ELRC773 21/22EC
Text
ELRC773 21/22EC
Award Date:
18 May 2022
IN THE EDUCATION LABOUR RELATIONS COUNCIL
HELD VIRTUALLY
Case No. ELRC773 21/22EC
In the matter between
AMOS MRALI Applicant
and
EASTERN CAPE DEPARTMENT OF EDUCATION Respondent
ARBITRATOR: YOLISA NDZUTA
HEARD: 28 April 2022
DATE OF AWARD: 18 MAY 2022
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 an Unfair Labour Practice has been committed by the Employer (the respondent) due to refusal to remunerate the Employee (the applicant) for its unused leave accumulated during suspension.
SUMMARY: Whether the Employer has committed an Unfair Labour Practice by failing to adjust the Employee’s salary in the absence of the PMDS assessment
ARBITRATION AWARD
PARTICULARS OF PROCEEDINGS AND REPRESENTATION
1. The matter was set down for arbitration on the 28th of April 2022. The applicant was represented by Mr Themba Rataza while the respondent (the employer) was represented by Mr Garth Jacobs of the Eastern Cape Department of Education.
2. The parties confirmed receipt of the set down notice and advised that there were no preliminary issues outstanding. The applicant party confirmed that it would be presenting verbal testimony and would also rely on its bundle that was filed with the council. The respondent’s representative advised that it did not intend calling any witnesses and would also rely on then applicant’s bundle.
3. The veracity of the contents enclosed in the applicant’s bundle was not disputed and considering that same bundle was going to be used by both representatives, it was adopted as a common bundle.
THE ISSUE IN DISPUTE
4. The applicant has referred this dispute wherein he outlines the following issues:
4.1 His salary notch was not rectified due to a lengthy suspension, same incorrect notch persist to date; and
4.2 His prolonged suspension precluded him from an annual performance assessment; and
4.3 He was precluded him from using his leave for the academic years 2018 – 2019.
5. I am to determine whether the applicant’s continued employment and remuneration under the notch (that is in dispute) is the result of an unfair labour practice. I am also tasked to determine whether the applicant’s claim for remuneration stemming from unused leave is justified. I am further tasked to determine whether the applicant in this regard is entitled to any compensation in this regard.
THE BACKGROUND TO THE DISPUTE
6. The applicant was appointed as the CES (chief education specialist) and was designated to the Amatole District (formerly known as Fort Beaufort district). On the 29th of March 2019, the Applicant was placed on precautionary suspension for allegations pertaining to his performance and management which same suspension was lifted on the 19th of March 2020.
7. The applicant at the time of his suspension (with full pay) was subject to very strict conditions. The disciplinary proceedings pertaining to the applicants suspension were concluded on the 31st of October 2019 and soon thereafter a sanction was imposed. The latter sanction was changed to a demotion which was challenged by the applicant.
8. The applicant successfully challenged the demotion and the initial sanction was imposed.
SURVEY OF EVIDENCE AND ARGUMENT
9. The applicant filed a bundle consisting of several annexures. The respondent’s representative confirmed that he would not be challenging the veracity of information enclosed therein. The respondent’s representative placed on record that he would not be filing any evidence on behalf of the respondent nor would he be calling any witnesses however would rely on the applicants bundle. The aforementioned bundle was admitted into evidence.
10. Mr Mrali was called to as a witness for the applicant.
11. The applicant’s testimony can be summarized as follows:
a. He was the CES at Amathole West and had been suspended from said position on the 29th of March 2019. During his time as the CES he endured a very strenuous work schedule that required a lot of his attention. Due to his strenuous work schedule he could not take leave as and when he required.
b. He testified that although he only received the letter enclosing his precautionary suspension on the 5th of April 2019, he had received a call on the 29th of March 2019 advising of same suspension.
c. He testified that the conditions of the suspension were reiterated to him as such he was impeded from making any communication with the employer in this regard as such in compliance of said conditions he did not.
d. He testified that at the time of the lifting of his suspension on the 19th of March 2020 and subsequent redesignation to Chris Hani West he had not taken any leave nor had he been subject to a performance assessment.
e. He testified that in the midst of all of this he was subject to disciplinary proceedings which resulted in his demotion which was successfully challenged.
f. Mr Mrali testified that the outcome of his challenge to the demotion was communicated to him on March 2021 which he has challenged same by referring a matter to the Labour Court.
g. He testified that his salary notch had not been adequately adjusted throughout the years.
