ELRC177-22/23NW

IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD VIRTUALLY AND IN POTCHEFSTROOM
Case Number: ELRC177-22/23NW
Commissioner: Moraka Abel Makgaa
Date: 22 May 2023
In the matter between: -
Mildred Appels Applicant
And
Education Department of North West Respondent

ARBITRATION AWARD

DETAILS OF THE HEARING AND REPRESENTATION
1 This matter was referred for arbitration to the Education Labour Relations Council (ELRC) in terms of section 191(5)(a)(iv) of the Labour Relations Act 66 of 1995 (LRA) on 7 October 2020, 5 December 2022, 20 February 2023, 21 February 2023, 19 April 2023 and 3 May 2023. The first four arbitration hearings were held virtually whereas on the other days the arbitration hearings were held at the respondent’s District Offices, at Cnr Oliver Tambo & Emberts Streets in Potchefstroom, North West Province.
2 The applicant was always present and represented by Mr Brandt OB from Brandt & Lambrechts Attorneys, whereas the respondent was, except on the last two days, represented by Ms Boitumelo Phuswane, who is employed by the respondent as its Labour Relations Officer.
3 The proceedings were conducted in English, and digitally recorded.
PRELIMINARY ISSUES
4 Ms Boitumelo Phuswane, made the following three interlocutory applications: lack of jurisdiction, a postponement application and a recusal application.The jurisdictional challenge was based on the allegation that the applicant was deemed dismissed on account of misconduct contemplated in section 14(1)(a) and/or section 14(1) (b) of the Employment of Educators Act 76 of 1998 (“the Educators Act”). All the points in limine were decided against the respondent, except that I issued a provisional ruling in respect of the issue of the alleged dismissal by operation of law.
5 The reasons for the postponement application were included in the written recusal ruling, which was issued to the parties during January 2023. The only point in limine which will be dealt with in this arbitration award is the question whether the ELRC indeed lacks jurisdiction to entertain the applicant’s dispute as a result of the consequences of the provisions of section 14(1)(a) and (b) of the Educators Act.
BACKGROUND FACTS
6 The circumstances which gave rise to the applicant’s dispute were either common cause or not disputed by the respondent . Extensive reference has been made to the evidence bundle which was submitted by the applicant, the parties’ signed pre-arbitration minutes and evidence led in support of the applicant’s case.
7 On 11 November 2021 the applicant completed and signed a standard form entitled “ application to perform other remunerative work in terms of section 30 of the Public Service Act”. The application was for the period 21 November 2021 to 21 November 2025.
8 On 04 February 2022 the school principal wrote a letter to the District Office in terms of which it was recommended that the applicant’s services should be terminated. This recommendation was based on several allegations of misconduct relating to the applicant’s election to the position of a representative municipal councillor ( generally known as PR Councillor) in the Matlosana Local Municipality. It is, inter alia, alleged that the applicant had failed to declare her interest in the Local Government Elections, as well as failing to obtain an approval to perform remunerative work outside her formal employment.
9 On 22 February 2022 the District Director, Mr BE Monale, wrote a letter confirming that the applicant visited the District Office on 22 February 2022 as a follow-up to her application to perform other remunerative work. It was also confirmed that the applicant submitted her section 30 application on 11 November 2021, and that a response or approval in this regard was still to be received from Corporate Services. The District Office is said to have agreed to make a re- submission of the application because the applicant indicated that the school was looking for such a proof.

10 On 04 March 2022 Brandt & Lambrechts Attorneys wrote a letter to Mr Miles enquiring about the applicant’s employment status. Mr Miles was accused of a verbal and unilateral suspension of the applicant from work. He was requested to confirm as to whether the applicant was accused of failing to declare to the department that she had been elected to a position of Councillor at the Municipality or whether the issue was that the applicant’s application had not been approved. He was further requested to confirm whether he was intending to institute disciplinary steps against the applicant.

