ELRC95-22/23LP

IN THE EDUCATION LABOUR RELATIONS COUNCIL ARBITRATION MEETING HELD VIRTUALLY ON 26 JULY 2022, 18 AUGUST 2022, 21 SEPTEMBER 2022, 26 OCTOBER 2022 AND 24 NOVEMBER 2022

Case Number: ELRC95-22/23LP
Commissioner: Moraka Abel Makgaa
Date: 06 February 2023

In the matter between: -
PEU obo Moagi Matema Rebecca Applicant
And
Education Department of Limpopo Respondent

ARBITRATION AWARD

DETAILS OF THE HEARING AND REPRESENTATION
1 The arbitration hearing was held virtually on the above mentioned dates. The applicant was present and represented by Mr Klaas Mohlatlole, an official of Professional Educators Union (“PEU”). The respondent was represented by Mr Mokgoba Matlou, employed by the respondent’s as the Assistant Director: Labour Relations.
2 The proceedings were conducted in English and digitally recorded.

ISSUES TO BE DECIDED
3 I was called upon to determine whether the applicant’s suspension from work without pay constituted 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
4 During March 2021 the respondent preferred one charge of misconduct against the applicant, which was couched in the following terms:
“ CHARGE 1
You contravened the provisions of section 18(1)(f) of the Employment of Educators Act 76 of 1998 in that during or around the period August 2020 to March 2021 or at any period incidental thereto, at or near Lepelle 4 Circuit, you failed to ensure that officials under your management adhere to the official working hours of starting at 07H30 and knocking off at 16H30 and therefore, you prejudiced the administration, discipline or efficiency of the Department”.

5 The disciplinary hearing was apparently held on 20 August 2021. The applicant was found guilty, and suspended from work for one month without pay. The outcome of the disciplinary hearing was communicated to the applicant in a letter signed by the Head of Department (“HOD”) on 13 October 2021. The applicant noted an appeal, which was unsuccessful. The outcome was communicated to the applicant through a letter signed by the Member of Executive Council “the MEC”) on 03 March 2022. Aggrieved by this decision the applicant referred a dispute of unfair labour practice in terms of section 186(2). The dispute could not be resolved at a conciliation stage, hence it was referred to arbitration.

6 The matter served before me, for the first time, on 26 July 2022. At the commencement of the proceedings, the applicant’s representative indicated that they were intending to make an application for postponement on the basis that both the applicant and her representative were not aware of the fact that the matter was set down for arbitration. The applicant’s representative had only learnt from the respondent’s representative a day before that the matter was set down for arbitration. It was further submitted that, in any event, he would be double-booked since he had an arbitration with the same respondent in another matter.

7 Mr Nyathela, who stood in for Mr Matlou, confirmed that he was appearing on behalf of the respondent in the matter referred to by Mr Mohlatlole. He further indicated that the respondent had already filed a postponement application with the Council on the basis that Mr Matlou was booked off sick. The matter was postponed to the 18 August 2022 per agreement of the parties, and finalized on 24 November 2022.
8 The applicant submitted an evidence bundle made up of 9 pages. It was marked as Annexure “A”. The respondent submitted two separate evidence bundles. The first bundle with 42 pages was marked Annexure “R1”, whereas the other one had 24 pages and it was marked as Annexure “R2”. The parties’ representatives submitted their written heads of arguments, which have been taken into account.

SURVEY OF THE APPLICANT’S EVIDENCE AND ARGUMENT
9 Matema Rebecca Moagi, who is the applicant, testified under oath, and her testimony can be
summarized as follows. She is employed by the respondent as the Circuit Manager of Lepelle 4 Circuit. The position which she occupied since July 2008. Lepelle 4 Circuit and Makhutswe Circuit are operating from the same premises. The two Circuits experienced serious challenges in relation to poor infrastructure, water and sanitation. They did not have water at all. There was only one flushing toilettes, which was used by about 30 officials in the two Circuits.