12. Mr Mrali was subjected to cross examination and placed the following on record during cross examination:
a. He did change districts during the years in question (being 2018 and 2019);
b. He is well aware of the leave policy directive under the DETERMINATION AND DIRECTIVE ON LEAVE OF ABSENCE IN THE PUBLIC SERVICE wherein same advises what happens to unused leave when an employee in the public service is absent from service.
c. He confirmed that he knew the number of annual leave days designated per employee.
d. He confirmed that he failed to contract in terms of PMDS in 2019 as required and failed to inform his immediate supervisor of the failure to contract.
e. He confirmed that he was well aware of the charges levelled against him during his precautionary suspension, which are the same charges he was consequently disciplined and demoted for albeit the successful challenge of same demotion at this council under a different referral.
13. After the testimony of Mr Mrali, the applicant did not call any further witnesses and closed its case with the following closing statement:
a. Mr Mrali has been and remains a CES regardless of the district he is currently designated to work from.
b. The Employer in this case has not challenged the arguments pertaining to the notch, however have elected to blame Mr Mrali for not contracting in terms of PMDS which is a system that the employer has full autonomy over.
c. The employer placed strict conditions of suspension for Mr Mrali and same conditions made it impossible for Mr Mrali to communicate with his supervisors.
d. If we consider Mr Mrali’s workplace conditions prior to suspension and how demanding his work was then, is it fair for his leave days to lapse as though it by his wilful actions that he did not utilise same leave. Similarly if we consider the conditions entrenched on Mr Mrali during suspension and the consequent actions that occurred post his suspension can we say he wilfully prohibited a assessment compliant with PMDS (PERFORMANCE MANAGEMENT DEVELOPMENT SYSTEM).
14. The case of the Respondent can be summarised as follows:
a. The applicant is misinterpreting the applicable policy and is seeking special treatment.
b. The applicant is aware of the leave policy and how same policy does not compensate employees for inaction. Mr Mrali had an opportunity to address the issue of leave days from the date of lifting of his suspension as it fell within the six month period as per the policy.
c. The applicant is well aware of how PMDS works and how same system relies on employees contracting timeously.
d. The failure of the employee to comply with, apply and interpret the policies cannot be attributed as an unlawful labour practice of the employer.
e. The employee was charged with mismanagement and poor performance, he was subsequently disciplined for same mismanagement and poor performance. We cannot forget that his sanction persists as such considering that his performance remains as identified in that fashion, he cannot be eligible for a salary adjustment until such time he is reassessed in the system.
f. The reasons provided by employees for failing to properly manage his leave and improve his work performance are not acceptable. Furthermore, the system provides and opportunity for employees to make written submissions.
g. Mr Mrali is well aware that PMDS and the system subject to the leave policy is an internal one which cannot entertain external legal representatives, he (the applicant) knew that he ought to have raised any discrepancies with his superiors in order to comply with the applicable policies herein.
15. I now turn to the analysis of the submissions in relation to the applicable law.
ANALYSIS OF THE SUBMISSIONS
17. The preliminary premise to depart from herein is the definition of an unfair labour practice. Section 186(2) of the Labour Relations Act 66 of 1995 defines an unfair labour practice as “an act or omission that arises between an employer and an employee involving—
(a) unfair 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;
(b) the unfair suspension of an employee or any other unfair disciplinary action short of dismissal in respect of an employee;
(c) a failure or refusal by an employer to reinstate or re-employ a former employee in terms of any agreement; and
(d) an occupational detriment, other than dismissal, in contravention of the Protected Disclosures Act, 2000 (Act No. 26 of 2000), on account of the employee having made a protected disclosure defined in that Act.
[S. 186 amended by s. 41 (a) of Act No. 12 of 2002. Sub-s. (2) added by s. 41 (c) of Act No. 12 of 2002.]
18. In considering the above, my task is to evaluate whether the applicant’s dispute pertaining the respondent’s conduct as constituting an unfair labour practice or not.
19. As well established in case law, the applicant in disputes of this nature bears the onus to prove the existence of an unfair labour practice thus must in its case establish how the conduct of the employer (respondent) satisfies the above definition.