11 Mr Miles responded on the same day, through an email, acknowledging receipt of the letter of 04 March 2022. He also informed the applicant’s Attorneys that their letter had been referred to the relevant departmental official, in the name of Mr C de Meyers. On 08 March 2022 the General Manager of the IEC wrote a letter to the Municipal Manager of Matlosana Local Municipality informing him/her that the applicant had been replaced by Rayno Ray Brevott Buys as the PR Councillor of the Patriotic Alliance.

12 On 11 March 2022 the applicant’s Attorneys wrote two emails to Mr Miles concerning the applicant’s employment status. The first email was about an enquiry as to whether the applicant was suspended with or without pay, whereas the second email was about a concern as to why would Mr Miles sent a WhatsApp message demanding submission of her medical certificate in circumstances where he had suspended the applicant pending the outcome of his request for termination of the applicant’s services. Mr Miles was also asked as to whether the applicant should return to work. He was given until 15 March 2022 to provide clarity on the issues raised by the applicant’s Attorneys. It was stated that failure to respond to the questions asked would leave the applicant’s Attorneys with no option, but to refer a dispute of alleged unfair suspension to the CCMA.
13 On 06 April 2022 the District Director wrote a letter to the applicant informing her about the outcome of the investigation which was conducted by the respondent in relation to the applicant’s election to a position at the Municipality. The applicant was alleged to have contravened section 36(2) of the Public Service Act, 1994 and section 33(b) of the Educators Act. She was specifically alleged to have committed the following acts of misconduct: failing to notify the Head of Department about her election as a Councillor; failing to submit a letter of resignation as an employee of the respondent; and performing remunerative work outside her employment without permission or consent of the employer.
14 The applicant was given the opportunity to provide written reasons as to why disciplinary measures should not be taken against her. The applicant’s Attorneys responded in a letter dated 12 April 2022 indicating that the applicant made a section 30 application on 11 November 2021. It was further stated that the applicant was advised by Mr Maxwell to compete in the local government elections pending the outcome of her application. Reference was also made to the District Director’s letter of 22 February 2022 wherein it was confirmed that the applicant’s application for approval to perform remunerative work was received and sent to Corporate Services for consideration.
15 The applicant’s Attorneys also sent an email to Mr Miles on 11 April 2022 which was apparently a response to Mr Miles’ WhatsApp message requesting the applicant to submit her leave forms for what is described as extended leave. Mr Miles was requested to send the relevant forms so that the applicant’s Attorneys could assist the applicant. He was once again asked to confirm as to whether he had indeed verbally suspended the applicant pending the outcome of the recommendation for termination of her services.
16 On 24 May 2022 GEMS wrote an email wherein the applicant was informed that, since her salary had been frozen, GEMS will not receive her medical aid contribution for May 2022. The applicant was advised to pay the total contributions amounting to R5 993.00 until her salary had been reinstated.
17 On 01 June 2022 and 15 June 2022 the applicant’s Attorneys wrote an email and a letter to Mr de Meyer concerning the frozen salary of the applicant and enquiring about progress regarding the applicant’s application for extended leave. Mr de Meyer was also asked to provide urgent clarification on the applicant’s employment status by no later than 03 June 2022, failing which it will be accepted that the applicant has been suspended without pay. Mr de Meyer responded through an email indicating that the applicant visited his Office on 06 June 2022, where she was asked to submit her responses to the department’s inquiry into her election as a Councillor at Matlosana Local Municipality.On the same day the applicant’s Attorneys wrote an email to Mr de Meyer requesting a response to all the questions relating to the applicant’s employment status.
18 On 22 June 2022 the applicant referred a dispute of unfair labour practice in terms of section 186(2) of the Labour Relations Act 66 of 1995 (“LRA”) complaining about her suspension without pay/salary and the employer’s failure to process her application for incapacity leave.The matter was conciliated by commissioner Mashego Maimela on 11 July 2022, and could not be resolved. A pre-arbitration conference was held on the same day, resulting with draft pre- arbitration minutes. The pre-arbitration minutes could not be signed by the parties.
19 The matter was referred to arbitration and it served before me for the first time on 07 October 2022. The pre-arbitration minutes were revised and ultimately signed by both parties.The applicant submitted an evidence bundle, which was marked as bundle “A”, consisting of 75 pages. The respondent did not submit an evidence bundle. The matter was ultimately postponed to 05 December 2022 and 06 December 2022 by agreement of the parties.