10 During 2018 the sceptic tank became full due to the large number of officials who were using it. It was over flowing, with waste flowing into the Circuit Offices. The employees were forced to go to the Mall or to the surgery of Dr Rabothata whenever they wanted to relieve themselves. Others even went into the bushes. NEHAWU ended up calling a meeting of all the employees in the two Circuits where it was agreed that from that day onwards, the employees would knock off at 10H00 until the situation was addressed.
11 She wrote a letter the former District Director, Mr Mobayi, informing him about the situation at the Circuit, including NEHAWU’s resolution relating to the knock off time. A team of District officials, led by the late Mr Sekwakwa, was sent to the two Circuits in order to come and inspect the veracity of the situation. A person was sent to come and drain the sceptic tank. Unfortunately, it only lasted for a week. She informed Mr Sekwakwa about the situation. When Mr Sekwakwa came for the second time it was during the time of the current District Director, Ms Modika.
12 Though she could not remember the exact date, Ms Modika once visited the Circuit Offices. It was at about 13H00. The applicant was the only person that the District Director found at the Circuit. All officials in the two Circuits had, at that time, knocked off. She told the District Director that the Circuits officials knocked off early because of the challenges of water and sanitation. She also, as part of orientation, moved around the Circuits premises with the District Director, showing her how bad the situation was.
13 During the time of COVID-19 in 2020, she was absent from work on account of ill health for the period 26 June 2020 to 17 July 2020, and was even hospitalized. The Assistant Director for Governance, Ms Mametja, was appointed as the Caretaker Circuit Manager. On 17 or 18 August 2020 she wrote a WhatsApp message to the District Director informing her that she was feeling better, and would as such be returning to work.
14 Upon arrival she found four pit toilettes. She was told that they were donated by the Executive Mayor. The situation had not improved in the sense that there was still no water, the officials in the two Circuits continued to knock off before 16H30. As time went by conditions of the donated toilettes deteriorated. The doors were no longer closing such that when a person was inside the toilette he or she could be easily seen by people from outside. Most officials in the two Circuits were not using those toilettes. It was mainly the security personnel who were using them.
15 On 24 November 2020 she had a Performance Management System (“PMDS”) review with the District Director. She once again told the District Director that the two Circuits were still experiencing challenges of water and sanitation, and that officials were knocking off at 10H00. The District Director indicated that the matter had been referred to the infrastructure section at the Provincial Office.
16 On 17 March 2021 Lepelle 4 Circuit convened a workshop for principals. The District Director and some District officials attended the workshop. During questions and answer, the principal of Matsikinyane Primary School, Mr Malepe, raised a concern relating to the issue of early knocking off by Circuit officials. The District Director’s response was that it was only in Lepelle 4 Circuit where officials were knocking off before the official knock off time. The applicant, who was also the programme director, said that even in Makhutswe Circuit officials were knocking off early. There was an altercation between her and the District Director during the course of the workshop. The District Director ended up leaving the meeting.
17 After the workshop she had to switch on her cell phone. She saw a letter from the District Director in terms of which she was called upon to give reasons, in writing, as to why she should not be charged with a misconduct in relation to the incident of 17 March 2021. She responded, and even requested Dr Mbhalati, the Circuit Manager of Shilubane Circuit, to intervene. The report she got from Dr Mbhalati was that the District Director indicated that it was no longer necessary for them to have any meeting since she had already referred the matter to the Provincial Office. After some months, she received a charge sheet inviting her to appear at a disciplinary hearing, which resulted in the decision she is challenging in these proceedings.
18 The sanction imposed on her made her to be very sad and frustrated. Her finances had been shattered. She has debts which make it difficult for her to cope with her work. She could not understand as to why she had to be punished for infrastructure related challenges, which even the Department could not do anything about. She even thought of leaving her employment. As a remedy, she prayed for a refund of the salary which was deducted as a result of the suspension, so that she could be able to pay her debts.