20. The matter at hand pertains to the respondent’s actions when assessed with the applicable policies vis a vis the applicant’s actions in consideration of same policies.
21. In their submissions the Applicant explained that their dispute pertains to amongst others, what is regarded as a notch adjustment, a benefit envisaged within the PMDS.
22. In similar submissions the Applicant rationalised his dispute to include a claim for unused leave in terms of the DETERMINATION AND DIRECTIVE ON LEAVE OF ABSENCE IN THE PUBLIC SERVICE.
23. In Apollo Tyres, the court defined benefits under section 186(2)(a) of the LRA as Benefits – What constitute – Benefits as contemplated by section 186(2)(a) of LRA including those to which employee is entitled ex contractu or ex lege, including rights judicially created, as well as advantage or privileges employees have been offered or granted in terms of a policy or practice subject to the employer’s discretion.
24. It is thus evident that this is a dispute envisaged under section 186 (2)(a) of the Labour Relations Act, 66 of 1995.
25. I will first address the claim for unused leave then I shall address the issue of notch correction.
26. It is evident that at the heart of this dispute is entitlement, whether the applicant is entitled to claim for unused leave.
27. Importantly, we must consider this part of the dispute congruent to the definition of an unfair labour practice and as per the case law cited above, “rights judicially created, as well as advantage or privileges employees have been offered or granted in terms of a policy or practice subject to the employer’s discretion” also constitute benefits in terms of section 186(2) of the Labour Relations Act, 66 of 1995.
28. The parties’ dispute is interictally linked to the application of the policies at hand.
28.1 It is crucial for one to consider the purpose of the policy which is central to the dispute, same policy provides that such purpose includes under 3.1.2 “to determine an employee’s leave entitlement and conditions that the employee must adhere to access the said entitlement.”
28.2 Section 5.15 of the DETERMINATION AND DIRECTIVE ON LEAVE OF ABSENCE IN THE PUBLIC SERVICE addresses the dispute pertaining to unused leave and further places requirements that an employee must meet to satisfy such a claim.
28.3 It is thus important for us to determine if the applicant’s dispute satisfies section 5.15 and similarly if it meets the requirements of same.
28.4 Considering the evidence provided, Mr Mrali was placed on precautionary suspension for maladministration and it was argued by the respondent’s representative that same maladministration was pertaining to his performance and not a misconduct. The latter argument was no challenged by the employee.
28.5 In terms of the prescripts of the policy applicable, the precautionary suspension must be for misconduct for a such a claim to succeed.
28.6 Neither the applicant’s evidence nor its submissions could substantiate whether Mr Mrali met the latter prescripts.
28.7 It stands to conclude that although the applicant (an employer per the policy) was subject to precautionary suspension, he was not suspended for a misconduct. Had the applicant adduced the disciplinary code of conduct or any documentation to substantiate that his suspension satisfied the prescripts of the policy then he may have been entitled to his claim. It therefore stands to conclude that he does not satisfy Section 5.15 of the DETERMINATION AND DIRECTIVE ON LEAVE OF ABSENCE IN THE PUBLIC SERVICE.
28.8 Equally, it is crucial for one to consider where the purpose of the policy is punitive towards one party in its application or if it seeks to rectify the consequences that would present themselves wherein an employee may be prejudiced by the actions of the employer.
28.9 In these proceedings, the employee was placed on precautionary suspension whilst on full pay. Clearly same applicant was not prejudiced in this regard. We therefore turn to the question whether it would be reasonable to oblige the respondent to enrich the applicant by compensation.
28.10 Considering that the applicant sought compensation in this dispute, I must address this in terms of section 193 (4) of the Labour Relations Act, 66 of 1995 which directs how a commissioner may rule when considering such disputes, the sections states:“An arbitrator appointed in terms of this Act may determine any unfair labour practice dispute referred to the arbitrator, on terms that the arbitrator deems reasonable, which may include ordering reinstatement, re-employment or compensation”.
28.11 At the epicentre of the above provision lies the requirement of reasonableness which is what we must consider. Furthermore same provision gives one (a commissioner) a discretion when making an award. This will remain a consideration when making the award herein below.