20 On 03 November 2022 the District Director wrote a communique confirming that the applicant is an employee of the respondent. It was also stated that the applicant’s salary was suspended during April 2022 due to pending allegations of misconduct against the applicant.
21 The applicant’s examination-in-chief commenced on 05 December 2022 and concluded on 21 February 2023. She was cross examined on 21 February 2023, but the cross examination could not be concluded due to problems of load shedding. The matter was postponed to 19 April 2023 and 20 April 2023 by agreement of the parties.
22 During the night on 18 April 2023, Mr KMM Keetile, from the respondent’s Dispute Resolution Section, emailed a letter concerning an application for postponement of the proceedings on the basis that the respondent’s representative, Ms Phuswane, had been booked off sick from 19 April 2023 to 21 April 2023. The ELRC advised the respondent to send one of its officials to go and argue the postponement application before the commissioner. Mr C de Meyer, who is employed by the respondent as a Labour Relations Officer, was present and represented the respondent. He brought an application for postponement based on the reasons contained in the letter to the ELRC.
23 The applicant’s representative did not oppose the postponement application. It was, however submitted that the respondent should either tender costs or be ordered to pay wasted costs for 19 April 2023.The matter was postponed to 03 May 2023 and 04 May 2023 by agreement of the parties. The parties signed a postponement agreement whose terms included agreeing that the postponement “shall be the final postponement”.
24 On 25 April 2023 Mr Keetile emailed a written application to the ELRC for postponement of three matters, including this matter. It was indicated that Ms Phuswane had been booked off sick from 21 April 2023 until 08 May 2023. A copy of a defective medical certificate in the sense that it did not have names of the patient concerned was attached to the postponement application. The ELRC responded in a letter dated 26/04/2023 wherein the respondent was informed that the application for postponement was declined. It was further stated that the arbitration hearings will proceed as scheduled. The respondent was urged to allocate the matters to another departmental official.
25 On 28 April 2023 the ELRC sent audio recordings of the applicant’s evidence ( both examination-in-chief and cross examination) to Mr Keetile and other relevant officials of the respondent, as well as to the applicant’s representative in line with my directive. It should be borne in mind that the applicant was at that stage the only witness who had testified. The respondent was once more requested to consider sending another departmental official in the place of Ms Phuswane.
26 The respondent elected not to be represented during the arbitration hearing of 03 May 2023. The applicant’s representative re-examined the applicant and called another witness. He, immediately after closing the applicant’s case, made oral closing arguments.
SUMMARY OF EVIDENCE ON BEHALF OF THE APPLICANT
27 Mildred Edith Appels, who is the applicant in this matter, testified under oath. The largest portion of the applicant’s evidence was based on the letters, emails and other documents which were exchanged between the applicant’s Attorneys of record and the various officials of the respondent, particularly the then acting principal ( viz Mr Miles) , the District Labour Relations Officer ( viz Mr C de Meyer) and the District Director ( viz Mr Monale). It is therefore not necessary for me to repeat the applicant’s evidence in relation to the above mentioned correspondences or any other documentary evidence because the contents of such documents have been sufficiently dealt with under the factual background.
28 To the extent relevant, the applicant’s evidence may be summarised as follows. She has been employed by the respondent as a teacher, attached to Technical High School Klerksdorp, since August 2009. She was admitted in a hospital in Pretoria during the period 17 January 2022 to 21 February 2022. She completed sick leave forms which were, together with the medical certificate, submitted to the school principal.
29 On 22 February 2022 she went back to school in order to extend her sick leave because she had not fully recovered from her ill-health. She was accompanied by Cathleen Jassen and Karel Meyers. Upon arrival, she went to the principal’s office. She found Mr Miles, who was at the time the deputy principal and also acting as the school principal. Mr Miles told her that she was not supposed to come back to work because she has been suspended. He also informed her that a substitute educator had been employed in her place. She was further informed that the school had submitted a letter to the Department in which it was recommended that the applicant’s services should be terminated as a result of a misconduct relating to her election as a Councillor at Matlosana Municipality.