19 Even to date, the infrastructure challenges in the two Circuits had not yet been addressed. In March 2022 labour inspectors from the Department of Labour came and closed the toilettes. The District Director has, because of the fact that there is no water and that the toilettes had been closed, given a directive that the whole of Lepelle 4 Circuit should report at the Circuit Office until 10H00, and thereafter they should go and work from a nearby primary school, in the name of Diputi Primary School, until 15H30. What worries her is that it is only Lepelle 4 Circuit which has been subjected to this kind of an arrangement. The officials in both Lepelle 4 and Makhutswe (which was at the time under the acting Circuit Manager, Ms Mhlongo) Circuits knocked before 16H30. Her problem is that she is the only one who was charged with misconduct.
20 Under cross examination, she testified that her duties and responsibilities as the Circuit Manager include ensuring that the department’s clients such as learners and parents, are serviced. She conceded that by knocking off before 16H30, the department’s clients were not getting proper services. It was because of this acknowledgement that she decided to write a letter to the District Director on 26 November 2018 informing her about the challenges of water and sanitation, NEHAWU’s resolution and its possible implications on service delivery. She was also mindful of the fact that she did not have the powers to say no or yes to the union’s resolution relating to the 10H00 knock off time, hence she escalated the matter to the District Director.
21 Her concern is that if the practice of knocking off before 16H30 affected the two Circuits, why was she the only one charged with misconduct? She insisted that there was no water at the Circuits and that the officials in the two Circuits continued knocking off at 10H00 even after delivery of the donated toilettes.
22 She disputed the allegation that, after delivery of the donated toilettes, the District Director sent her a WhatsApp message to the effect that the arrangement of officials knocking off before 16H30 must come to an end. She also disagreed with the version that the two water tanks which were in the premises of the Circuit Offices were being filled with water by the Maruleng Municipality.
23 She conceded that she may not know as to whether, after delivery of the donated toilettes, the officials in Makhutswe Circuit started to knock off at 16H30 because it was when she was on sick leave. She, however, insisted that when she came back from her sick leave there was no water, and that the officials in the two Circuits were still knocking off before 16H30.
24 She testified that the challenges started in 2018 but the Circuit’s performance was above 70% for the 2018 and 2019 academic years. She conceded that in 2020 the Circuit’s performance declined. She cited the fact that she was absent from work due to ill-health as one of possible reasons. She insisted that there was a general decline in the performance of the District and the Province due to a transition from normal working hours to COVID-19 working arrangement. There was an improvement in 2021. She refused that the decline was caused by the staff knocking off early, because if that was case there would have been a decline as from 2018.
25 She could not take any disciplinary action against the officials knocking off early due to the fact that those officials were doing so in line with a resolution of their union which was communicated to her. Secondly, the matter was escalated to the District Director who was also agreeable that the situation in the two Circuits was such that the officials could not be expected to knock off at 16H30. If she could have forced the Circuit officials to knock off at 16H30 and some one contracted COVID-19, the Department would have still charged her with misconduct.
26 Mphekge Edwina Mametja’s testimony, which was also given under oath, can be summarised as follows. She was employed by the respondent as an Assistant Director responsible for school governance and learner affairs. The applicant requested her to act as the Caretaker Circuit Manager during the period when the applicant was on sick leave. She corroborated the evidence of the applicant in many respects, particularly as far as the challenges of infrastructure, water and ablution facilities are concerned. She also corroborated the applicant’s evidence as regards the interventions of the District Director and the Executive Mayor.
27 She further testified that she learnt from one of her colleagues that the Municipality had brought some toilets at the Circuit, but denied that she was invited to the handover ceremony of the donated toilettes. The union was so furious, contending that they cannot be given pit latrine toilettes in the wake of COVID-19. The union insisted that the arrangement that employees would continue to knock off at 10H00. Employees in the two Circuits heeded the call of NEHAWU.
