ELRC919-22/23KZN

IN THE ELRC ARBITRATION
BETWEEN:

Dladla LMS “the Applicant”
and
THE HEAD OF THE DEPARTMENT OF HIGHER EDUCATION & TRAINING “the Respondent”

ARBITRATION AWARD

Case Number: ELRC919-22/23KZN

Date of arbitration: 31 May 2023 & 30 June 2023

Date of award: 21July 2023

Lungisani Mkhize
ELRC Arbitrator
Education Labour Relations Council
ELRC Building
261 West Avenue
Centurion
Tel: 012 663 0452
Fax: 012 643 1601
E-mail: gen.sec@elrc.co.za
Website: www.elrc.org.za

DETAILS OF HEARING AND REPRESENTATION

1. The arbitration proceedings were set down for 31 May 2023 and were part heard. The ELRC then set the matter again for 30 June 2023 and it was finalized.
2. The arbitration was held at the Majuba TVET College Central Office in Newcastle.
3. The Applicant, Mr. Langelihle M S Dladla was present and represented by Mr. Caleb Zuma, a NEHAWU Union Representative who was accompanied by Mr. Sanele Ntshingila, another official of NEHAWU. The Respondent, the Head of Department of Higher Education & Training was represented by Mr. Thabani Mhlongo, its Labour Relations Officer from the Human Resource Management and Development Section. He was accompanied by Mr. Xolani Cele, an intern from the same Department. The Respondent provided two bundles and the Applicant provided one bundle. The bundles were referred to as Bundle 1, Bundle 2 and Bundle 3.
4. The proceedings were digitally recorded.
5. The services of an interpreter were not requested.

ISSUE TO BE DECIDED

6. I am required to determine whether the suspension without pay of the Applicant for a period of one month and the issuing of a final written warning valid for six months was unfair or not after being found guilty on three counts. If found to be unfair, I must determine appropriate relief.
7. During the narrowing of the issues stage of the arbitration, the Applicant submitted that only procedural fairness and the sanction imposed were challenged and not substance with regards to the unfair labour practice dispute referred.

BACKGROUND

7. On 31 July 2012, the Applicant was employed on a permanent basis as a Lecturer with persal number 63356279. On 30 September and 09 October 2021, whilst the Applicant was a post level 1 Lecturer at the Madadeni Centre for People Development Campus of the Respondent, two incidents took place surrounding the Applicant and these led to the Respondent charging the Applicant on 10 February 2022. The Applicant was found guilty after a disciplinary hearing process and a sanction of suspension of one month without pay coupled with a final written warning valid for six months was issued to the Applicant and enforced after an appeal outcome that confirmed the sanction. At the time of the Applicant’s suspension without pay, he earned gross remuneration of R21 454.46 monthly.

8. Aggrieved about the sanction imposed on him, the Applicant referred an unfair labour practice dispute to the ELRC on 27 February 2023 under section 186 (2) (b) of the LRA. The ELRC scheduled the matter to be conciliated on 16 March 2023 but it remained unresolved and a certificate of outcome was issued on the same day.

9. On 13 April 2023, the Applicant requested that the matter be arbitrated.

SUMMARY OF EVIDENCE AND ARGUMENTS

10. As per section 138 (1) of the LRA, I only summarized the evidence which I regarded to be relevant to the dispute and which helped me to reach my decision.

The Applicant’s Case

11. In his opening statement, the Applicant Union Representative, Mr. Caleb Zuma made the following submissions: The Respondent failed to apply the law correctly in applying the sanction. It violated the LRA’s code of good practice-schedule 8 which states that the aim is to correct behavior and not to punish. The Applicant prayed that the arbitrator order compensation of the Applicant. The matter was about a dictator who is arrogant and believed his word was final and used state resources.

12. The Applicant will present tangible evidence that the presiding officer of his disciplinary hearing had an ulterior motive to punish the Applicant. The Respondent failed to prove its case and yet the Applicant was found guilty. The Applicant appealed the decision to suspend him and the response came after a long time. The appeal outcome was reduced to a letter and no facts were presented. The Applicant was not exposed to the Respondent’s submissions rebutting his submissions. Hence, the prayer to find the Respondent guilty of unfair labour practice.

13. The Applicant Union Representative, Mr. Caleb Zuma called the Applicant, Mr. Langelihle Mpendulo Sandile Dladla who testified under oath as follows: He was suspended on 18 October 2021 via email without consultation. He was requested to mark some student assessments and he stated that he could not mark assessments he did not prepare. He checked with his union if the Campus Manager could instruct him. He inquired with a Labour Relations Officer and the school Principal and complied with the suspension letter by going to his home.