30 She requested Mr Miles to give her a suspension letter. He instead gave her a copy of the letter relating to the recommendation for termination of her services. Mr Miles advised her to go to the District Office in Potchefstroom in order to enquire about the outcome of the school’s submission regarding termination of her services.
31 Upon arrival at the District Office, she together with Cathleen and Karel went to the Office of the District Director, where they found a gentleman in the name of Maxwell. Mr Maxwell indicated that he knew nothing about the school’s submission relating to termination of the applicant’s services. He phoned Mr de Meyer who said “die vrou moet waai”, which means this woman must go. The applicant, Cathleen and Karel could hear the conversation between Maxwell and Mr de Meyer because the phone was on speaker. Maxwell said “these people are personal; they don’t even want to listen”. She decided to refer her matter to her Attorneys for further handling.
32 She further testified that she was never given the opportunity to make representations as to why she should not be suspended and as to why her salary was not supposed to be frozen.
33 Regarding the issue of her election to the position of PR Councillor, she testified that she submitted an application relating to performance of extra remunerative work to the Office of the District Director on several occasions, which included on 15 December 2021 where she requested Mr Maxwell to sign for acknowledgement of receipt thereof, which he did.
34 Under cross examination she insisted that she was suspended by Mr Miles on 22 February 2022 who informed her that it was because she participated in the local government elections and even took the position of a PR Councillor without having declared such an interest to the employer.
35 She further testified that on 22 February 2023 Mr Maxwell gave her a letter signed by the District Director confirming her visit at the District Office and the reason for her visit. She referred her dispute to the ELRC after her salary was stopped in April 2022 because she could not stay without her salary and medical aid. Her funeral cover had also lapsed because of the fact that her salary had been frozen. She went to the District Office in order to get answers about her application to perform extra remunerative work as well as the outcome of the school’s submission to have her services terminated.
36 She insisted that Mr Miles did not instruct her to work from his Office. He instead said that it will depend on the Department’s decision as regards a recommendation for termination of her services. If it could be decided that she should come back to work, he would make her to sit in his Office and expect her to prepare the lesson plan for the next term.
37 She disagreed with the proposition that she was giving contradictory evidence, and that she was in fact lying. She stuck to her guns in as far as what she has said happened on 22 February 2022, both in the Office of the principal as well as in the Office of the District Director at Potchefstroom.
38 During re-examination on 03 May 2023, the applicant testified that Mr Miles never wrote to her or her Attorneys denying that he had suspended her. She never received any instructions that she should report for duty. She was also never informed about the allegation that she had absconded. After the pre-arbitration meeting, she got the letter from the Office of the District Director dated 03/11/2022 confirming that she is still an employee of the responded. It is therefore incorrect for Ms Phuswane to insist that she had absconded.
39 She further testified that the position she occupied at the Municipality was more of a part-time position as opposed to being a full-time position. What happened was that she generally attended meetings of the municipality once a week and after in the afternoon. In other words, she would first go to work and attend the municipality meetings in the afternoon She was only completely absent from work on two occasions. The first occasion was on 22 November 2021 during the inauguration of the Councilors. On the second occasion, it was when she was required to attend a five 5 day workshop of the Municipality during December 2021, and she completed and submitted leave forms in this regard. She also testified that during January 2022 she never attended municipality meetings because it was during the time when she was hospitalized.
40 Karel Meyers testified under oath. His evidence corroborated the applicant’s version as regards the fact that he was one of the people who accompanied the applicant to both the school and the District Office on 22 February 2022. He also corroborated the applicant’s evidence about what is said to have happened during their meeting with Mr Maxwell at the District Office.
ANALYSIS OF EVIDENCE AND ARGUMENT
41 To the extent relevant for present purposes, section 186(2)(b) of the Labour Relations Act 66 of 1995 (“LRA”) defines the concept ‘unfair labour practice’ as “any unfair act or omission that arises between an employer and an employee involving unfair suspension of an employee or any other unfair disciplinary action short of dismissal in respect of an employee”.