28 Under cross examination, just like the applicant, she stuck to her guns as regards the view that the applicant cannot be blamed for the defiance of NEHAWU and its members. She further testified that the applicant fought with the officials for knocking off early, but could not win. There were instances where the applicant called officials to her Office to have one-on-one discussion. The union leadership went to the applicant’s Office and started accusing the applicant of harassing the employees. She conceded that there were two water tanks at the Circuits, but insisted that those tanks were last filled with water before 2019.

SURVEY OF THE RESPONDENT’S EVIDENCE AND ARGUMENT
29 Phillipine Pulane Modika, testified under oath, and her testimony could be summarized as follows. She has been appointed by the respondent as the District Director of Mopani West District since 01 November 2018. The applicant is one of the thirteen (13) Circuit Manager reporting to her. After being appointed as the District Director, she developed a programme of visiting the Circuits in the District in order to understand the issues and challenges which may require her attention. During her visit to Lepelle 4 and Makhutswe Circuits, the staff told her that they had resorted to knocking off at 10H00 due to the challenges of water and ablution facilities.
30 The applicant wrote a letter to her, as the District Director, dated 26 November 2018 titled “report on the overflowing sceptic tank, non-functioning toilettes and notice of knock off time”. The report was also meant to inform her that the Circuits staff and their union held a meeting on 26 November 2020 for purposes of discussing the problems of water and sanitation at the two Circuits. The District Director was also informed that the staff and their union had, inter alia, resolved that the Circuit staff will knock off at 10H00 until the situation had been addressed.
31 Ms Modika further testified that she could not do anything about the challenges affecting the two Circuits because at that time the District Office did not have a budget. The District decided to solicit funds, and was able to raise at least R3 000.00, particularly from NSNP service providers. They bought material and hired a plumber to fix the sewerage pipes, but the sewerage system was up and running for less than two months.
32 During the time of COVID-19 in 2020, she engaged the Executive Mayor of Mopani District who agreed to donate four pit toilettes used for RDP projects. Maruleng Local Municipality pledged to supply the two Circuits with water through water tankers. She further testified that before the two Circuits could be provided with toilettes and water, it was difficult for her to give an instruction to the Circuit Managers and/or the Circuits staff that they must stop knocking off before 16H30. During the handover ceremony, the Executive Mayor indicated that the Circuits staff would no longer have a reason to knock off before the official knock off time.
33 Regarding the incident of 17 March 2021, she testified that during the question and answer session, one principal, stood up and said the reason schools were under performing was because they were always forced to leave schools early in order to make submissions at the Circuit Office before the Circuit officials could knock off at 10H00. Her response was that she was not aware of any Circuit Office in Mopani West District which knocked off at 10H00. Regarding Lepelle 4 and Makhutswe Circuits, she said they were supposed to knock off at 16H30 because the challenges which used to make staff to knock off at 10H00 have been resolved. The applicant stood up and said there is no one who does not know that the Circuit officials knock off at 10H00.
34 She was forced to leave the meeting prematurely, because she understood the applicant to have shown lack of professionalism. Upon arrival at her Office, she wrote an email to the applicant instructing her to apologize for her unprofessional conduct. She also asked the applicant to provide a written response as to why a recommendation must not be made for her to be charged with misconduct. The applicant’s response was that she would rather be charged with misconduct rather than allow someone to disrespect her in front of the principals.
35 After a week or so she went to Dr Mbhalati and requested him to intervene in the matter. The report she got from Dr Mbhalati was that the applicant said she did not see anything wrong with what she had done or said during the workshop, and that it was the District Director who must apologize. She then referred the matter to the Provincial Office recommending that charges of misconduct should be preferred against the applicant.
36 She further testified that she wrote a WhatsApp to the applicant indicating that the issue of knocking off at 10H00 must come to an end, in the light of the fact that toilettes had been delivered and that water was also being supplied. She further testified that she was unable to produce the relevant WhatsApp message because she was using a different phone. She did not make a follow up to establish as to whether her instruction was being adhered to. She has never given the applicant permission to allow the Circuit officials to knock off before 16H30.