14. He wrote a letter to a Mr. Mthembu expressing the impact of his suspension on his feelings, pointed out the duty of the employer to inform for a decision taken and requested an amicable solution be found including sending CPD management to a leadership workshop as they were extremely chaotic and lacked basic leadership skills and humility. Dladla did not get a response to his letter.

15. On 21 October 2021, the Applicant received an email from the Campus Manager that his suspension had been lifted and that he must report to Mr. Masondo between 12:00 and 13:00 that day which he did. Dladla got suspended again when he got to Mr. Masondo but from the Principal’s office that time. His suspension was lifted on 28 October 2021. Dladla then wrote a letter to the Principal, Mr. Mlotshwa about the employer’s duty to inform and requested a response in 7 days which he did not get.

16. On 03 December 2021, the Applicant was charged with 3 counts, found guilty on 14 April 2022 and sanctioned on 26 April 2022 by the Presiding Officer. The Principal authorized the disciplinary outcome on 29 April 2022. The Applicant was not happy with the sanction imposed on him. He filed an appeal on 29 July 2022 and was promised 30 days but the whole process took five months. He kept checking with Mr. Mthembu and enquiring why he did not follow up and Mr. Mthembu informed him he had sent a report and was awaiting the outcome from the Appeal’s Committee.

17. The Appeal Outcome was approved on 15 December 2022 and the Applicant received it on 1 February 2023 and was told he would start his suspension on 1 March 2023 and that “they did not hear from them, he must just go home as directed”. The Applicant asked if his salary could be taken slowly but there was no courtesy, he was told to go home. On 21 February 2023, the Applicant got his lawyer involved as he felt mistreated. On 22 February 2023, Mr. Themba Mthembu sent the Applicant an email informing him that the sanction to be enforced from 1March 2023 to 31 March 2023 could only be interrupted by a court order or an arbitration award. Dladla as informed that the Respondent had allocated another Lecturer to take over the teaching of his students.

18. When the Applicant went to stay home whilst suspended, he had to calm his wife who believed he had been dismissed. He had to explain himself daily that he was not dismissed. This negatively affected his family financially. His mother had a heart condition and he had to calm her. Stress levels were very high.

19. When Dladla returned to work, he was not sure how to treat his students. He had a toxic relationship with management as nothing at the workplace was done righteously. He asked questions on a daily basis for clarity. The relationship was not good. There was nothing personal. It was only work related matters.

20. The Applicant submitted his sentiments for counts 1 and 2. He was not sure why he was not found guilty on count 3. The charge sheet was fabricated to punish him for not bending to management. The Applicant prayed for the Council to order the Respondent to pay back his salary and to pay damages to which he cannot put a price tag.

21. Under cross examination, it came out that the Applicant was a lecturer who was engaged in teaching and learning and performed assessments. The Applicant only submitted marks for assessments he did with his students. Thus, he did not submit ICASS marks which were due for submission on 17 September 2021. He was a trained assessor and moderator. He can set a question paper to assess the student’s knowledge of a subject. The submission dates for the assessments were on or before 4 March 2021, 24 March 2021, 10 May 2021 and 21 May 2021. The Applicant went on leave on 24 May 2021 for 16 days which could not justify the appointment of a temporary replacement. When the Applicant was requested to address the matter and granted time on his return from leave, he blatantly refused. The Applicant stated that after conducting assessments, one marks scripts and then submits. By the time he went on leave, he had done his assessments and sent them to his Supervisor.

22. The Applicant confirmed that he did not submit assessments requested by the Campus Manager. He further testified that if he had been asked nicely, he would have done it. He was instructed to do assessments and not requested in a humane way. He only feared God and not people. On 5 October 2021, the Applicant was called into a meeting which he believed was to threaten him with a dismissal. At the meeting, the Campus Manager clarified that he needed the Applicant to mark scripts and the Applicant confirmed that he would not mark the scripts and the Campus Manager was free to expel him and he was prepared for whatever consequences and it must sink to Mr. Ntshangase’s head that he was not going to mark the scripts. This was the only true reflection of the meeting as the rest of the minutes were not a true reflection of what was discussed even though the Applicant agreed to Mr. Ntshangase signing the minutes as chairperson.

23. On 29 September 2021, an sms was sent inviting the Applicant to the Campus Manager’s office along with a Mr. Sithebe. The Applicant disregarded the message. On 30 September 2021, the Applicant sent an email to the Campus Manager requesting him to leave him alone and to contact him through his Supervisor. The Applicant believed point 4 of his email to the Campus Manager were professional words which were true and depicted his feelings.