29. Before I make the award pertaining the above, I need to settle the issue pertaining to notch correction.
30. It is blatantly clear that Mr Mrali had moved districts upon his return post suspension.
31. When one considers the above move, it would be accompanied by a change in leadership and thus superiors that he would be responsible to.
32. Mr Mrali did attest that he knew of his responsibility to contract however explained that he had a challenging relationship with the District Director.
33. The above explanation unfortunately does not explain why he did not satisfy the responsibility to contract.
34. Mr Mrali was evasive when asked whether it was his responsibility to contract in terms of PMDS or rather the responsibility of the employer. The employer’s representative argued that a negative inference regarding the witnesses credibility be made in this regard. Herein we refer to Sol Plaatje Municipality v South African Local Government Bargaining Council and Others [2021] 11 BLLR 1096 (LAC) wherein the court considered the credibility of an evasive witness. The court placed in latter matter that wherein a witness evades giving a direct response to questions, such witness is an unreliable witness who’s testimony carries very little weight. In this regard, Mr Mrali’s testimony in this regard carries little evidentiary weight. Similarly the representative for the respondent failed to adduce a witness to place a version that would hold the employee solely responsible for the PMDS assessment process.
35. The parties seem to forget that at the heart of the PMDS is participation from both parties thus both are responsible to engage in this process. Granted the employer holds the responsibility to initiate this process and the employee to avail itself thereafter.
36. It is evident from both argument and evidence, the employer failed to initial the process and the reasons thereto are inexplicable. When considering the time that has lapsed from the date of dispute, no apparent reasons has been furnished as to any assessment being executed whether same assessment result would have been positive of negative is a different narrative. The fact that the employer has not to date commenced the necessary process only leads on to conclude that the employer was not interested in doing so.
37. In the premises I make the following award.
AWARD
38. In so far as the dispute pertaining to a claim for leave accumulated during suspension, the applicant has failed to establish that he is entitled to a claim for annual leave accrued during the precautionary suspension.
39. In relation to the dispute pertaining to notch adjustment, the applicant has established that an unfair labour practice has been committed against it.
40. The respondent is directed to engage in the necessary performance assessment as envisaged in the PMDS in order to determine whether the applicant qualifies for a notch adjustment.
Yolisa Ndzuta
Panelist: ELRC
HELD VIRTUALLY
Case No. ELRC773 21/22EC
In the matter between
AMOS MRALI Applicant
and
EASTERN CAPE DEPARTMENT OF EDUCATION Respondent
ARBITRATOR: YOLISA NDZUTA
HEARD: 28 April 2022
DATE OF AWARD: 18 MAY 2022
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 an Unfair Labour Practice has been committed by the Employer (the respondent) due to refusal to remunerate the Employee (the applicant) for its unused leave accumulated during suspension.
SUMMARY: Whether the Employer has committed an Unfair Labour Practice by failing to adjust the Employee’s salary in the absence of the PMDS assessment
ARBITRATION AWARD
PARTICULARS OF PROCEEDINGS AND REPRESENTATION
1. The matter was set down for arbitration on the 28th of April 2022. The applicant was represented by Mr Themba Rataza while the respondent (the employer) was represented by Mr Garth Jacobs of the Eastern Cape Department of Education.
2. The parties confirmed receipt of the set down notice and advised that there were no preliminary issues outstanding. The applicant party confirmed that it would be presenting verbal testimony and would also rely on its bundle that was filed with the council. The respondent’s representative advised that it did not intend calling any witnesses and would also rely on then applicant’s bundle.
3. The veracity of the contents enclosed in the applicant’s bundle was not disputed and considering that same bundle was going to be used by both representatives, it was adopted as a common bundle.
THE ISSUE IN DISPUTE
4. The applicant has referred this dispute wherein he outlines the following issues:
4.1 His salary notch was not rectified due to a lengthy suspension, same incorrect notch persist to date; and
4.2 His prolonged suspension precluded him from an annual performance assessment; and
4.3 He was precluded him from using his leave for the academic years 2018 – 2019.
5. I am to determine whether the applicant’s continued employment and remuneration under the notch (that is in dispute) is the result of an unfair labour practice. I am also tasked to determine whether the applicant’s claim for remuneration stemming from unused leave is justified. I am further tasked to determine whether the applicant in this regard is entitled to any compensation in this regard.