42 I wish to indicate, upfront, that I am inclined to accept the version of the applicant as representing a true reflection of what transpired in this matter. Firstly, because there is no countervailing version of the respondent for obvious reasons. Secondly, the applicant’s version is, largely, supported by correspondence of the relevant officials of the respondent, viz the acting principal, the District Labour Relations Officer and the District Director.
43 As indicated in the recusal ruling, one of the points in limine raised by the respondent’s representative sought to suggest that the applicant could not lawfully bring an unfair labour practice dispute against the respondent because she was deemed dismissed on account of misconduct contemplated in the provisions of section 14(1) of the Educators Act. Section 14(1) in the relevant parts provides as follows:
“14. Certain educators deemed to be discharged.—(1) An educator appointed in a
permanent capacity who—
(a) is absent from work for a period exceeding 14 consecutive days without permission of
the employer;
(b) while the educator is absent from work without permission of the employer, assumes
employment in another position;
shall, unless the employer directs otherwise, be deemed to have been discharged from service on
account of misconduct, in the circumstances where—
(i) paragraph (a) or (b) is applicable, with effect from the day following immediately after
the last day on which the educator was present at work…”
44 At the time when the jurisdictional challenge was raised, I repeatedly indicated that there were irreconcilable differences between the parties as regards the true nature of the present dispute. This on the strength of what the Labour Court, per Van Niekerk J, said in Bombardier Transportation (Pty) Ltd v Mtiya and Others , to the effect that in instances where a jurisdictional question is inextricably linked to the merits of the dispute, the jurisdictional question falls to be determined after evidence has been heard.
45 It was against this background that I gave an ex tempore ruling dismissing the respondent’s jurisdictional challenge on the rider that this question will be definitively determined after hearing evidence on the merits. I am of the view that the provisional ruling dismissing the respondent’s jurisdictional challenge must be confirmed. Firstly, because there is no evidence on the part of the respondent supporting the respondent’s jurisdictional challenge. Secondly, this challenge falls to be dismissed on the basis that there was absolutely no explanation as to why this reason was raised for the first time at arbitration, but was never disclosed to the applicant or her attorneys who wrote several letters seeking clarity about the applicant’s employment status.
46 Thirdly, all the letters or correspondence from the respondent’s officials to the applicant and/or her Attorneys either suggested or confirmed that the applicant is an employee of the respondent. What appears to be glaringly obvious is the fact that the applicant is alleged to have committed a serious or gross misconduct in relation to her participation in the 2021 municipal elections and her ultimate election into the municipality.
47 Fourthly, the applicant’s undisputed evidence, which I have no reason not to believe, suggest that she had never been absent from work for a period exceeding fourteen consecutive days as a result of her duties and responsibilities relating to her election to the position of PR Councillor in the Municipality. There is absolutely no factual basis for suggesting that the applicant could be deemed to have been discharged from service on account of misconduct contemplated in section 14(1)(a) or (b) of the Educators Act.
48 The inevitable consequence of my finding on the allegation of the deemed dismissal is that the only version which must be accepted is that of the applicant. The nub of the applicant’s version is that the applicant was from February 2022 to April 2022 suspended with pay and from May 2022 to date she has been suspended without pay.
49 One of the complaints of the applicant was to the effect that she was suspended by someone who did not have the authority to do so. It may be so, but I do not think it is necessary for me to decide this question for the following reasons. It appears to me that the conduct of Mr C de Meyer and that of the District Director, in particular, suggest that they were either complacent or were supportive of the conduct or decision of the then acting principal insofar as the applicant’s suspension is concerned. It is therefore concluded that the only reasonable inference that may be drawn, on the conspectus of the proven facts, is that the applicant was placed on a precautionary suspension as from 22 February 2022
50 The other complaint of the applicant was that her suspension and freezing of her salary contravened the principle of audi alteram partem. This question will be answered during the course of answering what I understand to be the main question, which is whether the applicant’s suspension is the one contemplated by the provisions of Schedule 2 (Disciplinary Code and Procedures for Educators) to the Educators Act.