37 She managed to take the time books of Makhutswe and Lepelle 4 Circuits. She confirmed that Makhutswe Circuit officials continued to knock off at 16H30 whereas Lepelle 4 Circuit staff continued to knock off at 10H00. Ms Mhlongo, who was running the two Circuits in the absence of the applicant, once complained to her that officials from Lepelle 4 Circuit were knocking off early and as such were making it difficult for her to run the two Circuits effectively.
38 On allegations of inconsistency, Modika’s testimony was that Ms Mhlongo was able to make sure that her staff knocked off not earlier than 16H30, something which the applicant could not do.
39 Under cross examination, she conceded that she became aware of the challenges of infrastructure, water and sanitation in the two Circuits since her appointment as the District Director. She once got a report that some of the Circuits officials did not want the donated toilettes. She insisted that the donated toilettes may have been deliberately broken.
40 She further testified that it was not necessary for her to send a written instruction to Ms Mhlongo and Ms Mametja, or to the whole staff, to the effect that they were no longer expected to knock off before 16H30, because all of them were present on the day of the handover ceremony where the Executive Mayor said that the staff must no longer knock off at 10H00.
41 She could not deny or dispute the version that after two months or so, the donated toilettes’ doors were broken and that the Municipality ceased to supply water to the two Circuits. She further testified that she would have only intervened had she been asked to do so by the Circuit Managers. She denied that the decision to prefer charges of misconduct against the applicant was an emotional decision. She conceded that when writing a letter of an intention to charge the applicant she was emotional because she was disturbed by the fact that the applicant exchanged words with her in the presence of everyone, including the school principals. Had she not done anything about the incident of 17 March 2021, she would have had a problem of maintaining discipline in the District.
42 She testified that she took the time books for the two Circuits in order to establish as to whether the Circuits officials had discontinued with the arrangement of knocking off before 16H30. She conceded that according to the copies of the time book submitted as evidence at the arbitration, there were instances when the staff in Makhutswe Circuit, including the Circuit Manager, were also knocking off before 16H30. She also conceded that she did not take any disciplinary action against such officials. The reason for that was because the staff in Makhutswe Circuit were generally knocking off at 16H30. It was on intervals where they knocked off before 16H30 whereas the staff in Lepelle 4 Circuit knocked off at 10H00 throughout.

ANALYSIS OF EVIDENCE AND ARGUMENT
43 It is trite that in an unfair labour practice it is the employee who bears the evidential burden to produce evidence in order to prove that the employer’s conduct or decision constituted an unfair labour practice within the contemplation of section 186(2) of the LRA. As a point of departure, it is perhaps necessary for me to indicate that the Educators Act makes provision for Schedules 1 and 2. Schedule 1 deals with the principles and procedures which must be followed in an enquiry relating to incapacity and poor work performance, whereas Schedule 2 deals disciplinary enquiries.
44 In the light of the fact that the respondent opted for a Schedule 2 enquiry, it is sufficient for me to only indicate that the code and procedures for poor work performance deals with an enquiry to be undertaken if the employer is of the view that an educator is not performing in accordance with the job that the educator has been employed to do.
45 In Booi v Amathole District Municipality and Others , the Constitutional Court dealt with a dismissal dispute involving an employee who was, inter alia, alleged to have failed to perform his job responsibility diligently to the best of his ability and to ensure that the Municipal Health Information System was utilized by the staff under his supervision. The employee was, because of the alleged poor work performance, accused of having put the image of the municipality into disrepute.
46 The Constitutional Court criticized the Labour Court on the basis that it had taken into account the evidence relating to the employee’s alleged incompetence and failure to meet standards in instances where the employee was charged with, and dismissed for, misconduct and not for incompetence or incompatibility amounting to incapacity. It was further held that ‘if there were legitimate concerns about the employee’s incompetence, the evidence of incompetence or incapacity could have merely established a ground for the Municipality to launch an investigation into the employee performance standards’.