THE BACKGROUND TO THE DISPUTE
6. The applicant was appointed as the CES (chief education specialist) and was designated to the Amatole District (formerly known as Fort Beaufort district). On the 29th of March 2019, the Applicant was placed on precautionary suspension for allegations pertaining to his performance and management which same suspension was lifted on the 19th of March 2020.
7. The applicant at the time of his suspension (with full pay) was subject to very strict conditions. The disciplinary proceedings pertaining to the applicants suspension were concluded on the 31st of October 2019 and soon thereafter a sanction was imposed. The latter sanction was changed to a demotion which was challenged by the applicant.
8. The applicant successfully challenged the demotion and the initial sanction was imposed.
SURVEY OF EVIDENCE AND ARGUMENT
9. The applicant filed a bundle consisting of several annexures. The respondent’s representative confirmed that he would not be challenging the veracity of information enclosed therein. The respondent’s representative placed on record that he would not be filing any evidence on behalf of the respondent nor would he be calling any witnesses however would rely on the applicants bundle. The aforementioned bundle was admitted into evidence.
10. Mr Mrali was called to as a witness for the applicant.
11. The applicant’s testimony can be summarized as follows:
a. He was the CES at Amathole West and had been suspended from said position on the 29th of March 2019. During his time as the CES he endured a very strenuous work schedule that required a lot of his attention. Due to his strenuous work schedule he could not take leave as and when he required.
b. He testified that although he only received the letter enclosing his precautionary suspension on the 5th of April 2019, he had received a call on the 29th of March 2019 advising of same suspension.
c. He testified that the conditions of the suspension were reiterated to him as such he was impeded from making any communication with the employer in this regard as such in compliance of said conditions he did not.
d. He testified that at the time of the lifting of his suspension on the 19th of March 2020 and subsequent redesignation to Chris Hani West he had not taken any leave nor had he been subject to a performance assessment.
e. He testified that in the midst of all of this he was subject to disciplinary proceedings which resulted in his demotion which was successfully challenged.
f. Mr Mrali testified that the outcome of his challenge to the demotion was communicated to him on March 2021 which he has challenged same by referring a matter to the Labour Court.
g. He testified that his salary notch had not been adequately adjusted throughout the years.
12. Mr Mrali was subjected to cross examination and placed the following on record during cross examination:
a. He did change districts during the years in question (being 2018 and 2019);
b. He is well aware of the leave policy directive under the DETERMINATION AND DIRECTIVE ON LEAVE OF ABSENCE IN THE PUBLIC SERVICE wherein same advises what happens to unused leave when an employee in the public service is absent from service.
c. He confirmed that he knew the number of annual leave days designated per employee.
d. He confirmed that he failed to contract in terms of PMDS in 2019 as required and failed to inform his immediate supervisor of the failure to contract.
e. He confirmed that he was well aware of the charges levelled against him during his precautionary suspension, which are the same charges he was consequently disciplined and demoted for albeit the successful challenge of same demotion at this council under a different referral.
13. After the testimony of Mr Mrali, the applicant did not call any further witnesses and closed its case with the following closing statement:
a. Mr Mrali has been and remains a CES regardless of the district he is currently designated to work from.
b. The Employer in this case has not challenged the arguments pertaining to the notch, however have elected to blame Mr Mrali for not contracting in terms of PMDS which is a system that the employer has full autonomy over.
c. The employer placed strict conditions of suspension for Mr Mrali and same conditions made it impossible for Mr Mrali to communicate with his supervisors.
d. If we consider Mr Mrali’s workplace conditions prior to suspension and how demanding his work was then, is it fair for his leave days to lapse as though it by his wilful actions that he did not utilise same leave. Similarly if we consider the conditions entrenched on Mr Mrali during suspension and the consequent actions that occurred post his suspension can we say he wilfully prohibited a assessment compliant with PMDS (PERFORMANCE MANAGEMENT DEVELOPMENT SYSTEM).