24. What the Applicant said to the Campus Manager about being deployed to a management position was because he was a unionist known to all and discussed in the grapevine. The Applicant did not transgress clause 3.1.3, 3.2.6, 3.5.1, 3.5.5 and 4.3 of the DHET Code of Conduct. Had he violated anything, he would have gotten a response from his email sent on 30 September 2021 to the Campus Manager. He did not conduct assessments but was punctual in the running of his duties. Whilst waiting for the outcome of his appeal, the Applicant was receiving his salary but he was prejudiced as he was worried.

25. In re-examination, it came out that the suspension by Mr. Ntshangase was lifter and on the same day, another suspension by the Principal was issued indicating management was incompetent and they did not know what they wanted. Due to the Covid pandemic, the College implemented a one week in and one week out system for students to minimize contact with students and this affected the timeframe for teaching and learning and the schedules had to be adjusted. The assessment dates were shifted. When returning from leave, no handover was done.

26. The DHET Code of Conduct was not used at the hearing. The Senior Lecturer was responsible for collecting marks from Lecturers. The Applicant had never been charged for misconduct before.

27. In his closing arguments, the Applicant’s Union Representative, Mr. Caleb Zuma submitted as follows: The Applicant was unfairly prejudiced during the hearing and also during the process when implementation of the judgement was imposed. Furthermore, the actions of the Respondent were not in line with the resolutions prescribed the Public Service Administration and lacked substance with no proper procedures followed.

28. Zuma further submitted that the Applicant was wrongfully suspended and the Appeals Board overlooked critical aspects in this case and imposed a sanction not guided by a relevant section of the LRA, section 186 (2) (b) in particular which puts emphasis on consultation and consent before executing suspension without pay for employees. The Respondent evidence did not show it was in line with PSCBC Resolution 1 of 2003, Annexure B & C.

29. The Applicant wrote to the College requesting the disciplinary code and procedures around the issue of executing suspensions without pay. The College Labour Relations Officer sent the DHET code of conduct and did not point to any specific section in the code. He only stated that only an arbitration award could stop the implementation of the sanction and no evidence was led on the lack of consultation during the implementation of the sanction.

30. Zuma further submitted that the Campus Manager had an ulterior motive from the beginning who unduly suspended the Applicant and uplifted the suspension on 21 October 2021. The PSCBC Resolution 1 of 2003 has always been clear on how to execute suspension pending an investigation and on who should execute such action. Nowhere in previous instances had it been delegated authority to line or Campus Managers.

31. The Applicant was called back to work in January 2022 and allocated full duty loads while attending a disciplinary hearing. The suspension by the principal had not been officially lifted. It was only on 14 March 2022 that his precautionary suspension was lifted after it was brought to the attention of the hearing chairperson that Dladla was still on precautionary suspension.

32. Allegations against the Applicant were not investigated. As regulated in schedule 8 of the LRA item 4 which gives the Employer the duty to first investigate allegations before initiating charges.

33. The Appeals board gave the Respondent an unfair advantage over the Applicant by granting the Employer an added opportunity to submit further evidence against the Applicant instead of issuing judgement based on evidence in front of them as per the appeals process.

34. The Campus Manager brought nothing to rebut the allegations of the unfair labour practice in that they deducted the Applicant’s salary without consent. The Campus Manager admitted to not dealing with human resources functions and implementation of sanctions which makes him irrelevant in this matter of unlawful deduction.

35. Suspension has two categories: (a) Suspension pending a disciplinary hearing and (b) Suspension as a sanction. Suspension pending a disciplinary hearing is used as a holding operation pending a disciplinary hearing to enable an employer to investigate the alleged charges against an employee. The audi alteram partem principle should be observed by the notice of suspension making provision for the employee to make any submission regarding his/her suspension by a certain date and time.

36. The period of suspension is stipulated in collective agreement or any other agreement and may not be beyond such a period. Should it be unreasonably long or extended, its effect would be disciplinary in nature. Zuma stated the criteria laid down for judging fairness of a suspension as held in Mabilo (1999) 20 IJL 1818 (LC) at paragraph 17.

37. Summary suspension with pay may not be unfair if the Employer has a reasonable apprehension that a legitimate business interest would be harmed with the Employee’s continued presence in the workplace. If there’s no good reason for the suspension, or if the Employee is not given an opportunity to be heard, it will be unfair. Where compensation is awarded for unfair suspension, it may not be awarded together with reinstatement in terms of section 194 (4) of the LRA.

