985. The applicant was suspended with salary on 18 October 2021 as a precautionary measure pending finalising of a disciplinary hearing. The charges on which he was suspended relate to alleged sexual harassment. On 3 January 2022, the applicant’s was served with a notice to attend disciplinary hearing scheduled for 9-10 January 2022. Thereafter, on the instance and request of the applicant’s representative, Mr Adams due to him having to isolate as a consequence to Covid 19, the disciplinary hearing was postponed. The applicant’s disciplinary hearing was thereafter scheduled for 31 January 2022 and 1 February 2022.
3.2 facts that are in dispute
The applicant submits that the charged for which he was suspended does not warrant suspension and some of the charges stem as far back as 2013 and only came to light after he was suspended. In terms of Clause 7.2(c) of PSCBC Resolution 1 of 2003 that provides as it relates to an employee who is suspended or transferred as a precautionary measure, the employer must hold a disciplinary hearing within a month or 60 days, depending on the complexity of the matter and the length of the investigation. The chair of the hearing must then decide on any further postponement.
The respondent submits that the applicant was suspended as from 18 October 2021 when he was served with a suspension notice and the respondent applied to the chairperson of the applicant’s disciplinary hearing for the applicant’s suspension to be extended and the request for an extension was granted. When calculating the 60 day period you should not include holidays.
3.3 The applicant seeks an order setting aside his suspension so that he may return to work.
APPLICANT’S EVIDENCE
4. The applicant testified under oath to the following effect.
4.1 He confirms the correctness of the arguments presented by his representative. The charges that initially gave rise to his suspension dated back to 2018 and after he was suspended additional charges arose from another complainant dating back to 2013. This was not the first time that allegations concerning alleged incidents of sexual harassment were made against him dating back to 2018 and after the charges were previously investigated by a legal firm, no evidence of sexual harassment were found to substantiate the allegations and nothing came thereof. It was a Union who lodged the current complaint against him with the respondent.
4.2 The Resolution provides that an employee may be suspended on full pay or transferred if the employee is alleged to have committed a serious offence; and the employer believes that the employee’s presence in the workplace might jeopardise any investigation into the alleged misconduct or endangered the wellbeing or safety of any person or state property. There is no evidence presented that he would tamper or unduly influence the complainants.
SURVEY OF EVIDENCE AND ARGUMENT
5. This is a brief summary of evidence considered as provided for in terms of Section 138(7)(a) of the LRA relevant to the dispute at hand and does not reflect all the evidence and arguments heard and considered in deciding this matter.
ANALYSIS OF EVIDENCE AND ARGUMENT
6. There is a dispute how days are calculated as it related to the 60 day period. The respondent has referred me to the Interpretation Act, 33 of 1957 and has argued that you must exclude the first day and holidays and weekends. Considering this, the respondent was of the view that it is safe to say the employer was still within the time limit when the notice was provided to the applicant.
7. The interpretation Act as referred to by the respondent as it defines the reckoning of a number of days, stipulates that when a particular number of days is prescribed for doing any act, or for any other purpose, the same shall reckoned exclusively of the first and inclusively of the last day, unless the last day happens to fall on a Sunday or on any public holiday, in which case the time shall be reckoning exclusively of the first day and exclusively also every such Sunday or public holiday.
8. What does this mean? We are not referring to work days, the words “and exclusively also every such Sunday or public holiday indicates the contrary. Had the words indicated Sundays and public holidays as plural and not referred to a singular every such Sunday or public holiday, this means when we are referring to when a day end on a Sunday or on a public holiday. Therefore, the 60th day ended on 17.December 2021.
9. Clause 7.2(c) of the PSCBC Resolution 1 of 2003 under the banner of precautionary suspension does not refer to duration of a suspension but stipulates that the employer must hold a disciplinary hearing within a month or 60 days, depending on the complexity of the matter and the length of the investigation. The chair of the hearing must then decide on any further postponements.
10. What this informs me as it relates to the duration of a suspension is that the disciplinary hearing must be held within a month or 60 days. This implies that should the matter be complex, the length of the investigation is a factor that must be taken into consideration. It is the chair of the disciplinary hearing who must decide on this. The applicant suspension by implication was extended by the chairperson.
11. I accept that the 60 day period ended on 17 December 2021 and the notice for the applicant to attend his disciplinary hearing was served on him on 3 January 2022, as it relates to the 60 day period to hold a disciplinary hearing, I do not believe that the delay is excessive and therefore I cannot conclude that it was unfair considering that we are dealing with a national department. It appears after the applicant was suspended further allegation based on the investigation came to attend of the respondent. This clearly contributed to the delay in instituting charges against the applicant.
12. As soon as the formal complaint was made against the applicant although by a trade union, the respondent was obliged to investigate the allegation and sexual harassment is always serious especially where an alleged perpetrator is a manger.
13. In terms of Section 6 (3) of the Employment Equity Act 55 of 1998 as amended (EEA) harassment of an employee is a form of discrimination and is prohibited on any one or a combination of grounds of unfair discrimination listed in subsecton (1). Section 10(6)(aA)(ii) of the EEA further provides and refers that an employee may refer a dispute to the CCMA for arbitration if the employee alleges unfair discrimination on the ground of sexual harassment.
14. Section 60(1) of EEA provides that if it is alleged that an employee, whilst at work, contravened a provision of the EEA, or engages in any conduct that, if engaged in by that employee’s employer, would constitute a contravention of the provisions of the EEA, the alleged conduct must immediately be brought to the attention of the employer. Subsection 2 further provides that the employer must consult all relevant parties and must take the necessary steps to eliminate the alleged conduct and comply with the provisions of the EEA. If the employer as contained in subsection 3 fails to take the necessary steps referred to in subsection 2, and it is proved that the employee has contravened the relevant provisions, the employer must be deemed also to have contravened that provision. However, subsection 4 provides that despite subsection 3, an employer is not liable for the conduct of an employee if that employer is able to prove that it did all that was reasonably practical to ensure that the employee would not act in contravention of the EEA.
15. The respondent had no choice but to suspend the applicant. Whether the allegation are trumped up without just foundation, that enquiry is to be determined by the chairperson of the applicant’s disciplinary hearing. The applicant’s disciplinary hearing was justifiably postponed on the first instance due to Mr Adams not been able to attend the applicant’s disciplinary hearing. The disciplinary hearing was scheduled to continue on 31 January 2022 and 1 February 2022. I am unaware as to the current status of the applicant’s disciplinary hearing.
16. Clause 7.2 (b) of the Resolution stipulates that a suspension of this kind is a precautionary measure that does not constitute a judgement and must be on full pay. This award does not evaluate whether there are sufficient grounds to charge the applicant with serious misconduct or whether his prosecution is malicious or whether he has been falsely accused.
17. I therefore make the following order.
AWARD
18. The applicant, Chris van der Merwe has failed to establish that the respondent, Department of Higher Education and Training committed an unfair labour practice relating to his precautionary suspension and or the duration thereof.
19. The applicant is not entitled to any relief.
Name: Jonathan Gruss
(ELRC) Arbitrator