ELRC487-22/23NC

IN THE EDUCATION LABOUR RELATIONS COUNCIL ARBITRATION MEETING HELD VIRTUALLY ON 11 NOVEMBER 2022
Case Number: ELRC487-22/23NC
Arbitrator: Moraka Abel Makgaa
Date: 05 December 2022

In the matter between: -
Mmusi Boitumelo Desmond Applicant
And
Education Department of Northern Cape Respondent

ARBITRATION AWARD

DETAILS OF THE ARBITRATION AND REPRESENTATION
1 The arbitration hearing was held virtually on 11 November 2022. The applicant was present and represented himself whereas the respondent was represented by Mr Gavin George, employed by the respondent as the Chief Education Specialist: Labour Relations. The proceedings were conducted in English, and were digitally recorded.

ISSUES TO BE DECIDED
2 I am called upon to determine whether the applicant’s precautionary suspension constitutes an unfair labour practice for the purposes of section 186(2)() of the Labour Relations Act 66 of 1995 (“LRA”), and if so, I must determine the appropriate relief.
BACKGROUND TO THE DISPUTE
3 The factual background to this matter has been summarised from the parties’ pre-arbitration minutes and the evidence (both documentary and oral) led by the applicant during the arbitration hearing. As it will become apparent hereunder, the factual matrix as well as the facta probanda in this matter are either common cause, are admitted, or are not denied. The applicant is employed by the respondent as the deputy principal of Velalanga Primary School in Circuit 1, in the ZF Mgcawu District. Before his suspension, he was appointed as the acting principal of the same school with effect from 01 July 2021.
4 The applicant was issued with a letter signed by Mr GG March, the District Director of ZF Mgcawu District concerning a precautionary suspension of the applicant in terms of the provisions of item 6 of Schedule 2 ( Disciplinary Code and Procedures for Educators) of the Employment of Educators Act 76 of 1998 (“Schedule 2 to the Educators Act”). The applicant was, inter alia, notified of his immediate suspension from work pending conclusion of the investigation and the disciplinary enquiry into allegations of serious misconduct which included sexual harassment of a fellow colleague. The applicant was warned that he was not allowed to enter the departmental premises, to have access to official documents and to speak to any possible witnesses, without written permission of the employer. He was further informed that the outcome of the investigation and details of the disciplinary enquiry will be communicated to him.
5 The applicant was placed on a precautionary suspension with effect from 13 September 2022, and he remained suspended as at the date of the arbitration hearing. Aggrieved by the respondent’s decision to place him on a precautionary suspension, the applicant referred a dispute of alleged unfair labour practice in terms of section 186(2) of the Labour Relations Act 95 of 1995 (“LRA”) on 15 September 2022. The matter was set down for conciliation on 12 October 2022, and it served before commissioner Adriaan Van der Waldt, but could not be conciliated due to the respondent’s non-attendance. A certificate of outcome was issued in this regard.
6 The matter was referred to arbitration, and it served before me on 11 November 2022. At the beginning of the proceedings I enquired from the parties if ever they had already drawn up the pre-arbitration minutes, and the answer was in the negative. We reverted to the pre-arbitration meeting, with consent of the parties. I assisted the parties to compile the pre-arbitration minutes. The respondent’s representative signed the minutes on the day of the arbitration, scanned and sent them to both the ELRC and the applicant. The applicant was given until 12 November 2022, to sign, scan and send the signed pre-arbitration minutes to both the ELRC and the applicant, which was done.