51 I first wish to deal with the reasons for proceeding with the arbitration hearing in the absence of the respondent on 03 May 2023. I wish to reiterate the fact that on 19 April 2023 the parties concluded a postponement agreement in terms of which the matter was postponed to 03 May 2023 and 04 May 2023. It was specifically agreed that postponement of 19 April 2023 “shall be the final postponement”.
52 In the present circumstances, it is my considered view that the respondent’s non-appearance on 03 May 2023 did not only violate the terms of the parties’ postponement agreement, but it also constituted a flagrant disregard of both the authority of the ELRC and its rules. This is so when the following factors are to be taken into account:
52.1 Firstly, the second postponement application was not only based on the same reason which was proffered in respect of an application for postponement of the proceedings which were scheduled for 19 April 2023 and 20 April 2023, but it was also unequivocally refused by the ELRC.
52.2 Secondly, the respondent was urged to send a substitute representative, in the light of the fact that Ms Phuswane would not be available. As it turned out , the respondent showed no interest in the solution proposed by the ELRC.
52.3 Thirdly, the only witness who had testified at that stage, was the applicant herself. The audio recording of her evidence was sent to the parties’ representatives, and the relevant official(s) of the respondent. There was nothing complicated about the applicant’s evidence because the correctness of her version was, in the main, supported by the correspondence between her Attorneys and the respective officials of the respondent.
53 I am of the view that even if the respondent could not have been agreeable to the ELRC’s refusal of the postponement application, ‘boycotting’ the proceedings was not an option available to the respondent. The only viable option was for the respondent to send a substitute representative (as urged by the ELRC) who could have perhaps persisted with the postponement application before the commissioner.
54 I am of the view that the balance of convenience favoured the applicant for the following reasons. The applicant had been on suspended since 22 February 2022, which means that she had been on suspension for more than 15 months, 12 months of which had been without pay and benefits. Freezing of her salary had resulted with non-payment of pension contributions to the Government Employee Pension Fund (“GEPF”), and the lapsing of her medical aid and funeral policies. As it will soon become apparent, the applicant’s suspension has by far exceeded the period prescribed by the relevant Disciplinary Code and Procedures.
55 The undisputed evidence led by the applicant suggests that she had been certified by her medical doctor to be suffering from a chronic illness. The fact that she had been without a salary and benefits for than 12 months suggests that she is undoubtedly in a comparatively dire situation. It is simply in the interests of justice and fairness that this matter must come to finality.
56 The reasons as to why the respondent would not have suffered and still would not suffer an unjustifiable prejudice as a result of my decision to proceed in the absence of the respondent, are based on the real reasons as to why the applicant had been suspended. Notwithstanding the fact that the applicant’s suspension appears to be controversial, it can never be argued that the respondent as the applicant’s employer does not have the discretion or the authority to take disciplinary action against the applicant, whether for good or bad reasons. The respondent was and remains entitled to subject the applicant to a disciplinary enquiry in order to determine whether or not she is indeed guilty of the misconduct allegations raised in the correspondence of Messrs Miles, de Meyer and Monale.

57 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”.
58 It is clear that the employer has a statutory discretionary power to suspend or transfer an educator as a precautionary 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.
59 In Long v South African Breweries (Pty) Ltd and Others [2018] ZACC 7, the Constitutional Court in supporting the approach and reasoning of the Labour Court in determining whether the precautionary suspension was permissible and prejudicial to the suspended employee, said the following:
“ 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”.
60 In casu, the main problem is that the applicant’s suspension was implemented in a random and haphazard manner. It is also not apparent that the suspension was implemented in accordance with the principles, objectives and procedures contemplated in item 6(2) of Schedule 2. The respondent had simply breached all the relevant provisions of its own Disciplinary Code and Procedures. As already indicated, the applicant has by now been on suspension for a period of more than 15 months, 12 of which have been without pay and benefits.
61 The applicant’s suspension has as such been materially prejudicial to the applicant. The extent of the prejudice suffered by the applicant is compounded by the conduct and attitude displayed by the relevant officials of the respondent, particularly during their engagements with the applicant’s Attorneys as well as during the arbitration proceedings. All indications suggest that continuation of the applicant’s suspension is completely unjustified and smacks of an abuse of power on the part of the respondent. In the present circumstances, failure to intervene would clearly render the applicant to be a helpless victim of the grave injustice that she had to endure for an extended period of time.