47 The ratio decidendi in the case of Booi v Amathole District Municipality and Others, as I understand it, raises a red flag against a situation where the principles and/or procedures which are applicable to a misconduct enquiry are conflated with those that must be applied or followed in an enquiry dealing with allegations of incapacity or poor work performance, and vis-à-vis. It appears to me that the respondent, in the present case, is a victim of such a conflation.
48 The applicant appears to have been fingered as a result of a perception of incompetence or poor work performance, which appears to have been about some kind of poor people management. To begin with, the incident of 17 March 2021 was triggered by concerns of schools’ underperformance on the part of the District Director. Secondly, when properly construed, the charge which was preferred against the applicant relates to an alleged failure to perform in accordance with the requirements of the applicant’s job. Thirdly, the respondent’s cross examination of the applicant and the evidence of Ms Modika with regard to performance or underperformance of the Circuit or learners’ pass rate, to be more accurate, from 2018 to 2021, suggest that the applicant’s alleged failure to discipline or force officials in Lepelle 4 Circuit to act in defiance of the union’s position, was frowned upon because of a belief that such a failure had resulted with a decline of the Circuit performance.
49 As already stated, the applicant was charged and found guilty of contravening the provisions of section 18(1)(f) of the Educators Act. Generally, section 18(1)(f) may be relied on as an alternative charge based on factual allegations which may justify the invocation of one or more of the other provisions of the Act. It appears to me that the offences listed in section 18(1) have something or everything to do with what section 18(1) (q) describes as an improper, disgraceful or unacceptable conduct. We now know that, in the instant case, the main or only charge of misconduct preferred against the applicant relates to a section 18(1)(f) offence. In other words, section 18(1)(f) has been used as the main charge and not as an alternative charge to an particular main charge.
50 I am of the view that an accusation which seeks to suggest poor people management on the part of someone in authority does not constitute a misconduct envisaged by section 18 of the Educators Act. It is rather more about a complaint relating to allegations of incompetence or poor work performance. Such kind of offences should be investigated in terms of the procedures outlined in Schedule 1 as opposed to Schedule 2 to the Educators Act. If I am correct in this analysis, it would mean that the respondent’s case crumbles on this ground alone.
51 I have, however, decided to proceed with the enquiry to determine whether or not there is anything which the applicant may have done or not done which could be said to have been prejudicial to the administration, discipline or efficiency of the Department.
52 During cross examination of the applicant and that of Ms Mametja, as well as through the evidence of Ms Modika, the respondent’s representative sought to prove or suggest that the applicant was also guilty of a failure or refusal to carry out a lawful instruction issued by the District Director through a WhatsApp. The instruction was said to have been to the effect that the arrangement relating to the 10H00 knock off time must be discontinued forthwith. It was also suggested that the same instruction was given by the Executive Mayor during the handover ceremony.
53 I accept the version that the applicant was never, at any stage, given the instruction that the 10H00 knock off time must come to an end, and reject the contrary version of the respondent in this regard. Firstly, the District Director’s report/submission of 19 March 2021 wherein it was recommended that the applicant must be charged with misconduct; the charge sheet and the Presiding Officer’s report on the outcome of the disciplinary enquiry are completely silent on the purported WhatsApp instruction. Secondly, Ms Modika could not produce such a WhatsApp message during the arbitration hearing.
54 The excuse that the WhatsApp message is contained in another cell phone which Ms Modika did not bring along, is rejected. The decision is informed by the fact that the WhatsApp instruction allegation was put to both the applicant and Ms Mametja under cross examination, and both of them denied knowledge of the existence of such a message. In the light of the fact that it was the applicant who started, I do not think there was anything which precluded the respondent’s representative from making Ms Modika aware of the importance of the WhatsApp message in question. The only reasonable inference that may be drawn is that the WhatsApp message at issue was simply a fabricated evidence for purposes of the arbitration hearing.