38. With regards to suspension as a sanction, the LC held that it was permissible as a disciplinary penalty under appropriate circumstances. Prohibition of deductions from an employee remuneration in terms of section 19 of the BCEA does not preclude an Employer from imposing a penalty of suspension without pay. (Koka v DG: Provincial Administration North West Government (1997) BLLR 874 (LC). An Employee can be suspended without pay only in circumstances where dismissal would be justified were it not for mitigating factors.

39. If suspension is imposed as a disciplinary sanction, the ordinary requirements of substance and procedural fairness should apply. Some suspension is usually imposed as an alternative to dismissal, it would be advisable to follow the code of good practice: dismissal schedule 8 regarding decisions to suspend an Employee.

40. Suspension without pay may only be imposed if agreed. The Employee may withhold consent if the suspension is unreasonable. Thus, employees may be suspended without pay if they agree. An example would be suspension without pay as an alternative to a dismissal. In Country Fair v CCMA & others [1998] 6 BLLR 577 (LC) and SAB Ltd (Beer Division) v Woofrey & others [1997] 5 BLLR 525 (LC), it was held that suspension without pay is a permissible disciplinary penalty where appropriate. It is however, recommended that such sanction is subject to the employee signing a sanction by agreement letter.

41. Zuma submitted as follows in conclusion of his closing arguments: The Employer failed to prove they acted procedurally fair when suspending the Applicant. They did it gainst Dladla’s consent before effecting a deduction on his salary.

42. Nehawu prays for a verdict of unfair labour practice of an unprocedural suspension and a remedy of compensation of a salary not paid for the period of 1 March 2023 and 1 April 2023 coupled with damages incurred during that period which is also equivalent to the salary itself.

43. Zuma provided a list of the Applicant’s monthly income and expenses which came to R22806.62. He sought remedy of R22806.62 plus damages of R22806.62 which totaled R45613.24.
The Respondent’s case

44. In his opening statements, Mr. Thabani Mhlongo, the Respondent Representative submitted the following: The Applicant was formally charged with misconduct in accordance with Resolution 1 of 2003. The Applicant was charged with two counts. The first one was failure to carry out a lawful order or routine instruction in that on or about 09 October 2021, while on duty, at the CPD Campus, he failed to submit ICASS Marks which were due for submission on the 17th of September 2021. The second count was displaying disrespect towards others in the workplace or demonstrating abusive or insolent behavior in that in his email dated 30 September 2021, during working hours, at CPD Campus, the Applicant uttered disrespectful words towards the campus manager, Mr. M N Ntshangase by saying that he is one of the lucky random unionists who happened to be rewarded by deployment into a managerial position and went on to say he was a nuisance to him.

45. The sanction was a month suspension without pay and a final written warning. The sanction was appealed and the Employer confirmed it. The Respondent is to call two witnesses to prove its case. The Respondent prayed that the application be dismissed.

46. The Respondent Representative, Mr. Thabani Mhlongo, called his first witness, Mr. Muzi Nkosinathi Ntshangase, the Campus Manager at the eMadadeni CPD College who testified under oath as follows: He managed the curriculum delivery and knew the Applicant. On 18 October 2021, he wrote a report on Mr. Dladla’s misconduct and sent it to the HR Manager, Mr. Zulu and copied Mrs. Z B Nkabinde the Deputy Principal of Academic Services.

47. Ntshangase further testified that it was his duty to check if Lecturer’s submission of marks was okay or not and needed a report on submission of marks. The Applicant was absent from 27 to 31 September 2021 and did not report. Sithebe who was standing in for Langa could not find the Applicant. The Receptionist also could not find him. The Campus Manager sent Dladla an email requesting the marks and then sent him an sms requesting to see Dladla and his Supervisor. Dladla then lambasted him in an email. He ignored the email and focused on the marks he required.

48. Ntshangase then narrated the events as detailed in his report to Mr. Zulu. On 30 August 2022, he wrote a letter to the Appeals Committee as Dladla had submitted to them that the work he was charged for had to be done whilst he was on leave. Ntshangase charged him for work he had to do prior to going on leave. Ntshangase confirmed that Dladla refused to submit assessments as requested.

49. On 27 November 2021, Mr. Pravin Sumair contacted Dr Mnguni and booked the Applicant for the 2nd of December 2021 at 13:00. Sumair provided the Doctor’s address as well and the Applicant acknowledged receipt and thanked Sumair. However, Ntshangase later discovered that Dladla did not attend Dr Mnguni’s (Psychologist) sessions. Ntshangase started an investigation to determine whether the Applicant had a competency or a psychological issue. They requested the Applicant’s qualifications. He later found out that the Applicant booked himself off sick with another psychologist in Durban.