62 In the premises, it is determined that the suspension of the applicant constituted an unfair labour practice for the purposes of section 186(2) of the LRA. Secondly, the fact that the applicant’s suspension is completely inconsistent with the respondent’s internal Disciplinary Code and Procedures, renders the suspension to be both procedurally and substantively unfair. The requirements of fairness and law dictate that the applicant’s suspension must be uplifted without further ado.
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 reinstatement, re- employment or compensation.
64 According to the recent salary advice submitted by the applicant as well as the parties’ signed pre- arbitration minutes, the applicant was earning a basic salary of R25 905.75 per month. The applicant is therefore entitled to arrear payment of R336 774.75 plus benefits and any other payment that the applicant may have been entitled to had she not have been suspended, calculated from May 2022 until May 2023.
COSTS
65 In Zungu v Premier of the Province of KwaZulu-Natal and Others , the Constitutional Court held that “the correct approach in labour matters in terms of the LRA is that the losing party is not, as a norm, ordered to pay the successful party’s costs”. I wish to indicate that the costs to be awarded in this arbitration award is neither intended to offend the general principle laid down in the case of Zungu and other similar authorities nor is it being based on considerations of exceptional circumstances justifying a departure from the rule that costs do not follow the result in labour matters.
66 The question whether or not payment of costs must be ordered has its origin in paragraphs 6 and 7 of the postponement agreement which was concluded by the parties on 19 April 2023, which read as follows:
“ 6 The applicant’s representative submitted that the respondent should either tender wasted costs of the applicant or be ordered to do so in respect of 19 April 2023.
7 The respondent should also consider tendering wasted costs of the ELRC for 19 & 20 April 2023. In the event this is not done the issue shall be determined in the arbitration award”.
67 The pertinent question is whether the respondent should bear the costs of postponement of the arbitration proceedings scheduled for 19 April 2023 and 20 April 2023 and not about whether the losing party should be ordered to pay the successful party’s costs.
68 In the instant case, the postponement application at issue was sent to the ELRC at about 21H43, and it only came to the attention of the ELRC in the morning of 19 April 2023. The ELRC was only able to inform the applicant and her representative, as well as the commissioner at the time when they were already at the venue of the arbitration hearing in Potchefstroom.
69 Just like what happened with regard to the respondent’s failure to honour the commitments made in the postponement agreement, there was no indication as to what the attitude of the respondent was as regards paragraphs 6 and 7 of the parties’ agreement. Be that as it may, my view is that the requirements of the law and fairness justify ordering the respondent to pay the wasted costs of the applicant for 19 April 2023, and those of the ELRC for 19 April 2023 and 20 April 2023.
AWARD
70 In the result, the following order is made:
70.1 The suspension of the applicant, Ms Mildred Edith Appels, by the respondent, the Education Department of North West, was procedurally and substantively unfair and constituted an unfair labour practice for the purposes of section 186(2)(b) of the LRA.
70.2 The respondent is ordered to uplift the suspension of the applicant and to allow her to report for duty at Technical High School Klerksdorp at a date to be determined by the respondent but not later than 26 May 2023.
70.3 The respondent is ordered to pay the applicant the sum of R336 774.75 ( Three Hundred and Thirty Six Thousand Seven Hundred and Seventy Four Rand and Seventy Five Cents ) plus benefits and any other payment that the applicant may have been entitled to, calculated from May 2022 until May 2023.
70.4 The amount in paragraph 71.3, supra, must be paid by no later than 31 May 2023 or in the next salary run, whichever occurs first, and it shall attract interest at the prescribed rate as from 01 June 2023.
70.5 The respondent is ordered to pay the wasted costs of the applicant for 19 April 2023.
70.6 The respondent is ordered to pay the wasted costs of the ELRC for 19 April 2023 and 20 April 2023.

MORAKA ABEL MAKGAA
(ELRC PANELIST)