ELRC28-23/24EC

Arbitrator: Macjon Maarman
Case number: ELRC28-23/24EC
Date of Award: 27 July 2023

SADTU on behalf of Joyce Siziwe Kotolo Applicant
and
Eastern Cape Education Department Respondent

DETAILS OF HEARING AND REPRESENTATION

1. The arbitration hearing took place at the district offices of the Department of Education in Sutton Street, Gqeberha on 17 July 2023. The applicant, Ms. Joyce Siziwe Kotolo was present and represented by Mr. S. Gashi an official from the South African Democratic Teachers Union (SADTU). The respondent was present and represented by Advocate Thozama. Mqobi and Mr. Thembinkosi Mbusi an attorney from the office of the State Attorney. The proceedings were manually and digitally recorded. Parties submitted bundles of documents which was accepted for what it purported to be. Parties further submitted closing arguments on the agreed date.

ISSUE TO BE DECIDED

2. I am required to determine whether the dismissal of the applicant was procedurally fair and if so the appropriate relief. The applicant seeks compensation.

BACKGROUND:

3. The applicant was employed as a Grade 4 teacher. She was charged with “punishing learner Oyama Njara by hitting him with a pipe on the left arm and causing his arm to be broken at the elbow on 08 April 2018”. The applicant’s disciplinary hearing was concluded in August 2019. The Superintendent General then took the outcome on appeal internally to the Member of the Executive Council in November 2019. The applicant remained on suspension. The applicant received a dismissal notice only on 14 February 2023.

4. The applicant alleges that the dismissal was procedurally unfair due to the long delay in communicating the appeal outcome to her [over 3 and a half years].

5. The applicant’s representative consented to the respondent being legally represented (by an advocate). I was also of the view that the respondent should be legally represented considering the nature of the dispute. I was furthermore empowered with section 17.7.2 of the ELRC Constitution (determining the procedure to be followed) as well as section 138 of the Labour Relations Act (determining the dispute fairly and quickly).

SURVEY OF EVIDENCE AND ARGUMENT

6. This award does not contain everything that was said that the arbitration or in the arguments of the parties. It only records the evidence and arguments material to the subject matter and the finalization of the dispute. This is in line with clause 18.6.1 of the ELRC constitution as well as section 138 (7) of the LRA.

7. In this case the representatives of both parties agreed to a stated case on record, thereby agreeing as to common cause facts and not to make use of any witnesses that will lead oral evidence. There is no factual dispute between the parties. The representatives further agreed to submit closing/ heads of arguments on 24 July 2023 which will be in aid of their case. I will thus outline the common cause facts and the closing/ heads of arguments of the parties.

Common cause facts
8. Parties agreed, on record, that the applicant started working for the respondent on 07 August 2015 as a grade 4 teacher and earned a gross salary of R20 416, 50 per month. Her disciplinary hearing was finalized in August 2019 and the sanction was that of a final written warning coupled with a fine of R2000, 00. The Head of Department (HOD/ SG) in September 2019 took that sanction on review to the Member of the Executive Council (MEC) in terms of section 25 of the Employment of Educators Act. The applicant as given a chance to submit proposals as far as the appeal was concerned and duly did so.

9. The respondent’s legal services department hand delivered the outcome [in a letter format] of the appeal to the labour relations department on 25 February 2020. The outcome of the appeal was that of dismissal. The letter states that the applicant must be informed of the dismissal outcome

.
10. The applicant was only informed of the appeal outcome (and encompassing dismissal) on 14 February 2023. Parties also agreed that the applicant plead guilty to the charges in the initial disciplinary hearing and that she has been paid since she was on suspension in April 2019 until she received the dismissal outcome on 14 February 2023.

11. Parties further agreed that the trade union nor the applicant did a follow up after submitting the “proposals” to the appeal process and that there was no communication from the respondent to the applicant after they got the appeal outcome in February 2020.

Closing arguments/ written heads of arguments of parties.
Respondent’s closing/ heads of arguments.