50. At a meeting called by the Campus Manager on 05 October 2021, the Applicant confirmed that he will not mark the scripts. The Applicant sent the Campus Manager an email in Zulu lambasting him. At the meeting, Dladla submitted that he had informed Sithebe of his absence but Sithebe submitted he was never informed. All the Supervisors were there as the Campus Manager’s delegated duty. He was the Applicant’s Manager and could directly access him for work. The Applicant undermined his Manager and could not take instructions from him. Ever since he knew the Applicant, he never saw him as a complying employee. Since the Applicant did not go to a psychologist, he could then start with disciplinary proceedings.

51. The Applicant’s conduct was not acceptable and was unprofessional. Dladla’s tone in his letter to him was victimizing and humiliating him. The Applicant violated clauses 3.2.6, 3.3.1, 3.3.2, 3.5.1, 3.5.5 and 4.3 of the DHET Code of Conduct. The sanction of 1 month’s unpaid suspension and a final written warning was too lenient, a dismissal would have sufficed.

52. Under cross examination, Ntshangase testified that his relationship with Mr. Dladla was cordial and he regarded him like other employees until he realized Dladla did not perceive him as his manager. He treated Dladla like other but he did not respond. With regards to the issue in dispute, the Applicant was consulted and he received the outcome of the hearing and knew what would happen afterwards. The transaction of deducting the Applicant’s salary was an HR issue but the Campus Manager was informed as his Manager and had to know.

53. The Appeal’s Committee requested a report which he drafted and provided. The Campus Manager did not respond to Dladla email written to him in Zulu on 30 September 2021 but requested Dladla to come to him for a meeting. The Campus Manager wrote a report on Dladla’s misconduct to assist him but failed since his behavior did not change. The Campus Manager offered Dladla a chance to be trained like all other lecturers but he did not attend. On 18 October 2021, the Campus Manager suspended Dladla for refusing to take instructions. On 21 October 2021, the Applicant was put on a precautionary suspension by the Principal. The Campus Manager did not know that a DHET policy had changed and it was then the Principal who could suspend staff. Dladla would absent himself and then fill a leave form after resurfacing.

54. The Respondent booked the Applicant to see Dr Mnguni but the Applicant booked himself to see Dr Buthelezi and Dr Buthelezi’s report was suspicious and an investigation was done.

55. The Campus Manager believed that it was procedurally correct to charge, discipline and make the Applicant to stay at home. When a mistake was realized that he was suspended by an incorrect person, this was corrected and only signatures were changed. Dladla was given a chance to prepare for the hearing. An appeal was done and Dladla even liaised with him to get additional information which was shared to him and made available on file. The Campus Manager could not explain why the Applicant’s suspension was lifted on 14 March 2022 when he was suspended on 21 October 2021. He said the Principal could explain the letter as he was the author.

56. In re-examination, Ntshangase testified that there was no financial prejudice to the Applicant as a result of the two suspensions imposed on the Applicant. After the Applicant appealed the outcome of the disciplinary hearing, the Campus Manager had to clarify the period the Applicant took leave and when the assessments had to be done. He provided proof that the period he was referring to was prior to the Applicant going on leave.

57. In his closing arguments, the Respondent Representative, Mr. Thabani Mhlongo submitted as follows: The Applicant lodged an unfair suspension without pay dispute against the Respondent after being charged of two counts of misconduct and found guilty.

58. The Respondent Representative summarized the Applicant’s and the Respondent’s cases. Amongst other submissions, Mhlongo submitted that the Applicant testified that he received a summary suspension after refusing to mark assessments as instructed by the Campus Manager. After the Applicant was summarily suspended, he was asked to inquire with Mr. Masondo who lifted his suspension and issued him another one from the Principal’s office.

59. Mhlongo further submitted that after receiving the one month suspension without pay, the Applicant was dissatisfied with the sanction and then appealed it. The sanction was confirmed on appeal. In trying to negotiate the implementation of the sanction, Mthembu replied that it would take effect from 1 March 2023 to 1 April 2023. The Applicant stated that his relationship with the Campus Manager was toxic as they did not agree on work related matters.

60. In cross examination, the Applicant agreed that he did not submit the required assessments and that they were required before he went on leave. However, the Applicant stated that there were changes to the schedule as the College implemented the one week in and one week out system, there were strikes and also late finishing of the registration processes and all those caused delays for the assessments.

61. Dladla stated that he was not asked nicely by the Campus Manager to mark scripts. Had he asked him politely, he would have probably agreed. The Applicant confirmed that the Campus Manager asked him to mark and submit assessments and he failed to comply.