7 The applicant submitted an evidence bundle consisting of 29 pages, which was marked as Annexure “BDM1”. The respondent’s representative indicated that it was not necessary for the respondent to submit any evidence bundle because they were intending to rely on the same documents which have been discovered by the applicant. It was as such agreed that the Annexure “BDM1” will be referred to as a joint evidence bundle. From the signed pre-arbitration minutes, and oral evidence of the applicant, the applicant’s precautionary suspension was preceded by the following events:
7.1 On 11 April 2022 there was an incident involving Ms KP Komazi and Ms Olyn, who was one of the General School Assistants, where Ms Komazi is alleged to have insulted and humiliated Ms Olyn. The incident was reported to the applicant, as the acting principal, who ended up inviting the affected persons (viz Komazi and Ms Olyn, who was accompanied by another General School Assistants) to a meeting with the applicant and other two members of the School Management Team (“SMT”) to a meeting for purposes of trying to find an amicable solution applicant. The matter could not be resolved, and the applicant decided to escalate it to the Circuit Manager, Mr George Robertson.
7.2 On 06 May 2022 the applicant submitted a detailed report to the Circuit Manager, entitled “ request for a formal disciplinary enquiry’, relating to allegations of serious misconduct involving Ms Komazi, which included insubordination, disrespect to both her colleagues and members of the SMT as well as to the applicant, as the acting principal. It was recommended that a disciplinary enquiry be instituted against Ms Komazi.
7.3 On 03 June 2022 the applicant submitted a follow-up letter to the Circuit Manager enquiring about progress made with regard to the submission he made in respect of Ms Komazi. The applicant reiterated his belief that the allegations made against Ms Komazi were of a serious nature, and was as such deeply concerned about the fact that nothing was being done about the case. It was specifically indicated that the respondent’s failure to take action against Ms Komazi had a negative impact on the management and proper functioning of the school because it suggested that “ employees can behave in any way they want and not be held accountable for their action”. It was further indicated that such a failure “ completely undermines the authority of the school’s acting principal and management as a whole”. The applicant did not only request to be updated on progress made in the matter, but he also demanded that disciplinary action be taken against Ms Komazi.
7.4 On 08 June 2022 the applicant’s District Director wrote a letter, which was received by the applicant on 10 June 2022, informing the applicant that Ms Komazi had laid a complaint against him relating to allegations of sexual harassment, assault, intimidation, victimization and general abuse of his position as the school principal. The allegations are said to have occurred during 2019 and 2020.
7.5 The applicant was given the opportunity to respond to the allegations, in writing, within 5 days of receipt of the letter, which he did on 24 June 2022. Before responding to the specific allegations made against him, the applicant started off by expressing his “ deepest disappointment” at the letter written to him containing allegations made by Ms Komazi. Ms Komazi’s allegations were described as blatant lies. All the allegations were vehemently denied by the applicant.
7.6 The applicant submitted that Ms Komazi must be subjected to a disciplinary enquiry instead of being allowed to escape accountability for the serious misconduct she has committed. In conclusion, the applicant requested that the matter should be investigated without fear or favour, and that a speedy and just resolution should be found. He also lamented that his name and reputation are being deliberately tarnished.
8 The respondent decided to close its case without calling any witnesses. The parties were given until 16 November 2022 to submit their written closing arguments. On 22 November 2022 Mr George sent an email to the ELRC requesting an extension on the basis that he could not submit the respondent’s closing arguments because he was hospitalized from 8 to 11 November 2022, and that he was attending the ELRC’s training program, as from 22 to 25 November 2022. Mr George was given an extension until 30 November 2022, but at the time of finalizing the arbitration award on 02 December 2022, I had not yet received the respondent’s closing arguments.
SURVEY OF THE APPLICANT’S EVIDENCE AND ARGUMENT
9 Mmusi Boitumelo Desmond, who is the applicant in this matter, was the only witness who testified in this case. His testimony, which was given under oath, was largely a repeat of the issues captured in the parties’ pre-arbitration minutes, as well as a repeat of the information contained in the various documents in the joint evidence bundle. Most of this information is captured in the factual background. The applicant’s testimony will as such be summarized in as far as it relates to issues which are not covered in the factual background or in as far as the evidence was meant to provide clarity on the issues relevant to the dispute.