12. The Respondent in their closing arguments said that “Both parties agreed that the delay in issuing the letter of termination of the applicant’s services pursuant to an appeal outcome having been issued by the MEC constitutes procedural unfairness” and further that “the respondent disputes that there was any intention or conduct on its part which supports an intention to abandon the disciplinary proceedings against the applicant at any stage”.

13. The respondent’s representative further said that “the appeal by the Head of Department, the finalization of the appeal by the MEC and the transmission of the outcome thereof from legal services to labour relations is an indication that the department envinced the intention to pursue and finalize the matter. In any event it is incumbent on the applicant to prove that the Departments’ delay amounts to the waiver of its right to discipline or that it had intention to abandon the disciplinary process, which the applicant has not laid any basis for”. Continuing with the closing arguments the respondent’s representative said that “the applicant sat idle and never took any steps to follow-up on the outcome of the appeal notwithstanding that she knew that her appeal was pending. The unfortunate delay in finalizing the matter should not benefit the applicant as she had been on precautionary suspension with pay until she was dismissed”.


14. Concluding on the arguments of the respondent, the representative said that “the applicant in this matter ought to have been dismissed in February 2020, but remained on suspension with full pay and benefits until her dismissal in February 2023. The employer deemed it fair to terminate her services with effect from the date on which the outcome of appeal was communicated to her, to make up for the delay”. The respondent’s representative also quoted case law in aid of their main arguments.

Applicant’s closing/ heads of arguments

15. The trade union said that “the guidelines in item 2 (g) of Schedule 2 of the Employment of Educators Act provides that disciplinary proceedings must be conducted in the shortest possible time frame and that the Code of Good Practice provides that after a disciplinary enquiry, the employer should communicate its’ decision preferably accompanied by written reasons. The use of “after” indicates a period within which a decision should be reached and made know to the employee. An unreasonable delay in either instituting or finalizing disciplinary proceedings may render the procedure and dismissal unfair”.

16. The trade union further said that “an unreasonable delay in prosecuting or finalizing a case vitiates against the credibility of the resultant outcome and could even border on abuse of process (Cassimere v. Minister of Finance (455/11) [2012] ZASCA par 10) and that retaining an employee in employment for an extended period after institution of disciplinary action may indicate that the employment relationship has not broken down”.


17. The trade union lastly said that the conduct of the department amounted to a waiver of its right to discipline, Ms. Kotolo and they seek compensation in the amount of R226 926, 00 which is the applicant annual salary.
ANALYIS OF ARGUMENT:

Section 188 (1) of the Act sets out that: “A dismissal … is unfair if the employer fails to prove-
(a) that the reason for dismissal is a fair reason-
(i) related to the employee’s conduct or capacity; or
(ii) based on the employer’s operational requirements; and
(b) that the dismissal was effected in accordance with a fair procedure.”

18. In this matter the dismissal of the applicant was not in dispute. The applicant was dismissed in 14 February 2023.

19. Section 185(a) of the LRA states that every employee has a right not to be unfairly dismissed. It is trite law that the dismissal of an employee must be effected following a fair process (procedurally fair) and for a valid reason (substantively fair). The onus to prove the fairness of dismissal rests with the employer. Only procedural fairness was in dispute in this matter.


20. Item 4 of Schedule 8 of the LRA provides that “(1) Normally the employer should conduct an investigation to determine whether there are grounds for dismissal. The employer should notify the employee of the allegations using a form and language that the employee can reasonably understand. The employee should be allowed to state a case in response to the allegations. The employee should be entitled to a reasonable time to prepare the response and to the assistance of a trade union representative or fellow employee. After the enquiry the employer should communicate the decision taken, and preferably furnish the employee with written notice of that decision”.

21. The standard of proof in labour disputes is on balance of probabilities (which version is most probably true). A trier of fact (such as a commissioner) is required to evaluate the evidence cognizant of the above mentioned. The trier of fact is required to determine where the truth lies. Naturally the question that must be answered is whether the probabilities favour the party that bears the burden of proof. This requires an analysis and evaluation of the probability or improbability of each party’s version on each of the disputed relevant and material issues [see Stellenbosch Farmers’ Winery Group and Another v Martell & Kie SA and Others (2003) (1) SA 11 (SCA)].