14. The case of the Respondent can be summarised as follows:
a. The applicant is misinterpreting the applicable policy and is seeking special treatment.
b. The applicant is aware of the leave policy and how same policy does not compensate employees for inaction. Mr Mrali had an opportunity to address the issue of leave days from the date of lifting of his suspension as it fell within the six month period as per the policy.
c. The applicant is well aware of how PMDS works and how same system relies on employees contracting timeously.
d. The failure of the employee to comply with, apply and interpret the policies cannot be attributed as an unlawful labour practice of the employer.
e. The employee was charged with mismanagement and poor performance, he was subsequently disciplined for same mismanagement and poor performance. We cannot forget that his sanction persists as such considering that his performance remains as identified in that fashion, he cannot be eligible for a salary adjustment until such time he is reassessed in the system.
f. The reasons provided by employees for failing to properly manage his leave and improve his work performance are not acceptable. Furthermore, the system provides and opportunity for employees to make written submissions.
g. Mr Mrali is well aware that PMDS and the system subject to the leave policy is an internal one which cannot entertain external legal representatives, he (the applicant) knew that he ought to have raised any discrepancies with his superiors in order to comply with the applicable policies herein.
15. I now turn to the analysis of the submissions in relation to the applicable law.
ANALYSIS OF THE SUBMISSIONS
17. The preliminary premise to depart from herein is the definition of an unfair labour practice. Section 186(2) of the Labour Relations Act 66 of 1995 defines an unfair labour practice as “an act or omission that arises between an employer and an employee involving—
(a) unfair 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;
(b) the unfair suspension of an employee or any other unfair disciplinary action short of dismissal in respect of an employee;
(c) a failure or refusal by an employer to reinstate or re-employ a former employee in terms of any agreement; and
(d) an occupational detriment, other than dismissal, in contravention of the Protected Disclosures Act, 2000 (Act No. 26 of 2000), on account of the employee having made a protected disclosure defined in that Act.
[S. 186 amended by s. 41 (a) of Act No. 12 of 2002. Sub-s. (2) added by s. 41 (c) of Act No. 12 of 2002.]
18. In considering the above, my task is to evaluate whether the applicant’s dispute pertaining the respondent’s conduct as constituting an unfair labour practice or not.
19. As well established in case law, the applicant in disputes of this nature bears the onus to prove the existence of an unfair labour practice thus must in its case establish how the conduct of the employer (respondent) satisfies the above definition.
20. The matter at hand pertains to the respondent’s actions when assessed with the applicable policies vis a vis the applicant’s actions in consideration of same policies.
21. In their submissions the Applicant explained that their dispute pertains to amongst others, what is regarded as a notch adjustment, a benefit envisaged within the PMDS.
22. In similar submissions the Applicant rationalised his dispute to include a claim for unused leave in terms of the DETERMINATION AND DIRECTIVE ON LEAVE OF ABSENCE IN THE PUBLIC SERVICE.
23. In Apollo Tyres, the court defined benefits under section 186(2)(a) of the LRA as Benefits – What constitute – Benefits as contemplated by section 186(2)(a) of LRA including those to which employee is entitled ex contractu or ex lege, including rights judicially created, as well as advantage or privileges employees have been offered or granted in terms of a policy or practice subject to the employer’s discretion.
24. It is thus evident that this is a dispute envisaged under section 186 (2)(a) of the Labour Relations Act, 66 of 1995.
25. I will first address the claim for unused leave then I shall address the issue of notch correction.
26. It is evident that at the heart of this dispute is entitlement, whether the applicant is entitled to claim for unused leave.
27. Importantly, we must consider this part of the dispute congruent to the definition of an unfair labour practice and as per the case law cited above, “rights judicially created, as well as advantage or privileges employees have been offered or granted in terms of a policy or practice subject to the employer’s discretion” also constitute benefits in terms of section 186(2) of the Labour Relations Act, 66 of 1995.
28. The parties’ dispute is interictally linked to the application of the policies at hand.
28.1 It is crucial for one to consider the purpose of the policy which is central to the dispute, same policy provides that such purpose includes under 3.1.2 “to determine an employee’s leave entitlement and conditions that the employee must adhere to access the said entitlement.”
28.2 Section 5.15 of the DETERMINATION AND DIRECTIVE ON LEAVE OF ABSENCE IN THE PUBLIC SERVICE addresses the dispute pertaining to unused leave and further places requirements that an employee must meet to satisfy such a claim.
28.3 It is thus important for us to determine if the applicant’s dispute satisfies section 5.15 and similarly if it meets the requirements of same.