10 The respondent never responded to all the issues or correspondence which the applicant submitted to the Office of the Circuit Manager. After being silent for a period about five months, the respondent decided to place the applicant on a precautionary suspension pending the investigation. The letter of suspension was brought the applicant by officials from Labour Relations section of the respondent, accompanied by the Circuit Manager. The applicant asked them as to why he could not be given a notice of an intention to suspend him, especially in the light of the fact that he is the head of the school. He further testified that he had expected the respondent, at the very least, to inform him that the respondent did not find any substance in both the charges of misconduct against Ms Komazi as well as in respect of the written submissions that he had made in response to the allegations made against him by Ms Komazi.
11 His case of alleged unfair labour practice is not based on a belief that he is not supposed be held accountable if the respondent believes that he has a case to answer. He is aggrieved by the respondent’s decision not to do or say anything about the allegations of serious misconduct he had made against Ms Komazi and his recommendation that Komazi should be subjected to a disciplinary enquiry, but instead prioritized the allegations made against him by Ms Komazi, who had clearly brought counter charges in order to avoid being held accountable for her misconduct. He further testified that even if he does not know as to when did Ms Komazi report the case against him, he believes that it was after he had reported her to the Circuit Manager.
12 He has been placed on what appears to be an indefinite precautionary suspension in the sense that he had last interacted with the respondent about this matter in June 2022. Even as at the date of the arbitration hearing the respondent had not done anything about the case, which included preferring charges of misconduct against him. He understands the respondent to have acted against him with malicious intentions, especially in the light of the fact that a few days after his suspension the school conducted the shortlisting and interview processes for the post, he was acting in, and for that reason the suspension may have been intended to prejudice him.
13 Under cross examination, he stuck to his guns in as far as the evidence he gave under examination in chief is concerned. He testified that in the past he once gave Ms Komazi a written warning relating to a different act of misconduct. He insisted that in this case he decided to escalate the matter to the Circuit Manager because he considered the matter to be of a serious nature. Secondly, by walking out of the meeting and swearing at him, it was clear that Ms Komazi was not prepared to subject herself to his authority as the acting principal.
14 After submitting his comprehensive response to the allegations levelled against him, he was under the impression that the respondent would realize that Ms Komazi’s allegations are so frivolous, and should as such be dismissed outrightly. Another concern he has is the fact that the respondent created an impression that investigations have been concluded and that the matter would be handled with speed, but the fact that the respondent decided to remain silent for about three months after the applicant had responded to the allegations suggests that there is no sense of urgency on the part of the respondent.
ANALYSIS OF EVIDENCE AND ARGUMENTS
15 I would like to provide a summary of what the applicant’s case is all about, and/or what the applicant’s case is not all about. When properly construed, the conspectus of the evidence in this case suggests that the applicant is aggrieved by both the reason for which he is suspended, and the procedure followed by the respondent. In other words, the applicant alleges that his suspension is both procedurally and substantively unfair.
16 The applicant made extensive and damaging factual allegations against the respondent’s conduct, which included alleging that the respondent had, despite several enquiries by the applicant, elected to remain dead silent on the case of the alleged misconduct against Ms Komazi. It was also alleged that the respondent went into hibernation for more than four months after the case against Ms Komazi was escalated to the Circuit Manager’s Office, and remained so for more than two months after receipt of the applicant’s written submissions, which were made in response to the allegations of misconduct made against the applicant by Ms Komazi.
17 The applicant was also aggrieved by the respondent’s unexpected and unannounced visit to the school on 13 September 2022 for purposes of issuing him with a letter of precautionary suspension. This unusual move occurred in circumstances where the applicant, as the acting principal of the school, was expecting some kind of a feedback on the recommendations he had made about the misconduct alleged to have been committed by Ms Komazi. The applicant, to use his words, was “at the very least” expecting to be given a feedback as to why it was believed that there was no merit in the written representations that he had made as to why he believed that he, unlike Ms Komazi, had no case to answer. The last concern of the applicant was about the fact that, as at the date of the arbitration hearing, it was approximately 96 days since he was informed of the allegations of misconduct against him, and approximately 60 days since he had been placed on a precautionary suspension, but he was still to be formally charged with misconduct.