55 The assertion that it was not necessary for the District Director to issue a written instruction to all officials in the two Circuits, instructing them to desist from knocking before 16H30, on the basis that such an instruction was issued by the Executive Mayor during the handover ceremony, must be rejected on basis that the Executive Mayor did not have such power in law. Even if it were to be argued that the Executive Mayor’s ‘special request’ could not be ignored, the objective facts in this case suggest that both the applicant and Ms Mametja were not aware of such a request because they were not part of the handover ceremony. In any event, the applicant was not charged for failure or refusal to carry out any lawful instruction in relation to the 10H00 knock off time or found guilty of such an offence by the Presiding Officer.
56 There appears to be no dispute between the parties that no departmental official, including the applicant, could have reasonably been blamed in connection with the 10H00 knock off time for the period before delivery of the Executive Mayor’s donated toilettes and supply of water by the Maruleng Local Municipality. It could safely be concluded that before the intervention by the municipality in July/August 2020, the 10H00 knock off arrangement was understood by everyone, including the respondent, as being entirely justifiable. This is probably the reason why the applicant’s misconduct relates to the period after intervention of the municipality.
57 The only question to be answered is whether the intervention by the municipality addressed the challenges of water supply and the shortage or absence of appropriate ablution facilities at the two Circuits. According to the applicant’s version, this question must be answered in the negative whereas in the case of the respondent the answer must be in the affirmative. In Stellenbosch Farmers’ Winery Group Ltd & Another v Martel Cie & Others 2003 (1) SA 11 (SCA), the Supreme Court of Appeal held that when there are two irreconcilable versions, the dispute may be resolved by making a finding on (a) the credibility of the respective witnesses, (b) their reliability and (c) the probability of their versions. The SCA’s approach was followed by the Labour Appeal Court in Department of Health, KZN v Public Service Association (DA 4/15).
58 A fatal defect in the case of the respondent, which appears to have affected all the relevant factual disputes in this matter, is the fact that reliance was not only placed on the evidence of someone who was not based at the Offices of Lepelle 4 and Makhutswe Circuits. The respondent’s version was also dependent on someone who, on her own version, had little or no information about what the situation was like after the handover ceremony. It is not clear as to why the respondent’s representative did not realize the importance of calling at least someone from Makhutswe Circuit, preferably the former acting Circuit Manager, Ms Mhlongo, as well as calling at least one person from either the Office of the Executive Mayor or from Maruleng Municipality to support the assertion that the donated toilettes and the water supplied by or at the instance of the municipality amounted to some kind of a reasonably permanent solution to the challenges of water and sanitation at the two Circuits.
59 The evidence of the applicant and that of Ms Mametja about what was clearly described as a dire situation at the two Circuits, both before and after intervention by the municipality, was logical and consistent. In addition to that, the applicant and Ms Mametja had personal knowledge and lived experiences about the challenges at Lepelle 4 and Makhutswe Circuits. I therefore accept the applicant’s version that from 2018 onwards the situation at Lepelle 4 and Makhutswe Circuits was very bad. Even during 2020 and 2021 there was little or no improvement on the situation, especially with regard to the challenges of water and sanitation. In other words, it is accepted that the applicant and Ms Mametja were better positioned to explain the context within which the decision relating to the 10H00 knock off time was taken and the manner in which it was implemented and adhered to.
60 I am inclined to agree with the view that it would have been extremely risky and reckless of the applicant, especially during 2020 and 2021 when COVID-19 was at its peak, to force the officials in Lepelle 4 Circuit to knock off at 16H30, regardless of the fact that there were serious challenges of water and sanitation. It would have also been risky, for her own sake and for the sake of the affected employees, for the applicant to instruct the officials in Lepelle 4 Circuit to act in defiance of the resolution of a union. It is clear that the union’s decision was, prima facie, an unprotected industrial action, something which the applicant brought to the attention of the District Director on the same day of the resolution being taken. I agree with the applicant that the problem was bigger than her, and she therefore did the right thing by escalating it to her supervisor.