28.4 Considering the evidence provided, Mr Mrali was placed on precautionary suspension for maladministration and it was argued by the respondent’s representative that same maladministration was pertaining to his performance and not a misconduct. The latter argument was no challenged by the employee.
28.5 In terms of the prescripts of the policy applicable, the precautionary suspension must be for misconduct for a such a claim to succeed.
28.6 Neither the applicant’s evidence nor its submissions could substantiate whether Mr Mrali met the latter prescripts.
28.7 It stands to conclude that although the applicant (an employer per the policy) was subject to precautionary suspension, he was not suspended for a misconduct. Had the applicant adduced the disciplinary code of conduct or any documentation to substantiate that his suspension satisfied the prescripts of the policy then he may have been entitled to his claim. It therefore stands to conclude that he does not satisfy Section 5.15 of the DETERMINATION AND DIRECTIVE ON LEAVE OF ABSENCE IN THE PUBLIC SERVICE.
28.8 Equally, it is crucial for one to consider where the purpose of the policy is punitive towards one party in its application or if it seeks to rectify the consequences that would present themselves wherein an employee may be prejudiced by the actions of the employer.
28.9 In these proceedings, the employee was placed on precautionary suspension whilst on full pay. Clearly same applicant was not prejudiced in this regard. We therefore turn to the question whether it would be reasonable to oblige the respondent to enrich the applicant by compensation.
28.10 Considering that the applicant sought compensation in this dispute, I must address this in terms of section 193 (4) of the Labour Relations Act, 66 of 1995 which directs how a commissioner may rule when considering such disputes, the sections states:“An arbitrator appointed in terms of this Act may determine any unfair labour practice dispute referred to the arbitrator, on terms that the arbitrator deems reasonable, which may include ordering reinstatement, re-employment or compensation”.
28.11 At the epicentre of the above provision lies the requirement of reasonableness which is what we must consider. Furthermore same provision gives one (a commissioner) a discretion when making an award. This will remain a consideration when making the award herein below.
29. Before I make the award pertaining the above, I need to settle the issue pertaining to notch correction.
30. It is blatantly clear that Mr Mrali had moved districts upon his return post suspension.
31. When one considers the above move, it would be accompanied by a change in leadership and thus superiors that he would be responsible to.
32. Mr Mrali did attest that he knew of his responsibility to contract however explained that he had a challenging relationship with the District Director.
33. The above explanation unfortunately does not explain why he did not satisfy the responsibility to contract.
34. Mr Mrali was evasive when asked whether it was his responsibility to contract in terms of PMDS or rather the responsibility of the employer. The employer’s representative argued that a negative inference regarding the witnesses credibility be made in this regard. Herein we refer to Sol Plaatje Municipality v South African Local Government Bargaining Council and Others [2021] 11 BLLR 1096 (LAC) wherein the court considered the credibility of an evasive witness. The court placed in latter matter that wherein a witness evades giving a direct response to questions, such witness is an unreliable witness who’s testimony carries very little weight. In this regard, Mr Mrali’s testimony in this regard carries little evidentiary weight. Similarly the representative for the respondent failed to adduce a witness to place a version that would hold the employee solely responsible for the PMDS assessment process.
35. The parties seem to forget that at the heart of the PMDS is participation from both parties thus both are responsible to engage in this process. Granted the employer holds the responsibility to initiate this process and the employee to avail itself thereafter.
36. It is evident from both argument and evidence, the employer failed to initial the process and the reasons thereto are inexplicable. When considering the time that has lapsed from the date of dispute, no apparent reasons has been furnished as to any assessment being executed whether same assessment result would have been positive of negative is a different narrative. The fact that the employer has not to date commenced the necessary process only leads on to conclude that the employer was not interested in doing so.
37. In the premises I make the following award.
AWARD
38. In so far as the dispute pertaining to a claim for leave accumulated during suspension, the applicant has failed to establish that he is entitled to a claim for annual leave accrued during the precautionary suspension.
39. In relation to the dispute pertaining to notch adjustment, the applicant has established that an unfair labour practice has been committed against it.
40. The respondent is directed to engage in the necessary performance assessment as envisaged in the PMDS in order to determine whether the applicant qualifies for a notch adjustment.
Yolisa Ndzuta
Panelist: ELRC