62. With regards to count 2, the Applicant maintained he was acting professionally in his letter in Zulu to the Campus Manager. Dladla stated that the words he used were not meant to be derogatory but were the truth known by all even though he had no paperwork to back up his claims. Dladla waited 5 months for the outcome of the Appeal’s Committee and suffered prejudice as he was unsure of what he had done. Dladla denied having violated the Departmental Code of Conduct clauses 3.1.3, 3.1.26. 3.3.3. 3.5.1, 3.5.5 and 4.3

63. Mhlongo further submitted that the Applicant stated that when he returned from leave, there was no work handed over and that he had never seen the code of conduct and he saw it for the first time in the arbitration proceedings.

64. In summarizing the Respondent’s case, Mhlongo submitted that Ntshangase confirmed that Dladla refused to submit assessments and further confirmed that as a Lecturer, it was the Applicant’s duty to submit ICASS marks. Ntshangase explained the impact of the non-compliance of the Applicant by stating that ICASS assessments enable students to enter the final examinations. The non-submission of marks was intended to provoke student protest on Campus, and to compromise teaching and learning which the DHET’s core mandate was.

65. At a meeting called by Ntshangase, Dladla refused to mark assessments. He expected the College to hire a substitute Lecturer but the College’s policy could not allow that as he was on leave for less than a month.

66. Mhlongo further submitted that the Campus Manager stated that Dladla was undermining him by seriously not recognizing him as his Manager. Ntshangase stated that Dladla’s email to him was very unprofessional and unacceptable. Ntshangase testified that when he arrived at the CPD Campus in 2017, he made it his responsibility to train and workshop employees on the Code of Conduct and Leave Policies.

67. Ntshangase testified that Dladla was given information about his suspension and by signing for it, he acknowledged receiving it. He testified that the summary and the precautionary suspensions were exactly the same, the only difference were the signatures. The sanction of suspension without pay was imposed as the Applicant had been found guilty after an investigation had been done.

68. In re-examinations, Ntshangase stated that Dladla suffered no financial prejudice during the summary and the precautionary suspensions as he was receiving his full salary. He further stated that the Appeal’s Committee requested a record from him clarifying the dates for the assessments and Dladla’s leave and he forwarded such a report then the sanction was confirmed.

69. In concluding his closing arguments, Mr. Thabani Mhlongo, the Respondent Representative, submitted that the Respondent was required to prove on a balance of probabilities which meant the degree of certainty of belief in the mind of the tribunal of fact or the court by which it is convinced that the existence of fact is more probable than its non-existence.

70. The Respondent proved that Dladla’s actions were mala fide and the reasons were not excusable. The Applicant provided evidence that was deceptive, full of exceptions and should not be considered. Ntshangase corroborated the evidence that Dladla failed to submit ICASS marks due on 17 September 2021.

71. Evidence of the second count was not refuted. Dladla’s letter to Case Manager was demeaning and the suspension without pay was lenient, dismissal would have sufficed. Dladla was assisted in terms of EAP at the College but in vain. The Respondent had a duty to charge Employees who fail to obey lawful and reasonable instructions of their employees and such conduct was regarded as serious and could even lead to dismissal. Dladla deliberately disregarded authority without reason.

72. The evidence presented by the Applicant did not correlate. Dladla violated the Departmental Code of Conduct and failed to perform his duties in line with his employment contract. He was a subordinate and had a duty to follow reasonable instructions of the Employer.

73. In light of the Respondent’s overwhelming evidence, the Applicant failed severely to prove that there was an element of unfair suspension at the expense of the Respondent. The Applicant as grasping at straws and telling stories that were never supported by documentary evidence. The Respondent prayed that the Council dismiss the Applicant’s case.

ANALYSIS OF EVIDENCE AND ARGUMENT

74. Section 186 (2) of the LRA states that unfair labour practice is an unfair act or omission that arises between an employer and an employee involving the unfair suspension of an employee or any other unfair disciplinary action short of dismissal in respect of an employee. In this matter, the Applicant alleged that the Respondent unfairly suspended the Applicant without pay for one month and challenged both substance and procedure thereof.

75. Section 191 (1) (a) (i) of the LRA states that if there is a dispute about an unfair labour practice, the employee alleging the unfair labour practice may refer the dispute in writing to a council, if the parties to the dispute fall within the registered scope of that council. The Applicant referred the dispute to the ELRC as covered in paragraphs 8 and 9 of this award and within the correct timeframes.