22. In this case agreed on the procedure to be adopted in the determination of the dispute. No witnesses were called. Common cause facts were agreed upon and parties submitted closing (heads of) arguments.

23. The respondent conceded that the dismissal was procedurally unfair. The appeal was finalized in February 2020, given to labour relations department to give to the applicant but it was never done. The applicant was only informed of the appeal outcome on 14 February 2023. This is 3 years later.


24. Against any standard the aforementioned is gross. The LRA outlines the most modest procedural process and the actions of the respondent (over excessive delay) is in direct contradiction to that. I thus find that the dismissal was procedurally unfair.

25. In the arguments of the parties they were in disagreement about whether compensation should be paid to the applicant.


26. In Stokwe v MEC: Department of Education, Eastern Cape and others (CCT 33/18) [2019] ZACC 3; (2019) 40 ILJ 773 (CC); 2019 (4) BCLR 506 (CC); [2019] 6 BLLR 524 (CC) the Constitutional Court endorsed the application of the following factors in labour matters when considering the delay in instituting or finalising the disciplinary proceedings: a) “The delay has to be unreasonable. In this context, firstly, the length of the delay is important. The longer the delay, the more likely it is that it would be unreasonable. b) The explanation for the delay must be considered. In this respect, the Employer must provide an explanation that can reasonably serve to excuse the delay. A delay that is inexcusable would normally lead to a conclusion of unreasonableness. c) It must also be considered whether the Employee has taken steps in the course of the process to assert his or her right to a speedy process. In other words, it would be a factor for consideration if the Employee himself or herself stood by and did nothing. d) Did the delay cause material prejudice to the Employee? Establishing the materiality of the prejudice includes an assessment as to what impact the delay has on the ability of the Employee to conduct a proper case. e) The nature of the alleged offence must be taken into account. The offence may be such that there is a particular imperative to have it decided on the merits. This requirement however does not mean that a very serious offence (such as a dishonesty offence) must be dealt with, no matter what, just because it is so serious. What it means is that the nature of the offence could in itself justify a longer period of further investigation, or a longer period in collating and preparing proper evidence, thus causing a delay that is understandable. f) All the above considerations must be applied, not individually, but holistically.”

27. The delay in informing the applicant of the outcome of the appeal is without a doubt unreasonable. It is a whole 3 years from the date that the MEC communicated his/ her decision to the labour relations department. No solid and justifiable reason for the delay was proffered by the respondent. A document was shown of the labour relations department querying the outcome in 2022 was submitted, but before that nothing praiseworthy was done by the respondent.

28. I accept that the applicant or her trade union could have also followed up but in this case it was the respondent who sought the appeal. The applicant was receiving her salary throughout and that in itself could have meant that she is still an employee. In other words the applicant had not certainty of her employment. The applicant was further charged with misconduct and there was no evidence from the respondent that the nature of the offence could have resulted in a longer timeframe to inform the applicant of the outcome of the appeal.

29. In this case the applicant sought compensation. I am well empowered to award compensation as per section 193 of the LRA. In this case the applicant was on paid suspension from the date of suspension, 2019, until she was informed of her dismissal in February 2023. Substantive fairness was not in dispute in this case. The unreasonable delay in informing her of the outcome of the appeal outcome is gross and it warrants a penalty. No plausible excuse was given for the excessive delay. It is for all the aforementioned reasons that I find that the applicant must be paid compensation in the form of two months’ salary. That amount being R20 416, 50 x 2= R40 833, 00. The aforementioned amount is not to punish the respondent nor to reward the applicant but to remedy the procedural defect in the dismissal of the applicant.

AWARD

30. I find that the dismissal of the Applicant, Ms. Joyce Siziwe Kotolo by the Respondent, Department of Education, Eastern Cape, was procedurally unfair.

31. The Respondent, Department of Education, Eastern Cape, must pay the applicant, Ms. Joyce Siziwe Kotolo, R40 833, 00 (Fourty thousand eight and thirty three rands) by 31 August 2023.

Panelist: Macjon Maarman
ELRC28-23/24 EC