61 I also accept the applicant’s version that the 10H00 knock off arrangement affected officials in both Lepelle 4 and Makhutswe Circuits. It is common cause that the former acting Circuit Manager, Ms Mhlongo, or any other official at the two Circuits had not been disciplined in relation with the 10H00 knock off arrangement. If indeed it is true that the affected officials in the two Circuits had committed some kind of a collective misconduct, which was brought to the attention of at least the District Director and the HOD, why were they also not disciplined? Why had the District Director or any official in higher authority not seen the necessity of engaging with NEHAWU? I am inclined to accept that the applicant’s complaint in connection with selective punishment or inconsistent application of the rule has merit. This question must as such be decided in favour of the applicant.
62 In conclusion, it is determined that there was absolutely no factual or legal basis supporting the allegation that the applicant had committed a misconduct contemplated in section 81(1)(f) of the Educators Act. The charge was simply based on an unrealistic and false belief that the Executive Mayor’s intervention was some kind of a panacea which ought to have been embraced and celebrated by all and sundry in the two Circuits. It is my finding that the applicant was not guilty of the misconduct for which she was suspended. The respondent has as such committed an unfair labour practice for purposes of section 186(2)(b) of the LRA which, in the relevant parts, provides as follows:
“ Unfair labour practice” means any unfair act or omission that arises between an employer and an employee involving –
…
(b) (b) unfair suspension of an employee or any other unfair disciplinary action short of dismissal in respect of an employee”.
63 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. I am of the view that the applicant is entitled to the relief of compensation. Section 194(4) provides that the compensation to be awarded to an employee in respect of an unfair labour practice must not be more than the equivalent of 12 month’s remuneration.
64 In South African Post Office Limited v Jansen van Vuuren No and Others , the Labour Court said the following about the approach to be adopted when dealing with the issue of compensation in a case where it has been determined that the employee’s suspension constituted an unfair labour practice for purposes of section 186(2) of the LRA:
“There is however a need to send a message to employers that they should refrain from hastily resorting to suspending employees when there are no valid reasons to do so. Suspensions have a detrimental impact on the affected employee and may prejudice his or her reputation, advancement, job security and fulfilment. It is therefore necessary, that suspensions are based on substantive reasons and fair procedures are followed prior to suspending an employee…”
65 I am of the view that this is a classical example of a situation where a suspension has had a detrimental impact on the affected employee, prejudiced her reputation, job security and fulfilment. The objective facts in this case suggest that it is true that the applicant was unfairly singled out and punished for the problems which were promptly and repeatedly communicated to the District Director, and ultimately to the relevant officials at the respondent’s Provincial Office.
66 I have decided to award the applicant a compensation equivalent to two months’ salary, amounting to R135 313.50. According to the salary advice submitted by the applicant’s representative, the applicant’s basic monthly salary was R67 656.75 as at the date of the arbitration hearing. When deciding quantum of the compensation, I have taken into account several factors, which included the following: (i) the applicant’s suspension was without pay, which means that she had suffered actual monetary loss as a result of the suspension; (ii) the respondent was inconsiderate and unnecessarily heavy handed, and (iii) the humiliation which the applicant was subjected to. It is also hoped that this arbitration award will somehow serve as a deterrent to unjustifiable violations of the rights and interests of innocent employees.

AWARD
67 The respondent is ordered to pay the applicant compensation in the amount of R135 313.50 ( One Hundred and Thirty Five Thousand Three and Thirteen Rand and Fifty Cents), being the equivalent of the applicant’s two (2) months’ salary.
68 The amount in paragraph 67, supra, must be paid by no later than 28 February 2023 or in the next salary run, whichever occurs first, and it shall attract interest at the prescribed rate from 01 March 2023.

MORAKA ABEL MAKGAA
ELRC PANELIST