76. Schedule 8 – Code of Good Practice: Dismissal Item (2) states that dismissal (suspension in this matter) must be for a fair reason and in accordance with a fair procedure and the appropriateness of suspension as a penalty. The ground for suspension as a penalty is the conduct of the Employee. Item 3 (2) states that the courts endorsed the concept of corrective or progressive discipline whose purpose is to ensure employees know and understand what standards are required of them. Efforts should be made to correct employee’s behavior through a system of graduated disciplinary measures such as counselling and warning. More serious or repeated infringements may call for a final warning or other action short of dismissal. Dismissal should be reserved for cases of serious misconduct or repeated offences.

77. In this case, the Applicant refused to follow a lawful instruction to mark scripts for students which he had to do before going on leave. Moreover, when an attempt was made to get him to answer with regards to his action, he wrote an email in Zulu lambasting his Manager and requesting him not to contact him again. The Applicant did not deny the allegations against him. However, he for some reason does not understand why the Respondent charged him and found him guilty for it. Thus, progressive discipline in this instance is pointless as it will not correct the Applicant’s behavior. The Respondent tried to take the Applicant through counselling and he did not participate at all and when he did, not emphatically like a thirsty person would when he sees water.

78. Item 4 of Schedule 8 states that normally, the employer should conduct an investigation to determine whether there are grounds for suspension. This does not need to be a formal enquiry. The Respondent called a first meeting when the Campus Manager realized that there were assessments that were not marked. Other Lecturers corrected this problem but the Applicant refused. When another meeting was called to instruct him individually, he refused again. The Respondent then mistakenly summarily suspended him through the wrong person but this was corrected when the error was discovered. The Applicant was represented at a meeting at the Campus Manager’s office and he ended speaking on his own behalf to express his determination not to comply just because he was not asked nicely to perform his duty of marking his student’s scripts.

79. In Long v SAB (Pty) Ltd and others (2019) 40 ILJ 695 (CC); 2019 (5) BCLR 609 (CC); 2019 6 BLLR 515 (CC) (handed down on 19 February 2019), the Employee was placed on a suspension pending a disciplinary hearing. The suspension was to ensure an investigation was unhindered. In determining whether the suspension was permissible, the Court held that the fairness of the precautionary suspension is determined by first assessing, whether there is a fair reason for suspension and secondly, whether it prejudices the Employee. The Court further held that where the suspension is precautionary and not a disciplinary action, the requirements relating to fair disciplinary action under the LRA finds no application. Therefore, there is no requirement to afford the Employee an opportunity to make representations before the precautionary suspension is effected. In this case, the Applicant was called to answer and when he consistently refused to comply, he was suspended. His presence at the workplace would negatively affect the moral of his colleagues who had to take on his work. Plus, the Respondent had to gather the necessary information to prepare to undergo a disciplinary hearing.

80. In January 2022, the Applicant was asked back to the workplace but no letter was issued to uplift his suspension. This was a fundamental error by the Respondent as the Applicant had no authority to act in the performance of this duties whilst technically suspended. This situation took place until the Applicant started attending a disciplinary hearing. The Employer is to notify the Employee of the allegations using a form and language that the employee can reasonably understand. The Employee should be allowed the opportunity to state a case in response to the allegations. The employee is to be allowed reasonable time to prepare the response and the assistance of a trade union or fellow employee. After an enquiry, the employer is to communicate the decision taken and furnish employee with written notification of that decision. The disciplinary hearing was conducted by the Respondent and the Applicant given a chance to state his case.

81. Item 7 of Schedule 8 of the LRA states a process to be followed when an employee had been dismissed for breach of a rule. The same process can be used where an employee had been suspended without pay as a sanction for misconduct:

(a) Did the Employee contravene a rule
(b) (i) Is the rule valid
(ii) Was the Employee aware of the rule or reasonably be expected to be aware of the rule
(iii) Was the rule consistently applied
(iv) Was suspension an appropriate sanction for the contravention of the rule

82. In this case, it is clear that the Applicant failed to follow a lawful and a reasonable instruction and disrespected his Manager. The Applicant does not seem to be aware that he broke these rules but he is reasonably expected to be aware that what he did was wrong. There are no other employees who participated in this arbitration who acted like the Applicant so that a comparison can be made for consistency. It is my view that due to the seriousness of the Applicant’s misconducts, the sanction imposed was just.

83. The employer may not exceed the period stipulated in the disciplinary code or collective agreement in dispensing a precautionary suspension. The Applicant was away for two months and the Respondent was not expected to go above two months according to clause 7.2 c of the PSCBC Resolution 1 of 2003. In Country Fair v CCMA & others [1998] 6 BLLR 577 (LC) and SAB Ltd (Beer Division) v Woofrey & others [1997] 5 BLLR 525 (LC), it was held that suspension without pay is a permissible disciplinary penalty where appropriate. Due to the seriousness of the Applicant’s misconducts, suspension without pay was appropriate.