18 The applicant was at pains to explain that his case was not about an attempt to avoid accountability if indeed there was an information suggesting that he had a case to answer. He was troubled by the fact that the respondent, instead of supporting him as the head of the school, appears to have chosen the side of his subordinate who was alleged to have disrespected her colleagues and the management of the school. He also felt prejudiced by the timing of the suspension because it coincided with the shortlisting and interview processes for the post, he was acting in.
19 The respondent, on the other hand, appears to have understood the applicant’s case as if it was being suggested that the Head of Department or his/her delegate may only exercise the discretionary power of placing the applicant on a precautionary suspension subject to the audi alteram partem rule. It was probably because of this understanding that Mr George, in his cross examination, was less interested in most of the factual allegations which were made by the applicant in support of his claim of unfair labour practice. Mr George’s focus was on testing the applicant’s understanding of the provisions of item 6 of Schedule 2 to the Educators Act as well as testing the applicant’s understanding of what the Constitutional Court, in Long v South African Breweries (Pty) Ltd and Others [2018] ZACC7, said regarding the procedural fairness rights of an employee in a case of precautionary suspension.
20 The only thing which Mr George did in as far as the alleged misconduct against Ms Komazi is concerned, was to criticize the applicant for having decided to escalate Ms Komazi’s case to the Circuit Manager, because in his view the applicant had the power and the discretion to discipline Ms Komazi. I am of the view that Mr George’s criticism of the applicant was besides the point and unfair to the applicant. Even if it were to be accepted that there is some merit in the criticism, the question is why was the applicant told this for the first time at arbitration? Why would the applicant be expected to have disciplined Ms Komazi in instances where the actions of the Circuit Manager and the District Director suggest that Ms Komazi did not or does not deserve to be disciplined? I accept the applicant’s explanation that such an option could have landed him into hot water than he presently is.
21 In Shauna Patricia Pamplin v Western Cape Education Department and Others, Case Number C 1034/2015 ( delivered on 9 May 2018), the Labour Court per Tlhotlhalemaje J at para 37, said the following about the question of onus in unfair labour practice disputes:
“The circumstances of the litigation in unfair labour practice disputes such as in casu is that despite the onus being on the complainant/employee to demonstrate that the failure to promote or appoint was unfair, the employer is in the same token, obliged to defend attacks on the substantive and procedural fairness of its decisions if it wishes to avoid a negative outcome. This therefore implies that there is an obligation on the employer to place evidence of the fairness of the process followed and the rationale for the appointment/non-appointment, to satisfy a tribunal that the appointment/non-appointment was rational and thus fair. The employer must demonstrate that it acted fairly, in good faith, and applied its mind to the selection. A conclusion that an employer acted fairly or in good faith in making an appointment cannot be reasonable nor rational in circumstances where that employer places no such evidence before a tribunal, irrespective of where the onus lies”.
22 I am of the view that the legal principles articulated in Shauna Patricia Pamplin case, supra, are also relevant to a dispute such as the one I am dealing with. The general problem with Mr George’s cross examination was not only about his failure to deal with the real issues which the applicant was aggrieved about, it was also about the fact that there was little or no information which was disclosed by the respondent as regards the reasons why the applicant was placed on a precautionary suspension after such a long delay, or as to why there was no action taken against Ms Komazi. There was also no explanation as to why the applicant had not been charged after such a long time since being made aware of the allegations against him and since he was placed on a precautionary suspension. What the respondent did was to put all its energy and focus on legal questions relating to the discretionary power of the HOD and/or the District Director much to the exclusion of the factual foundation upon which such a discretion was exercised.
23 To crown it all, the respondent’s representative decided to close the respondent’s case without calling a single witness to come and give evidence intended to refute the factual allegations made by the applicant or at least to support the respondent’s version that the applicant’s suspension was above board. In other words, there was literally no evidence intended to defend the respondent’s decision which was under attack. The inescapable conclusion is that the only version which is before the commissioner is that of the applicant. The net effect of this fatal error on the part of the respondent is that the case had effectively become a one horse race.
24 The impugned suspension of the applicant is regulated by item 6 of Schedule 2 to the Educators Act, which provides as follows:
“ 6. Suspension.—(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 workplace.
(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”.
25 There is no question that the employer has a discretionary power to suspend or transfer an educator as a pre-cautionary measure in circumstances set out in item 6(2) of Schedule 2. In Mogotlhe v Premier of the North-West Province and Another , the Labour Court, per Van Niekerk J at para 39, held that whenever an employer contemplates imposing a preventative suspension, such an employer will be required to have a justifiable reason to believe, prima facie at least, that the employee has engaged in serious misconduct. Secondly, there must be some objectively justifiable reason to deny such an employee access to the workplace based on the integrity of any pending investigation into the alleged misconduct or some other relevant factor that would place the investigation or the interests of affected parties in jeopardy.
26 In casu, it appears to me that the only consideration which may have been considered by the respondent when suspending the applicant is the allegation that the applicant had engaged in serious misconduct. As already indicated, when the applicant was suspended on 13 September 2022 it was more than 3 months since he was notified about the allegation of misconduct against him. The applicant was, as at the date of the arbitration hearing, being precautionarily suspended for almost 60 days, without him being formally charged with misconduct.
27 During the arbitration hearing there was no evidence suggesting that the respondent had done everything possible to conclude the disciplinary hearing within one month of the applicant’s suspension in line with item 6(3)(a) of Schedule 2. There is also no evidence suggesting that the respondent reasonably believed and/or still believe that the applicant’s presence at school might jeopardize the investigation or endanger the well-being or safety of any person or property.
28 In this case there was no evidence explaining as to why suspension of the applicant had suddenly become necessary. There was also no evidence suggesting that there was anything which was done by the respondent after suspension of the applicant. It is my finding that the suspension of the applicant is inconsistent with the purpose for which a precautionary measure is supposed to be imposed, which include allowing the employer to conduct an investigation unhindered and to ensure that the employee who is alleged to have committed a serious misconduct does not interfere with the investigation or influence witnesses
29 The remedies available to an employee against whom an unfair labour practice was committed, are provided for in section 193(4) read with section 194(4) of the LRA. Section 193(4) confers an arbitrator with the power to determine any unfair labour practice dispute referred to him or her on terms which the arbitrator deems reasonable, which may include ordering compensation. In Long v South African Breweries (Pty) Ltd and Others [2018] ZACC 7, the Constitutional Court said the following concerning the question whether the precautionary suspension was permissible and prejudicial to the suspended employee:
“ 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”.
30 There is no doubt that the suspension prejudiced the applicant because it was not only unwarranted, but it was also implemented under extremely controversial circumstances. When considering the conspectus of the evidence in this case, one of the irresistible conclusions that can be reached is that the applicant may have been suspended for an ulterior purpose, which may not exclude the abuse of a discretionary power by the respondent. The irony about the whole situation is the fact that the applicant, who thought he was acting in defence of a General Education Assistant, who was comparatively at a vulnerable position than Ms Komazi, as well as acting in the best interest of the school, its management and the respondent, was unnecessarily subjected to a demeaning and humiliating experience for a period of more than six months.
31 In the circumstances, I am of the view that a compensation of R20 000 will be just and equitable.
AWARD
32 In the result, the following orders are made:
32.1 The precautionary suspension of Mr Mmusi Boitumelo Desmond is both substantively and procedurally unfair for the purposes of section 186(2) (b) of the Labour Relations Act.
32.2 The respondent is ordered to uplift the applicant’s suspension and to allow him to report for duty at Velalanga Primary School, on a date to be determined by the respondent but not later than 14 days from the date of this arbitration award.
32.3 The respondent is ordered to pay the applicant compensation of R20 000.
32.4 Payment of the amount referred to in paragraph 32.3 above must be paid to the applicant by no later than 31 December 2022. This amount shall attract interest at the prescribed rate from 01 January 2023.


MORAKA ABEL MAKGAA
ELRC PA