84. In clause 7.4 (a) of the PSCBC Resolution 1 of 2003, it is stated that if the chair finds an employee has committed misconduct, the chair must pronounce a sanction, depending on the nature of the case and the seriousness of the misconduct, the employee’s previous record and any mitigating or aggravating circumstances. Sanctions consists of
(i) Counselling
(ii) A written warning valid for six months
(iii) A final written warning valid for six months
(iv) Suspension without pay, for no longer than three months
(v) Demotion
(vi) A combination of the above, or
(vii) Dismissal

85. In this case, the Chairperson chose the sanction of a combination of a suspension without pay and a final written warning valid for six months. Clause 8.7 of the PSCBC Resolution 1 of 2003 state that the employer shall immediately implement the decision of the appeal authority. Where the appeal authority decides to reduce the sanction or to confirm the outcome of the disciplinary proceedings (e.g. dismissal cases), the sanctions will be implemented by the employer from current date. After the Appeal’s Committee issued its decision to confirm the sanction, the Respondent had a duty to implement immediately. The Respondent’s Disciplinary Code and the LRA do not require the Respondent to consult with the Applicant prior to implementing the deduction of the Applicant’s month salary.

86. Clause 8.8 of the PSCBC Resolution 1 of 2003 state that Departments must finalize appeals in 30 days, failing which, in case where the employee is on precautionary suspension, he/she must resume duties immediately and await the outcome of the appeal while on duty. The word must is used for the finalization of appeals by the Appeals Committee but in this case the Respondent failed to comply and only finalized the appeal after five months. The Applicant submitted that this prejudiced him as he kept thinking about the looming result. This, also adds to the procedural unfairness of the Respondent.

87. Based on the above, it is my finding that the suspension of the Applicant without pay was substantively fair and procedurally unfair. The Respondent suspended the Applicant on 18 October 2021 and lifted it on 21 October 2021 and issued another suspension on the same day. This suspension was only lifted on 14 April 2022 which was way outside the limits of precautionary suspension timelines. The Appeals Committee took 5 months to issue the outcome for the Applicant’s appeal when the code required 30 days.

88. To remedy the situation of the procedural unfairness of the suspension without pay, a determination is to be made. In Dr D.C. Kemp t/a Centraimed v Rawlins (2009) 30 ILJ 2677 (LAC) the court highlighted some factors which should be considered when a determination is made whether or not the Employer should pay compensation. These included:

(a) The nature of the reason for the dismissal
(b) Whether the unfairness of the dismissal is on substantive or procedural grounds or on both
(c) With regard to the procedural unfairness the nature and extent of the deviation from the procedural requirements
(d) If the reason relates to misconduct, whether the Employee was guilty or innocent, if he was guilty whether dismissal was the appropriate sanction
(e) The consequences to the parties if compensation is awarded and to the consequence if it is not awarded.
(f) The impact of any wrongdoing on the side of the Employee on the Employer or its, business and
(g) Any conduct by either party, that promotes or undermines any of the objectives of the Act.

89. The unfairness is only on procedural grounds and the Respondent did not lift the Applicant’s precautionary suspension until 13 April 2022. This could have disastrous consequences if the Applicant’s work could be audited and it was found that the Applicant was suspended but active at work at the same time. If compensation is not awarded, the Applicant will not have received justice for the wrong done to him procedurally. The impact of the Employee’s misconduct on the students and the core business of the Respondent, was negative but he was punished for that through the suspension without pay. Procedural unfairness is not in line with the promotion of social justice. These justify compensation for procedural unfairness.

90. Considering the age of 35 years, his length of service of 10 years with the Respondent, the extended period of waiting for the outcome of the appeal, the exposer of working for over three months whilst his suspension was not lifted, compensation of a week’s salary of the Applicant is just and equitable under the circumstances and the fact that the Applicant was not prejudiced financially when the procedural unfairness took place.

91. Calculation of the Applicant’s week’s salary

(Applicant’s Month’s salary) R22 806.62/4.33 = R5267.18 (Applicant’s week pay)

AWARD

92. The suspension without pay of the Applicant, Dladla LMS by the Respondent, The Head of the Department of Higher Education and Training was substantively fair and procedurally not fair.

93. Accordingly, the Respondent is to compensate the Applicant with R5267.18 within 30 days of being advised of this award.

Lungisani Mkhize


Arbitrator 21 July 2023
ELRC919-22/23 KZN